This opinion is subject to revision before publication in the Pacific Reporter
JUSTICE NEHRING, opinion of the Court:
¶ 1 This matter comes before us by a petition for extraordinary writ filed by Utah Lieutenant Governor Spencer Cox regarding the Republican primary election for Millard County Commissioner Seat A. The lieutenant governor challenges an August 14, 2014 district court order that set aside the election and ordered the Millard County Clerk to hold a new election as soon as possible.
¶ 2 In an order issued September 5, 2014, we granted the lieutenant governor's petition and affirmed in part and vacated in part the district court's order. We affirmed that portion of the order that set aside the election. However, we vacated the part of the district court order requiring the Millard County Clerk to hold a new election. Recognizing that the election code does not address the specific circumstances presented here, we concluded that it was not the intent of the legislature that a political party be without a candidate on the general election ballot when the primary election has been set aside. We therefore looked to the most analogous provisions of the Code to guide us. Utah Code section 20A-1-501 supplies procedures for filling candidate vacancies in various situations, and we ordered that the Republican candidate be filled according to the procedures in subsection (1)(c)(iii). We explain our order more fully here.
¶ 3 On June 24, 2014, Millard County held its Republican primary election for the position of County Commissioner Seat A. Mr. Dyer challenged Mr. Withers, the incumbent. According to Mr. Dyer, the unofficial vote count on the evening of June 24, 2014, yielded 1,004 votes for Mr. Dyer and 1,003 votes for Mr. Withers. The official canvass was conducted on July 1, 2014, at which Mr. Dyer alleged the County Clerk's office produced additional ballots that had not previously been disclosed to the candidates. The canvass tally resulted in 1,014 votes for Mr. Withers and 1,009 votes for Mr. Dyer, and Mr. Withers was declared the winner.
¶ 4 On July 7, 2014, Mr. Dyer requested an official recount under Utah Code section 20A-4-401, specifically challenging nine ballots as well as all provisional ballots because they had not been disclosed to him until after the official canvass. County Clerk Brunson conducted the recount on July 15, 2014. She certified the results of the recount as 1,014 votes for Mr. Withers and 1,009 votes for Mr. Dyer.
¶ 5 The county commissioners met the same day to sit as the official canvassing board. Mr. Withers sat on the canvassing board in his official capacity as a county commissioner. The board discussed the recount, heard Mr. Dyer's arguments, and took public comments. In the end, the three-member canvassing board voted to certify the clerk's count and declared Mr. Withers the winner.
¶ 6 On July 16, 2014, Mr. Dyer together with concerned voters T.J. Lovato, Russell Jones, and Wendy Leathum (collectively, Voters)
¶ 7 On August 1, 2014, the district court held a hearing on the matter in which Mr. Dyer, the Voters, and Mr. Withers were present and represented by counsel. Millard County Clerk Brunson also appeared as a witness.
¶ 8 The district court issued its Memorandum Decision, Ruling, and Order on August 14, 2014. At the outset, the court noted that "petitioners had probably filed this case against the wrong respondent." Nonetheless, the court heard and ruled on the case because neither party raised the issue of improper parties. The court discussed each of Mr. Dyer's allegations in turn and ultimately concluded that "the validity of this election cannot be established." The court determined that at least seven ballots were incorrectly counted and one voter was prevented from legally voting; therefore, because only five votes separated the candidates, the eight votes in question were sufficient to grant relief. The court explained that it could not determine for whom those illegal votes had been cast, and thus could not ascertain which candidate received the highest number of votes in order to declare a winner. Instead, the district court set aside the election results and ordered the county clerk to organize a new election immediately. Neither party appealed the district court's order.
¶ 9 On August 26, 2014, the lieutenant governor filed a petition for extraordinary writ with this court challenging the district court order. The lieutenant governor petitions this court because he asserts that, as chief elections officer for the state of Utah, he "is substantially impacted by" the district court order. And because he was not named as a party below and cannot appeal the order, he therefore contends that he has no other plain, speedy, and adequate remedy. The lieutenant governor seeks to vacate the district court order and affirm the certified results of the primary election.
