2nd Congressional District candidate Colby Jenkins announced he had taken legal action against Washington County Clerk Ryan Sullivan on Friday in an attempt to obtain a list of voters whose ballots are waiting to be remedied before they can be counted.
The 2nd District Republican primary race was still too close to call as of 4:30 p.m. on Friday, with Jenkins trailing Rep. Celeste Maloy by 315 votes as updated numbers continued to trickle in more than one week after the June 25 election.
Jenkins’ losing margin shrunk dramatically over the last week from around 1,000 votes to 290, before growing again on Friday. If the separation between the two candidates falls below roughly 270 votes, Jenkins can request a recount from the state Lieutenant Governor’s Office who oversees election certifications for multicounty races in Utah.
In a complaint filed in the fifth judicial district court in Washington County, Jenkins claimed county election offices are required under state code to release their “uncured ballot lists” upon request. The documents said the Salt Lake County Clerk’s office provided the Jenkins campaign with this information but that the Washington County Clerk’s office refused to do so “on the mistaken belief that they have the discretion to withhold it.”
The Jenkins campaign made an official GRAMA request for the uncured ballot list on Monday, July 2, after making a similar request to all 13 counties in the 2nd district, but did not receive a response from Washington County, according to court documents.
The legal filings show that Jenkins initially requested the judge to order Sullivan to provide “the names or address of voters whose ballots have been rejected and not yet resolved” to his campaign by the close of business on Friday, July 5.
Sullivan sent out a press release on Friday evening rejecting the claim that releasing cure lists is “common practice.”
“Washington County, along with the vast majority of other counties in our state, has never released a cure list to a candidate,” Sullivan said.
Every county in the 2nd District beside Salt Lake County has denied Jenkins’ request, Sullivan said, reiterating that county election offices go “above and beyond to contact those that need their signature cured.”
“This is a voter privacy issue for me,” Sullivan said. “I don’t want to release voter information to campaign volunteers only to have them show up at a voter’s doorstep and potentially harass them into disclosing who they voted for. Voter anonymity is a bedrock principle of our constitutional system, and releasing cure lists, especially in smaller counties and close races, could result in people’s votes not being private.”
Washington County responds to Jenkins lawsuit
The Washington County clerk’s office objected to the request through Washington County Attorney Eric Clarke on Friday afternoon, saying Jenkins’ request “is based entirely on a misinterpretation of a provision of the Utah Election Code.”
“A county clerk has the discretion under state law to decide whether to provide the requested ballot cure lists,” the objection continued. “That position is supported by the plain language of the statute and by legislative history.”
A hearing has been schedule for Monday, July 8, at 9 a.m. The deadline for voters to cure their rejected ballots in Washington County is Monday evening, before the county certifies their election on Tuesday morning.
The remaining votes left to be counted in the 2nd District race consist mostly of Washington County’s 531 challenged ballots. These are ballots that need a signature confirmation or other information from those who cast them in order to be processed.
While Maloy is currently up 50.1% to 49.9% across the district, and holds a sizable lead in most of the district’s 13 counties, the district’s largest population center, Washington County, leans toward Jenkins 59% to 41%.
“There are more than enough ballots left in Washington County to not only push this race into recount territory, but to significantly cut Congresswoman Maloy’s lead and make a recount much more perilous for her,” Jenkins said in a statement posted on X.
Encouraging voters to ‘cure’ their ballots
The Washington County clerk’s office has already reached out to each of these voters via a letter, and, for those who provided contact information, via text and a phone call. The last day for voters to remedy their challenged ballots in Washington County is Monday, one day before the county has its election certification, or canvass, meeting on Tuesday.
The Jenkins campaign has requested access to this list of voters with challenged ballots in Washington County. The list would not detail who the voters cast their ballot for because challenged ballots are not opened or tabulated until they are remedied by the voter.
Jenkins’ campaign consultant Greg Powers said it is common practice in close races with a potential recount for campaigns “to ensure everyone who intended to cast a ballot had the chance to have their vote counted.”
“We would call(,) text, and go door to door to encourage everyone to turn in their ballot,” Powers told the Deseret News.
Davis County Clerk Brian McKenzie previously told the Deseret News that county election departments are unable to provide cure lists to candidates before the county “canvass,” or election certification, because they are not public records.
“We’ve had a number of campaigns reach out to us with inquiries about that,” McKenzie said. “A cure list at this point during the canvass period is considered a draft record. Draft records are not public records.”
After the canvass, a cure list with the names of voters with challenged ballots can be made public upon request, McKenzie said, excluding those who have designated themselves as private or withheld voters.