SALT LAKE CITY — Utah is one of just three states that doesn't spell out how a special election to fill a congressional vacancy should be conducted, and those that do give their governors little control over the process beyond setting the date.
The information compiled for state lawmakers by the Office of Legislative Research and General Counsel comes as legislative leaders continue to push back against Gov. Gary Herbert's decision not to call a special session to deal with the issue.
"There's enough guidance to allow a gubernatorial proclamation to lead to a legitimate election," said Paul Edwards, the governor's deputy chief of staff, citing the U.S. Constitution, legal precedent and current election law.
Lawmakers, however, believe the Constitution only gives a governor the authority to call an election to fill a congressional vacancy, leaving them the power to prescribe "the times, places and manner" of such elections.
Utah is facing the possibility of the first congressional vacancy since 1929 after Republican Rep. Jason Chaffetz announced just over two weeks ago that not only is he not seeking re-election in 2018, he may also step down early.
Lawmakers confirm they've heard Chaffetz, who has said he's leaving Congress for a private sector position believed to be at Fox News, could announce shortly before Memorial Day he'll resign his office as early as June.
Chaffetz did not respond to a request for comment on his plans. Utah has not had to deal with a vacant congressional seat since 1929, when five-term Rep. Elmer Leatherwood died in office.
Utah, along with Idaho and North Dakota, has no statutory provisions for a special election to fill a congressional vacancy. State law only specifies that the governor will issue a proclamation calling an election to fill the vacancy.
Such elections are held within 90 days of a representative leaving office in 14 states; between 90 and 150 days in nine states; and more than 150 days in six states. Some rely on political parties to nominate candidates, others hold primaries.
Only three states, Arkansas, Maine and Ohio, require the special elections to be run on the same schedule as a regular general election, a process that lasts 310 days in Utah and allows candidates to gather voter signatures for place on a primary ballot.
Governors in some states have limited leeway within the law about when a special election for a congressional vacancy will be held, and have discretion over the date in 15 states.
"We are aware of how some other states are doing it," Edwards said.
He said, however, that "absent utter guidance from the Legislature," the governor believes all Utahns should be "heard through the processes that are generally outlined through our election statutes."
House Minority Leader Brian King, D-Salt Lake City, said the information put together on how other states handle congressional vacancies suggests most agree that it's the legislative, not the executive branch, that must structure such elections.
"I think it's an interesting separation of powers issue. I think most states and most state legislatures say, 'Look, this is a signficant issue we want to be involved with,'" King said. "Most states agree with what we're talking about."
Still, it's up to the governor to call a special session of the Legislature and to set the agenda. GOP House and Senate members are quietly meeting to see if they can agree on a proposal to take to Herbert.
During the 2017 Legislature, the Senate passed a bill that would have established a process similar to a regular election. But it failed in the final hours of the session after being amended in the House to give political parties control over nominees.
Their interest in the issue was spurred by another Utah Republican in Congress, Rep. Chris Stewart, being considered for a post in President Donald Trump's administration.
Edwards said lawmakers have had the opportunity to establish an election process.
"It's clear that this occurred to them last session when the possibility of a vacancy arose. They had a full legislative session to try to reach some kind of consensus between the houses on how to do that, and that didn't happen," he said.
Sen. Todd Weiler, R-Woods Cross, who is involved in talks with the House, said whether there's a special session or not, "I don't think the walls of Utah are going to come crashing down. I don't think we're going to have a constitutional crisis."
Weiler said he believes the issue is most pressing to those lawmakers who may be considering a run for Chaffetz's 3rd District seat, a group that includes House Speaker Greg Hughes, R-Draper, and Sen. Deidre Henderson, R-Spanish Fork.5 comments on this story
"This appears to be a showdown between the governor and the speaker, and the governor wants a signature path and the speaker doesn't," Weiler said. "And the governor has the power to call a special session and the speaker doesn't."
Sutherland Institute President Boyd Matheson said voters need to have confidence in whatever process is used to fill Chaffetz's seat if he does step down before his term ends in early 2019.
"It seems that the governor is holding the cards on this," Matheson said. "I do think it's important that regardless of whether or not there is a special session, there clearly needs to be a transparent process in terms of what is decided."