¶ 10 The lieutenant governor raises three arguments in his petition. First, he contends that the district court did not have jurisdiction to adjudicate Mr. Dyer's petition due to a lack of standing. Second, the lieutenant governor alleges that Mr. Dyer's challenge did not meet the statutory requirement for election contests because the lieutenant governor reads the statute to "require[] proof" of a different result "if you added or subtracted the actual votes." He asserts that because the district court could not determine for whom the erroneous votes were cast, there is no proof that the illegal votes would have changed the result. Thus, in the absence of a final determination that Mr. Dyer would have won, he argues that there can be no valid contest of the election and the district court had no basis to issue its order. Third, the lieutenant governor argues that the district court acted outside its powers when it ordered the clerk's office to hold a new election.
¶ 11 On September 3, 2014, Judge Laycock filed a response to the lieutenant governor asking this court to affirm the district court order. The response asserts that the district court had jurisdiction below and that it properly set aside and ordered a new election.
¶ 12 Mr. Dyer also filed a response and opposition to the lieutenant governor as a real party in interest. Mr. Dyer argues that he had standing because he was not required to name the county clerk as a party to the action below. Additionally, he asserts that the lieutenant governor is not an appropriate party to file a writ in this matter because his role as chief election officer is purely supervisory. He further argues that the lieutenant governor's filing of the petition amounts to improper advocacy on the part of Mr. Withers's candidacy.
¶ 13 Millard County and the Millard County Clerk also entered the fray, agreeing with the lieutenant governor's petition that the district court acted beyond its statutory authority in ordering the new election. The county and county clerk also noted that the clerk's office considered options for holding a new election, but that it "could not comply with the statutory deadlines imposed by Utah law."
¶ 14 Finally, in addition to responding to the lieutenant governor, the Voters, acting through counsel or pro se, submitted a third-party cross-petition. They requested that this court affirm the district court's order to set aside the primary election, but alternatively requested that both candidates be included on the November general election ballot as unaffiliated candidates, even if that requires "suspend[ing] or modif[ying]" the statute "as necessary."
¶ 15 We have jurisdiction under Utah Code section 78A-3-102(2).
¶ 16 This matter is before us by petition for extraordinary writ under Utah Rule of Civil Procedure 65B. The granting of relief is discretionary, and "[u]nlike a party filing a direct appeal, a petitioner seeking rule 65B(d) extraordinary relief has no right to receive a remedy that corrects a lower court's mishandling of a particular case."
¶ 17 Rule 65B provides for the scope of review when, as here, wrongful use of judicial authority is alleged: "[T]he court's review shall not extend further than to determine whether the respondent has regularly pursued its authority."
¶ 18 We first consider whether to grant the lieutenant governor's petition for extraordinary writ challenging the district court order. We conclude that the lieutenant governor had no other plain, speedy, and adequate remedy, and we therefore grant the petition. Next, a majority of this court holds that the district court order annulling and setting aside the election could not be challenged following the expiration of the ten-day statutory appeal deadline; that portion of the order is therefore affirmed. However, we determine that the district court exceeded its authority when it ordered a new election. Such an order constitutes an abuse of discretion, and we vacate that part of the order. However, we recognize that the Utah Code does not prescribe procedures to fill a candidate vacancy when a primary election is annulled and set aside. We conclude that it could not have been the intent of the legislature to leave the candidacy vacant, and we therefore look to the most analogous provisions in the election code to ascertain how the legislature intended the current situation to be resolved. We conclude that the procedures for filling a candidate vacancy under Utah Code section 20A-1-501 provide useful guidance. On that basis, we order the Republican candidacy be filled according to its provisions. Finally, we deny the third-party cross-petition because an alternative remedy is available in the form of an appeal, where cross-petitioners were parties to the proceedings below.
¶ 19 Rule 65B permits a person to petition this court for relief based on several enumerated grounds if "no other plain, speedy and adequate remedy is available." Whether to grant the petition is a threshold question in this case and the determination "lies within the sound discretion of this court."
¶ 20 We conclude that the lieutenant governor had no other plain, speedy, and adequate remedy, and we therefore grant the petition. The lieutenant governor seeks relief under Utah Rule of Civil Procedure 65B(d)(2)(A) where "an inferior court . . . has exceeded its jurisdiction or abused its discretion." As the state's chief elections officer, the lieutenant governor has an interest in the election contest, even if his authority over a county primary election is only supervisory. Because he was not a party to the action below, the lieutenant governor could not appeal the district court's decision
¶ 21 I disagree with this court's holding that the district court order to annul and set aside the election "became unassailable when no appeal was taken by the parties" within the ten-day deadline set by statute.
