Lt. Gov. Olene Walker says she won't go to court over Merrill Cook's term limitation/run-off election initiative petition "until the day after the election - should this item become law."
Monday, the Deseret News reported that Walker and Attorney General Jan Graham were considering seeking an unprecedented declaratory judgment on Cook's initiative - in effect, asking a judge to rule the initiative unconstitutional before voters even decide if they want it or not. Monday afternoon, Walker said that for a number of reasons she won't go to court unless voters approve Cook's initiative in the Nov. 8 election."But if they do, we'll be in court Nov. 9," said Walker, who by law is the state's chief election officer. Walker said she'll pick whichever court - district or appeals - that will give her "a decision in a day or two. We think this constitutional issue is very clear and won't take long to decide."
Walker believes the run-off election part of Cook's initiative is unconstitutional. Other parts of the initiative may be unconstitutional as well, she says, but since term limits wouldn't kick in for at least eight years, there's more time to deal with those in the courts. But if approved Nov. 8, the run-off election part of the initiative would become law immediately, and any candidate on the ballot Nov. 8 - county officers, school board members, legislators or U.S House or Senate members from Utah - who got the most votes but failed to get 50 percent plus one in the election would face a run-off election against the runner-up 30 days later.
Walker says the Utah Constitution clearly states the person who gets the most votes in the general election is the winner. Thus, there can't be a run-off election.
Secondly, it's a well-known constitutional provision that laws can't be passed that harm people retroactively. That is, people can't be punished for doing something a year ago that was only outlawed last week.
Having the run-off provisions apply to this Nov. 8 election - as Cook's initiative does - and then have people approve the initiative in that Nov. 8 election means to Walker that any number of candidates' victories would be called immediately into question. "Even if only one candidate's victory (under current law) would be jeopardized" by making them run 30 days later in a run-off election, "the retroactivity would be a great harm to that candidate and we think that is clearly unconstitutional."
Cook, contacted while traveling out of state, said Monday that Walker and Graham are just looking for excuses to question the initiative. "For goodness sake, this has been certified to the ballot, 136,000 people signed these petitions and my early polling shows that Utahns favor the run-off election part of the initiative as much as they favor term limits. Let the people decide in the voting booth," Cook said. "Instead of these (state officials) trying to find reasons to defeat the people's will, they should be finding ways to implement the people's will." Maybe there might have to be a "technical" amendment to the Utah Constitution, says Cook, concerning when a candidate finally wins an election. But if most Utahns want run-off elections, then lawmakers, Walker and Graham should immediately move to make such a change, not fight it.
Walker realizes that a delayed court suit could be detrimental. Candidates facing a run-off election in 30 days would have to immediately start campaigning while uncertain if the election would be held. Citizens would be wondering if there would be another election or not. Commissions and legislative bodies could have to wait in limbo to see who their members would be.
"That's the argument for seeking a declaratory judgment now - so not to waste time. But I think we should wait to see if the initiative really becomes law before suing," Walker said.