Lead Opinion
opinion of the Court:
INTRODUCTION
11 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 Heutenant 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.
T2 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.
BACKGROUND
T3 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.
$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.
16 On July 16, 2014, Mr. Dyer together with concerned voters T.J. Lovato, Russell Jones, and Wendy Leathum (collectively, Voters)
T7 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.
T8 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 ease 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.
T9 On August 26, 2014, the Heutenant 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.
'I 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 Heutenant 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
4 11 On September 3, 2014, Judge Layeock filed a response to the lHeutenant 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.
112 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. '
183 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 modifflying]" the statute "as necessary."
T 15 We have jurisdiction under Utah Code section 78A-3-102(2).
STANDARD OF REVIEW
{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 "[ululike 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."
117 Rule 65B provides for the seope of review when, as here, wrongful use of judicial authority is alleged: "[The court's review shall not extend further than to determine whether the respondent has regularly pursued its authority."
ANALYSIS
1 18 We first consider whether to grant the lieutenant governor's petition for extraordinary writ challenging the district court order.
I. WE GRANT THE LIEUTENANT GOVERNORS PETITION FOR EXTRAORDINARY WRIT
{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."
120 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
II. STATUTORY APPEAL DEADLINE
121 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.
122 The Utah Constitution grants this court "original jurisdiction to issue all extraordinary writs,"
23 Therefore, I would conclude that the Heutenant 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."
1 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.
III. THE DISTRICT COURT ORDER SETTING ASIDE THE ELECTION WAS PROPER
125 The lieutenant governor asserts, and the dissent agrees,
A. My. Dyer and the Voters Could Properly Sustain Their Election Contest
126 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:
(1) The ... nomination of any person to any public office ... may be contested according to the procedures established in this part only:
(a) for malconduct, fraud, or corruption on the part of the judges of election at any polling place, or of any board of canvassers, or any judge or member of the board sufficient to change the result;
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(d) when illegal votes have been received or legal votes have been rejected at the polls sufficient to change the result;
(e) for any error of any board of canvassers or judges of election in counting the votes or declaring the result of the election, if the error would change the result;
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(f) when the election result would change because a sufficient number of ballots containing uncorrected errors or omissions have been received at the polls;
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(h) when an election judge or clerk was a party to malconduct, fraud, or corruption sufficient to change the result of the election....27
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 maleon-duct, errors, or Hlegal 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
127 The Heutenant governor's interpretation of the statute would foreclose a challenge any time the ballots could not be opened, reviewed, and recounted.
128 Additionally, this approach does not open the floodgates to election contests. Challengers remain bound by our civil pleading standards.
129 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.
B. The District Court Properly Set Aside the Election
1 81 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,
T 32 Section 20A-4-404(4)(c) sets forth the remedies available in an election contest:
(c)) After all the evidence in the contest is submitted, the court shall enter its judgment, either confirming the election result or annulling and setting aside the election.
(ii) If the court determines that a person other than the one declared elected received the highest number of legal votes, the court shall declare that person elected.
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
1 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 cireumstances 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.
134 The statutory structure also reinforces this understanding.
135 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 cireumstances.
IV. THE DISTRICT COURT ORDER MANDATING A NEW ELECTION CONTRADICTS EXPRESS STATUTORY LANGUAGE
136 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.
137 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.
138 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.
139 Recognizing that the district court sought to fashion the most appropriate remedy given the cireumstances, 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.
V. IN THE ABSENCE OF CLEAR STATUTORY DIRECTION, WE LOOK TO ANALOGOUS PROVISIONS TO CARRY OUT THE INTENT OF THE LEGISLATURE
T40 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."
T41 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 de-seribes how to fill a candidate vacancy in the case of an annulled primary election,
142 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.
4 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 cireumstances 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."
I 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.
4 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 va-eancies presents the closest analogy to the present situation and thus order that the Republican candidate be certified according to the procedures therein.
VI. THE CROSS-PETITION FOR EXTRAORDINARY RELIEF IS DENIED AS PROCEDURALLY IMPROPER
147 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 eross-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."
148 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.
CONCLUSION
149 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.
. Additional voters Scott Blackburn, Todd MacFarlane, and Steve Maxfield later joined the district court proceeding.
. Statev. Barrett, 2005 UT 88, ¶ 23, 127 P.3d 682.
. Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 22, 299 P.3d 1058.
. Urag R. Civ. P. 65B(d)(4).
. Snow, Christensen & Martineau, 2013 UT 15, ¶ 21, 299 P.3d 1058.
. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682.
. Id. ¶ 23 ("[A] party petitioning for rule 65B(d) extraordinary relief is not entitled to receive relief, even if that party successfully establishes that a lower court abused its discretion....").
. Id. ¶ 11 (internal quotation marks omitted).
. Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 22, 299 P.3d 1058.
. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 24, 238 P.3d 1054 (internal quotation marks omitted).
. See Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass'n, 2012 UT 86, ¶¶ 9-10, 293 P.3d 241 (holding that nonparties cannot appeal a court order). Moreover, the lieutenant governor could not appeal the district court decision even if the parties below did not object because "acquiescence of the parties is insufficient to confer jurisdiction on the court." Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649 (internal quotation marks omitted).
. See Snow, Christensen & Martineau, 2013 UT 15, 124, 299 P.3d 1058 ("[When an individual who is not a party to a district court proceeding is adversely affected by an order or judgment, the procedural mechanism for challenging the district court's action is through a petition for extraordinary writ.").
. Krejci v. City of Saratoga Springs, 2013 UT 74, ¶ 12, 322 P.3d 662 (refusing to adopt a rule requiring "intervention as a prerequisite to the filing of a petition for extraordinary writ").
. Id. 118 (recognizing that "petitioners' decision to sit on the sidelines [during district court proceedings] was both strategically and economically defensible").
. Id. ¶ 20 (noting that petitioner could have filed a separate suit in district court regarding a ballot referendum but given "the need to seek relief occurred so shortly before the ballot decision would have to be made, a new proceeding in the district court was not a 'speedy' or 'adequate' remedy").
. Infra ¶¶ 60-66.
. Uran Const. art. VIII, § 3.
. Urag R. Civ. P. 65B(a).
. 904 P.2d 677, 683-84 (Utah 1995).
. Id.; see State v. Barrett, 2005 UT 88, ¶ 19, 127 P.3d 682 (recognizing that in Renn "we relied upon this court's constitutional authority to issue extraordinary writs" even though "the statute foreclos[ed] judicial review").
. Renn, 904 P.2d at 683.
. Id. at 684.
. Id.
. Id.
. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 27, 238 P.3d 1054.
. Infra ¶¶ 51-59.
. Uraxu Cope § 20A-4-402 (emphases added).
. At oral argument, counsel for the lieutenant governor argued that a court could determine for whom a particular individual voted through voluntary testimony by the voter or by looking to circumstantial evidence such as party affiliation or whether a voter put signs for a particular candidate in his front yard. Because we disagree with the lieutenant governor's statutory interpretation, we do not reach this issue. However, we express great suspicion that these types of circumstantial evidence could properly be relied upon to determine the outcome of an election. See 29 C.J.S. Elections § 480 ("As a general rule, a legal voter cannot be compelled to disclose for whom he or she voted."); see also Helm v. State Election Bd., 589 P.2d 224, 229 (Okla.1979) (''There can be no doubt that where paper ballots are concerned, the testimony of voters as to how they voted is not competent."). But see In re Petition to Contest the Gen. Election for Dist. Justice in Judicial Dist, 36-3-03 Nunc Pro Tunc, 543 Pa. 216, 670 A.2d 629, 638-39 (1996) (allowing voluntary testimony of voters as evidence of how they originally voted).
. See Utau R. Civ P. 8(a) (providing that a claim "'shall contain a short and plain: (1) statement of the claim showing that the party is entitled to relief; and (2) demand for judgment for specified relief").
. Urar Cope § 20A-4-403(2)(b)(vii).
. Id. §
. Id. § 20A-4-403.
. Id. § 20A-4-403(2)(c).
. See supra Part III.A.
. Uran Cope § 20A-4-402(1)(b), (c), and (g).
. Id. § 20A-4-402(1)(a), (d), (e), (F), and (b).
. Id. § 20A-4-404(4)(c)(ii).
. See Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶¶ 23-28, 304 P.3d 851 (looking to the "structure and context" of the statute to determine its meaning); State v. Smith, 2005 UT 57, ¶¶ 11, 13, 122 P.3d 615 (confirming the meaning of a statute based on its "plain language and structure").
. Ura Cope § 20A-4-404(4)(c).
. Id. § 20A-4-406(2).
. See id. § 20A¥-1-203(5)(a) (providing that a local legislative body may call a special election "only for" certain enumerated circumstances).
. W. Jordan v. Morrison, 656 P.2d 445, 446 (Utah 1982).
