U.S. Rep. Jason Chaffetz, R-Utah, sent Utah into a frenzy when he announced that he would resign from Congress in June 2017. Only six months into his term, Chaffetz generated political infighting in the wake of his resignation as Utah lawmakers sparred with Utah Gov. Gary Herbert over the proper way to fill Chaffetz’ vacated congressional seat.
According to Sen. Daniel Thatcher, R-West Valley, Chaffetz’ resignation revealed a gap in Utah Code about what to do in a vacancy situation.
“We didn’t have a procedure, a policy,” Thatcher said. “The problem has always existed, we just didn’t know it existed.”
Utah lawmakers are looking to fix the so-called gap with an amendment that would provide an immediate election procedure for filling congressional vacancies.
HB17, sponsored by Rep. Merrill Nelson, R-Grantsville, would require the governor to call for a special election within seven days of a congressional vacancy. It also provides a special election procedure that mirrors current Utah election procedures. Current Utah Code provides no deadline for the governor to call for a special election and no guidance on how to conduct one.
The bill has passed the House and is waiting for action in the Utah Senate before the legislative session ends March 12.
Utah’s lack of codified special election process led Utah Republicans and Democrats to speak out together in 2017 against the governor’s actions to set forth an elections process without consulting the legislature.
Utah legislators have been trying to pass legislation to resolve the lack of process for several years. Last year, the House and the Senate signed SB123, but Herbert vetoed it because it did not include a signature-gathering option for gaining a spot on the ballot.
HB17 includes the signature option and is designed to reflect the way candidates can normally get a spot on the ballot: by party convention or by signature.
“That’s all we’re trying to do with House Bill 17—is employ those same election procedures for a replacement as we do for the initial [regular] election,” Merrill said. “This bill is in no way a statement of preference for either one; we’re just saying whatever existing law is for initial election, we’re going to use that same process for replacement election.”
Under HB17, special elections would usually take place during already-scheduled municipal or primary elections, defraying funding costs. Special elections could be held on days other than the already-scheduled elections if the legislature appropriated additional funding.
HB17 would also change the way U.S. Senate vacancies are temporarily filled. Under the 17th Amendment, the U.S. Constitution permits the governor to appoint a senator to fill the vacancy until a special election is held. Utah’s Code currently requires the governor to fill the vacancy by selecting one of three individuals nominated by the state committee of the political party of the senator whose office was vacated.
The proposed bill would still permit gubernatorial appointments, but the entire legislature, rather than the state committee of a political party, would determine the potential nominees. The three nominees would still be required to share the same political party as the senator whose office was vacated. According to a 2018 report by Congressional Research Service, only six states require the appointed senator to be of the same political party as the previous senator.
Rep. Merrill, the bill’s sponsor, said the change to have the legislature appoint representatives is to make the legislative appointment process similar to the process that existed before the 17th Amendment.
“This is exciting stuff for me. This is a way, as legislators, we can reach back and touch the hands of the Founders and say we’re going to fulfill as close as we can to what your intent was,” Merrill said in a committee meeting.
He also said that the change has to do with representing Utahns.
“I think the legislature is more representative of the voters statewide than the party bosses or the party delegates,” he said. “I think the legislature would do a better job than the parties, frankly.”
Other Utah lawmakers worry that the change could actually misrepresent Utah voters.
Rep. Patrice Arent, D-Millcreek, said she sees a potential problem when the party of the senator whose office is being filled is not the same as the majority party in the Utah Legislature. For example, she said, if Utah had a Democratic U.S. senator but the Utah Legislature’s majority party was Republican, the Republicans would play a big role in choosing the nominees for a Democratic senator.
“I wonder if they would pick the best three Democrats who would be the most competitive in a future race,” she said.
Rep. Jennifer Dailey-Provost, D-Salt Lake City, also worries about the nomination process change.
“There is just too much potential for that being politicized in a way that that disadvantages one party or another,” she said.
Dailey-Provost is also concerned that the bill does not establish a formal process for how the three nominees would be chosen.
“There’s no guidance in the bill whatsoever that tells us how we do that,” she said. “There’s definitely some improvements [to the bill] that need to be made.”
While the appointed senator would only serve temporarily, Arent pointed out that the time the temporary senator serves could be “well over a year.” In addition, she said, the appointed senator could run and would be an incumbent, so a party will want its best candidate chosen.
Utah Director of Elections Justin Lee said the appointed senator could potentially serve from as short as six months to as long as eighteen months.
“It would all depend on when the vacancy occurred and how soon the next election came up,” he said.
Arent and Dailey-Provost are both in favor of filling senate vacancies the way that most vacated state offices are filled —by parties. While they wouldn’t be able to help select potential nominees if a Senate vacancy occurred right now because Utah’s U.S. senators, Mike Lee andM Mitt Romney, are both Republicans, Arent and Dailey-Provost both said in separate phone interviews that they feel comfortable with the process. If a Democratic senator left a vacancy, they would want their party to produce nominations to fill it.
“I think the way [HB17] is envisioned… disadvantages any minority party,” Dailey-Provost said.
While current Utah Code does not provide a special election process, it does give parties the power to submit nominations to the governor.