So our suit against the Lieutenant Governor’s office to get me on the ballot had its first hearing on Monday, and it went far, far better than I could have possibly imagined.
This was a scheduling hearing for how the case was supposed to proceed, and, usually, such hearings are little more than simple housekeeping items. The two sides agree on a schedule, present that schedule to a judge, and then go back to write up their arguments for when the real hearing takes place.
Our lawyers had agreed with the elections office lawyers as to when everything would happen, so the whole thing should have been over and done with before in a matter of two or three minutes. But the judge, the Honorable David Nuffer, had sent our attorneys a number of detailed questions earlier that morning. Specifically he was interested in the statutes that govern the special election process. In the hearing, after everyone agreed on the schedule, the judge took the opportunity to ask both sides about these statutes and what they mean.
What became very clear very quickly was that there aren’t, in fact, any statutes that govern special elections in Utah.
Judge Nuffer went through each one, pointing out that some statutes applied to presidential elections and some to statewide elections, but none were pertinent to a special congressional election. Except for the law that gives the governor the authority to call a special election when there is a vacancy in Congress, Utah law makes no reference to special elections whatsoever.
Consequently, every rule, every deadline, and every supposed roadblock to my appearing on the ballot in this election was made up out of whole cloth by the elections office. That’s not necessarily a bad thing, given the fact that there are no statutory guidelines for a special election. But it does present a problem when the elections office acts as if these rules are somehow immutable and prevent them from accommodating our party. As the Lieutenant Governor tells the press that our party is engaged in some kind of “shenanigans” in our attempt to give Utah voters another choice, he always neglects to mention the fact that his rules aren’t backed up by statute, and that they are easily subject to change.
That was a fact that was not lost on Judge Nuffer.
The judge concluded the hearing, which, again, was supposed to be a perfunctory exercise in coordinating schedules, with a rejoinder to the elections office. Admitting that he’d only seen one side of the story so far – ours – he compared this suit to previous elections cases he’s heard. He pointed out that, unlike this case, every one of those previous cases was about interpreting statutes. This case, he insisted, would be far easier to decide, because he’s weighing the rights of the United Utah Party against an arbitrary executive action that can be altered at the whim of the Lieutenant Governor. His final counsel to the elections office was that when they returned to actually argue the case, they had better have some statutory reason for keeping me off the ballot, because rules that the LG pulls out of thin air just aren’t going to cut it.
Needless to say, we left the courtroom very encouraged.
It’s becoming transparently obvious to anyone who looks at the facts here that the elections office faces no legal obstacle to putting me on the ballot as the United Utah Party candidate. So why don’t they do it? The only answer is that they don’t do it because they don’t want to do it. That’s not surprising, really – it’s par for the course in a one-party state. Their job, then, is to persuade Judge Nuffer that “because we don’t want to” is a good enough argument to allow them to deny Utah’s Third District voters another choice.
Now, of course, it’s impossible to predict any specific outcome in a court case, but that looks like a pretty tough sell to me.