Utah Judge Jay Winward rejected on Monday a request from Colby Jenkins’ campaign to require the Washington County Clerk to turn over a list of 433 voters whose ballots were rejected because of mismatched signatures.
The Jenkins campaign filed a lawsuit Friday, hoping to get the names of voters whose ballots weren’t counted so they could contact those voters and encourage them to “cure” their ballots. Jenkins won Washington County over incumbent U.S. Rep. Celeste Maloy 59% to 41%, making it the likeliest area for him to cut further into Maloy’s lead in Utah’s 2nd Congressional District Republican primary electioon
The margin district-wide is currently 314 votes out of just under 107,000 counted, according to unofficial totals.
“In this case, reading this statute, I think the Legislature meant it to be broad,” Winard said while ruling from the bench, leaving the discretion to Washington County Clerk Ryan Sullivan. “It’s very clear to me this is how it is supposed to occur.”
Winward also said, though, that by raising the issue, Jenkins’ campaign has put Washington County voters on notice that they should check with the clerk to make sure their ballots had been counted and fix any problems with their votes.
Sullivan also told the court that the county had sent a letter and text messages to voters whose ballots had not been counted, as is required by the law.
Voters on the cure list — a record of ballots that were not counted, often because the signatures do not match the signatures the clerk has on file — have until the end of the day Monday to provide proof they were, in fact, eligible to vote.
Jenkins’ lawyer, John Mertens, argued providing the list to the campaign would make it more likely that eligible voters would have their ballots counted and enable the campaign to advise voters that mailing the information to the clerk might not work, since mail in the area is shipped to Las Vegas to be processed before being returned to the clerk.
The list, Mertens argued, is not a draft document exempt from the state’s public records law just because it changes as voters fix any problems, comparing it to property records that can also change from time to time.
And, he said, the fact that the Salt Lake County clerk provided campaigns with that county’s cure list while Washington County did not means that voters are treated differently, disparate treatment has been prohibited by the U.S. Supreme Court.
But Winward rejected those arguments, saying Sullivan had complied with the statutory requirements for curing votes and focusing on the use of the word “if” when it comes to providing information on rejected ballots — an indication that the Legislature intended to leave the decision up to the clerks.
Under Utah law, “if ... an elections officer discloses the name or address of voters whose ballots have been rejected,” they have to within 2 days, respond in the order requests were received and not show favoritism to one requestor over another.
The judge focused on the use of the word “if,” deeming that it gives the clerk discretion as to whether or not to disclose the list.
“In this case, reading this statute, I think the Legislature meant it to be broad and left the discretion with that word ‘if’ to Mr. Sullivan,” Winward said. “That’s how I interpret it. That’s how I read it.”
Maloy, a first-term incumbent who replaced Rep. Chris Stewart after a special election last November and was endorsed by former President Donald Trump, led Jenkins, who was backed by U.S. Sen. Mike Lee, by about 3,000 votes on election night, according to unofficial early returns. But, as the most recent update on Friday, that lead had dwindled to 314 votes — a margin of 0.294 percentage points.
Clerks have to complete their vote tallies by Tuesday so they can be approved by the county commissions by Tuesday afternoon.
The statewide canvass will be conducted July 22. After that, according to state law, Jenkins’ campaign would be able to request a recount by 5 p.m. on July 29 if the margin dropped under 0.25 percentage points.
