By Tracie Sullivan, For Iron County Today
The Utah Supreme Court was thrust into a pivotal debate Friday as it weighed whether late-postmarked ballots should be counted in the tight Republican primary race for Utah’s 2nd Congressional District.
Attorneys for Colby Jenkins, who narrowly lost to incumbent Utah Rep. Celeste Maloy, argues that the state’s postmark deadline undermines voters’ rights.
Jenkins’ legal team is challenging the disqualification of 1,171 mail-in ballots that were postmarked late, most of them from Washington and Iron counties that passed through a postal service processing facility in Las Vegas.
The petition argues that rural Southern Utah voters faced disadvantages due to longer mail delivery times and limited access to alternative voting methods. Attorneys also contended that election officials failed to sufficiently inform voters about potential mail delays.
With just 176 votes separating Jenkins and Maloy, Jenkins is pushing for these late-postmarked ballots to be counted, arguing that Utah’s postmark deadline law unjustly affects voters.
This case is the second of two legal challenges Jenkins has pursued on this issue. His earlier request for judicial intervention in the Utah Fourth District Court was denied, setting the stage for this appeal to the state’s highest court.
Supreme Court Hearing
Jenkins’ attorney, Anthony Ferate, argued in front of the Utah Supreme Court that Utah’s requirement for ballots to be postmarked no later than the day before Election Day infringes on the right to vote.
Ferate contended that relying on the U.S. Postal Service to meet this deadline effectively places an undue burden on voters, which he argued violates the state constitution.
“No power, civil or military, shall interfere to prevent the free exercise of suffrage,” Ferate said, quoting from Utah’s Constitution. “By statute, Utah has allowed by reliance on the Postal Service’s mail delivery practices similar interference in the state’s elections.”
Justice Diana Hagen questioned Ferate about the nature of Jenkins’ challenge. She asked whether it was aimed at the constitutionality of the postmarking law or the adequacy of voter notifications regarding potential mail delays.
“I’m not clear exactly what you’re challenging,” Hagen said. “What state action are you challenging?”
Ferate responded that Jenkins’ petition addresses both the postmark deadline law and the effectiveness of voter information. He argued that the law’s reliance on postal services beyond the control of voters undermines their ability to exercise their voting rights effectively.
State’s Response
State attorneys countered that Jenkins’ challenge is based on “unfounded legal arguments” and that Utah law is explicit regarding the counting of late-postmarked ballots.
The state’s legal representatives maintain that ensuring ballots are postmarked by the deadline is the responsibility of the voters, not the Postal Service.
“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,” said Sarah Goldberg, the attorney representing the lieutenant governor’s office.
Goldberg also argued that selectively counting late-postmarked ballots could create an equal protection issue, suggesting that Jenkins’ proposal might unfairly benefit some voters while placing others at a disadvantage.
“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,” Goldberg said.
Judicial Scrutiny
The justices asked about how late-postmarked ballots could be reliably counted and whether the number of affected ballots could be accurately determined.
The court expressed concerns over the practical implications of Jenkins’ request and the legal standards for ballot counting.
Hagen also questioned whether the court could order the late-postmarked ballots to be counted, given the legal deadline.
She pointed out that voters had other options, such as using dropboxes or voting in person, and emphasized that it was ultimately the voter’s responsibility to ensure their ballot was postmarked on time.
“The postmark requirement isn’t something unique to this statute. Taxes, job applications, college applications, they all have to be postmarked. … How is that not the voters’ responsibility?” she asked.
Future Outlook
Following court, Jenkins expressed his gratitude, adding that they are likely out of legal options after this decision.
“We’re grateful to have had this opportunity,” Jenkins said. “We’ve fought hard and exhausted every legal means available and at this point, it’s probably over. So whatever the court decides will be the final word. Right now we just wait and see.”
Jenkins wouldn’t speculate on what he thought the outcome might be but said he was just “neutral” and “still hopeful.”
Jenkins won in Washington County with 3,409 votes compared to Celeste Maloy’s 3,314 votes.
However, in Iron County Maloy took first with 1,183 votes to Jenkins’ 1,105 votes.
If the court rules in Jenkins’ favor and allows the late-postmarked ballots to be counted, Jenkins could gain enough votes to surpass Maloy and secure a victory.
The court’s decision is expected as early as next week.