State attorneys won't try to keep the runoff election provision of Merrill Cook's term limitation initiative off the Nov. 8 ballot, but they may seek a declaratory judgment to stop any runoff elections this year.
"We won't try to remove the runoff provision from the initiative," Rick Wyss, deputy attorney general for government affairs, said on Monday. Citizens will still get a chance to vote on Cook's term limitation/runoff election initiative as written, Wyss promised.But, says Wyss, state officials firmly believe Cook can't initiate runoff elections without an amendment to the Utah Constitution. And the state Constitution can't be changed via citizen initiative petitions. An amendment must pass the Legislature by two-thirds vote and then be ratified in a general election.
Wyss, Lt. Gov. Olene Walker (who is responsible for state elections) and Attorney General Jan Graham will make a decision this week whether to seek a declaratory judgment on runoff elections prior to the Nov. 8 election.
No one can remember a time when the attorney general has sued over an initiative before citizens have even voted on it.
Of course, if Utahns vote down Cook's initiative on Nov. 8, then all this is moot. But the latest Deseret News/KSL poll on Cook's initiative showed more than 70 percent of Utahns favor it.
Wyss gives this example of what could happen as to why Graham and Walker may want to go to court now:
If runoff elections take a constitutional amendment - and thus Cook's proposed statute is unconstitutional - then election officials and Utahns could be in a bind. Assume Cook's term limitation/run-off election initiative passes in the Nov. 8 election. If no winning candidate in some race - legislative, county, school board or congressional - got 50 percent of the vote on Nov. 8, then they'd fall into the runoff category.
Election officials "would have to call another election in 30 days, under Cook's petition," says Wyss. So, the top two candidates would be campaigning, election officials would be organizing and spending money, and then Graham or someone else would go to court. Maybe no ruling would come before the runoff election, and so another election is held. If the courts then ruled that runoffs were illegal, there could be a real mess. Maybe even the candidate who got the most votes in the Nov. 8 election (but not 50 percent) wouldn't win the runoff election? Now you have two different winners.
But if Graham won a declaratory judgment against the runoff elections before the Nov. 8 election, even if citizens voted in favor of Cook's term limits/runoff election initiative on Nov. 8, no runoff elections would be called and the top vote-getter on Nov. 8 would be elected, even if they didn't get 50 percent plus one of the vote, explains Wyss.
A lot of controversy and problems could be avoided, said Wyss.
Cook is out of town and couldn't be reached for comment Monday. But he's claimed before that the Lieutenant Governor's Office hasn't treated his petition process fairly. He's previously said that any constitutional questions about term limits or runoff elections should be dealt with after the initiative becomes law.
Cook is an Independent Party candidate for the 2nd Congressional District this year. In gubernatorial races in 1988 and 1992 Cook's presence on the ballot pulled the eventual winner - former Gov. Norm Bangerter and Gov. Mike Leavitt - below 50 percent of the vote. Thus, some say that Cook's runoff provision is there to help him - since Cook probably couldn't finish first, but by finishing second in the U.S. House race could get into a runoff election. Cook denies that, saying he plans to finish first Nov. 8 and a runoff election would harm him by making him run another 30-day campaign.