OFFSIDES: Legislature Throws Flag on Guv's Special Election

So, a lot of hullabaloo has been made in the press lately about the Legislature's grievances with the way Governor Herbert chose to execute a Special Election to fill the soon-to-be-vacated seat of Congressman Jason Chaffetz.

The state constitution and statute clearly give power for setting election law to the Legislature.  Without getting into the weeds on this subject (and they are deep and thick) the bottom line is that the Legislature believes the Governor violated statute by moving forward with the Special Election.  But, to agitate the grumpy Legislature even more, it also appears that the Governor's office blocked a legal opinion requested by the Legislature from the Attorney General's office from being delivered to the Legislature.  This particular action by the Governor's office is unprecedented in Utah history.   

So, the question is what does the Legislature do about it?  There are several scenarios:

The Legislature Throws a Monkey Wrench in the Works

It is possible that the Legislature could file a lawsuit and put a stop to the Special Election under the premise that Congressman Chaffetz's House Seat is not vacant.  A vacancy is required first in order to initiate a special election.  In this scenario, the efforts of the candidates, delegates, and state parties up to this point would all be for naught.  The Special Election as it has occurred would grind to a halt until Chaffetz officially ended his tenure and then the process could begin again.  

This scenario is very disruptive and would make the make the Legislature look bad.  While the separation of powers issue is very important, the perceived tit-for-tattiness of it all would smack of political gamesmanship in the eyes of the public.   

The Legislature's Cousin Throws a Monkey Wrench in the Works

Another scenario is that a grieved third party outside of the Legislature may file suit and bring the Special Election to a halt.  Who would this person be?  Ask Jim Bennett with United Utah how he feels about his arbitrary mistreatment.  While Jim's lawsuit will not put a stop to the election, there are still 10 days left of anyone with a beef about the process to file suit.  If that happens, the Special Election could get scrapped and the Legislature is likely called into a Special Session by the Governor to write the rules on a new Special Election.  

This scenario is also very disruptive and would cause a lot of Xanax prescriptions to be written.  The Legislature would likely consider itself vindicated, however.

The Legislature Waits Oh, So Patiently...for Revenge

The most likely scenario, in my view, is that nothing happens right now.  The Special Election proceeds as planned.  Meanwhile, the Legislature toils away in the bill foundry and forges a tall stack of veto-proof bills to pass in the 2018 General Session.  

In this scenario, the public is fine with the work of the Legislature. Although, the media may make attempts to vilify its efforts to clarify the separation of powers issue and the its efforts to reign in some of the authority of the Governor.  Such efforts could likely include giving the Legislature the ability to call itself into special session if the need arises (presently only the Governor can do that), clarifying Special Election law, and potentially some other issues.  

For sure, the Governor wouldn't be happy.  But not to worry, the Legislature would be ecstatic.

What Now?

For now, we watch and wait to see what happens as the calendar days pass.  Once we get to a certain point on the calendar, it will be very difficult for the monkey wrench scenarios to play out.  Which means that the Legislature will be left to tap its fingertips together, offer up an wry grin, and  menacingly laugh in anticipation of the 2018 Session.  

    

The Curious Conservative Case for the National Popular Vote Interstate Compact

During the 2017 General Session, I drafted a resolution supporting the National Popular Vote Interstate Compact.  The resolution was intended to be a bi-partisan effort to bring attention to the problems afflicting our current presidential election process and to demonstrate Utah's leadership on the issue.  Unfortunately, the partisan rancor immediately following the election prevented us from moving forward as we have waited for passions and sentiment to temper.

It appears now that the the time has come to again address this issue and begin a conversation on this important subject.  So, let us begin.

WHAT IS THE NATIONAL POPULAR VOTE INTERSTATE COMPACT?

The National Popular Vote Interstate Compact (NPVIC) is actually very simple in its premise.  The Compact is an agreement between states.  In this case, the agreement deals with how Electoral Votes from the Electoral College are awarded to presidential candidates based on how voters vote in the presidential race.  Presently, in most states, the Legislatures of the various states have directed all their Electoral Votes to be cast in favor of the candidate that receives the popular vote in that state (aka Winner-Take-All).  So, if a presidential candidate receives 51% of the popular vote, the candidate receives 100% of the Electoral Votes.  The NPVIC provides states with an alternative to this status quo by volunteering to assign their Electoral Votes to the winner of the national popular vote rather than the winner of the individual state.

WHY WOULD ANY STATE WANT TO BE A PART OF THE NPVIC?

The NPVIC is designed to address several problems that currently exist in our presidential election process.  The first is that our present presidential elections and campaigns are geared to battleground states.  The dominant Winner-Take-All practice means that, in most states, the Electoral Votes are easy to predict due to wide margins in the popular vote of those states.  However, for a handful of states, the margins are too close to call.  These states then become battleground states and the focus of campaigning and messaging.  Indeed, campaign promises and policy are crafted mostly by candidates efforts to woo voters in swing battle ground states.

This intense attention to battleground states means that the other states, like Utah, are left out of the discussion.  The campaign promises and policy nuances that may win over voters in battleground states may actually work to the disadvantage of the other states.  Also, after the election these battle ground states perennially receive preferential treatment due to their lopsided clout.  For instance, when it comes to public lands issues, Colorado is much more likely to have their grievances addressed than Utah.  When it comes to receiving Federal waivers, Florida is more likely to receive a waiver than Utah.

The bottom line is that the NPVIC would put every state on an equitable standing when it comes to crafting and honing policy at the presidential level.

HOW DOES THE NPVIC MAKE EVERY STATE A BATTLE GROUND STATE?

The NPVIC is designed to "go live" once enough states have joined the compact to constitute 270 Electoral Votes among them.  Until that time, nothing changes. Hence, the urgency in having states like Utah join the compact to reach the 270 threshold.  Once the threshold is reached and the compact's provisions are implemented, it will award the 270 electoral votes to the presidential candidate that wins the national popular vote.

Since 270 electoral votes are required to win the presidency, the states that joined the compact would effectively change the way presidential campaigns and races are run for every state, even those that did not join the compact. If a candidate needs at least 270 electoral votes to win, and those electoral votes are awarded based on the outcome of the national popular vote, then candidates have an incentive to obtain every vote from every state possible to achieve that goal.  Thus, every state becomes a battleground state.  Clearly, this would be a dramatic difference from how things are run today.

WHAT ARE THE BENEFITS OF NPVIC?

• Funds raised in the states for political purposes will stay in the states rather than being exported to current battle ground states.  
• Voter participation would increase due to the importance of every single vote being cast to determine the winner.  
• Presidential campaigns will have a presence in all states rather than just current battle ground states. 
• Policy will be influenced by all states rather than just a few battle ground state.
• Party nomination processes would seek candidates with the broadest appeal to Americans at large rather than candidates that merely play well to a battle ground state audience.  
• and more!

For a great tutorial on this topic, this video does a great job explaining the concept:

Look for more information on this topic in the coming months.  The resolution is currently being drafted and will be presented for discussion in the 2018 General Session.  If you have any questions or concerns, don't hesitate to reach out to me.