¶ 22 The Utah Constitution grants this court "original jurisdiction to issue all extraordinary writs,"
¶ 23 Therefore, I would conclude that the lieutenant governor's request was not foreclosed by the statutory language declaring the office vacant at the close of the parties' ten-day appeal deadline. Certainly election contests represent a unique form of litigation due, in part, to their time-sensitive nature. It is presumably for this reason that the legislature provided the brief ten-day window for the parties to appeal an election decision. But the issuing of a writ is an equitable power derived from our duty to prevent a "flagrant abuse of discretion."
¶ 24 I would instead evaluate the lieutenant governor's request under the equitable doctrine of laches. We have explained that under rule 65B "there is no fixed limitation period governing the time for filing" extraordinary writs.
¶ 25 The lieutenant governor asserts, and the dissent agrees,
¶ 26 The lieutenant governor claims that Mr. Dyer did not satisfy the requirements of the election contest statute. He bases his argument on a reading of Utah Code section 20A-4-402, which provides the grounds upon which a contest may be brought. Mr. Dyer and the Voters base their challenge on the following statutory grounds:
The lieutenant governor reads this provision to "require[] proof that the result would have been different if you added or subtracted the actual votes." We disagree. The statutory condition that the alleged malconduct, errors, or illegal voting be "sufficient to change the result" acts as a threshold materiality requirement. Ostensibly, the legislature believed that an election contest that cannot possibly lead to a different result does not warrant the time and attention of the court. By way of example, consider an election resulting in a 100-vote margin between two candidates. If the defeated candidate brought a challenge alleging that forty illegal votes had been counted, such a challenge, even if proven, could not impact the final result. It would not merit review by a court, and thus the legislature likely sought to prevent such immaterial contests. In contrast, when a challenger alleges errors that could actually change the result, the court's review is warranted.
¶ 27 The lieutenant governor's interpretation of the statute would foreclose a challenge any time the ballots could not be opened, reviewed, and recounted.
¶ 28 Additionally, this approach does not open the floodgates to election contests. Challengers remain bound by our civil pleading standards.
¶ 29 Moreover, even with carefully prescribed instructions for election contests, the statute nowhere requires a challenger to state for whom each disputed vote was cast.
¶ 30 In sum, because Mr. Dyer challenged over twenty votes as illegal in an election with a five-vote margin, we hold that he met his pleading burden and his election contest was properly before the district court.
¶ 31 The lieutenant governor contends that the district court had no authority to annul and set aside the election under the grounds asserted by Mr. Dyer. He bases this conclusion on Utah Code section 20A-4-402, which he reads to require a challenger to prove the candidate who would have received each contested vote. Because we do not agree with his interpretation of that provision,
¶ 32 Section 20A-4-404(4)(c) sets forth the remedies available in an election contest:
Thus, under this provision, a court may confirm the election results, annul and set aside the election, or declare a winner if one can be determined. The lieutenant governor contends that these remedies cannot be provided in all circumstances, but that they correspond to two different types of election contests under section 20A-4-402(1): (a) grounds that render the candidate ineligible
¶ 33 We conclude that the statute does not so constrain the courts. As explained above, we read the statute to permit an election contest even if the contested votes cannot ultimately be counted, as when ballots are lost or destroyed. But neither the plain language of the text nor the structure of the provisions suggests that the statutory remedies correspond to only certain types of challenges. The legislature has empowered district courts to review evidence in a variety of election circumstances and either confirm the result or annul and set aside the election. The court must declare a winner, but only if a winner can be determined.
¶34 The statutory structure also reinforces this understanding.
¶ 35 In the present case, the district court considered the contested votes individually and determined that seven had been illegally cast and one legal voter had been prevented from voting. The court did not go on to consider the additional ballots that had been contested because it found that eight illegal votes in a five-vote-margin election were enough to warrant setting aside the election results. It also concluded that a winner could not be determined due to the mishandling of the contested ballots. Therefore, the district court was not bound to declare a winner in such circumstances.
