By Tracie Sullivan
Colby Jenkins is taking his primary race with Celeste Maloy to the highest court in Utah to appeal a lower court’s ruling that barred nearly 1,200 ballots postmarked after the deadline.
Jenkins has now appealed to the Utah Supreme Court, challenging the exclusion of the ballots. The issue appears to stem from the fact that ballots from Southern Utah are processed at the U.S. Postal Service’s Las Vegas facility, unlike the Salt Lake City facility used by other regions. The appeal comes as Jenkins requests a recount this week, prompted by the narrow margin of just 214 votes that concluded the race.
Many officials believe this difference in processing locations may have contributed to slower handling times. This could have potentially caused some ballots mailed before the deadline to be postmarked after the election. Jenkins contends that these delays disproportionately affected voters in Washington and Iron Counties, leading to their ballots being unjustly barred from the count.
Jenkins’ appeal is grounded in the principle of equal protection under the law, referencing the 14th Amendment of the U.S. Constitution.
“If voters in Davis County are guaranteed to have their mail postmarked on time because the processing center is located within their same area, but Southern Utah voters aren’t guaranteed that same protection because the ballots go to Vegas – that is not equal protection under the law,” Jenkins said.
Jenkins’ case cites the 2020 New York case Jones v. USPS, which addressed similar issues of postal processing delays causing ballots to be postmarked after the deadline. In that case, the judge ruled that such ballots must be counted to prevent disenfranchisement.
He also points to Article 1, Section 17 of the Utah Constitution, which ensures that “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.”
“No power, civil or military should interfere with the right to vote — and that includes the post office,” Jenkins said.
Delays with the mail service during elections are not new. In 2020, as absentee ballot requests surged, the U.S. Postal Service (USPS) issued urgent warnings to 46 states and Washington, D.C about the potential problem in mail delivery. Utah was on the list of states that received this letter.
The USPS cautioned that even if voters adhered to all state regulations, the pace of mail processing might result in some ballots arriving too late to be counted.
The warning came amid major changes within the agency, including cost-cutting measures and decommissioned sorting machines, which had already delayed mail delivery by up to a week in some areas.
The concern was that these delays could lead to widespread disenfranchisement, adding uncertainty to the 2020 election and prompting calls for better systems to ensure timely ballot processing.
Governor Spencer Cox, who managed elections as Lieutenant Governor in 2016 and 2018, advised voters then to mail their ballots early to avoid postmark issues. He also noted in 2018 on Twitter that delays were particularly problematic in rural Utah.
Likewise, Senator Don Ipson also raised concerns in May 2024 — a month before the primary elections — about the postmark delays, stating they had already “swayed some elections.”
A request for comment from Lt. Gov. Deidre Henderson’s press secretary by Iron County Today was declined, with the office citing the ongoing lawsuit as the reason for not commenting at this time.
Jenkins’ lawsuit includes affidavits from voters who mailed their ballots on time, some as early as June 17, but later received notifications that their votes were not counted due to late postmarks.
In one case, a couple mailed their ballots together, yet only one ballot was counted because it was postmarked on time while the other was not.
Jenkins’ legal team argues that the delays and handling of late-postmarked ballots have compromised the integrity of the election.
Their efforts are focused on ensuring that all valid votes are counted and that the final results accurately reflect the voters’ intentions.
“I want all the ballots counted,” Jenkins said. “Even if it doesn’t change the outcome, it’s important that every vote counts.”
The Iron County commissioners are scheduled to vote on certifying the election results again Thursday evening after the recount at 5 p.m.
Commissioner Paul Cozzens, who did not vote to certify in the previous session, maintains his stance due to concerns about over 400 ballots with late postmarks. This position is consistent with his stance during the last certification vote.
Commissioner Marilyn Wood, who was absent during the previous certification vote, will be present this time. How she votes will determine the final outcome.