Judge rejects UT GOPers lawsuit to obtain voter cure list — but another fight is brewing

Utah’s still undecided Republican primary for the 2nd Congressional District got its first test in court Monday — but that doesn’t mean the race is any closer to being resolved.

There’s another fight brewing — this time over potentially hundreds of ballots in southern Utah that weren’t postmarked on time, the day before Election Day, due to delays through the postal service because they’re routed to Las Vegas for processing before returning to clerks.

At issue in court Monday, however, was a conflict between 2nd Congressional District candidate Colby Jenkins and Washington County over whether the clerk there had the right to decline to release the county’s list of “uncured” ballots, which contains the names of voters whose signatures need to be confirmed before their votes can be counted.

Despite applauding Jenkins’ campaign for raising the issue, a judge in Utah’s Fifth District Court in St. George rejected the Republican candidate’s request to force the Washington County clerk to release the “uncured” list

Judge Jay Winward on Monday ruled Washington County Clerk Ryan Sullivan interpreted and applied Utah election law correctly — and agreed that it’s at the clerk’s discretion whether to release the list of uncured ballots. Sullivan last week said he declined to release the list as a matter of voter privacy.

“That’s how I interpret it,” the judge said at the conclusion of Monday’s hearing at the Fifth District Courthouse in St. George. “It’s very clear to me that this is how it’s supposed to occur.”

However, Winward also praised Jenkins’ attorneys for their arguments, adding he was “grateful” that the campaign brought the issue to court. He said it highlighted a potential opportunity for the Utah Legislature to clarify or strengthen Utah law in circumstances of extremely tight elections.

But ultimately “in this case, reading the statute, I think the Legislature meant it to be broad and left the discretion with (the clerks),” Winward said. Sullivan testified that he followed the law and made every effort to contact voters with ballots needing curing, and the decision whether to release the cure list or not was “within his purview,” he said.

However, the judge also said the Jenkins campaign now has a “huge forum” to raise awareness and urge all voters to track their ballot (a feature available on Utah’s election website) and make sure it’s been counted.

“I hope every voter in this county, whether it’s 500 or 5,000 … check your vote, go make sure it’s counted,” the judge said. Voters had until the end of the day Monday to contact their clerks’ offices and rectify any issues with their ballot. Tuesday is the deadline for the county canvass.

Winward thanked both Jenkins’ campaign and the Washington County Clerk’s Office for engaging in what he characterized as an opportunity to increase confidence in the election process.

“This is why the country was set up this way. The law was passed. The executive branch executed the law, I’m interpreting the statute, and now the people get to know where there is not a hole in the system where they can still have their voice (heard),” the judge said. “It’s cordial, it’s collegial, it’s transparent, it’s not corrupt. It’s exactly how it should be.”

Outside the courtroom, Sullivan told Utah News Dispatch after the hearing he was grateful for the judge’s ruling.

“I’m just happy that the judge was able to interpret that so clearly and it went our way,” he said, adding that his office still has a lot of work to do Monday to finish the canvass of the election.

As of Monday evening, Jenkins was trailing Rep. Celeste Maloy by just 314 votes (49.85% to Maloy’s 50.15%), according to election results. Jenkins’ attorneys argued it needed access to the list of about 531 ballots awaiting confirmation to help ensure all possible voters in the county would get their votes counted.

Jenkins has found a stronghold of support in southern Utah, especially Washington County, while Maloy has led him in almost every other county in northern Utah and along the Wasatch Front.

As more votes have been tallied each day since the election, Jenkins’ campaign has slowly gained ground on Maloy, but so far not enough to cross into recount territory.

For a losing candidate to be able to call a recount, Utah law requires a margin of equal to or less than 0.25% of the total number of votes cast. There have been about 106,928 votes cast in the 2nd Congressional District race so far, putting the required recount margin at roughly 267. As of Monday, Jenkins was just 47 votes away from reaching that threshold.

Why fight for the cure list?

The Jenkins campaign had hoped to receive the list in hopes it could spend the rest of the day Monday urging remaining voters to get their signatures confirmed before the cure deadline at the end of the day.

Jenkins’ campaign manager Greg Powers said he wished the judge would have taken a closer look at case precedent that counties need to treat all voters the same (the Jenkins campaign noted Salt Lake County opted to release the voter cure list, but Washington County didn’t).