¶ 36 We next consider that part of the district court order mandating the Millard County Clerk to hold a new primary election. Because we conclude the district court acted in contravention of the statute, we find that the court abused its discretion and reverse that portion of the order.
¶ 37 The lieutenant governor challenges the district court's order to hold a new election because he argues that the statutory language does not authorize a court to order a special election. In its response to the lieutenant governor's petition, the district court acknowledged that the "election statutes seemingly do not answer the question of what should or must happen once an election is set aside. The statutes do not provide a remedy beyond the election being invalidated." The court asserted, therefore, that absent further court action, both the candidates and the voters of Millard County would be left without an adequate remedy. Citing the court's equitable power, the district court explained that it ordered a new election as a means to provide relief to all parties.
¶ 38 Utah Code section 20A-4-404 sets forth the means of disposition for an election contest. After reviewing all the evidence, the court may confirm the election result, annul and set aside the election, or, if it is possible, declare another person the winner.
¶ 39 Recognizing that the district court sought to fashion the most appropriate remedy given the circumstances, we nonetheless hold that by ordering the new election the district court contravened the dictates of the election code. This mistake of law constituted an abuse of discretion warranting extraordinary relief; we therefore reverse that part of the district court order.
¶ 40 Having affirmed annulment of the election, our task is not complete. We have repeatedly asserted that "this Court's primary responsibility in construing legislative enactments is to give effect to the Legislature's underlying intent."
¶ 41 This case, however, does not present a situation of vague or ambiguous statutory language. Instead, the Code is silent regarding these circumstances. There is no provision in the election code that describes how to fill a candidate vacancy in the case of an annulled primary election,
¶ 42 From the outset, we emphasize that we do not undertake such an endeavor lightly. Our task is to seek the intent of the legislature, not to substitute our own wisdom in its stead.
¶ 43 Section 20A-1-501 of the election code provides procedures for filling candidate vacancies before a general election. While it does not address the specific circumstances here, it presents the closest analogy to it and is therefore instructive. Under certain circumstances, for most local positions, "the county central committee of a political party . . . may certify the name of another candidate to the appropriate election officer."
¶ 44 Utah Code section 20A-1-501 does not address a situation in which the result of a primary election is set aside. The lieutenant governor contends that this silence means that the party will simply be without a candidate on the general election ballot. Although the statute is silent on this situation, we disagree with the lieutenant governor's interpretation of the statutory scheme. Section 20A-1-501 provides a means for political parties to submit a candidate in an emergency situation. The circumstances provided for in the statute therefore reflect the most common situations that would render a political party without a candidate. Section 20A-1-501 also appears to strike a balance between respecting voter decisions in primary elections and ensuring that political parties can make necessary substitutions. If replacements were permitted in all circumstances, a political party could effectively overrule the decision of its voters in the primary election and name its own candidate. By allowing the party to submit a replacement candidate only in rare circumstances, the legislature respects the choice of voters. But where the party is left without a candidate through no fault of its own, it should be able to substitute one.
¶ 45 The Code's midterm vacancy protocols are instructive as well. There, the legislature set forth various procedures for filling a midterm vacancy depending on the timing of the vacancy.
¶ 46 We therefore determine that the legislature did not intend that a political party be entirely foreclosed from nominating its candidate in advance of the general election when the primary has been set aside through no fault of the party. We conclude that section 20A-1-501(1)(c)(iii) regarding candidacy vacancies presents the closest analogy to the present situation and thus order that the Republican candidate be certified according to the procedures therein.
¶ 47 The Voters also submitted a third-party cross-petition for extraordinary relief, requesting this court to order that both candidates be placed on the November general election ballot. We deny the cross-petition as an improper means of petitioning this court. As noted above, a petition for extraordinary writ is appropriate only when "no other plain, speedy and adequate remedy is available."
¶ 48 Cross-petitioners were all parties to the action below. As such, they possessed a right of appeal from the district court order. Should they seek relief contrary to that order, the appropriate means is through an appeal, not through an extraordinary writ to this court.
