Richard Davis: Legislators— Model the Constitution and trust the voters

By Richard Davis, Contributor Aug 20, 2014, 6:34am MDT

State Sen. John Valentine announced his resignation on Aug. 4 but said he will not actually leave the Legislature until after he is confirmed as chairman of the State Tax Commission in September. By waiting until September, Valentine places the selection of his successor in the hands of Republican convention delegates. However, if he resigns on or before Aug. 31, a campaign will occur and voters can decide his replacement on Nov. 4.

This technicality shouldn’t exist. A state legislator should not be able to time his or her resignation to determine the process by which his successor is selected. Rather, the voters should decide in all cases.

Sen. Valentine should resign before September and allow the voters to choose. No one doubts he will be confirmed in his new position next month. Through his resignation now, he can pave the way for an actual election by voters in his district. As one of those voters, I would like to have that choice.

Otherwise, the voters in Senate District 14 will be represented for the next two years by someone we did not select. And, if my state representative successfully competes for the state Senate seat, as is quite likely, and the handful of Republican convention delegates select his successor as well, that means both my state senator and my state representative for the next two years will be people I and other voters had no say in electing for those offices.

That doesn’t fit with republican government. In a representative democracy, one of the basic premises is that citizens get to choose their representatives. Otherwise, our republican system of government breaks down.

Of course, Sen. Valentine’s resignation would solve the short-term problem, but not the long-term one. The law needs to be changed to eliminate the current process of party selection followed by gubernatorial appointment. Instead, it should provide for election by the people at all times — either at a regular election time or, if necessary, a special election.

Holding special elections to fill legislative vacancies is not some unusual practice. Actually, it is quite common across the nation. In all states, when a member of Congress resigns, the position is filled through a special election. In fact, the U.S. Constitution requires an election be called to replace members when a vacancy occurs. In the case of state legislatures, 25 states use special elections to fill midterm vacancies in the state legislatures. And more states are using special elections to fill vacancies in the U.S. Senate as well.

The situation of a state senator timing his or her resignation to affect the process is avoidable. By changing the law to hold a special election for a state legislative vacancy, the state legislature would remove that power from a state legislator. It would place the decision-making power in the hands of the voters and not a small group of convention delegates.

Utahns recently supported the Count My Vote initiative by large margins. That initiative called for direct primary elections to nominate party candidates rather than insider-dominated party conventions. Special legislative elections to fill vacancies would be in the spirit of Count My Vote. It is another form of “count my vote“ in the sense that an individual’s vote for his or her representative is directly counted rather than being substituted by a party elite process.

Moreover, a special election process would follow what the framers established when they added a constitutional provision that the people get to choose their representatives in Congress, even in the case of a vacancy. (The framers didn’t apply it to the U.S. Senate at the time because U.S. senators were elected by state legislators and not the people.) State legislators should look to that model.

Utah Director of Elections Mark Thomas put it succinctly when he said: “The advantage is to the voters. If there’s an election and we can get it [the Valentine vacancy] on the ballot, the voters are the winners.” Sen. Valentine and state legislators should heed his advice and return the electoral power to the people. Trust us to elect our own legislators. We really can do the job.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.