However, he said they don’t fault him for interpreting the law the way he did.

“It was a really narrow ruling, and the judge even acknowledged that the statute needs some reform,” Powers said. He added Jenkins’ campaign attorneys believe they could have a “strong appellate case” if they wanted to pursue that, but given the cure deadline is Monday evening, it’s likely too late.

However, that doesn’t mean the Jenkins campaign will stop fighting — and it could perhaps file another legal challenge, Powers said. Jenkins is still holding out hope there could be a recount, or if not, he said the campaign may even contest the election through the courts, now focusing on another issue that led hundreds of ballots in southern Utah to not be counted.

Delayed ballots in southern Utah

Separate from the voter cure list conflict, another southern Utah county was grappling with a different issue that could also have implications for the Maloy-Jenkins contest — and it’s one that the Jenkins campaign is watching closely.

Iron County Commission Paul Cozzons on Friday announced on his Facebook page that he’d refuse to vote to certify the primary election results after he learned that roughly 400 ballots in Iron County were postmarked after their deadline, the day before Election Day, even though many voters say they were mailed days before.

“I cannot in good conscience certify this election,” Cozzens told St. George/Cedar City News. “Too many voters have vehemently contested the discrepancy, insisting they sent their ballots well before the cutoff date, with some claiming to have mailed them as early as June 22. I would not be keeping my oath of office if I certify that election.”

Iron County Clerk Jon Whittaker told the outlet that while late-arriving ballots have happened before, this year’s election saw an unusual number. Whittaker said he believes it’s because in recent years, mail processing in southern Utah has shifted from being sent to Provo, to now Las Vegas, where it’s scanned, barcoded and postmarked.

Whittaker wrote a seething letter to the U.S. Postal Service, saying he was “livid” to learn of so many “pointlessly rejected ballots,” even though many had been mailed days before the deadline due to the “maddening, 340-mile journey” to Las Vegas for processing.

In its public meeting Monday when it was scheduled to certify the election results, an emotional Whittaker, at times pausing to choke back tears, read his letter out loud and told the Iron County Commission he now wishes he hadn’t written the letter in a moment of frustration, and that while he’s still upset about the situation, he also said the law is clear: if a ballot doesn’t have a clear postmark, before Election Day, it doesn’t count.

Therefore, Whittaker still recommended the Iron County Commission certify the election.

“I hate the situation, and my actions reflect that,” the clerk said, adding that he drove to Salt Lake City and back in hopes of finding a way to make those votes count. “However, both myself and you as the board of canvassers are bound by the law. Not certifying would put at risk 9,800 voices in favor of the 400 or so that I’m unable to prove.”

During the hearing, a handful of Iron County residents — including some who said they mailed their ballots days before the deadline and yet were still informed that their ballots were not postmarked in time — told the commission they had lost trust in the postal service and therefore Utah’s vote-by-mail system.

Commissioners also expressed frustration and a reluctance to certify the results — but they also wrestled with their requirements to follow the law and questioned how to move forward. Ultimately, the commission voted to delay their vote to certify the results until an emergency meeting Tuesday at 4 p.m. to give themselves time to consult with state officials.

Powers said the Jenkins campaign is watching the issue in Iron County and other southern Utah counties, and may seek to get late-postmarked ballots counted in either a recount process — or by filing a new legal action to contest the election if the race doesn’t enter recount territory.

“If there’s a whole bunch of ballots that are postmarked late, then we need to figure that out,” Powers said, adding it may be another area for the state election code to be clarified or fixed. “These people in southern Utah shouldn’t be getting disenfranchised simply because they don’t know that their ballots are going to get processed in Las Vegas.”

Powers said it’s not fair for southern Utah voters — who might have mailed their ballots the same day as voters in northern Utah — to have lost their chance to vote because of postal service delays.

“If there’s hundreds and hundreds of votes in southern Utah … then it’s very possible that they’ve thrown out more than enough votes to swing the election,” he said. “We don’t know that, but if we determine that that might be likely then we could contest the election even if we don’t make it into a recount.”

Utah News Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Utah News Dispatch maintains editorial independence. Contact Editor McKenzie Romero for questions: info@utahnewsdispatch.com. Follow Utah News Dispatch on Facebook and X.