Utah Democrats want a judge to erase Attorney General John Swallow from Utah history.
Party Chairman Jim Dabakis said Tuesday a recent report by the lieutenant governor’s special counsel makes clear that Swallow committed multiple election violations and that the remedy under state law is asking a judge to wipe out his election.
"He committed a fraud on the Utah voters and his election … is, under the statute, void, as if it never occurred," said Joe Hatch, an attorney and former Democratic Salt Lake County councilman.
The consequences of such a decision, they argue, would be far-reaching, removing his nearly one-year term from the books. Swallow would have to repay his salary of 11 months — an expense of about $90,000 — and would be ineligible to receive a $12,000-a-year state pension.
More important to partisans, Democrats would demand a special election be held to choose Swallow’s replacement, rather than leaving it in the hands of the Republican Party and GOP Gov. Gary Herbert.
If Herbert’s new lieutenant governor, Spencer Cox, doesn’t act, Dabakis said, Democrats would go to court on their own to try to nullify the 2012 attorney-general election.
As it stands now, Republicans believe that, as a result of Swallow’s resignation last week — which takes effect Dec. 3 at 12:01 a.m. — they are legally entitled to choose his replacement, as typically occurs when an office is vacated.
The GOP State Central Committee is scheduled to meet Dec. 14 and choose three names to send to Herbert, who then would pick one to serve until a candidate is elected in November 2014 and takes over January 2015.
Utah GOP Chairman James Evans said that unless Republicans are told otherwise by a court, they plan to go ahead with that process.
But Hatch and Dabakis say that the party gets to choose if a vacancy occurs only after a victor is in office. If a judge voids Swallow’s election, neither party can claim the seat without a special election.
"We urge the lieutenant governor to do that right thing, to make the right decision, to not just play party politics, to not just put their own person [in office]," said Dabakis, who doubles as a state senator from Salt Lake City.
Swallow’s last full day in office will be Dec. 2. If he left even a few days earlier, he would not be eligible to receive a state pension worth about $12,000 a year after he turns 65.
The Republican attorney general’s resignation announcement last week came a day before the lieutenant governor’s office released a highly critical report that found he broke multiple election laws in failing to disclose nearly $60,000 worth of income on his conflict-of-interest forms. The special counsel’s report recommended asking a judge to invalidate the election and to declare the office vacant.
State elections director Mark Thomas said Tuesday that Cox and the office were still working through that recommendation and hoped to have a decision on how to proceed by Wednesday.
Damon Cann, a political scientist at Utah State University, said the Democrats have only a slim chance at succeeding.
"It’s relatively rare for courts to step in and wholesale invalidate an election. We just haven’t seen a lot of that," he said. "Typically ... you need to see something much bigger than some campaign-finance-disclosure issues to get a court to invalidate an election."
Indeed, Utah legislators are looking at changing the law to allow a judge to void an election only if the malfeasance likely reversed the outcome.
Even if the November 2012 vote is invalidated and a judge orders a special election, Democrats haven’t won a statewide seat since Jan Graham prevailed as attorney general in 1996.
"Part of the reason for that, I think, is people pay close attention to a race for governor or they pay real close attention to a race for Senate and they cast their ballot not just on partisanship," Cann said. "The attorney general tends to fly below the radar a little bit."
The Alliance for a Better Utah, the progressive advocacy group whose complaint triggered the probe by the lieutenant governor, has also urged Cox’s office to launch civil proceedings against Swallow to invalidate the election and may consider pursuing its own civil or criminal action as well.
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