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SALT LAKE CITY — A federal judge denied a request from Utah 2nd Congressional District candidate Colby Jenkins to delay the state election certification and reprocess some ballots. But the judge also said the state's reliance on U.S. Postal Service postmarks appears to be problematic.
Jenkins filed a lawsuit in United States District Court on Wednesday alleging that Utah election officials violated the Equal Protection Clause of the U.S. Constitution by unfairly rejecting some ballots that were mailed before the deadline but received a late postmark from the U.S. Postal Service.
Judge David Nuffer ruled that Jenkins did not provide sufficient evidence that rejected ballots had been mailed on time or that state officials showed disparate treatment of voters under state code. Nuffer rejected Jenkins' request to halt Monday's state election certification and his request to process rejected ballots affected by USPS postmarking delays.
"Just because the delays occurred for these individuals does not mean there's arbitrary and disparate treatment of voters by the state statutory system. I find that that system posted puts the burden on the voter to obtain the timely postmark," Nuffer said.
Nuffer said he did not want to "minimize" the failure of some ballots to be counted. "We are in an unfortunate situation where delivery processing and postmarking was delayed by the Postal Service, and this caused plaintiff's voters' ballots not to be counted," Nuffer said.
Jenkins trailed Rep. Celeste Maloy by just 214 votes on July 9 when counties finalized their Republican primary election results. The primary election was June 25, but a winner wasn't declared in the Maloy-Jenkins race because of the close margin, which was within the recount threshold established by state code. The Jenkins campaign has said the candidate intends to file a request for a recount following the statewide canvass of primary election returns on Monday.
The lawsuit names Jenkins and eight southern Utah voters as plaintiffs. Each of the voters alleges their ballot was placed in the mail before the June 24 deadline but was not counted because of a late postmark from the USPS. All 13 counties covered by the 2nd District, their respective county clerk-auditors and Utah Lt. Gov. Deidre Henderson are named as defendants.
While he denied Jenkins' motions, Nuffer said the case highlighted room for improvement in Utah's mail-in election system.
"It's probably clear from this exercise we've had in this case, that state reliance on postmarks is misplaced given Postal Service policies," he said.
Can late postmarked ballots be counted?
Mail-in ballots must be postmarked (stamped by post offices) before Election Day to be counted by county election offices, according to state code.
Mail from all, or parts, of nine 2nd District counties is sent through the Postal Service's Las Vegas Area Distribution Center to be postmarked before they arrive at county election offices. This travel time can sometimes delay postmarking by up to a day, the lawsuit alleges, potentially resulting in ballots being postmarked late even if they were placed in mailboxes on June 24, or earlier, and before the listed mail collection time.
Utah's director of elections, Ryan Cowley, previously told the Deseret News that while county election officials want to count "every ballot that's legally cast," nothing can be done if a ballot has just one clear postmark that came after the pre-Election Day deadline, even if a voter says they mailed their ballot on time.
"Unfortunately, with the way the law is written, the clerks have done everything they can," Cowley said at the time. "Every way that we've looked at it, every way that the clerks have looked at it, there's just not a path under the code or the law to be able to count those ballots."
The lawsuit alleges that state legislators and local officials were aware of this delay but did not inform voters that to meet the pre-Election Day deadline they might have to mail their ballots up to two days before Election Day. The suit claims that the resulting rejection of ballots that passed through the Las Vegas USPS center constitutes a violation of the Equal Protections Clause of the 14th Amendment by "imposing additional burdens on the voters in certain counties."
"The impact of these failures is that voters in southern Utah will simply have their votes discarded because they did not know that the processing and postmarking time necessitated early mailing of their ballots," the lawsuit states.
Problems with mail-in voting?
According to the court filings, Jenkins and fellow plaintiffs asked that counties affected by potential Las Vegas-related delays create an extended period for voters to cure ballots with signature verification issues and process previously rejected ballots with a late postmark if they can be accompanied by a voter affidavit attesting that they were mailed before Election Day.
The plaintiffs sought a preliminary injunction to stop the scheduled statewide canvass of primary election returns on Monday until ballots sent through the Las Vegas center could be reexamined and given an additional cure opportunity.
"This problem was known to the Legislature and the clerks, and yet nothing was done to inform the voters," said Greg Powers, the general consultant on Jenkins' campaign. "We're just looking to have all legal votes counted rather than the current disenfranchisement of southern Utah voters."
Concerns over votes not being counted because they were postmarked on or after Election Day by the Las Vegas center led to Iron County Commissioner Paul Cozzens refusing to certify election returns on July 9. He was overruled by the two other members of the county board of canvassers, who shared Cozzens' concerns but saw no legal pathway to count votes with late postmarks.
Maloy told the Deseret News in a statement that she has faith in Utah's election process.
"Casting a ballot is fundamental to our democratic republic, and every Utah voter deserves to trust in the integrity of our elections," Maloy said. "Our county clerks and their respective staffs do remarkable work. I have a high level of confidence in the process and believe it will show their figures accurately determined the outcome in a close race."
The vast majority of ballots not counted because of a late postmark were in Iron County (491) and Washington County (662). Over 400 ballots in the district with signature verification issues were not cured by voters during the two-week period following the election.
The lawsuit claims that "many citizens are willing to submit affidavits, attesting to mailing ballots prior to election day even though their ballots were postmarked after the deadline."
Jenkins previously filed a lawsuit to obtain the names and addresses of voters on the "uncured ballot list" in Washington County, but a judge ruled clerks have discretion as to whether they will release cure lists to candidates before the election canvass.
In a statement to the Deseret News, Jenkins said 2nd District residents had voted for him "to ensure their voices are heard and defended."
"Every legal vote needs to be counted, and we are working diligently to ensure that happens," Jenkins said.
