After the Utah Supreme Court refused to declare him the rightful Republican nominee for governor, write-in candidate Phil Lyman is taking his case to the U.S. Supreme Court, a last-minute and unlikely attempt to have Gov. Spencer Cox disqualified from the election which is now just two weeks away.
In August, Lyman filed an emergency petition to the Utah Supreme Court asking the justices to nullify Cox’s primary election victory. The court, without hearing a response from attorneys for Cox or the state, dismissed the suit a few days later in a six-page opinion that said Lyman failed to state a legal claim or factual basis for his demands.
“His request is based on a view that the Republican Party’s internal rules trump Utah’s election laws, a claim we rejected [previously],” Chief Justice Matthew Durrant wrote for the state’s high court.
Now Lyman, a Republican state representative, is asking the U.S. Supreme Court to declare that he should have been the Republican nominee without having to go to the June primary with Cox, arguing because he received more than two-thirds of the vote from delegates at the Utah Republican Party nominating convention.
Utah law, however, says that candidates may also qualify for the primary by gathering signatures — 28,000 of them, in the case of statewide office — and Cox, as well as U.S. Senate candidate John Curtis and Attorney General candidate Derek Brown, did that.
Because the state administers primaries, state law governs the processes for those elections, not Republican Party rules. Republican Party Chair Rob Axson has said that the party forwarded Lyman’s name to appear on the ballot, as required by law, and that is the end of the party’s role.
Cox won the June primary by nearly 38,000 votes — or 54% to 46%.
“We have decided to appeal this decision to the U.S. Supreme Court because we believe the Utah Supreme Court’s dismissal was frivolous and misconstrued the previous [U.S. Supreme Court] ruling on New York State Board of Elections v. Lopez Torres,” Lyman said in a news release Tuesday. “There is enough history of litigation surrounding [Senate Bill] 54 to support an appeal to [the U.S. Supreme Court]. We look forward to the next steps in this process.”
SB54 was a law passed by the Legislature that created the signature path for candidates to get onto the primary ballot.
Recently, audits from State Auditor John Dougall and the Utah legislative auditor general identified some of those 28,000 signatures for all three candidates that they said should not have been validated based on signatures that did not match signatures for the voters that were on file. They also found that some signatures that had not initially been counted should have been added to the tally.
Both audits said that Cox and the other candidates complied with state law and, had it actually been determined that they were short signatures, had more time to gather what was needed. In Cox’s case, he had 28 days remaining to collect signatures.
A spokesperson for Cox’s campaign did not immediately respond to a request for comment on Lyman’s Supreme Court filing.
Lyman also tried to convince his colleagues in the Utah Legislature to convene an emergency special session to have Cox disqualified from the ballot or demand that he drop out of the race. House Speaker Mike Schultz refused, contending that the Legislature had no authority to do so.
Last week, about 200 supporters held a rally on the steps of the declaring Cox an “illegitimate” candidate and calling on him to drop out.
The U.S. Supreme Court typically hears about 1.5% of the roughly 7,000 cases that are filed each year, according to the U.S. Courts administrator.
Election Day is Nov. 5 and ballots have been mailed to voters and are being returned. Currently, Cox is listed as the GOP nominee on the ballot and there is no time for ballots to be reprinted.
This story is breaking and will be updated.
