Congressional candidate Colby Jenkins filed for an election recount with the Utah Lieutenant Governor’s Office on Monday. It was the final day for Jenkins to request a second look at the 214-vote margin that separates him from Rep. Celeste Maloy, who leads in the nail-biter of a Republican primary.
Jenkins told the Deseret News he is also considering contesting the results of the 2nd Congressional District race. State law for primary election contests would require Jenkins to file a petition with the Utah Supreme Court before Thursday that would contain allegations that illegal votes were counted or legal votes were rejected. The legal motion could come as soon as Tuesday, Jenkins confirmed.
Jenkins previously filed two lawsuits — both of which were dismissed by a judge. Each alleged unfair treatment by county election officials who either denied voter information to his campaign or who discarded ballots that were postmarked late by the U.S. Postal Service after they were allegedly put in the mail on time.
“At the end of the day, we certainly want to win but we also want to make sure that every legal vote gets counted,” Jenkins said in an interview with the Deseret News.
Jenkins trailed Maloy by just 214 votes on July 9 when counties finalized their primary election results. A winner has not been declared in the Maloy-Jenkins race, despite more than a month passing since the June 25 Election Day, because the close margin is within the recount threshold established by state code of .25% of total votes cast.
Jenkins said he had confidence in the recount process but was also pursuing other legal avenues “in parallel” to the recount as part of his “overarching goal” to address what his campaign sees as shortfalls in the Utah election system that appear to allow for ballots to be rejected even if a voter followed all of the guidance from election officials.
“There are hundreds and hundreds of voters here in the congressional district, particularly the southern part, who have been disenfranchised of no fault of their own, who’ve suffered from the faulty postal system and lack of input and guidance from Utah election officials,” Jenkins alleged. “We just want to make sure this never happens again.”
In a prepared video statement, Maloy expressed her “really high level of confidence” in county clerks and their staff to verify and count every legal ballot, as well as her hope that the rest of Utah can feel the same way.
“With the kind of margins we have, I anticipated a recount,” Maloy said in a prepared video statement. “But I’m confident that the final result will remain the same.”
How does a recount work?
A recount for a multi-county primary race must be requested within seven days of the statewide canvass, which was conducted on July 22. Now that Jenkins has made the request, the office of Utah Lt. Gov. Deidre Henderson must direct a full recount of the race within the next seven days, meaning final results for the 2nd District race could come as late as Aug. 5.
A recount involves each 2nd District county reprocessing all of their ballots. This includes retabulating every ballot that has already been counted and reexamining every ballot that has not been counted because of a signature verification failure or a late postmark.
County clerks will make sure each of these rejected ballots was rightly discarded, double-checking ballot signatures and postmark dates on ballots that were received by mail. Rejected ballots cannot be cured by voters during the recount process.
After counties complete their recount, they will conduct an audit similar to the one that preceded the county election canvass. But instead of auditing a random 1% of ballots, a recount audit requires county election officials and members of the county canvass board to audit a random 3% of ballots, hand-counting them and comparing them to a photo tabulation record, one ballot at a time.
The certified election returns from county officials will be the official results of the recount.
Henderson’s director of elections, Ryan Cowley, said they are not sure exactly how many days the recount will take. Although he, and multiple county clerks, could confirm that while the process is nearly identical to the first count after Election Day, it will move faster because clerks will already have all of the ballots organized into batches and will not have to redo the signature verification for ballots that were counted last time.
Jenkins’ other lawsuits
On July 5, Jenkins announced he had taken legal action against Washington County Clerk Ryan Sullivan in an attempt to obtain a list of voters whose ballots were waiting to be remedied with additional signature information before they could be counted. Jenkins claimed county election offices are required under state code to release their “uncured ballot lists” upon request.
A few days later, a judge ruled that clerks have discretion as to whether they will release cure lists to candidates before the election canvass is completed.
On July 17, Jenkins filed a lawsuit in United States District Court alleging that Utah election officials had violated the Equal Protection Clause of the U.S. Constitution by unfairly rejecting some ballots that were mailed before the deadline but received a late postmark from the U.S. Postal Service.
Two days later, a federal judge denied Jenkins’ request to delay the state election certification and reprocess some ballots. The judge ruled that Jenkins did not provide sufficient evidence that rejected ballots had been mailed on time or that state officials showed disparate treatment of voters under state code.
But the judge also said the state’s reliance on U.S. Postal Service postmarks appears to be problematic.
Over a thousand ballots were not counted in the 2nd District’s population centers of Iron County (491) and Washington County (662) because they were received with a late postmark from USPS.
Jenkins has alleged that several voters are willing to sign affidavits that their ballots were submitted well before the June 24 deadline but were marked late by the USPS which delivers southern Utah mail to its Las Vegas distribution center before delivering it to its final destination, sometimes causing delays.
State lawmakers were aware of this problem months before the June 25 primary. Utah House Speaker Mike Schultz told the Deseret News lawmakers will “be having conversations” about the law relating to postmark deadlines, particularly in southern Utah where mail has recently been rerouted through Las Vegas.