Gubernatorial candidate Phil Lyman said he was considering his legal options after losing to Utah Gov. Spencer Cox in Tuesday night’s Republican primary.
U.S. Senate candidate Trent Staggs has also yet to concede in his election, won by Rep. John Curtis. The Deseret News unsuccessfully attempted multiple times to obtain comment from Staggs.
At his primary election watch party, Lyman said he would not concede the race that night, and would not for a few more days until his team analyzed the election results. Lyman’s attorneys were working on more than one potential route for litigation over the two-path system to get on the primary ballot, he told supporters.
A few minutes after the Associated Press called the race for Cox, Lyman said on the phone, “It’s not fair to do that 30 minutes after the polls close.”
Both Cox and Curtis responded to their opponents’ lack of concession.
Cox reacted to Lyman’s refusal to concede at his campaign’s watch party on Tuesday night in response to questions from reporters by saying that calling winning opponents to concede is common practice, regardless of the winning or losing margin.
“Conceding doesn’t mean the votes don’t count. That’s not a thing,” said Cox. “I could tell you if we had lost by 5 points I would have called and congratulated him. That’s how we roll. … There’s decency, then there’s whatever this is. I don’t care if he concedes or not, it doesn’t do anything to us or to me, that’s totally up to him.”
When Curtis visited the Deseret News offices on Wednesday morning, he said he didn’t know how to respond to Staggs not conceding the race.
“It’s not something that fits within the way I would do things,” said Curtis. “And yet, we’re not losing any sleep over it. We’re looking forward, not backwards. And if he chooses to not concede, I think that’s more his problem than mine. And I’m forward looking.”
Utah GOP Chairman Rob Axson distinguished between campaigns who wait to concede until all votes are in, versus candidates who are “contending and undermining elections” in “some sort of denial of fact,” which he said is to the short-term and long-term detriment of the party.
“I think it’s important for any Utahn who’s observing these races to realize that it takes a number of days for ballots to be counted,” Axson said. “And so wanting to see the lay of the land as a candidate, I could understand them wanting to take the time to understand what the numbers are, what their path to victory is, or is not, as well as coming to grips with the many months, and in some times even a year, of effort on their part to earn the vote.”
Lyman says refusal to concede not ‘sour grapes’
As Tuesday’s election night stretched on, Lyman gave a speech to hundreds of his supporters at a party in Highland, Utah, saying he wouldn’t concede because “we don’t call the game before the end of the fourth quarter.”
“I told everybody in the debates that I would not concede until we verified the results of the election and I think that’s a fair request,” Lyman said. “It’s not an issue of me having sour grapes or not wanting to see reality — it’s me wanting to see reality. I think all of Utah is wanting to see what is the reality of these election results.”
Lyman told the Deseret News he thought statistical analyses and third-party audits of statewide elections should “absolutely” be an automatic feature of statewide elections, in addition to the audits already conducted by the state’s Legislative Audit Committee, which he said wasn’t totally independent.
Lyman’s novel legal theories
At his election night party, Lyman said his campaign had filed a lawsuit into another campaign’s signature gathering and had lawyers looking into what he described as a constitutional issue.
The Deseret News was unable to find record of a lawsuit filed and the campaign did not return attempts to clarify what Lyman referred to in his speech.
Lyman’s campaign submitted a request for intervention to the State Records Committee to allow Lyman and his running mate Natalie Clawson to intervene in an appeal to obtain the signature gathering forms for state senator Don Ipson, so they could check if signatures removed from Ipson’s list “were removed from Governor Cox’s list,” said the request.
One of the underlying reasons for the request had to do with the signature gathering company Gathering Inc., which both Cox and Ipson used. Washington County Attorney Eric Clarke said irregularities in Ipson’s signature gathering were being investigated, but there was no evidence of a candidate or the company acting inappropriately. Davis County verified Cox’s signatures and they were later certified.
Weiler: Legal challenges should have been raised earlier
Legal challenges to signature gathering are unlikely to be successful, said attorney and state Sen. Todd Weiler, R-Woods Cross. “If these challenges were going to be raised, they should have been raised in April or at the very least in early May before the ballots were printed and mailed out.”
Signatures are considered protected information under state law — and state law also allows registered voters to designate identifying information as private. Weiler said this was done to protect people from scams and to respect people’s privacy. He said the hybrid system of having some voter registration records as public and others as private or withheld is an attempt to balance parties’ ability to verify people are part of their party, but also respect people’s privacy.
“The idea that that violates someone’s privacy is just a smokescreen,” Lyman said. “It’s just a straw man argument to prevent people from doing what makes 100% sense.”
Weiler said the issue has already been litigated, adding that he doesn’t think challenging Utah’s signature law will be successful. He said he’s monitored election lawsuits for two decades because of his various party leadership and elected positions.
“Almost all of these lawsuits are quickly disposed of and usually dismissed because what the courts don’t want to do is they don’t want to jump ahead of the will of the people and say, ‘You know what? We had an election, Spencer Cox won, but I, sitting on this as a judge, in this little courtroom, I’m going to undo all of that and say somebody else won,’” Weiler said.
On election night, Lyman said he had an attorney looking into a measure in “the Constitution of Utah” that “says that a person who gets over 60% at the convention is automatically put on the general ballot.”
While the Utah Constitution does not mention political party conventions, the Utah Republican Party Constitution does include a provision that says: “A candidate for an office that receives 60% or more of the votes cast at any point in the balloting process at the state nominating conventions shall proceed to the general election.”
In the years since the law establishing signature gathering as a route to the primary was passed in 2014, Lyman said “the occasion has not arisen” to challenge the results based on what is said in the party’s constitution. “But it definitely applies here.”
Axson and Weiler both said state law trumps the governing documents of a private political party.
Absent a court decision, Axson said, “The rules, the bylaws, the Constitution, the foundational documents of that organization, practice and even just out of habit or tradition, all of those things are superseded by state law, which itself is superseded by federal law.”
Weiler said Lyman “doesn’t have a legal leg to stand on,” because the party previously agreed to follow state law, including around signature gathering.
“The Republican Party last fall told the Utah elections office, we’re going to participate in the 2024 election as a QPP, qualified political party, which means we’ll accept signature candidates and convention candidates,” Weiler said.
Axson reiterated the party’s support for its nominees.
“We look forward to helping all of our nominees be successful in November regardless of how they qualified for the primary ballot, regardless of whether they were a convention path or signature path candidate,” said Axson. “We support our nominees.”