. J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.), 2011 UT 38, ¶ 15, 266 P.3d 702 (internal quotation marks omitted).
. LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
. See Urax Cope § 20A-1-501 (providing procedures to fill candidate vacancies); id. § 20A-1-508 (midterm vacancies).
. See id. § 20A-1-203(5).
. Eames v. Bd. of Comm'rs, 58 Utah 495, 199 P. 970, 972 (1921) ("It is the duty of this court, according to its best knowledge and understanding, to declare the law as it finds it, and determine the intent and purpose thereof from the language used by the Legislature in expressing such purpose and intention.").
. Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d 222, 226 (Utah 1998); see also Fausnight v. Perkins, 994 So.2d 912, 922 . (Ala.2008) (See, J., concurring) ("When a statute is silent, this Court will look outside of the plain language of the statute to determine the intent of the legislature."); State v. Mootz, 808 N.W.2d 207, 221 (Iowa 2012) ("When the statutory language is silent, legislative intent can be gleaned from the purposes and underlying policies of the statute, along with the consequences of various interpretations."); Anderson v. Ochsner Health Sys., 2013-2970, p. 3 (La.7/1/14) 134 So.3d 1184 ("[Blecause the statute is silent ..., the court, in interpreting the statute, is tasked with determining the legislative intent."); Griffin v. Griffin, 92 A.3d 1144, 1149 (Me.2014) ("If the statutory language ... is silent on a particular point, we will then consider other indicia of legislative intent including the purpose of the statute." (internal quotation marks omitted)); Miss. Methodist Hosp. & Rehab. Ctr. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (Miss.2009) a statute ... is silent on a specific issue[].... the ultimate goal of this Court is to discern the legislative intent." (citation omitted)); Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 963 A.2d 828, 834 (2009) ("In light of the Act's silence on the issue, we look to the underlying legislative intent."); Clarkston v. Bridge, 273 Or. 68, 539 P.2d 1094, 1099 (1975) ("When the legislature has not spoken on a particular issue which arises under a statute, it is our duty to determine their probable intent.").
. Mariemont Corp., 958 P.2d at 225 (internal quotation marks omitted).
. Cope § 20A~1-501(1).
. Id.
. Id.
. Id. § 20A-1-508.
. Id. § 20A-1-508(3).
. See id. § 20A-1-508(4) (when a vacancy arises after April 9 but more than 75 days before the primary election, candidates have five days to submit their names and the political party will select among them); id. § 20A-1-508(3) (when a vacancy arises 75 days or less before the primary election but more than 65 days before the general election, the political party "shall summarily certify" a candidate for the general election ballot).
. Id. § 20A-1-508(6) (when a vacancy arises less than 65 days before general election, the political party of the prior office holder may submit an individual to serve the unexpired term).
. Id. § 20A-1-508(5).
. Uran R. Civ. P. 65B(a).
. Friends of Great Salt Lake v. Utah Dep't of Natural Res., 2010 UT 20, ¶ 23, 230 P.3d 1014 (second alteration in original) (internal quotation marks omitted); accord Krejci v. City of Saratoga Springs, 2013 UT 74, ¶ 10, 322 P.3d 662 ("[WJhere a petitioner had an opportunity to file an appeal but failed to do so, it cannot use an extraordinary writ to gain a second shot at an appeal.").
. Krejci, 2013 UT 74, ¶ 10, 322 P.3d 662.
. See Friends of Great Salt Lake, 2010 UT 20, ¶ 23, 230 P.3d 1014 ("[The opportunity to appeal ... constitutes a plain, speedy and adequate remedy[;] ... an extraordinary writ is not a proceeding for general review." (internal quotation marks omitted)).
Concurrence Opinion
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 141, 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.
I. PLEADING AND PROOF IN AN ELECTION CONTEST
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 UTax Cope § 20A-4-408@)(c); id. § 20A-4-404(8), (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.
T 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
T53 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." Utar Cope § 20A-4-4033(2)(c)(ii).
{54 The election contest petitioner must accordingly do more than "challenge[] enough votes to meet or exceed the margin of victory." Supre ¶ 27. He must instead make allegations that go to the actual impact of alleged illegal votes on the outcome of the election-as to fllegal 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).
155 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
€ 56 The evidentiary standards in the code seem to me to further undermine the majority's approach. Under subsection 408(2)(d),
The court may not take or receive evidence of any of the votes described in Subsection (2)(c), unless the party contesting the election delivers to the opposite party, at least three days before the trial, a written list of the number of contested votes and by whom the contested votes were given or offered, which he intends to prove at trial.
