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SALT LAKE CITY — An attorney for congressional candidate Colby Jenkins argued before the Utah Supreme Court Friday that the state's postmark deadline to return mail-in ballots is unconstitutional, while the state questioned Jenkins' standing to bring claims on behalf of voters and said county clerks acted within the law by not counting late ballots.
The legal challenge filed by Jenkins is likely his last recourse after losing a nail-biter Republican primary election for the 2nd Congressional District to Rep. Celeste Maloy by a mere 176 votes. Jenkins filed a petition with the Supreme Court late last month, asking that the court allow all mail-in votes to be counted, even those with late postmarks.
He has said the processing of mail from several southern Utah counties in Las Vegas by the U.S. Postal Service may have led to a delay in postmarking, invalidating them due to the state's requirement that mailed ballots receive a postmark no later than the day before Election Day.
The campaign requested an expedited hearing before Utah's high court because of the approaching deadline to print ballots for the Nov. 5 general election, saying it would be too time consuming to file separate lawsuits in each of the affected counties.
Jenkins told reporters after the hearing he will accept the court's decision, but said lawmakers need to take steps to prevent similar confusion in future elections.
"Certainly we want to win our election, but more importantly, we are here fighting so that every legal vote, every legal ballot, gets counted," he said. "As we clearly saw today, our state, unfortunately, has outsourced the ability to vote to an entity that we do not control."
A.J. Ferate, an attorney for Jenkins, argued before the court on Friday that Utah's postmark deadline is unconstitutional because it "puts the burden" on the U.S. Postal Service to certify that a ballot was mailed in time. He cited Article I, Section 17 of the Utah Constitution that states: "All elections shall be free, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."
He said Utah officials have known for years about the potential for delays with mail processed in Las Vegas, but said state officials, "like a willfully blind spouse, looks the other way."
Ferate said Utah law puts the onus on the Postal Service to process the ballots, in contrast to other states that have laws requiring mailed ballots be returned to the county clerk by a specific time on Election Day — which he said clearly places the responsibility with each individual voter.
Several justices seemed skeptical of this line of argument, questioning why the postmark deadline doesn't give the same responsibility to voters and pointing out that Utah law provides other pathways for voters, including drop boxes and in-person polling places where voters can return ballots on Election Day.
"Isn't the voter responsible for ensuring that it's postmarked?" asked Justice Diana Hagen, who said the government relies on postmark deadlines when filing taxes.
Ferate said he's in favor of counting all late ballots, not just the ones that were processed in Las Vegas, but said if justices wanted to "put hedges around any ballots, we would be comfortable if they were postmarked" on the June 25 Election Day, "they should count."
Sarah Goldberg, an attorney with the Utah Attorney General's Office who argued on behalf of the lieutenant governor and county clerks, said the law is clear that ballots have to be postmarked the day prior to the election and disputed the claim the postmark deadline introduces outside influence on the election.
"There's no statute that gives the Postal Service an actual duty under any of the election code that I'm aware of, and so I don't see how they are somehow interfering with the right to vote," she said. As for getting ballots postmarked before the deadline, "that responsibility lies with the voter, not with the Postal Service."
She said election officials followed all relevant laws, informed voters of the various methods of voting, along with the requirements that ballots be postmarked ahead of Election Day.
Goldberg also said Jenkins' legal team relied on inaccurate information in seeking the expedited hearing from the Supreme Court. The filing sought quick relief before ballots were printed in mid-August, but Goldberg noted that the lieutenant governor has until Aug. 31 to certify the candidates to appear on the ballots to each county clerk.
Ferate, who is based out of Oklahoma City, conceded that the timeline was based on federal requirements for printing ballots in the second half of August, prompting a chastisement from one of the justices.
"I will agree, as far as Utah, that's not factually accurate, yes," Ferate said of the timeline included in the initial petition.
"And you agree we sit in Utah, right?" asked Associated Chief Justice John Pearce. "What concerns me a little bit is in part, we granted this and expedited it based upon a representation in your petition that the ballots would be printed mid-August and so that's why we sped this up. That's why we held argument a day after the briefs came in. And now we find out that that wasn't true, and that's concerning."
Pearce later said, "When this court exercises its discretionary power to hear a writ, it likes to do so with accurate information."
The state also argued that Jenkins lacks standing to sue on behalf of all voters potentially affected, while Ferate argued he has a right to sue "as a voter within the district, let alone the fact he is a candidate for this office."
The court adjourned Friday without issuing a ruling, though, it is expected to weigh in soon before the deadline for printing ballots.
