Utah Supreme Court grills Jenkins’ attorneys, questions ability to count late-postmarked ballots

It didn’t take long before Colby Jenkins’ attorney Anthony Ferate faced an onslaught of questions from the Utah Supreme Court in a hearing Friday.

Within minutes, justices on Utah’s highest court began grilling Ferate, who represented Jenkins in his bid to contest the results of the June 25 Republican primary, which he lost by just 176 votes (or 0.16%, after a recount) to incumbent Rep. Celeste Maloy in the razor-thin GOP race for Utah’s 2nd Congressional District.

Justices’ line of questioning indicated some members of the five-justice court were skeptical or at least hesitant over whether they would have any legal standing to grant Jenkins’ request. They were also uncertain of specifically what Jenkins’ attorneys were asking them to do.  

“I’m not clear exactly what you’re challenging,” Justice Diana Hagen told Ferate, asking if Jenkins wanted the court to challenge the constitutionality of Utah’s law setting the state’s postmarking deadline a day before the election, or to challenge whether voters were properly advised of potential mail delays. “I mean, what state action are you challenging?”

In response to Hagen’s questions during Friday’s hearing, Ferate said the crux of Jenkins’ petition “goes to all of that,” but specifically, he contended, Utah’s law that specifies ballots be postmarked no later than the day before Election Day does not adhere to the section of Utah’s Constitution that requires “all elections shall be free, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The court took Friday’s hearing under advisement. It’s unclear when it may issue a ruling, but it’s likely to do so quickly as election officials work to finalize general election ballots, with deadlines at the end of the month fast approaching. 

Jenkins’ petition asks the court to require that county clerks count 1,171 by-mail ballots that were disqualified because they missed the state’s deadline for postmarking, including some in southern Utah that were routed through a U.S. Postal Service facility in Las Vegas. 

Utah law requires vote-by-mail ballots to be postmarked no later than the day before Election Day. Jenkins’ petition alleges voters in nine rural counties were “treated differently” than voters whose ballots were processed in the U.S. Postal Service’s Salt Lake City facility, and accuses election officials of doing nothing to “inform voters of this issue.” 

However, state attorneys, in a written response filed this week, argued that Jenkins’ challenge is based on “unfounded legal arguments” and Utah law is clear: clerks cannot legally count ballots that are postmarked late. Ultimately, they argued the responsibility lies with the voter — not the U.S. Postal Service — to ensure their ballot is postmarked. They also maintained clerks provided ample information urging voters using a by-mail ballot to not delay and to mail in their votes early to ensure they wouldn’t miss the postmarking deadline. 

State attorneys also argue that by selectively allowing 1,171 southern Utah ballots to be counted and not other late, disqualified ballots across the state, that would effectively “create its own equal protection problem,” arguing Jenkins’ claim does not articulate a standard for which invalid ballots should be counted.

Oral arguments

In essence, Ferate argued Utah’s election code is constitutionally “infirm,” and it hands over an important part of the voting process to a third party, the U.S. Postal Service, by hinging by-mail ballots’ eligibility on timely postmarking. He argued that can open the door to election “interference.” 

“Isn’t the voter ultimately responsible for ensuring (the ballot) is postmarked?” Hagen questioned, noting such a provision isn’t “unique” to election law — it’s also required for taxes, and job applications, for example. “Why isn’t that the voter’s responsibility?”

Ferate acknowledged the responsibility does fall on the voter, but the way Utah law is written “actually restricts that voter’s ability to have that clear dictate.” 

Sarah Goldberg, assistant solicitor general with the Utah Attorney General’s Office representing Utah Lt. Gov. Deidre Henderson in the case, pushed back on Jenkins’ attorneys’ arguments involving the Postal Service. 

“I don’t see how it’s interference,” Goldberg said, noting there’s no law that mandates postal workers have an “actual duty” in elections, noting that voting by mail is one option but not the only way for Utah voters to cast their ballots. “I don’t see how they’re somehow interfering with the right to vote.”

In response to Hagen’s comments that, in order to grant Jenkins’ petition, the Utah Supreme Court would likely have to declare the postmarking deadline unconstitutional, Goldberg noted that’s not explicitly asserted in his petition.

 “I think that’s frankly a basis the court can reject this as well,” Goldberg said. She urged the court to “put an end” to the case so county clerks can now focus on preparing for the November election.

By Aug. 31, state election officials must certify candidates’ names that will be printed on the ballot. 

While Jenkins’ petition urged the Utah Supreme Court “time is of the essence” to consider their request, claiming “ballots for the general election will begin printing in mid-August,” Goldberg noted the state’s deadlines for candidacy are closer to the end of August and beginning of September, and “printing can’t start” until after Aug. 31. General election ballots are scheduled to be mailed on Oct. 15, according to the state’s website. 

The tensest moment of Friday’s hearing came when Associate Chief Justice John Pearce scolded Jenkins’ attorneys for including inaccurate information in their filing. He said when the Utah Supreme Court grants urgent hearings, “it likes to do so based on accurate information.” 

“Now we find out that wasn’t true?” Pearce said. “That’s concerning.” 

Ferate apologized, but he argued time is still of the essence, with a deadline coming at the end of August rather than the middle of the month. 

Jenkins’ reaction to court hearing

In a scrum with reporters after walking out of the Utah Supreme Court chambers at the Scott M. Matheson Courthouse in Salt Lake City, Jenkins was upbeat and smiling despite the rough line of questioning his attorneys faced.

Jenkins said he was grateful for the opportunity to bring his case in front of the court, and credited the justices for being “engaged” in the issue.

To push back on the assertion that ensuring ballots are postmarked on time is a responsibility that falls on the voter, not the post office, Jenkins posed a hypothetical scenario: What if, he said, a postal worker tossed a container full of ballots in a dumpster?

“We would all know that’s clearly wrong,” he said. “Let’s say that same postal worker takes that same container and puts them on a truck and ships them to Vegas. Now those ballots have just been disqualified because they won’t get postmarked until two, maybe even three days later.” 

Asked if he will accept the result of the election if he loses the case, Jenkins said he would — though he also did not rule out any opportunities for appeals. 

“If we lose here, we’re certainly grateful that we’ve tried to exhaust every legal means,” he said. “But yes, that’s how our nation operates.” 

State attorneys, in their written response to Jenkins’ petition, had urged the Utah Supreme Court to reject his claims and said his continued efforts “undermine the public’s confidence in the election process.”

In response to that, Jenkins argued the process — from the recount, to now the case that the Utah Supreme Court agreed to hear — is “reinforcing public confidence” in a race with razor-thin margins to ensure every possible vote gets counted. 

“Fifty-five people’s votes were brought into daylight (in Tooele County, during the recount),” Jenkins noted. “So that reinforces that this process is working. The ability for us to challenge, for us to question, should give more confidence.” 

If the Utah Supreme Court rejects his petition, Jenkins also said the matter shouldn’t end here. He said the Utah Legislature should act to address postmarking issues.

“Regardless, whether we win in this case or not, this cannot happen again,” he said. 

Asked what he thinks the Legislature should do with regard to the law around postmarking, Jenkins said there are “a myriad of opportunities” they could consider to tweak the law, but “the fundamental issue we’re trying to tackle here — eliminate — is that outsourcing (to the post office) where the voter loses control of their ballot.” 

Asked if he means the Utah Legislature should do away with voting by mail, Jenkins said, “let’s consider that, for sure,” as well as other potential changes. 

“We want to make sure this never happens again,” he said. “Let’s make sure the problems that have led us here are addressed.”