A fight over Utah election law could roil the first few weeks of the 2017 Utah Legislature.
Speculation is swirling that Rep. Chris Stewart could be named Secretary of the Air Force in the Donald Trump administration. If that comes to pass, Stewart would have to resign his seat in Congress, leaving a vacancy.
Here's where that becomes a problem. Utah has no procedure for filling a vacant seat in the U.S. House of Representatives. State law only says in the case of a vacancy in that body, "When a vacancy occurs for any reason in the office of a representative in Congress, the governor shall issue a proclamation calling an election to fill the vacancy." That's it. The law does not specify how soon he has to call the election, and how that election will be conducted.
Utah election officials tell UtahPolicy.com that when the Stewart rumors started swirling, they decided to look at Utah statute to see what would have to happen if he resigned. That's when they discovered that there's no real mechanism for picking a replacement. Utah Code does specify that a statewide special election would follow the rules for a regular statewide election, but there's nothing about Congressional districts.
Here's how this could become a massive headache.
For instance, if Stewart steps down, there could be a landslide of Republicans and who would want to replace him. There's no procedure for handling that situation. If this were a regular election, there might be a primary before the general vote, but in this case, nobody knows what happens.
What if Democrats wanted to challenge for an empty House seat? If there's a vacancy in the Utah Legislature, only the party that currently holds the seat is allowed to pick a replacement. Only a Republican replaces a Republican, and only a Democrat will replace a Democrat. There's nothing in Utah law specifying if any political parties are from participating in a special House election.
The way the current law reads, once the governor issues a proclamation calling for the election, it's pretty much every man or woman for themselves. There could be a whole passel of candidates vying for the seat, and someone could win with less than 50% of the vote.
Does that problem sound familiar? It's the whole "plurality" issue Utah Republicans are wringing their hands about when it comes to the SB54 issue. There's no provision for a primary election, so that's a possibility.
This also raises the possibility that Democrats could steal a House seat held by Republicans. In 2016, Stewart won re-election over Democrat Charlene Albarran 62-34%. Conceivably, under the current rules, or lack thereof, multiple Republicans in the race could split the vote enough to allow a Democrat to snatch a surprising win with less than a majority.
Sources tell UtahPolicy.com that the Utah elections office will ask lawmakers to address this gaping hole early in the 2017 session. There is added urgency given the potential for Stewart to vacate his seat.
But, what will a fix look like? Will lawmakers try to keep the seat in the hands of the party that won it during the last election? Will they set up a primary before a general election? And, how will they pay for a special election?
Sorting all of that out may fall on Sen. Curt Bramble (R-Provo). Bramble briefed GOP Senators on the issue during an all-day conference on Wednesday. He tells UtahPolicy.com that some of the ideas being floated could include making sure the current rules for a regular Congressional election apply to a special election.
"We certainly have to work quickly as events may outstrip our ability to react," said Bramble.
One thing working in lawmakers favor is the fact that the change can be done through the legislative process instead of having to change the constitution. That means legislators can make any solution become effective immediately if they pass it with 2/3 in both houses and Gov. Herbert signs it.