Washington County clerk has discretion in not releasing list of 'uncured' ballots, judge rules (2024)

ST. GEORGE — A Utah judge has ruled against the congressional campaign of Colby Jenkins, after the candidate sought to obtain a list of Washington County voters whose ballots are "uncured" and need to be fixed by end of day Monday.

Jenkins, a Republican who is challenging Rep. Celeste Maloy in Utah's 2nd Congressional District primary, sued Washington County Clerk/Auditor Ryan Sullivan on Friday, asking the courts to quickly compel Sullivan to turn over a list of voters whose ballots need to be cured, so his campaign could contact voters and urge them to fix the issues with their ballots.

Many of the uncured ballots have mismatched signatures, meaning county election officials have been unable to count them.

Fifth District Judge Jay Winward ultimately rejected Jenkins' request, saying Utah election law gives county clerks discretion when it comes to releasing lists of uncured ballots.

"If Mr. Sullivan decides to do this," Winward said of optionally handing over the list of uncured ballots, "he has to comply with the law."

Judge rules in favor of county clerk

John Mertens, an attorney for the Jenkins campaign, argued that not releasing the list could do irreparable harm to Jenkins' election prospects, and would hurt voters who are unable to have their ballots cured.

He also argued that Sullivan's decision not to turn over the list is in contrast to a U.S. Supreme Court precedent that voters from different counties should be treated equally, citing the Bush v. Gore decision in 2000. The Salt Lake County clerk voluntarily provided the campaign with its list of voters, and Mertens argued that by not doing so, Sullivan is treating Washington County voters differently than Salt Lake County voters.

But Winward said when weighing the harms in the case, voters "have every right" to ask elected officials not to disclose their personal information to campaigns.

Sullivan testified to Winward that his staff followed the law relating to uncured ballots by leaving them unopened, separating them from other ballots and then contacting the voters by mail, or email and phone, if applicable, to inform them of the issue and the steps required to fix it.

If the county clerk decides not to disclose the cure list to a campaign, "they're treating voters the same as if an officer decided to disclose because they're simply getting a way to notify" voters of the issues, the judge said. "It's within his purview as the executive branch officer to say, 'I'm not disclosing names of my voters in my county. I'm going to contact them as required by the statute.'"

Winward said Jenkins isn't helpless when it comes to getting the outstanding ballots cured before the canvass and encouraged all voters to verify that their vote has been counted by visiting https://ballottrax.utah.gov.

"Candidate Jenkins just had a huge forum," Winward said, referencing the media attention of the lawsuit and hearing. "I'm grateful that he brought this to the court. He has a huge forum and a bank of reporters to say, 'Everybody in Washington County, go to the link, track your vote. If it wasn't counted, contact the clerk immediately.' And I hope every voter in this county — whether it's 500 or 5,000 — checks their vote ... make sure it was counted."

Jenkins currently trails Maloy by 314 votes, though he leads the incumbent with nearly 60% of the vote in Washington County. The threshold for a recount is estimated to be a margin of about 267 votes, and Jenkins hopes to make up that ground with the more than 400 uncured ballots out of Washington County.

Jenkins campaign manager Greg Powers said the campaign respects the decision of the judge, but he disagrees with the reading of the law. He said Winward issued a "very narrow" ruling, and said the judge hinted that lawmakers could address the law in question so as to avoid confusion in future elections.

"I will note that as I read this election code, I found it robust," the judge said. "I found that the Legislature really did a pretty good job of addressing a lot of issues. I might ask my senator and my representative to maybe make this a little bit more robust and say if an election is under 1,000 votes, if there's a 500 rejection count, they must disclose in this way and they have to black out all these things, they have to redact in this way."

"There's clearly an issue with the statute, but we think that ... in good faith, he did everything that he felt that he could," Powers said of the judge.

Concerns about mailed ballots

While Monday's hearing was focused on whether Sullivan is required to turn over the county's "cure list," Jenkins' attorney also raised another concern with mail from southern counties being routed by the U.S. Postal Service to a processing plant in Las Vegas. Mertens said this was a "complicating factor" in the election, because some ballots may have been postmarked in Las Vegas several days after they were originally mailed.

Iron County Commissioner Paul Cozzens on Friday said he would not certify the county's election results after several hundred ballots were postmarked after the June 24 deadline, meaning they are not eligible to be counted. Iron County Clerk Jon Whittaker said some of those ballots had hand stamps dated before the deadline.

Ballots in seven southern Utah counties are routed through Las Vegas, while ballots in northern Utah are sent through Salt Lake City.

Powers said if the race doesn't come close enough for a recount, the Jenkins campaign could try to contest the results of the election based on the postal routing system in southern Utah.

"We would ask a court to level the playing field to make it so that a voter in Washington County is treated the same as a voter in Davis County," he said. "Because if a voter in Davis County dropped their ballot before 5 p.m. at their local post office on the day before the election, it got postmarked and counted. And a voter in Washington County or Kane County or Iron County could do the exact same thing with the exact same understanding, and yet their ballot would not be postmarked until Tuesday if it didn't get to the central processing facility in Washington County by 2:15 p.m."

"We would hope that a judge would allow those ballots to be counted, and if there's enough of those ballots left to swing the election, then there's a chance that we would go ahead and challenge the election at that point," he added.

He noted that the majority of counties which could be impacted by having ballots postmarked late are counties that Maloy is winning. Washington County is the only southern Utah county where Jenkins currently leads.

"We're not trying to get special treatment, we just want every vote to be counted," Powers said. "And once the election is over, and every vote has been counted, we will accept whatever the results are."

Whether the race becomes close enough for a recount will likely depend on the remaining 433 uncured ballots in Washington County. The county canvass is scheduled for Tuesday at 4 p.m., so Powers expects the campaign to know sometime Tuesday whether a recount is possible.

If the race doesn't go to a recount, he said the campaign will likely know if it plans to contest the results by Wednesday or Thursday — a decision that could further push back the resolution of the race.

Correction: An earlier version incorrectly said the Washington County canvass is Monday. The canvass is Tuesday at 4 p.m., but voters need to cure their ballots by Monday.

Washington County clerk has discretion in not releasing list of 'uncured' ballots, judge rules (2024)

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