Businesswoman and gubernatorial hopeful Jan Garbett filed a lawsuit against state leaders on Tuesday after she was rejected from a spot on June’s primary election ballot for failing to gather enough signatures to secure her place by Monday’s deadline.
In the 15-page lawsuit filed in U.S. District Court, Garbett argues that if not for the “unprecedented limitations” the state imposed in response to the coronavirus, she would have met the threshold required. Instead, she fell about 7,000 shy of the 28,000 total signatures she needed.
Now, the Republican candidate is asking a federal judge to prohibit enforcement of Utah’s signature requirements and place her on the ballot — or to delay the June 30 primary election and extend the deadline for signature-gathering until four weeks after the “Stay Home, Stay Safe” directive Gov. Gary Herbert issued late last month expires.
“The foremost responsibility of any state government is to defend and preserve democracy through free and fair elections,” Garbett said in a news release announcing her decision to file suit on Tuesday. “Our Constitution defends the right of citizens to participate in their government by running for office. It does not allow reluctant officials to shrug their shoulders while a pandemic makes normal elections impossible. Doing otherwise would let the fox guard the henhouse, since elections put their jobs on the line.”
The lawsuit names Herbert and Lt. Gov Spencer Cox, her opponent in the gubernatorial primary. Both offices declined to comment, citing the ongoing nature of the litigation.
Garbett, co-founder of Garbett Homes, made the decision to enter the gubernatorial race after signature-gathering was already underway upon learning that all the candidates in the race supported President Donald Trump. She decided not to also seek the convention route to the ballot because she felt a “Trump-skeptic candidate had little chance of qualifying for the primary through a Republican convention," her lawsuit states.
Still, the candidate felt sure she would have no trouble getting on the ballot through the signature-gathering process alone. She employed two professional signature-gathering companies that promised 50,000 signatures between them — far more than the 28,000 gubernatorial candidates are required — with time to spare before the deadline.
But “just as the signature gathering companies were becoming fully staffed and beginning to hit their stride, the coronavirus crisis made its way to Utah,” the lawsuit states.
Closures of restaurants and other businesses and prohibitions on large gatherings in an effort to stem the spread of the coronavirus had the unintended consequence of making it more difficult to collect signatures, which are primarily gathered by approaching voters at large public gatherings or at their homes, the lawsuit notes.
Facing these challenges, Garbett sent a letter to Herbert and Cox in March asking them to override the state’s signature-gathering rules in light of the pandemic and the government’s response to it.
"Immediate steps must be taken to ensure that candidates, such as Jan, are not unconstitutionally faced with the choice of ending their campaign or placing the public at risk,” stated the letter, sent by Garbett’s legal counsel.
The letter argued that Cox’s office, which oversees elections, could adjust the deadline for submitting signatures. Alternatively, Herbert could issue an order permitting electronic gathering or declaring that any official candidate who filed an intent to collect signatures will appear on the primary ballot.
But Justin Lee, Utah’s election director, told The Tribune that allowing electronic signature-gathering or extending the submission deadline would require changes to state law. Although the current state of emergency would empower Cox as lieutenant governor to change voting deadlines or early voting locations, nothing in the law gives him the ability to unilaterally change the signature-collection process, Lee said.
To do that, the Legislature would have to convene in a special session to amend the law, he said.
Aside from the legal obstacles, Lee has said previously that there are also practical challenges to making allowances, since the elections office doesn’t currently have the capability of verifying electronic signatures and would need months to acquire it.
Herbert eventually signed an executive order on March 26 suspending a provision in state election law requiring that canvassers witness each signature and by letting candidates send and receive petition pages electronically.
But Garbett’s lawsuit contends that action didn’t go far enough. Candidates had only two weeks to implement an entirely new system that required voters to own a printer or scanner, to pay to return the signed petition through the mail and required significantly more expense and work than collecting in-person signatures, she said.
Still, the campaign sent 20,000 letters with postage-paid return envelopes in an attempt to gather signatures under the governor’s executive order. Garbett received only 1,000 back, the lawsuit states — an “unsustainable $163 per signature” compared to an average cost of $25 per signature gathered while canvassing.
Garbett wasn’t the only candidate to struggle to collect signatures in time for the deadline to hand them in amid the coronavirus outbreak. Former Gov. Jon Huntsman’s campaign also asked Utah leaders to override the state’s signature-gathering rules in light of the pandemic — though he was able to squeak in his 28,000 by Monday, just in time to qualify for the ballot.
“We play by the rules and finish by the rules," Abby Huntsman, Huntsman’s daughter and campaign spokeswoman, said Monday after the signatures were verified. “Even if they are in desperate need of reform.”
Cox and Thomas Wright, a former Utah Republican Party chairman, both earlier met the 28,000-signature threshold to qualify for the ballot.
Two Democratic candidates — Zachary Moses and Chris Peterson — initially planned to collect signatures but called off their efforts because of COVID-19. Now, their only way to make a primary showing is by earning enough support from party insiders during the state Democratic convention later this month.
State lawmakers are expected to address election-related questions in their special session on Thursday, though legislative leaders have told The Salt Lake Tribune they don’t have an appetite for changing election dates or tampering with the state’s signature-gathering rules beyond the governor’s executive order allowing these to be collected by email.
Editor’s note: Paul Huntsman, a brother of Jon Huntsman, is chairman of The Salt Lake Tribune’s nonprofit board of directors.