Urax Cops § 20A-4-408@)(d)G). 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. § 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.
157 Final confirmation of this conclusion appears in section 404. That section pre-seribes 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 precinet 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)-(8) (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.
158 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. 8 (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
59 By statute, the district court has authority to "annul[ ] and set[ ] aside the election." Utax CopE $ 20A-4-404(d)(c)@). 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. § 20¢-4-404(8)(b)(). 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 "[alfter all the evidence in the contest is submitted." Id. § 20A-4-404(4)(c)(i).
II. LACK OF AN APPEAL AS VOIDING A CERTIFICATE OF PRIMARY ELECTION
T 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), "[wJhenever an election is annulled or set aside by the judgment of a court and no appeal is taken within 10 days, the certificate
162 For these reasons, and for others set forth in the majority opinion of Associate Chief Justice Nehring, supra 11 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."
T63 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.
1 64 I have no quarrel with the proposition that the lieutenant governor acted with "dili-genee" 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).
T 65 I am not suggesting that this provision "insulate[(s]" the district court's decision "from review." Supra 128. 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 Urax 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).
T 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, UTax CopE § 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 affir-mance of the district court's decision.
III, THE DOCTRINE OF ABSURDITY
T 67 When a certificate of election becomes "void" under Utah Code section 20A-4-406,
68 As the majority indicates, this provision is not technically implicated in this case. Supra " 48. 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.
T 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.
170 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 cireumstances, 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 doe-trine 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 cireumstance in which the terms as written would lead to an outright absurdity.
172 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 BLACKSTONE, CommEntartss *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
T73 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."
I 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.
T 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
176 I would also endorse the majority's adoption of the mechanism set forth in, Utah Code section 20A-1-501(c)@fii) 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.
. Urawx Cope § 20A-4-402(1)(a) ("for malcon-duct, fraud, or corruption on the part of the judges of election ... sufficient to change the result"); id. § 20A-4-402(1)(d) ("when illegal votes have been received or legal votes have been rejected at the polls sufficient to change the result"); id. § 20A-4-402(1)(e) ("for any error of any board of canvassers or judges of election in counting the votes or declaring the result of the election, if the error would change the result"); id. § 20A-4-402(1)(f) ("when the election result would change because a sufficient number of ballots containing uncorrected errors or omissions have been received at the polls"); id. § 20A-4-402(1)(h) ("when an election judge or clerk was a party to malconduct, fraud, or corruption sufficient to change the result of the election"); id. § 20A-4-402(1)(i) ("for any other cause that shows that another person was legally elected").
. Id. § 20A-4-402(1)(b) ("when the person declared elected was not eligible for the office at the time of the election"); id. § 20A-4-402(1)(c) ("when the person declared elected has: (i) given or offered to any registered voter, judge, or canvasser of the election any bribe or reward in money, property, or anything of value for the purpose of influencing the election; or (ii) committed any other offense against the elective franchise"); id. § 20A-4-402(1)(g) ("when the candidate declared elected is ineligible to serve in the office to which the candidate was elected").
. See, eg., 21B Cuartes Aran Waricut & Kenneth W. Grartam, Jr., Fepgrar Practice & ProcepurE: Eve pence § 5122, at 394 (2d ed.2005) (explaining the policy underlying the burden of proof by noting that "[u)nder the American system," judges do not "roam about the countryside like the Lone Ranger seeking wrongs to right," rather a party brings a dispute to the judge and if that party were to "demand satisfaction from another, yet refuse to provide any information about the dispute," the judge will not require the information of the opposing party because "the opponent is not asking any favors of the court," the judge will "refuse[ ] to give the claimant the relief demanded where he has failed to bring evidence to support his claim").
. In the course of briefing and oral argument, the suggestion was made that the proof problem in this case was not the product of comingling of ballots but instead a systemic issue embedded in our electronic voting system. The point, specifically, was that it is technically impossible to "inspect" a contested (allegedly illegal) ballot in court to determine which way the ballot was cast on the office in question. See Oral Arg. 9:00-17:00; but see Mem. Decision 9-10 (noting that by statute for either a paper or electronic ballot "(tlhe poll worker should have written [Russell C. Jones's) ballot number and the name of the Republican party opposite Mr. Jones's name in the official register," that for a paper ballot the poll worker should have "endorsed Mr. Jones's initials on the [ballot] stub"). I have no way of knowing whether that is in fact the case. But if it is, this is a problem that the legislature, the lieutenant governor, and other election officials ought to be aware of. If there is a disconnect between the governing election contest provisions of our code and the voting system we are currently employing, one or the other of them ought to be altered. If our current voting system in fact makes it impossible to inspect a challenged ballot, our system should be altered to facilitate the required determination by the court. Or, alternatively, our election contest provisions should be amended to bring them in line with our current voting system.