¶ 49 We grant the petition because the lieutenant governor could not appeal the district court's decision and did not have another plain, speedy, and adequate remedy. We uphold the district court order to annul and set aside the election. But we determine that the court exceeded its statutory authority when it ordered the county to hold a new election, and we therefore vacate that part of the order. Instead, by looking to analogous provisions within the election code, we determine that the legislature did not intend for the party candidacy to sit vacant before the general election. Thus, we ordered the candidacy to be filled in accordance with the procedures found in Utah Code section 20A-1-501. Finally, we deny the Voters' cross-petition as procedurally improper.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court in part:
¶ 50 I concur in the judgment of the court but write separately to identify some points of disagreement with elements of the court's analysis. For reasons explained below, I would not affirm the merits of the district court's decision annulling and setting aside the election in question under Utah Code section 20A-4-404(4)(c). See supra ¶ 25. Yet I would nonetheless affirm the decision in question in light of Utah Code section 20A-4-406(2), which "void[s]" a certificate of election in a case (like this one) where "an election is annulled or set aside by the judgment of a court and no appeal is taken within 10 days." And finally, instead of presuming knowledge of the "legislature's intent" on a subject not addressed expressly in the code, supra ¶ 41, I would employ the doctrine of absurdity to deem the relevant statute, Utah Code section 20A-1-501(1)(a), to be triggered by the statutory directive "void[ing]" the primary election certificate.
¶ 51 First, I disagree with the court's conclusion that an election contest can be sustained "even if the contested votes cannot ultimately be counted, as when ballots are lost or destroyed." Supra ¶ 33. Under the governing statutory provisions as I understand them, it is the election contest petitioner's burden to plead and prove that any "illegal votes" that were cast would have made a difference in the election. See UTAH CODE § 20A-4-403(2)(c); id. § 20A-4-404(3), (4). And in light of that burden, I would conclude that any uncertainty in contested ballots that "cannot ultimately be counted" should be resolved against the election contest petitioner.
¶ 52 That premise seems embedded in the operative terms of the code. The code lists two categories of election contest claims: (a) those in which the election contest petitioner must establish that there were errors (in fraud, corruption, illegal votes counted, legal votes not counted, etc.) "sufficient to change the result" of the election
¶ 53 The pleading provisions of the code reinforce this conclusion. To assert a "cause of contest" in a case in which "the reception of illegal votes" is the basis for challenging a primary election, a petitioner must "state generally that . . . illegal votes were given to a person whose election is contested, which, if taken from him, would reduce the number of his legal votes below the number of legal votes given to some other person for the same office." Id. § 20A-4-403(2)(c)(i). Alternatively, where the contest involves "legal votes" that were "rejected," a petitioner must allege that "legal votes for another person were rejected, which, if counted, would raise the number of legal votes for that person above the number of legal votes cast for the person whose election is contested." Id. § 20A-4-403(2)(c)(ii). Thus, even at the pleading stage, the petitioner's burden is more than just to identify a number of votes that would be sufficient to alter the outcome of the election if all of the ballots in question were assumed to have been cast for the "other person." Instead, as to illegal votes, the election contest petitioner must allege that "illegal votes were given to a person whose election is contested" in a number that is sufficient to "reduce the number of his legal votes below the number of legal votes given to some other person for the same office." Id. § 20A-4-403(2)(c)(i). And, as to rejected legal votes, the election contest petition must allege that such votes "for another person were rejected," and that such votes "if counted, would raise the number of legal votes for that person above the number of legal votes cast for the person whose election is contested." UTAH CODE § 20A-4-403(2)(c)(ii).
¶ 54 The election contest petitioner must accordingly do more than "challenge[] enough votes to meet or exceed the margin of victory." Supra ¶ 27. He must instead make allegations that go to the actual impact of alleged illegal votes on the outcome of the election—as to illegal votes "given to a person whose election is contested" that would "reduce the number of his legal votes below the number of legal votes given" to the petitioning candidate, or as to rejected legal votes "for" the petitioning candidate that "would raise the number of legal votes for that person" above those cast for the person whose election is contested. Id. § 20A-4-403(2)(c).
