Power struggle emerges over special election to replace Chaffetz in congress

SALT LAKE CITY -- A power struggle has emerged between the Utah State Legislature and Governor Gary Herbert over the special election to replace Congressman Jason Chaffetz.

In a rare joint meeting of House Republicans and Democrats, they raised objections to what they called a "separation of powers" issue between lawmakers and the governor. They worried that with campaigns already under way, litigation and court delays could upend the special election and leave Utah's Third Congressional District seat unfilled.

"We do not want the public we serve to think this is petty bickering between political parties or the legislature versus the governor," said House Speaker Greg Hughes, R-Draper.

Members of the House Majority and Minority caucuses meet in a rare joint session to discuss the separation of powers issue with the governor's office. (Photo by Ben Winslow, FOX 13 News)

The House Speaker and House Minority Leader raised concerns about the governor overstepping his authority when it comes to elections.

"We stand shoulder to shoulder as legislators, regardless of partisan considerations, with regards to the importance of the constitution and the importance of a separation of powers," House Minority Leader Brian King, D-Salt Lake City, said.

At issue is the process over how a special election is called and who has the authority. Lawmakers have been fuming since Chaffetz announced his intent to resign in April, but Gov. Herbert refused to call lawmakers into a special session to set a clearly defined process.

"We feel very adamant about protecting the authority we have about times, places and manners of all elections. That is our prerogative," Senate President Wayne Niederhauser, R-Sandy, told reporters on Tuesday.

At the joint meeting, Speaker Hughes said the Utah Attorney General's Office was asked to draft a legal opinion on the special election and the separation of powers issue. The House Speaker accused the governor of threatening lawyers who drafted that opinion with their law licenses if they shared it with legislators.

House Minority Leader Brian King (left), House Speaker Greg Hughes (center) and Senate President Wayne Niederhauser (right) speak to reporters on Tuesday. (Photo by Ben Winslow, FOX 13 News)

Speaking to reporters on Tuesday afternoon, state elections director Mark Thomas disputed that assertion, but said there were issues of attorney-client privilege.

Governor's spokesman Paul Edwards said they did not threaten any attorneys, but raised questions about conflicts-of-interest with the Utah State Bar. He told FOX 13 late Tuesday the governor would not waive the attorney-client privilege over the legal opinion.

Thomas said the governor's office believes it is on strong legal footing when it comes to the special election process.

"Is there a more specific process on how to fill a congressional vacancy? No. But they have given the Lt. Governor’s office supervisory authority over an election," he said. "We set forward a process that’s very similar to the process we’re all used to that allows for a primary and general election and allows all voters to be able to participate in the election process."

At Tuesday's joint meeting, some lawmakers appeared very troubled by the governor's position.

"We have a vulnerability to the validity of an election that has commenced," said Rep. Keven Stratton, R-Orem.

Some worried that Congressman Chaffetz could change his mind about resigning next week, then leave the entire election in limbo. Others worried about a threat of litigation from the United Utah Party that could upend the election.

"I think it’s imperative we take action here," said Rep. Brian Greene, R-Pleasant Grove.

But legislative leaders told FOX 13 they were not inclined to sue and delay the special election. They did worry the legislature could get dragged into litigation that would leave the Third Congressional District seat vacant.

"It’s not our intention (to sue)," Speaker Hughes said. "But we worry there’s a process in front of us. We’ve heard a lot from a third party emerging with an intention to litigate."

Any action by the Utah State Legislature would likely come in January when they can draft laws on the process for future special elections.

Chaffetz is set to resign from office next week. Just months after winning re-election, he announced his intent to step down from office saying he wishes to spend more time with his family.