. In so concluding, I would render neither judgment nor "suspicion" as to the "types of circumstantial evidence" that "could properly be relied upon to determine the outcome of an election." Supra ¶ 27 n. 32 ("express[ing] great suspicion" that voter testimony could be considered in an election contest).
. Presumably, the usual circumstance in which an election contest would be annulled and set aside without declaring another person the rightful winner would be the circumstances spelled out in the statute in which. there is no showing required as to the impact on the "result" of the election. See supra ¶ 52 n. 66; Urax Coor § 20A-4-402(1)(b), (c), (g). This case is another-more unusual-example. As explained below, the lack of an appeal from the judge's order annulling and setting aside the election in this case "void[ed]" the certificate of election by statute. Urax Cope § 204-4-406(2). Ordinarily, however, an election contest premised on an allegation of illegal votes being counted and/or legal votes not being counted would require proof that the votes in question were "sufficient to change the result." Id. § 20A-4-402(1)(d).
. Under the governing civil rule, a party to an injunction is entitled to notice and an opportunity to be heard. Ura R. Civ. P. 65A(a)(1) ("No preliminary injunction shall be issued without notice to the adverse party."); id. 65A(d) (providing that an injunction "shall be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice"). That rule, moreover, is an outgrowth of the constitutional right to due process. See 11A CHaries Aran WaeicHt & Artuur Mircer, Fepgrar Practice & Proce-pure § 2956 at 383-84 (3d ed.2013) ("A court ordinarily does not have power to issue an order against a person who is not a party and over whom it has not acquired in personam jurisdiction. Therefore, persons who are not actual parties to the action or in privity with any parties may not be brought within the effect of a decree merely by naming them in the order." (footnote omitted)).
. See Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926) (Brandeis, J.) (''To supply omissions transcends the judicial function."); Jones v. Smart, (1785) 99 Eng. Rep. 963 (K.B.) 967 (Buller, J.) ("[Wle are bound to take the act of parliament, as they have made it: a casus omissus can in no case be supplied by a Court of Law, for that would be to make laws...."); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi L.Rev. 533, 548 (1983) ("Judicial interpolation of legislative gaps would be questionable even if judges could ascertain with certainty how the legislature would have acted. Every legislative body's power is limited by a number of checks.... The foremost of these checks is time.... The unaddressed problem is handled by a new legislature with new instructions from the voters.").
. See 1 Josgex Story, Commentaries on tks Constr Turion or tue Unitep States § 427, at 411 (1833) ("{If, in any case, the plain meaning of a provision, not contradicted by any other provision of the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application."). The Story formulation may contain a bit of hyperbole. In the divided society we live in today, I rather doubt there are any points of statutory interpretation on which "all mankind" would "unite" "without hesitation." For me, the better formulation is one that would ask whether any rational legislator could have adopted the formulation rendered by the literal text. See Hanif v. Att'y Gen., 694 F.3d 479, 483 (3d Cir.2012) (invoking the doctrine of absurdity upon a showing that "blind adherence to the literal meaning of a statute [would] lead to a patently absurd result that no rational legislature could have intended"); Cernauskas v. Fletcher, 211 Ark. 678, 201 S.W.2d 999, 1000 (1947) (refusing to read literally a provision which read "(alll laws and parts of laws, and particularly Act 311 of the Acts of 1941, are hereby repealed" because "[njo doubt the legislature meant to repeal all laws in conflict with that act, and, by error of the author or the typist, left out the usual words 'in conflict herewith,' which we will imply by necessary construction").
. Tex Transp. Cope Ann. § 601.193(a) (West 1995).
. See also Cernauskas, 201 S.W.2d at 1000 (refusing to read literally a statute which purported © to wipe out all statutory law in the state of Arkansas because such a result was an absurdity).
. Michael S. Fried, A Theory of Scrivener's Error, 52 Rutoers L.Rev. 589, 607 (2000); see also Antonin Scarta & Bryan A. Garner, Reapinc Law: THs Interpretation or Lecat Texts 239 (2012) ('The doctrine of absurdity is meant to correct obviously unintended dispositions, not to revise purposeful dispositions that, in light of other provisions of the applicable code, make little if any sense.").