¶ 55 To me, this makes sense as a legal and logical matter. I see no basis in law or logic to assume that all illegal ballots in question (or rejected legal ballots) would have been cast in favor of the candidate filing the election petition. And the contrary presumption (in favor of the candidate whose election is contested) is premised rather straightforwardly in the burden of proof that the law has long assigned to a plaintiff or petitioner. Indeed, resolution of matters unresolved by the evidence is a core function of the burden of proof. One reason we assign a burden of persuasion is as a tie-breaker—to give the benefit of the doubt to the status quo, and to require the plaintiff or petitioner to rebut the status quo with evidence.
¶ 56 The evidentiary standards in the code seem to me to further undermine the majority's approach. Under subsection 403(2)(d),
UTAH CODE § 20A-4-403(2)(d)(i). In addition, the same provision clarifies that "[t]he court may not take or receive any evidence of contested votes except those that are specified in that list." Id. § 20A-4-403(2)(d)(ii). The focus here and elsewhere is on "evidence of contested votes," and on "prov[ing]" those votes "at trial." This runs counter to the idea of presuming that contested votes would have been cast in favor of the petitioner (and against the person whose election is contested). Clearly, the code contemplates proof of the illegal votes, and by evidence presented at trial.
¶ 57 Final confirmation of this conclusion appears in section 404. That section prescribes the procedures governing the court in an actual election contest proceeding under the election code. It indicates that the "court shall meet at the time and place designated to determine the contest," and, when "necessary for the court to inspect the ballots of any voting precinct in order to determine any election contest," it directs the court to "open and inspect the ballots in open court in the presence of the parties or their attorneys." Id. § 20A-4-404(2)-(3) (emphases added). Two points stand out in these provisions. One is that the court is to "determine the contest." The other is that that determination is to be made by "open[ing] and inspect[ing] the ballots in open court." This strikes me as incompatible with the majority's notion of a presumption in favor of the petitioner. Far from assuming that "eight illegal votes in a five-vote-margin election [are] enough to warrant setting aside the election results," supra ¶ 35, the code directs the court to consider the evidence before it to decide whether the illegal votes are sufficient to change the results of the election. And the code indicates the manner in which that evidence is to be considered—by inspection of the ballots in question, again to determine the proper resolution of the contest in question.
¶ 58 It is no answer, in my view, to assert that in this case "the contested votes cannot ultimately be counted." Supra ¶ 33. That proposition was adopted by the district court and endorsed by the parties in the case before us on this petition for extraordinary writ. See Mem. Decision 11-12 (concluding that the court's "choices are limited" because the court could not "determine who received the highest number of legal votes"); Mem. Resp. & Opp. to Pet. 3 (noting that "because of how the contested ballots had been handled—co-mingled with all the other absentee ballots . . . — it would not be possible to identify and find those ballots to determine how they had been cast"). The premise, as far as I can tell, is that the contested ballots were comingled with other ballots, in a manner rendering it impossible for the district court to "open and inspect the ballots in open court" in the course of "determin[ing] the contest." See Mem. Resp. & Opp. to Pet. 3. I have no basis for questioning that conclusion.
¶ 59 By statute, the district court has authority to "annul[] and set[] aside the election." UTAH CODE § 20A-4-404(4)(c)(i). But that authority is to be exercised in connection with the court's determination of the election contest, and upon inspection of the contested ballots "in open court." Id. § 20A-4-404(3)(b)(i). Indeed, as if to emphasize this point, the code specifies that the district court's authority to enter a judgment "annulling and setting aside the election" is to be exercised only "[a]fter all the evidence in the contest is submitted." Id. § 20A-4-404(4)(c)(i).
¶ 60 For the above reasons, I disagree with the grounds for the court's decision to affirm the district court's decision annulling and setting aside the election in question on its merits. Yet I would still affirm the decision of the district court on the basis of a procedural bar in the election code. On this point, moreover, a majority of the court agrees.
¶ 61 Under Utah Code section 20A-4-406(2), "[w]henever an election is annulled or set aside by the judgment of a court and no appeal is taken within 10 days, the certificate of election, if any has been issued, is void, and the office is vacant." The conditions of this provision have been satisfied in this case. Judge Laycock entered an order annulling and setting aside the election in question on August 14, 2014. That judgment became unassailable when no appeal was taken by the parties within ten days—on or before August 24, 2014. At that point, the "certificate of election" in question became "void" by statute. I would affirm Judge Laycock's order annulling and setting aside the election in this case on that basis. And in so doing, I would stop short of reaching the pleading and proof problems discussed in Part I of this opinion above.
