SALT LAKE CITY — The Utah Supreme Court justices appeared skeptical about Republican congressional candidate Colby Jenkins' request that they order late-postmarked ballots to be counted, potentially upending the GOP primary.
During an emergency hearing on Friday, the justices heard arguments about ballots that Jenkins said were mailed before the primary election deadline, but shipped to a U.S. Postal Service processing center in Las Vegas where they were postmarked too late, then sent back to county clerks in Utah.
"The saying goes 'What happens in Vegas, stays in Vegas,'" Jenkins attorney AJ Ferate told the Court. "Those ballots head down to Vegas with a good probability they won’t get stamped the same day they’re mailed. Maybe not even the next day, either. Then they turn up after a few wild days, late and untimely with responsibilities ignored. And Utah, like a willfully blind spouse, looks the other way."
Jenkins, who lost the GOP primary by 176 votes to incumbent Congresswoman Celeste Maloy, is asking the state's top court to order more than 1,100 ballots that were rejected for arriving after the postmark deadline be counted. He said he has heard from southern Utah voters who insist they did drop their ballots in a mailbox before the deadline.
"Our state has unfortunately outsourced every legal vote to an entity that we do not control," he told reporters outside of court.
But the justices grilled Jenkins' attorney about the many ways Utah voters have to cast a ballot and whether a postmark is truly unconstitutional.
"How is what’s happening here an interference? To prevent the right to vote when the statute allows for multiple avenues to exercise that right to vote and only one requires to go to the post office?" asked Justice Jill Pohlman.
They asked about distinctions between urban voters and rural voters, and whether Jenkins wanted votes handled in a Salt Lake City processing center counted alongside the Las Vegas ones. They also inquired about the voter's duty to ensure their ballots are counted.
Lawyers representing county clerks and Lt. Governor Deidre Henderson insisted to the Court that there are numerous ways to vote in Utah, including mail-in ballots that can be postmarked or delivered to a secure dropbox and in-person voting. Assistant Solicitor General Sarah Goldberg told the justices that some responsibility falls on the voter.
"It goes back to the duty to have your ballot postmarked on time. That duty lies with the voter, not the postal service," she said. "To that end, we have counties telling voters to get their ballot in early, make sure it’s postmarked by the deadline."
Justice Diana Hagen seemed reluctant to overturn Utah's mail-in voting laws.
"I tend to agree that we would have to declare the postmark statute unconstitutional to give Mr. Jenkins the relief he requests," she said during arguments.
Outside court, Jenkins told reporters he wants to ensure votes are counted.
"Certainly, we want to win our election," he said. "But more importantly, we are here fighting so that every legal vote, every legal ballot gets counted."
Jenkins has sued before to have access to lists of voters who had been contacted by election workers to fix problems with their mail-in ballots, as well as having late-postmarked ballots counted. Judges have previously denied those requests.
The Utah Supreme Court gave no timeline for when it would rule. Jenkins said that in light of the postmark issue, he does plan to ask the Utah State Legislature to address it.
"Regardless, whether we win in this case or not, this cannot happen again," he said.
