Utah congressional candidate Colby Jenkins files lawsuit contesting the election

Colby Jenkins takes his opportunity to talk after Utah’s 2nd Congressional district debate between Congresswoman Celeste Maloy and himself at the KUED studios at the University of Utah in Salt Lake City on Monday, June 10, 2024. (Pool photo by Scott G Winterton/Deseret News)

The day after U.S. Rep. Celeste Maloy’s Republican challenger Colby Jenkins officially called a recount in Utah’s 2nd Congressional District race with razor-thin margins, he also followed through on a separate legal challenge to the election his campaign has been planning. 

Jenkins on Tuesday filed a lawsuit with the Utah Supreme Court, seeking to contest the certification of the June 25 primary over 1,171 ballots that were disqualified because they were postmarked late. Utah law requires ballots to be postmarked no later than the day before the election. 

According to a copy of the lawsuit Utah News Dispatch obtained from Jenkins’ campaign, Jenkins is suing clerks in nine southern Utah counties (Beaver, Garfield, Iron, Kane, Millard, Piute, Sevier, Washington, Wayne) as well as the Lt. Gov. Deidre Hendrson, the state’s top election official. He’s asking the Utah Supreme Court to direct all the clerks in those nine counties  to count all ballots “that were not counted” in the primary “because of invalid or late postmarks.” 

“This action concerns an election law barrier that disenfranchises a significant number of voters who only reside in southern Utah – specifically, the Second Congressional District – that resulted in Defendants’ failure to properly count timely cast ballots in accordance with (Utah law),” the lawsuit states.

Maloy, who beat Jenkins by 214 votes or 0.2%, according to certified election results, said in a prepared statement Tuesday she remains “strongly in favor of counting every legal vote,” and she expected Jenkins’ challenge. 

“The decision to appeal to the Utah Supreme Court is one we anticipated and I trust the justices will give the issue the consideration it merits,” Maloy said. “As this process and the recount move forward, I am focused on the job at hand and will continue to do work to address the big issues facing Utah and our country.”

Jenkins’ attorneys allege “the failure to properly count valid ballots” violates the Constitution, and “the impact of these failures is that voters” in the 2nd Congressional District race “in and around southern Utah, will simply have their votes discarded because they were not instructed, in contravention of Utah law, that the processing and postmarking time necessitated early mailing of their ballots because their mail was processed in a facility different than” the rest of the 2nd Congressional District. 

The lawsuit alleges voters in those 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.” 

Jenkins’ complaint revolves around what he called the “Vegas Cancellation” in an interview with Utah News Dispatch on Monday. 

While mail from areas with the 3-digit zip code prefix 840-846 is processed in the U.S. Postal Service’s Salt Lake City distribution facility for sorting and postmarking, mail from localities with the zip code prefix 847 is sent to the U.S. Postal Service’s Las Vegas facility, the suit states. 

“Citizens in multiple Utah counties that have their mail processed and postmarked (at the Las Vegas facility), claim to have filled out and mailed ballots prior to election day as required, but due to processing delays, their ballots were not postmarked until after June 24, 2024, and therefore were not counted.,” the lawsuit says.

The suit includes a list of voters that “each placed their ballots in the mail before the deadline,” but their votes were “disregarded because it was postmarked after the deadline,” the lawsuit states.

Some county election officials, the suit adds, “have refused to produce to Mr. Jenkins the names of those voters whose ballots were not counted as a result of postmarking issues.” However, his campaign obtained statements from “a number of voters whose ballots were not counted,” many of them sharing similar stories. The suit names three voters — from Cedar City, St. George, and Washington — who mailed their ballots on June 17, June 23 and June 20, respectively.

“These are just samples of stories Mr. Jenkins has heard from his voters across the Second Congressional District,” the suit says. 

The lawsuit also said county elected officials “despite their knowledge of the processing and postmarking delays … did nothing to address the delay or advise voters that their votes would not be counted as a result of the delay.” Most of the nine counties with ballots that were processed in Las Vegas reported those ballots as “not being curable due to late postmarking,” the suit states. Those included:

• Two in Beaver County,

• 491 in Iron County,

• Eight in Kane County,

• 662 in Washington County,

• Eight in Wayne County.

As a result of election officials “failure to address the processing and postmarking delay, approximately 1,171 Utah residents – who exercised their right to vote – will be disenfranchised,” Jenkins’ attorneys wrote in the filing.

They argue that Utah election officials are charged under Utah law to provide “instructions for returning the ballot that include an express notice about any relevant deadlines that the voter must meet in order for the voter’s vote to be counted.” However, voters in those nine counties “were not advised of relevant deadlines regarding their mail-in ballots” because they were not told their mail would be processed in Las Vegas and therefore face postmarking delays. 

“This delay was nothing new – it had been the subject of at least one Utah interim hearing – but, nothing was done,” the lawsuit says. “Respondents did not inform voters that the deadline to mail their ballots was significantly earlier due to the use of the (Las Vegas facility).”

The postmarking issue especially stirred frustrations in Iron County, where one commissioner voted against certifying the election because of the nearly 500 ballots that were disqualified. The other Iron County commissioners ultimately voted 2-1 to certify, but not without heartburn, saying legislative leaders advised them the law is clear that ballots can’t be legally counted if they’re not postmarked on time. They also issued calls to Utah legislators to tackle the issue, if not for this election, for future elections. 

At least one legislator, Sen. Dan McCay, R-Riverton, told Utah News Dispatch he’s interested in running a bill to allow more flexibility for rural counties around the postmarking deadline — but he and legislative leaders weren’t inclined to intervene or change the law in the middle of this year’s election process. 

Now the question is before the Utah Supreme Court. 

Jenkins told the Dispatch on Monday that lawmakers have been aware of this issue before this year’s election, and it’s something that should have been addressed. If his campaign is ultimately not victorious, however, he said he’s grateful his race with Maloy highlighted the issue. 

“We’ve got to fix this. We’ve got to investigate it further, before we disenfranchise hundreds of our voters,” he said, while also urging Utahns who may have had their ballots disqualified because of a late postmark to contact his campaign. 

“We would love to hear from them,” he said. 

Jenkins isn’t the only candidate this year to attempt to contest the election. Utah Gov. Spencer Cox’s Republican challenger Rep. Phil Lyman has said he’d contest the election — but his first attempt, in the form of a letter to the Utah Supreme Court, was rejected by a court clerk because it failed to follow proper procedure.

Lyman told the Dispatch he planned to submit a revised filing before the deadline, which is by the end of the day Aug. 1.