SALT LAKE CITY — Gov. Gary Herbert took control Friday of the special election process to fill Rep. Jason Chaffetz's 3rd District congressional seat, frustrating legislative leaders who called his action a legal risk to the state.
But neither House nor Senate leadership appear to be interested in taking the governor to court to stop the process for the November special election that will include an August primary.
"Lawmakers are furious right now," said Greg Hartley, chief of staff to House Speaker Greg Hughes, R-Draper.
"While we don't have any plans to file a lawsuit, we do expect a full examination of this action. This is a major separation of powers problem that can't be ignored," Hartley said.
And while he said "part of that examination could include exploring what a lawsuit might look like," the result "will likely come in the form of legislative action to ensure this type of overreach doesn't ever happen again."
Senate President Wayne Niederhauser, R-Sandy, said senators are opposed to suing the governor. He said they "want to be part of the solution, not part of the problem" and won't get in the way of the special election going forward.
"We're going to get behind what the process is. We want somebody in office as soon as possible," Niederhauser said. "We've stated what we want, and we're moving on. And we hope that process goes well."
Lt. Gov. Spencer Cox announced details of the special election Friday, a day after the Republican congressman announced his decision to leave office June 30 for a private sector position, believed to be at Fox News.
Cox downplayed the threat of legal action over the election during a news conference despite concerns raised by state lawmakers that only they, not the governor, have the constitutional authority to determine the process.
"In this job, we get sued a lot it turns out," said Cox, who oversees elections as lieutenant governor. "Our job is to run an election, and the attorneys will deal with anything that comes together" as a legal challenge.
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.
Candidates were able to begin filling for the seat Friday and have a week to enter the race and declare whether they intend to gather voter signatures to guarantee a spot on the primary election ballot.
Political parties have until June 19 to nominate candidates for the primary through the caucus and convention process that relies on elected delegates to make the selection.
The primary for voters in the 3rd District, which includes portions of Salt Lake and Utah counties as well as Carbon, Emery, Grand, San Juan, and Wasatch counties is set for Aug. 15, the same day municipalities will hold their primaries.
The winner of the Nov. 7 election will take office and once he or she is seated by the U.S. House following the certification of the vote on Nov. 28, and will serve until Dec. 31, 2018.
Republican and Democratic legislative leaders responded by labeling the process put in place by Herbert "an inappropriate breach of his constitutionally defined power" in an op-ed written for UtahPolicy.com.
"Gov. Herbert's decision to call an election without allowing the Legislature to perform its legal and constitutional duty is disappointing and exposes the vacancy election process to unnecessary legal and political risks," the op-ed said.
It was written by House Speaker Greg Hughes, R-Draper; Senate President Wayne Niederhauser, R-Sandy; House Minority Leader Brian King, D-Salt Lake City; and Senate Minority Leader Gene Davis, D-Salt Lake City.
On Wednesday, House and Senate Republicans voted in their caucus meetings to tell Herbert to call a special session of the Legislature so they could approve an election process.
Although there was talk at the House Republican caucus about threatening to take the governor to court over the issue, no action was taken. Niederhauser said then that Senate Republicans, whose caucus meetings are closed, weren't interested in suing.
Rep. Dan McCay, R-Riverton, had asked at the caucus whether House Republicans should consider threatening legal action against the governor to protect legislative prerogative.
"I can't imagine litigation at this point from the House," McCay said, although he added that he and other lawmakers could take action on their own. "We'll see. This is very preliminary."
In the 2017 Legislature, a Senate bill outlining a process similar to a regular election — including allowing candidates to gather voter signatures for a spot on the primary ballot — was changed in the House to let party delegates choose nominees.
That bill failed to pass in the final hours of the session, and House and Senate Republicans since then have agreed they want a faster process that skips a primary by letting party delegates pick the candidates for the general election ballot.
Cox said the governor opposes that process in favor of getting more Utahns involved in a primary election. But the lieutenant governor said he did not believe the rift with the Legislature would cast a shadow over the legitimacy of the special election.
A group that had previously raised legal concerns about the Legislature not being brought into special session to set the process, the left-leaning Alliance for a Better Utah, said Friday they're generally satisfied with the process.
"While we are still reviewing the timeline and any impacts it may have on voter participation, we are grateful the lieutenant governor laid out a process mirroring existing elections," said Chase Thomas, the alliance's policy and advocacy counsel.
Thomas said the alliance never intended to suggest it might bring suit against the governor but raised concerns that were "based on principle. But we're fine with him moving forward."
Utah GOP Chairman James Evans said the party has no intention of launching a new legal battle over the process. The Republican Party is already in a court fight over SB54, the law that created the alternative path to the primary ballot.
"We just defer to the Legislature and to the governor to sort this out for the future," Evans said.
Utah Democratic Party Chairman Peter Corroon, who initially joined Evans in calling for a special session of the Legislature to set the rules for filling the congressional vacancy, said Friday that Democrats are "on board" with the governor's process.
"We support the governor's plans since the governor intends to follow the current Utah law and the Republican state legislators were going to back to the antiquated system which the people of Utah did not support," Corroon said.
The governor and legislative leaders have been sparring over the replacement process since Chaffetz announced last month he would not seek re-election and may step down early.
Herbert has said with lawmakers likely to run, he wanted to avoid any appearance the special session was being used to game the process, a statement that helped lead to Hughes taking himself out of contention.
So far, Sens. Deidre Henderson, R-Spanish Fork, and Margaret Dayton, R-Orem; and Rep. Brad Daw, R-Orem, are among the candidates campaigning to fill Chaffetz's seat.
BYU political science professor Jessica Preece said Chaffetz's decision to step down put the state in a tough position because there isn't a special election process on the books, but the governor made the right decision.
Preece said "if the Legislature was put in charge of the election process, many of the people planning to run for the seat would be making the rules. I think the governor is wise to avoid that scenario for fear of conflicts of interest."
Lawmakers being upset "makes a lot of sense since creating election rules is usually their responsibility," she said. "But this is just a strange, no-win situation no matter what, so I hope we're able to move on instead of getting mired in litigation."