Utah Supreme Court skeptical of a losing GOP candidate’s plea to count late ballots

Utah’s Supreme Court justices appeared skeptical Friday that there was any way for them to require hundreds of ballots postmarked after the state’s deadline to be counted, even though the votes could potentially change the outcome in a race decided by 176 votes.

Attorneys for 2nd Congressional District Republican candidate Colby Jenkins made their last-ditch effort to get the ballots counted, arguing that they were dropped in mailboxes before the postmark deadline but stamped late because they had to be shipped to Las Vegas to be processed.

But lawyers for the state argued that the law is clear — that ballots postmarked after the deadline cannot be counted — and that they are unable to dictate to the U.S. Postal Service how to handle mail.

While the justices did not rule on the arguments Friday, they appeared to be inclined to let Rep. Celeste Maloy’s 176-vote victory stand. The court will likely issue its ruling within the next week or two.

Jenkin’s attorney, Anthony Ferate, argued that the state’s mail-in voting law improperly outsources an important election function to the Postal Service, which can interfere with some voters getting their ballots counted. That interference, he contends, violates Utah’s Constitution.

But Justice Diana Hagen pushed back on that notion, questioning if the court has the authority to order the ballots counted despite the legal deadline and noting that other options,  like dropboxes and voting in person, were available options.

“Isn’t the voter ultimately responsible for ensuring it’s postmarked?” she asked. “The postmark requirement isn’t something unique to this statute. Taxes, job applications, college applications, they all have to be postmarked. … How is that not the voters responsibility?”

Justice Jill Pohlman echoed the sentiment, pressing Ferate on why the postal service is responsible “as opposed to the voter’s obligation?”

“Why does the voter’s obligation end by sticking it in a mailbox on Sunday instead of getting it postmarked?” she asked. Washington County, she said, has recognized there can be delays and warned voters to mail their ballots early.

“A warning doesn’t fix a constitutional violation,” Ferate said. “Just to say we warned you doesn’t fix that.”

Sarah Goldberg, the attorney representing the lieutenant governor’s office, said that the lieutenant governor and county clerks followed the statute and notified voters of the different methods of voting. With mail-in ballots, the law prohibits clerks from counting votes that are postmarked after the deadline.

“Put an end to these arguments so the respondents can have certainty as to the results of the election,” Goldberg asked the justices.

Jenkins’ campaign contends that 1,171 votes in several rural counties were disqualified in the election because they were shipped to Las Vegas to be processed, causing days of delays — in one instance, allegedly a full week — and meaning they missed the postmark deadline.

Jenkins won Washington County 59% to 41%, making it the likeliest area where he could scrape together enough votes to overcome the 176-vote deficit.

The Washington County Clerk, however, disputes Jenkins’ contention, though, since 415 of the 659 votes with a late postmark were actually processed in Salt Lake City, not Las Vegas, undermining Jenkins’ argument.

“I’m trying to figure out, given that your argument is tied to the processing of these ballots through Las Vegas, if we were to give you relief wouldn’t it be limited only to ballots that came through Las Vegas?” Pohlman asked Ferate.

The attorney said he would like to see all of the votes counted, but the court could decide to only add those ballots that went through Las Vegas.

Last month, a federal judge denied a request by Jenkins’ campaign to have the late-postmarked ballots counted. And before that a state judge denied a request by the campaign to get a list of voters in Washington County whose ballots were disqualified. The campaign wanted an opportunity to contact the voters so they could “cure” the errors.

Of the more than 107,000 votes cast, Maloy led by 214 votes after the ballots were counted. After a recount, which concluded this week —and also uncovered a software glitch that led to some votes not being included in the final tally — the lead narrowed to 176, one of the slimmest margins in state history.

In 2016, Democratic legislative candidate Suzanne Harrison lost to state Rep. LaVar Christensen by just three votes out of about 15,000 total votes cast. Other legislative races since have been decided by a few dozen votes.

In 2018, Democrat Ben McAdams beat Republican Mia Love by 694 votes in a congressional race where nearly 270,000 ballots were counted.

After the arguments before the justices, Jenkins said that he wants to win the election but is fighting to make sure all the votes are counted.

Jenkins said that, in effect, a delay that leads to a late postmark is no different than a mail carrier who dumps a bin of ballots in the trash, which is something people wouldn’t stand for. In both cases, he said, the votes don’t get counted.

Jenkins said if the justices reject his challenge, he would respect the decision and it would be the end of his challenges to the result. He said he hopes, however, that the Legislature will fix the issues that have been raised, including looking at whether the state should get rid of mail-in voting.

In addition to Jenkins’ challenge, Republican gubernatorial candidate Phil Lyman is seeking to overturn his loss to Gov. Spencer Cox, arguing that Cox, who gathered signatures to qualify for the primary ballot, should not have been allowed in the primary because Lyman beat him at the Republican state convention.

This story is breaking and may be updated.