The Utah Supreme Court heard arguments on an emergency petition filed by Republican congressional candidate Colby Jenkins. He’s asking for more than 1,000 disqualified ballots to be counted from the June 25 GOP primary election.
Jenkins, who lost to incumbent Celeste Maloy in the 2nd Congressional District and the following recount, argued not all “legal votes” were counted because of mail ballots being postmarked after the June 24 deadline. Mail in rural parts of southern Utah is routed to Las Vegas for processing which delayed the arrival of some ballots.
During the Aug. 9 hearing, Jenkins’ lawyer, A.J. Ferate, argued that by relying on how the Postal Service handles the mail the state has violated Section I Article 17 of the Utah Constitution, which states “all elections shall be free, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The contention is that the USPS’ practices constitute civil interference in the election. Additionally, the postmarking of ballots “is out of the control of the voter” because they cannot oversee when the ballot is postmarked after they mail it in.
“Because of this poor reliance, Utah failed to provide the unequivocal equal protection mandated by Article I section 2 [of the state constitution].”
The remedy, Ferate argued, is for the Supreme Court to allow “the roughly 1,171 ballots that were in question” and disqualified to be counted. He added the stakes were higher because Maloy’s lead is razor thin following the recount – meaning the ballots could change the outcome of the primary election.
Justice Jill Pohlman questioned that ballot total. A declaration submitted by the Washington County Clerk said “only 244 of the 659 late ballots” came from a post office in Las Vegas. The rest went to Salt Lake County. If relief was granted, she asked, would the court only allow those ballots sent to Nevada to be counted instead of all of the disqualified ballots?
Ferate wanted all of the ballots to be counted, but if the justices decided to narrow the ruling to only the votes processed in Las Vegas, he wouldn’t be opposed.
Justice Diana Hagen didn’t seem to buy the argument that the Postal Service is responsible for postmarking ballots before the statutory deadline. She wondered if that responsibility ultimately rests with the voter.
“Don't voters understand that in order to ensure something is postmarked, one would want to take the letter to the post office and ensure that it's postmarked? Why isn't that the voter’s responsibility?”
In urban areas like Salt Lake City, Ferate argued it’s easier to walk into a post office and ask for the ballot to be postmarked. However, in rural southern areas, “there aren't post offices everywhere.” He also pointed to the Navajo Nation’s frustrations about mail and ballot access.
Ferate noted a voter included in their brief sent their ballot five days before the election and it was disqualified. But he conceded that there are post offices in rural parts of the state that are accessible, although it’s not always the easiest or most efficient way to submit a ballot. Rather, they hold that a voter in such a setting assumes their vote will be counted by putting it in the mailbox.
“This isn't Utah contracting with the Postal Service. This isn't Utah going out and even partnering with the Postal Service, this is a civil authority that statutorily is instructed to have a responsibility in this that they did not ask for [and that] the voter doesn't necessarily ask for,” Ferate said.
Pohlman echoed Hagen’s question of voter responsibility. How is it “interference to prevent the exercise of the right to vote,” she pushed back, when Utah election code allows “for multiple avenues to exercise that vote” such as secure drop boxes or in-person voting? She added that southern Utah counties, like Washington County, encourage voters to turn in ballots well before the postmark deadline because of known processing delays.
Sarah Goldberg, the lawyer representing the Lt. Governor’s Office, asked the court to dismiss the petition because the county clerks followed the law when “they notified voters of all methods of voting and all deadlines.” That included when ballots needed to be postmarked. Furthermore, clerks didn’t count the affected ballots “because the election code prohibits them from doing so, they didn't count the postmarks that were postmarked after the deadline.”
“Put an end to these arguments so the respondents can have certainty as to the results of the election and can continue to do the work necessary to meet their upcoming state and federal deadlines,” Goldberg asked of the justices.
She added Jenkins’ lawyers didn’t meet the “burden to show that refusing to count ballots that were postmarked after the deadline violates the Utah constitution.”
“I don't know how there can be an argument like that when returning a ballot in the mail isn't the only way to vote. There are ballot drop boxes. By statute, it's required that they are in every municipality.”
After the court adjourned, Jenkins told reporters he felt grateful to “live in a nation that allows us to have this opportunity, allows us to argue, to make our petition for legal remedy, for relief.” He believes the state’s argument that there is more than one way to vote was “very dismissive” and they were looking for “barriers for a vote to be counted.”
While the justices haven’t issued a ruling on whether the petition can move forward, Jenkins, who hasn’t conceded the race to Maloy, said he’s not giving up if the case is dismissed.
“We’re leaving all options open.”