¶ 62 For these reasons, and for others set forth in the majority opinion of Associate Chief Justice Nehring, supra ¶¶ 36-39, I would also hold that the district court erred in ordering a special election. As Justice Nehring indicates, the election code nowhere empowers the court to order a special election. And a decision ordering government officials to conduct such an election without affording them notice and an opportunity to be heard would fail as a matter of procedural due process.
¶ 63 Justice Nehring arrives at the same ultimate conclusion—affirming the decision setting aside the election but reversing the decision ordering a special election. But he rests his decision on the merits of the underlying election contest, while deeming section 406(2) inapplicable. The proffered grounds for avoiding section 406(2), however, misunderstand my basis for invoking this provision, and provide no basis for ignoring its terms.
¶ 64 I have no quarrel with the proposition that the lieutenant governor acted with "diligence" in submitting his petition for extraordinary writ. Supra ¶ 24. Thus, I am on board with the conclusion that the petition was timely (and not barred by the doctrine of laches), and agree that we should "reach the merits" of the lieutenant governor's claims. Supra ¶ 24. My point is simply that in addressing the merits, we should give effect to the governing provisions of the election code, including Utah Code section 20A-4-406(2).
¶ 65 I am not suggesting that this provision "insulate[s]" the district court's decision "from review." Supra ¶ 23. Instead, I would simply hold that in exercising our extraordinary writ power, we are no less bound to follow the law. A petition for extraordinary relief invokes this court's "original jurisdiction." See UTAH CONST. art VIII § 3. Such a petition is simply an alternative procedural pathway for a party to ask this court to exercise its judicial power. But whether we are exercising original or appellate jurisdiction, we are always bound to follow the law. And here that law includes section 406(2).
¶ 66 Section 406(2) is simple and straightforward. It provides a "brief ten-day window for the parties to appeal an election decision," supra ¶ 23, and expressly indicates that the election certificate is "void" where there is no appeal, UTAH CODE § 20A-4-406(2). That provision sustains significant reliance interests; and those interests ought to be protected in the exercise of our original jurisdiction. I would affirm on the basis of section 406(2), which clearly dictates affirmance of the district court's decision.
¶ 67 When a certificate of election becomes "void" under Utah Code section 20A-4-406, the statute also dictates the conclusion that "the office is vacant." A vacancy in an office, in turn, is addressed by the terms of Title 20A, Chapter 1, Part 5 of the code. In the event of a "midterm vacancy" in a county office, for example, the code provides for appointment of an "interim replacement" by the "county legislative body" and the subsequent election of a "replacement" by terms and conditions specified for a special election. UTAH CODE § 20A-1-508. This part of the code also speaks to a different sort of "vacancy"—a candidate vacancy. For a "registered political party that will have a candidate on a ballot in a primary election," the code specifies procedures for the party to replace a candidate who "dies," "resigns" due to a "disability," or "is disqualified by an election officer for improper filing or nominating procedures." Id. § 20A-1-501(1)(a). Specifically, this section of the code indicates that a "candidate vacancy" in a county office is to be filled by "the county central committee of a political party." Id. § 20A-1-501(1).
¶ 68 As the majority indicates, this provision is not technically implicated in this case. Supra ¶ 43. By its terms, this section does not apply because this is not a case in which there is a "candidate vacancy" precipitated by death, resignation due to disability, or disqualification by an election officer for filing or nomination violations.
¶ 69 The question presented, accordingly, is how to deal with what appears to be a gap in the code. One possible approach, and the one that would be the ordinary course for a court, is for us to stand down—to do nothing, and treat the gap as one for the legislature (and not this court) to fill going forward. This is the ordinary course because it respects the work product of the legislature—the statutory text. In most all cases, it is not the court's job to fill in the gaps it finds in legislation. That is most always a legislative function, and thus not one for us.
