Utah Supreme Court considers vote count in contested race

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SALT LAKE CITY -- The secret ballot is a hallmark of democracy, protecting the rights of people to choose their leaders without coercion.

It also gets in the way of figuring out what happened when an election seems to go bad.

That's at the center of the dispute heard in Utah's Supreme Court.

They are considering the primary election in the race for Millard County Commissioner between incumbent James Withers and challenger Jim Dyer.

One thousand and fourteen voters cast ballots for James Withers while 1,009 voted for Jim Dyer. At least 18 tried to vote, but no one but they know who they wanted in office.

"The election was fatally flawed to a point that you cannot determine a winner," said Steve Maxfield, a Kanosh resident and voter who took part in the arguments.

That was also the conclusion of State District Court Judge Claudia Laycock. She heard the complaint of Jim Dyer and ordered the county to hold a new election.

Lt. Governor Spencer Cox, in his role as supervisor of elections in Utah, disputed the judge's right to order a new election.

"An election is sacrosanct and so we had an election and you're talking about setting it aside," said Thom Roberts, the Assistant Attorney General representing the Lt. Governor.

The justices peppered Roberts with questions about holes in Utah law that seem to leave judges with no choice but to accept flawed election results.

"The response to uncertainty in the statute is that whoever won is the winner, regardless of the scope of the uncertainty," said Chief Justice Matthew Durrant, also asking,"I mean, if you had 50 percent of the ballots that were illegal, that would still be the result?"

While seeming frustrated with the limitations of the law, the judges were also skeptical of Laycock's decision.

"What is the source of Judge Laycock's authority to order a new election?" asked Justice Jill Parrish.

An attorney representing a group of Millard County voters said it's a question of core constitutional rights.

"In the scales of justice it always has to come out in favor of the right of people to vote, and that includes the right to have fair open honest legitimate elections," said Todd Macfarlane.

But the ultimate outcome may have less to do with debates over democracy than with a deadline.

Asked if there's any way to hold a special election and meet federal deadlines for printing general election ballots, the Director of Elections for Utah was direct.

"No," Mark Thomas said.