SALT LAKE CITY -- Arguing John Swallow was never legally elected as attorney general, state Democratic leaders are urging Gov. Gary Herbert to call a special election to select Swallow's replacement.
Democrats said they are willing to take legal action to force the matter, if need be.
Party leaders released a letter Tuesday sent to Lt. Gov. Spencer Cox, whose office oversees state elections, asking Cox to take alleged election violations to a judge for a legal opinion on whether Swallow's election in 2012 was legal.
"Is it possible to resign from an office in which an individual does not hold?" the letter asked the lieutenant governor.
Findings of a four-month investigation into potential election violations released Friday by the Lieutenant Governor's office show Swallow withheld information from his campaign documents last year and tried to influence a probe into the matter by destroying documents.
The report shows Swallow deliberately concealed about half a dozen business interests and thousands of dollars in income from his campaign disclosure forms leading up to the 2012 election.
Cox's office has not said what it will do with the findings of the special investigation. The report was issued one day after Swallow announced his resignation, citing a financial battle against a House investigation he could not afford to defend. Swallow's resignation takes effect on Dec. 3, but Democrats are disputing not only his election, but the fact that his delayed resignation kicks in potential state benefits.
Under existing law, Cox could forward the findings to a judge, who could impose penalties, including declaring the election void and removing him from office.
"A judge should decide. Did the attorney general cheat, and if he did, was he ever the attorney general, and if he wasn't, what system do we have for selecting the next attorney general?" Sen. Jim Dabakis, state chairman of the Democratic Party, said.
Dabakis argues the decision shouldn't be left up to the Republican Central Committee and its delegates and then the governor. The GOP delegates are expected to meet Dec. 14 to discuss the issue and then forward those recommendations to Herbert for final consideration.
Joe Hatch, legal counsel for the state Democratic Party, said he and party leaders hope the matter doesn't have to go to litigation and the lieutenant governor will request a judge to issue a legal opinion in the case. He said his review of state election statutes suggests if an election is void it's treated as if it never occurred. He said Herbert could call a special election to resolve the matter in June 2014.
Hatch said existing state statutes weren't drawn with the Swallow situation in mind. He said the case depends on legal definitions.
"What is the best thing that can be accomplished for the voters of Utah? What is the appropriate manner? Let's have an early special election," Hatch said.
In the meantime, Swallow's legal troubles are not going away. District attorneys from Davis and Salt Lake counties are still moving ahead with an investigation into alleged wrongdoings by Swallow and a special investigative committee established by the House is expected to move forward with its case, before releasing a detail of findings at the end of that probe. The House probe has cost $1.5 million thus far. Swallow contended his spent $300,000 to defend his name, but couldn't continue to fight something he couldn't afford.
Swallow has maintained his innocence and said it simply became impossible to fight against allegations against him.