Judge dismisses lawsuit over thousands of potentially missing mail-in ballots

SALT LAKE CITY -- A judge has dismissed a lawsuit filed against the Salt Lake County clerk over thousands of potentially missing ballots.

In a ruling following an emergency hearing in 3rd District Court, Judge Robert Faust dismissed the lawsuit. He said he found Salt Lake County Clerk Sherrie Swensen has complied with the law.

"Testimony is uncontroverted that all of the ballots for all of the registered voters were mailed out 28 days, the maximum amount of time allowed by law to all registered voters," Judge Faust said.

Salt Lake County Clerk Sherrie Swensen (D) testifies in 3rd District Court on Nov. 5, 2018. (Image by Eric Brown, FOX 13 News)

Last week, Rep. Dan McCay, R-Riverton, and Republican county clerk candidate Rozan Mitchell sued Swensen, seeking to hold her accountable for thousands of mail-in ballots not reaching voters by an October 16 deadline.

"Elections are sacred in this country and we have to make sure they’re done with fidelity," said Rep. McCay outside court.

A series of news reports and constituent comments about voters not receiving mail-in ballots triggered the lawsuit brought by Rep. McCay and Mitchell.

"There are people out there that have come forward, they’ve made that known. They’ve called the clerk’s office," said Mitchell.

Swensen, a Democrat who is seeking re-election, has blamed the ballot's printers in Washington state for the issue. Swensen testified 495,000 voters were mailed ballots in the initial wave ahead of that October 16 deadline. She said an additional 5,500 were mailed out to voters a week later.

Swensen said ultimately, more than 532,000 voters were mailed ballots in Salt Lake County. But she could not say conclusively that every single registered voter received one.

"I don’t know that some of them didn’t because of the postal service. I don’t oversee the post office, obviously," Swensen told reporters outside court. "It could happen, but it wasn’t for lack of us trying."

Rep. McCay and Mitchell said they wanted a list of voters who got the delayed ballots and they asked Judge Faust to order it. On Monday, he said they could file a public records request for it, but it likely wouldn't be granted until after the election.

Outside court, Rep. McCay (who is running for a state senate seat) said he intended to seek that list but wasn't planning to appeal the judge's ruling.

Swensen told reporters she believed the lawsuit was politically motivated.

Ballots are counted at the Salt Lake County Clerk's Office. (Photo by Ben Winslow, FOX 13 News)

"The law is clear. The lawsuit, I believe, was brought about as a political tactic. It was frivolous. It’s without merit to begin with. I think it’s a disservice to the voters. It costs valuable taxpayer money," she said.

Mitchell said it was about transparency.

"I hope it’s an eye opening experience for voters and voters recognize that you need more transparency out there in the electoral process," she said.

If you haven't received a ballot, you can still vote early in Salt Lake County. A link to times and locations is here.

Any questions about your ballot, contact your local county clerk's office.