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SALT LAKE CITY — Gov. Gary Herbert is considering calling a special session of the Utah Legislature within weeks to deal with election issues, including making sure unaffiliated voters can participate in next year's primary.
"Those discussions are taking place right now," the governor's spokesman, Jon Cox, told the Deseret News on Thursday. "Before making a decision, we are waiting for (U.S. District) Judge (David) Nuffer's final declaratory judgement and injunction order to see if this issue will be resolved by the court."
In November, Nuffer ruled the state cannot force political parties to open their primary elections to all voters as mandated under controversial compromise legislation that alters the nomination process, SB54.
The ruling was aimed at the Utah Republican Party, which is suing the state over the law in federal court to maintain control over how candidates are nominated. The ruling allows the GOP to continue to close its primary elections to non-Republicans.
But now there is concern the ruling also bars unaffiliated voters from participating in other party primaries. Utah Democrats allow all voters to participate in their primary elections, including those who register as unaffiliated with any political party.
That would present a problem for candidates who choose to gather voter signatures to earn a place on the primary ballot, an option available for the first time in 2016 in addition to the political parties' caucus and convention nomination process.
Until the law is clarified, it's not clear whether the signatures of unaffiliated voters can be counted toward nominating candidates. That process starts at the beginning of the year, weeks before the 2016 Legislature begins meeting.
The questions about unaffiliated voters come after GOP lawmakers had been unsuccessful in getting the governor to call a special session to deal with other issues related to SB54, including candidate filing deadlines.
Cox said there are other parts of the law being discussed, but a special session could hinge on whether lawmakers are willing to take the action Herbert wants to see on State School Board elections.
"Those conversations are still in the early stages. We do not have agreement yet," Cox said. Only a governor can call a special session, and also sets the agenda in consultation with legislative leaders.
Herbert wants to ensure there is a primary election for State School Board members, at issue after another court ruling found the nominating committee process was unconstitutional.
"The governor has proposed including a primary election for the 2016 State School Board election," Cox said, to remedy the current situation where "any candidate who files for office will make it to the November ballot."
He said if lawmakers "agreed to this approach, the governor would be willing to call a special session. They have indicated to us that they would like to see the current committee retained with a few tweaks."
But rather than a committee deciding which two candidates make it to the general election, "the governor believes the people should be able to decide for themselves," Cox said.
Senate President Wayne Niederhauser, R-Sandy, was not optimistic that a plan the governor would be willing to accept would have enough support to justify a special legislative session.
"There's still a strong possibility we won't have a special session," Niederhauser said.
House Majority Assistant Whip Brad Wilson, R-Kaysville, said the issue has been discussed.
"We're trying to determine if there is enough common thinking related to a solution on the school board issue. But there are also issues on SB54," Wilson said. "I would say it's still in progress."
He noted, a week ago, the governor was saying there would be no special session.
House Minority Caucus Manager Patrice Arent, D-Millcreek, said House Democrats learned for the first time about the issue with unaffiliated voters at their caucus meeting Wednesday.
"They are certainly very important to our effort," Arent said.
There is not agreement that SB54 needs to be changed to accommodate unaffiliated voters. The bill was crafted as a compromise with organizers of the Count My Vote citizens initiative that would have established a direct primary.
Rich McKeown, Count My Vote co-chairman, said the questions being raised about the judge's decision are an attempt "to confuse rather than create clarity" and don't require legislative action.
"We stand behind what the law says," McKeown said. "We're comfortable with the judge's interpretation."
Cox said if the governor calls a special session, it would be set sometime before the end of the year.
"If we found agreement, the governor could call a special session at any time," he said.
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