A Republican primary election that cost incumbent state Sen. Dix McMullin his seat was so tainted by errors that a new election must be held, an attorney has told the Utah Supreme Court.
McMullin, R-South Jordan, the District 5 incumbent of 10 years, lost to GOP challenger Brent Richards by 196 votes in the Sept. 8 primary.However, it was later discovered that some ballot cards from the adjacent Senate District 4 had been distributed to several District 5 polling places.
Both ballots listed the candidates' names alphabetically, and McMullin has said Richards' win might be partially due to Howard Stephenson's landslide victory over Don LeBaron in District 4.
McMullin's attorney, Jim Jardine, told the justices Thursday that there is a "significantly large cloud" over the election to warrant a court order for a new primary.
He said there were incorrect ballots in six, and possibly eight, of the district's 37 precincts, and that up to 1,000 incorrect ballots could have been cast.
Jardine acknowledged that despite the requirements of state law, there was no way to prove that McMullin would have won the election had there been no mistakes.
Part of the reason, he said, is that Utahns needn't register by party for primaries, leaving no way to tell how many Republicans voted and certainly no way to tell how they would have voted with the proper ballot.
He said his burden was to show only that the result could have been different, not that it absolutely would have been.
Still, he said, the balloting had been tainted enough that District 5 voters could not have confidence in the election process.
"Our recommendation is for a completely new election," Jardine said.
But Richards' attorney, Bob Copier, argued that state law allows an election to be challenged only when the number of illegal votes received, or legal votes rejected, are sufficient to change the result.
He also disputed Jardine's estimate of the number of invalid votes, saying it could not be proved that two of the eight precincts had problems.
Besides, Copier said, if all the disputed precincts were thrown out, Richard would have won by a margin of more than 500 votes, not just 196.
"There's no real cloud on this election," he said. "It would be very burdensome and very prejudicial . . . the cure would be worse than the disease."
Justice I. Daniel Stewart was absent, and the other four judges took the matter under advisement until he could be briefed.