Gov. Herbert blocked A.G.’s office from giving legislative leaders an opinion on legality of Congressional special election process

We may soon see a serious political battle between the Utah Gov. Gary Herbert and the Legislature over Herbert’s election process in the 3rd Congressional race.

UtahPolicy is told that GOP and Democratic leaders of the Utah House and Senate asked GOP Attorney General Sean Reyes for a legal opinion on whether Herbert’s process – with 3rd District Republican and Democratic delegates voting on their candidates in conventions Saturday and two GOP candidates certified to the Aug. 15 primary ballot via voter signatures – is valid or not.

Multiple sources tell that Herbert moved to block that opinion – saying the AG represents his office, not the Legislature (which has its own legal staff).

That opinion was written last month, but has stayed secret, UtahPolicy is told. It is unknown what it says, or if it may ever be released.

Paul Edwards, spokesperson for Gov. Gary Herbert’s office, says that they blocked the Attorney General from issuing a legal opinion to the Legislature on the campaign timeline to protect their attorney/client privilege. 

“With the potential for litigation, it would put us at a disadvantage to release our legal argument in this matter,” said Edwards. “Constitutionally, the Attorney General is the lawyer for the executive branch, and we are going to jealously guard that privilege.”

Edwards also says there’s no legal advisory opinion from the Attorney General’s office for them to release, but they did work closely with their staff every step of the way. Edwards says they’re confident the special election process they put forward.

“Ultimately that will be for a court to decide, but we’re convinced in the legality of what has been set forward.”

A special open, joint caucus between House Republicans and Democrats will be held Tuesday at noon to discuss the whole issue. However, since it is not an official meeting of the House, no action can be taken. Senate Republicans and Democrats will meet at the same time, but those meetings will be separate. The Senate Republican caucus will likely be closed.

In addition, sources said that early next week there could be four or five lawsuits filed over Herbert’s election process in state court.

And, ultimately, the Utah Supreme Court will have to hold quick hearings to rule on the matter, throwing into doubt whether the Aug. 15 party primary ballot will be held.

If that happens, the Legislature must be called into special session by Herbert (which he has refused to do) to fund another primary date.

Both sides, the Utah Election Office/Herbert and legislative leaders believe they have strong legal arguments – that the governor’s process is legal or it is not.

Officially, those lawsuits won’t come from the Legislature itself, sources tell UtahPolicy, but from candidates who lost in the Saturday conventions – 11 in the GOP convention at Timpview High School and three in the Ogden Democratic convention.

Or they may come from other interested parties, like the United Utah Party, which the Elections Office denied ballot certification because they didn’t meet some special election deadlines.

The battle, UtahPolicy is told, is not personally between Herbert and GOP or Democratic legislative leaders, but rather several fold:

  • Is proper procedure being followed by Herbert’s election writ?
  • Does the Legislature have to specifically pay for primary and general elections this year?

Herbert and the Utah Election Office officials say the governor’s process is legal and appropriate.

Not only is it legal, but Herbert has assurances from U.S. House Speaker Paul Ryan, R-Wis., that whoever wins the 3rd District in November will be seated. And under the U.S. Constitution, the House itself has ultimate control on who serves there.

So any “petty” problems among Utah leaders will be solved there – in the U.S. House.

But, politically, the battle between the governor and Legislature could spill over into the courts.

If the special election process is invalidated, the cost of a new election would fall directly on the counties that conduct the election. Salt Lake County Mayor Ben McAdams says he’s worried about that added cost.

“We hope the state would pay any expenses from another election, but we want to know before those expenses occur,” he said. “We need to know what the financial consequences are.”

But, not only that, McAdams worries that if the process set out by the governor is ruled invalid, it would erode trust in the electoral process.

“I have concerns that it would damage trust in our electoral process,” said McAdams.