Colby Jenkins’ battle to overcome a 176-vote defeat at the hands of Rep. Celeste Maloy and become the Republican nominee in Utah’s 2nd Congressional District has come to an end after the Utah Supreme Court rejected his argument that nearly 1,200 late-postmarked ballots should be counted.
Chief Justice Matthew Durrant wrote in a short ruling Tuesday that Jenkins’ petition to the court “fails to identify any instance where election officials failed to comply with any statutory mandate” and that it “falls well short of establishing that he is entitled to the relief he seeks.”
The relief Jenkins sought was an order requiring county clerks to count ballots that were postmarked after the statutory deadline. They had arrived late, Jenkins’ lawyers argued, because mail from parts of southern Utah gets shipped to Las Vegas to be processed, causing delays of up to a week in one instance.
Jenkins contended that two voters in the same district could drop their ballots in the mail at the same time and one would be counted and the other would not, based solely on the postal facility where they were postmarked.
But the justices, who seemed dubious of the arguments presented at a hearing last week, were not convinced that the issue created a constitutional violation. Nor were they convinced the number of ballots was as high as Jenkins asserted it to be.
Jenkins — Supreme Court by Robert Gehrke on Scribd
In Washington County, for example, of the 659 ballots that were postmarked after the deadline, 244 were actually processed in Las Vegas. “And we do not know,” Durrant wrote, “how many of those 244 ballots were placed in the mail before primary election day.”
The justices also seemed perplexed by Jenkins’ argument that by relying on the Postal Service to deliver the ballots, the state was creating unconstitutional interference in citizens’ right to vote. Jenkins’ attorneys provided no case law or argument, Durrant wrote, to substantiate their assertion.
Moreover, voters who wanted to ensure their votes were counted could have mailed their ballots earlier, had them postmarked at the post office where they live, deposit the ballots in a drop box or polling location, or simply voted in person.
Jenkins, in a statement Tuesday, called the ruling “a sad day for democracy” that meant that “hundreds of properly cast votes will go uncounted.”
“This ruling undermines fundamental voting rights and sets a troubling precedent for future elections,” he said. “As leaders, we should not be in the business of outsourcing our Utah elections to another entity, such as the Postal Service, nor reinforcing the interference such outsourcing enables. That must change, and this must never happen again.”
Jenkins said he contacted Maloy to congratulate her on her victory.
On primary election night, Maloy led Jenkins by about 3,000 votes, but in the ensuing days the lead slipped to 214 — within the margin to qualify for a recount. During the recount, a software problem was uncovered that led to some ballots not being counted and, at the end, Jenkins trailed Maloy by 176 votes.
In a videotaped statement, Maloy acknowledged the narrow margin and said “I know that means a lot of people didn’t vote for me. So I just want to speak to the people who didn’t support me and say, ‘I’m going to keep working for you. I’m going to work hard for Utah and the people of the 2nd District, regardless of where they fell in this primary.’”
Maloy took office last November after winning a special election to replace retiring Rep. Chris Stewart. Maloy had worked as a staffer in Stewart’s office, and he endorsed her candidacy.
This year, Jenkins, who was endorsed by Sen. Mike Lee, R-Utah, bested Maloy at the state convention, but she still garnered enough support to advance to the primary.
In the primary, Maloy had the backing of former President Donald Trump and the rest of Utah’s House delegation, which she acknowledged on election night made a significant difference in the race.
The race will go down as one of the closest margins in a major contest in Utah history with 176 votes out of more than 107,000 cast deciding the victor — a margin of 0.16%. In 2018, Democrat Ben McAdams edged out Republican Mia Love by 694 votes in a congressional race in which nearly 270,000 ballots were counted.
In 2016, Democratic legislative candidate Suzanne Harrison lost to state Rep. LaVar Christensen by three votes out of about 15,000 total votes cast, a margin of 0.02%. Other legislative races have also been decided by a few dozen votes or less.
The dismissal of Jenkins’ petition was one of two the justices issued Tuesday. They also rejected arguments from gubernatorial candidate Phil Lyman that they should remove Gov. Spencer Cox from office and from the November ballot because Lyman had won at the state convention and, under Utah GOP bylaws, should not have had to face a primary opponent.
The justices held that Utah law, which allows candidates to gather signatures to qualify for a primary, superseded the Republican Party rules and tossed the case.
