The Utah Supreme Court will hear arguments Friday in Colby Jenkins’ case contending that 1,171 late-postmarked ballots in the Republican primary election should be counted — in hopes he’d gain enough votes to reverse his 176-vote loss to U.S. Rep. Celeste Maloy.
The lieutenant governor’s office, in a brief filed Wednesday, contends the ballots should not — and legally cannot — be included in the election results because state law is clear that ballots postmarked after the deadline are not valid.
The ballots at issue were mailed from portions of southwestern Utah and shipped to a postal facility in Las Vegas to be postmarked. That delay, Jenkins contends, caused the ballots to be postmarked after the deadline to be counted.
“While the Respondents are sensitive to the issues in this case and find it unfortunate that some voters’ ballots were not postmarked on time, they do not and cannot control the Postal Service,” attorneys for the lieutenant governor’s office wrote in the brief. “Nor can they ignore the clear dictates of the law. The ultimate responsibility for ensuring that a ballot is returned on time lies with the voter.”
With other methods to cast their votes — either in person or using dropboxes — the decision to mail in their ballots does not mean voters’ constitutional rights were violated, the state argues.
Jenkins’ lawyers contend that excluding the ballots violates the Constitution’s equal protection clause because two voters in the district could drop their ballots in the mail on the same day and, because of the way they are handled, one could be counted while the other would be postmarked late and would not.
The justices are scheduled to hear arguments from the two sides Friday morning at 9:30 a.m. The hearing represents Jenkins’ final option to try to have the votes counted that could reverse the outcome.
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.
After election results were certified, Jenkins trailed Maloy by 214 votes, but after a recount, that margin fell to just 176 votes out of more than 107,000 ballots counted.
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 race because Lyman beat him at the Republican state convention.
No date has been scheduled for a potential hearing in that case.