SALT LAKE CITY — A state attorney argued in federal court Friday that the new United Utah Party could have placed a candidate on the 3rd Congressional District special election ballot had it formed earlier.
But a lawyer for the fledgling party told a U.S. District judge United Utah would have had to be a "soothsayer" to know that former Rep. Jason Chaffetz, R-Utah, didn't plan to finish his term.
"I think the judge recognizes what the main issues are here. He recognizes that in order for us to have participated on the ballot, we would have to read everybody's mind before the special election was even talked about," United Utah Party candidate Jim Bennett said after the hearing.
The party sued Lt. Gov. Spencer Cox after the state elections office rejected Bennett's attempt to file as a candidate under the United Utah banner because the state had yet to certify its status. The party wants the court to issue a preliminary injunction preventing the state from denying Bennett access to the November ballot.
Judge David Nuffer didn't rule Friday but said he would make a decision as soon as possible. He called the issue "fascinating" and said the constitutional vagueness on how to fill a congressional vacancy is "so weird."
Bennett and BYU political science professor Richard Davis announced the formation of the United Utah Party four days before the candidate filing deadline to replace Chaffetz. The party is trying to attract disaffected Republicans and Democrats as well as independents. It had not anticipated having to run a candidate until the 2018 election
Citing the GOP's "numerical dominance" in the state, the judge also noted that all the decisions leading up to the call for the special election were made by Republicans, from Chaffetz to Gov. Gary Herbert to Cox.
"I'm concerned about the monolithic, one-party involvement in the decision-making in this case," Nuffer said.
Mark Thomas, state elections director, said after the hearing that the governor and lieutenant governor were elected by the people and don't just represent one party but all Utahns.
"In this case we believe that the order and what the governor did actually provided that process so all voters in the 3rd Congressional District were able to participate," he said.
Herbert called the special election via a proclamation that spells out that state law gives him the ability to "call a statewide special election for any purpose authorized by law" and designates the lieutenant governor to conduct it.
Assistant attorney general David Wolf argued in court that Cox had limited discretion on how to run the special election and tried to follow the same laws that govern a general election. He said the United Utah Party didn't exist when Bennett tried to file as a candidate.
"Aren't you walking into an equal protection problem when you say this election won't accommodate new parties?" Nuffer asked.
Wolf said it would be unreasonable for the elections office to drop everything in the middle of running the special election to focus on approving a new party.
Bennett had the ability to get on the ballot as an unaffiliated candidate and people could vote for him, Wolf said. Bennett, he said, could campaign and raise money under the United Utah Party label even though the party name would not be on the ballot.
But Bennett's attorney, Bryan Sells, said that would be misleading and inaccurate because the state would have validated the party by the November election. He contends the process shuts out people who might be attracted to the new party's message.
Wolf told the judge that if he rules in favor of the United Utah Party, it could open the door to other candidates and new parties wanting to get on the special election ballot.