¶ 70 With this in mind, I disagree with the line of cases cited approvingly in the majority opinion. See supra ¶ 42 n.51. I would not conclude, as these courts seem to, that "when a statute is silent" on a particular issue, it is our role to fill in the gap with our best sense of the legislature's "intent" on the omitted matter. Supra ¶ 42 n.51 (citing cases). Instead of imagining the legislature's intent in such circumstances, in an effort to "`determine the best rule of law to ensure that the statute is applied uniformly,'" supra ¶ 42 n.51 (quoting Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d 222, 226 (Utah 1998)), we should generally treat the omitted case as simply omitted from the legislation.
¶ 71 Yet there is a narrow, limited exception to this rule. The exception is the doctrine of absurdity, under which we may find the text of a statute to encompass a term or condition not expressly provided by the legislature. This is strong medicine, not to be administered lightly. To respect the separation of powers and the constitutional prerogatives of the legislature, we must not substitute our views of good policy for that of the legislature. Instead, we should deem ourselves bound to follow and implement only the terms and conditions of the code except in the rare and limited circumstance in which the terms as written would lead to an outright absurdity.
¶ 72 The doctrine of absurdity is both deeply rooted and narrowly restricted. It traces its roots at least to Blackstone, who asserted that "where words bear . . . a very absurd signification, if literally understood, we must a little deviate from the received sense of them." 1 WILLIAM BLACKSTONE, COMMENTARIES *60 (emphases added). The emphasized terms in Blackstone's formulation highlight two points of limitation. One is the degree of absurdity. If we are to maintain respect for the legislature's policymaking role, and avoid the temptation to substitute our preferences for its decisions, we must not override the statutory text with our sense of good policy in a case in which we deem the statute's formulation merely unwise or incongruous. To justify this extraordinary exercise of judicial power, the text as written must be so overwhelmingly absurd that no rational legislator could ever be deemed to have supported a literal application of its text.
¶ 73 Some examples from modern cases may help to illustrate the standard. In 1995, a Texas statute provided an absolute defense to all "Chapter 601 offenses" under the Texas code where the accused "produce[d] in court a motor vehicle liability policy. . . that was valid at the time the offense is alleged to have occurred."
¶ 74 The second limitation in Blackstone's formulation is also important. It authorizes "little" or minor deviations from the statutory text to avoid absurdities in statutory meaning. As to larger deviations, the premise is that it is more likely that a judicial override of literal statutory text may represent a mere policy disagreement, and not a correction of an unintended (and obvious) disconnect between the policy adopted by the legislature and the text it used to implement it. To minimize the risk of judicial overreach, the absurdity doctrine should be limited to cases in which there is a "non-absurd reading that could be achieved by modifying the enacted text in relatively simple ways."
¶ 75 I would reach the same conclusion as the majority by application of these tenets of the doctrine of absurdity. For reasons explained by the court, it is impossible for me to imagine that any rational legislator would have supported a literal construction of the election code—a construction leading to the determination that annulment of a primary election would leave a registered political party without a designated candidate in the general election. That outcome is literally absurd, and by no means the sort of outcome that any legislator could have intended as any sort of legislative compromise. That conclusion is particularly clear (as the majority notes) in light of other provisions of the code that comprehensively prescribe mechanisms for a party to designate a replacement candidate when the candidate designated in the primary is otherwise unavailable—due to death, resignation due to disability, or disqualification by an election officer for filing or nomination violations. See supra ¶¶ 44-45 (citing UTAH CODE § 20A-1-501). And the point is hammered home by another provision of the code, section 20A-1-508, which, as the majority explains, allows a political party to "summarily certify" a candidate for a general election when a vacancy arises within 75 days of a primary but more than 65 days before the general election. Supra ¶ 45 n.58 (citing UTAH CODE § 20A-1-508(5)). In light of these provisions, and for reasons explained in greater detail in the majority opinion, I would conclude that no rational legislator could have intended to leave a registered political party without a candidate on the ballot in a case in which the primary election is annulled and set aside.
¶ 76 I would also endorse the majority's adoption of the mechanism set forth in Utah Code section 20A-1-501(c)(iii) as the applicable provision in this case. That provision prescribes a procedure for a party to designate a substitute candidate where the candidate chosen in a primary has been disqualified by an election officer. That is not technically what happened here. But extension of that provision to this (closely analogous) case represents a "relatively simple" adjustment to the statutory language. And for that reason the court's adoption of this provision seems to me to be compatible with our limited authority under the narrow doctrine of absurdity as described above.
