The Utah Supreme Court is scheduled to hear oral arguments on Friday morning as it considers a petition from Colby Jenkins, Rep. Celeste Maloy’s Republican opponent, attempting to challenge the results of the GOP primary for Utah’s 2nd Congressional District — which he lost by a fraction of a percent of the vote.
Ahead of the hearing, the Utah Attorney General’s office on Thursday filed a response to Jenkins’ petition on behalf of Lt. Gov. Deidre Henderson urging Utah’s highest court to dismiss his challenge, which demands state and local election officials “disregard clear statutory language and count ballots that are not valid under Utah law,” attorneys wrote in the filing.
“Respondents take their jobs as election officials seriously,” state attorneys wrote in the response. “They work diligently to comply with the state’s election laws to ensure wide access to voting and that all validly-cast ballots are counted. And they did so in the primary election.”
While state and local election officials are “sensitive to the issues in this case and find it unfortunate that some voters’ ballots were not postmarked on time,” state attorneys continued, “they do not and cannot control the Postal Service. Nor can they ignore the clear dictates of the law.”
“The ultimate responsibility for ensuring that a ballot is returned on time,” they concluded, “lies with the voter.”
Jenkins lost to Maloy by 176 votes, or just 0.16%, after a recount earlier this week garnered him 38 more votes but not enough to flip the race despite razor-thin margins. Last week after calling the recount as allowed under Utah law, Jenkins also filed a separate legal challenge seeking to contest the election results over 1,171 ballots that were disqualified because they were postmarked late.
Utah law requires vote-by-mail ballots to be postmarked no later than the day before Election Day. Jenkins’ petition alleges voters in nine rural counties were “treated differently” than voters whose ballots were processed in the U.S. Postal Service’s Salt Lake City facility, and accuses election officials of doing nothing to “inform voters of this issue.”
Jenkins’ challenge revolves around what he has called the “Vegas Cancellation,” referring to ballots in certain southern Utah ZIP codes that were processed and postmarked at the U.S. Postal Service’s Las Vegas facility before being sent back to county clerks, resulting in delays that voters mailing their ballots were unaware of and causing their votes to be disqualified.
In their response to Jenkins’ petition, state attorneys argued Jenkins’ “continued efforts to bring the same unfounded legal arguments in an effort to change the official results of the election are interfering” with state and local election officials’ “efforts to prepare for deadlines relating to the rapidly approaching general election” in November.
“And they undermine the public’s confidence in the election process,” state attorneys wrote, urging the Utah Supreme Court to “put an end” to Jenkins’ challenge so that Henderson and county clerks — as well as “the successful candidate,” Maloy and the public — “can have certainty in the process as they proceed to the general election.”
State attorneys wrote county clerks in all nine of the counties Jenkins is attempting to challenge “expressly notified its voters of the postmark deadline.”
“Many counties went even further — encouraging voters returning their ballots by mail to do so early to ensure they would meet the postmarking deadline,” the state’s response says. “That some voters chose to return their ballots by mail — instead of using one of the other failsafe methods — and missed the postmark deadline, does not mean that their constitutional rights were violated or that their ballots should be counted in violation of (Utah election law).”
While Jenkins contends that the fact that mail in certain ZIP codes is routed to Las Vegas resulted in a violation of those voters’ state constitutional rights, state attorneys disagree, and they argue that granting his petition “would also create its own equal protection problems” by forcing county clerks to count ballots that were postmarked late.
“These are invalid ballots. But (Jenkins) does not suggest any articulable standard for which invalid ballots should be counted or in what circumstances,” state attorneys wrote. “Should respondents only count ballots they received the day after election day? Two days after? Ten days after?”
The state’s 28-page response includes many more pages of exhibits, including affidavits from clerks from all of the nine counties Jenkins names in his challenge.
In a declaration from Washington County Clerk Ryan Sullivan — whom Jenkins unsuccessfully sued in attempt to obtain the county’s list of “uncured” ballots — said of the 659 ballots that were rejected in his county because they weren’t clearly postmarked or otherwise marked by the Postal Service on time, 415 “of those ballots were processed or postmarked in facilities other than a Las Vegas postal facility.”
Of those 415, Sullivan wrote 372 were processed locally in St. George, while 43 were processed in facilities all across the nation. Only 244 of the 659 late-postmarked ballots came from Las Vegas, he wrote.
“Most of the late ballots came from our local St. George postal facility,” he wrote.
Washington County was a stronghold for Jenkins, who lives in St. George. Recount results show Jenkins led Maloy in that count with over 59% of the vote. Maloy, however, beat Jenkins handily in other large counties including Salt Lake County, with over 57% of the vote.
Jenkins, in a post on X Monday, celebrated the Utah Supreme Court’s move to grant oral arguments in his campaign’s case as “huge news.”
“We have come so far in our fight to ensure that every legal vote gets counted,” Jenkins said. “Please pray for wisdom for the justices and courage to allow every legal vote to see daylight and be counted.”
To read the full report visit UtahNewsDisptach.com.
