After he failed to gather enough signatures to earn a spot on the primary election ballot and was eliminated from the race altogether during a party convention over the weekend, Republican gubernatorial candidate Jeff Burningham filed a motion in court late Wednesday asking a federal judge to grant him a spot on the ballot.
Burningham tacked his request on to the lawsuit filed earlier this month by candidate Jan Garbett, who argued that if not for the “unprecedented limitations” the state imposed in response to the coronavirus, she would have met the 28,000 signature threshold.
His motion largely mirrors Garbett’s and contends that any relief afforded to her should be applied on the same terms to him, a “similarly situated gubernatorial candidate.”
Burningham said in a statement Thursday that he put “the safety and well-being of all Utahns ahead of politics, to the detriment of my campaign” after he stopped gathering signatures when the governor declared a state of emergency in early March. “COVID-19 made it difficult to collect signatures, campaign and share my vision with voters.”
The Provo venture capitalist concluded that he owes it “to everyone who has supported me to exhaust every avenue to make it on the primary ballot” and said he intends to submit the 19,150 signatures his team gathered to the lieutenant governor’s office for review.
U.S. District Court Judge Robert J. Shelby ruled from the bench Monday that Garbett had lost about 32% of the days she otherwise could have gathered signatures due to the COVID-19 pandemic and decided to lower her signature threshold by the same amount, from 28,000. That verdict was narrowly tailored, applying only to Garbett and only to the 2020 race for governor.
But the chances appeared slim that the businesswoman would make the cut with the approximately 21,000 signatures she gathered ahead of the deadline. The requirement for 19,040 valid signatures left her only a small margin for rejected ballots, which can be tossed out for a number of reasons, including if the signatory isn’t registered as a Republican or has already endorsed another gubernatorial candidate’s petition.
After reviewing just 3,067 of the signatures she attempted to file earlier this month — 1,853 of which were deemed invalid — the state said Wednesday that it was mathematically impossible for Garbett to meet the new, lower threshold.
The Garbett campaign is now asking the judge to reconsider the new signature gathering threshold, arguing that the judge’s ruling was “even more severe than the burden the state imposed because it is retroactive, inflexible and takes all control out of Garbett’s hands to make decisions for herself and her campaign that might affect the outcome.”
The candidate’s attorneys said in a Wednesday filing that the order requires a validity rate of 91%, which is “far above the highest validity rate ever seen.” They want the court to lower the threshold even further to account for a 70% validity rate, which was what Garbett was projecting as she was gathering signatures. That would require about 13,660 valid signatures.
The judge has yet to rule on that motion to reconsider.
Burningham is seeking relief similar to that asked for in Garbett’s new request. He’s asked the judge to either place him on the ballot or impose a validity rate of 70% for the 19,150 signatures he gathered before the coronavirus pandemic hit.
If both candidates end up on the ballot, that would turn the primary race into a six-way contest among Republicans. Lt. Gov. Spencer Cox, former Utah GOP Chairman Thomas Wright and former Gov. Jon Huntsman all met the 28,000-signature threshold to qualify for the ballot. Former House Speaker Greg Hughes will also appear on the ballot after coming in second behind Cox at Saturday’s Utah Republican Party convention.
Hughes said Thursday that he opposed efforts to change the election rules once the signature deadline had passed and after delegates had already made their decisions.
“If there’s any accommodation made that would allow candidates on the ballot that did not go through that process, I think the work of that election cycle was for naught,” he said. “I think all the delegates that spent all that time, me talking through the telephone or video, all the delegates participating to the high degree they did, all of that will be for naught.”
Huntsman took a different tone in a tweet on Thursday, praising Burningham’s campaign for governor and said he’d like to see his former opponent be placed on the ballot.
“Because he fell short on signatures due to a state emergency, and a crazy system of signatures (that should have been reformed long ago) he should absolutely be on the primary ballot, as should [Aimee Winder Newton],” he said.
Winder Newton, a Salt Lake County councilwoman who was eliminated in the convention over the weekend, has indicated previously that she won’t sue to earn a spot on the ballot, noting on Twitter that she found the election to be “a fair process.”
“Sometimes life throws you a curveball,” she said. “I imagine many of you are feeling this way after losing jobs during this pandemic. Some of you have watched your entire business suffer and you’ve wondered if you will ever recover. I can’t imagine how you must feel. You’ve set a great example of accepting your fate with dignity, grace, and determination to continue to work hard. I want to do the same.”
Winder Newton suspended her signature gathering efforts early on in the campaign after realizing that she wouldn’t have the financial resources to collect the number she’d need.
Disputes over signature gathering rules in the time of the coronavirus have played out most publicly in the state’s high-profile race for the governor’s office, a post left open by the departure of Gov. Gary Herbert. But those running for Congress and state legislative seats have been affected as well.
Earlier this week, a group of 10 candidates sent a letter to Herbert, Cox, Attorney General Sean Reyes and Director of Elections Justin Lee, contending that the state had “fallen short in protecting the integrity of our local elections” during the pandemic.
The letter — crafted by Megan Skiles, a Democratic candidate for House District 46, and signed by eight Democrats and two Republican candidates for Congress — acknowledges state efforts to address the challenges faced by candidates, including an executive order from the governor allowing campaigns to collect signatures without making in-person contact.
But those moves didn’t go far enough, they argue. And the limitations on signature gathering combined with party decisions to use 2018 delegates they say were biased in favor of incumbent candidates created a situation in which there was “no viable or fair path for us to get on the 2020 ballot,” the letter states.
The signatories are now urging the state to extend the deadline to submit nomination signatures, allow for a reduction in the threshold of signatures and accept digital signatures.
Lee has told The Tribune previously that doing any of those things would require changes to state law, something Herbert does not have the power to unilaterally do. The elections office also doesn’t currently have the capability of verifying electronic signatures and would need months to acquire it, he’s said.
Skiles, who was eliminated in convention, said in an interview that she understands it’s unlikely that the state will make any of the changes she’s seeking in time to affect her race or those of the other candidates who signed on to the letter.
“But I still feel it’s important to communicate that I think these changes should be made,” she said. “I want them to know about our experience and what’s happened — because from my perspective, I gave it the best shot given the parameters and feel that at the end of the day, I don’t know that if I had done anything differently I could have gotten on the ballot.”
Editor’s note: Jon Huntsman is the brother of Paul Huntsman, chairman of The Salt Lake Tribune’s nonprofit board.