Is a postmark deadline unconstitutional because the state and voters can’t control the post office or is it the voter’s responsibility to ensure their ballot is postmarked by the deadline? Those were the main arguments heard Friday when attorneys for 2nd Congressional District candidate Colby Jenkins and an attorney for the lieutenant governor appeared in court.
The attorneys made their arguments in the case where Jenkins is challenging ballots in the June 25 Republican primary election with late postmarks that were not counted due to being processed in Las Vegas.
“Citizens in multiple Utah counties that have their mail processed and postmarked at SCF Las Vegas, claim to have filled out and mailed ballots prior to election day as required, but due to process delays, their ballots were not postmarked until after June 24, 2024, and therefore were not counted,” said the petition.
Here is a closer look at the oral arguments from Jenkins’ attorney and from the Lieutenant Governor’s Office’s attorney.
Jenkins’ lawyer: The state and voters can’t control the post office
When a ballot or any mail is mailed in southern Utah, the ballots goes to Las Vegas and may not be stamped for a couple or even a few days, said Anthony J. Ferate, attorney for Jenkins. “And Utah, like a willfully blind spouse, looks the other way.”
Ferate said Jenkins’ challenge to the statute has two components. As a legal remedy, he said he believed the justices could order counties count the ballots in question that were postmarked on June 25.
The first component is the state cannot control the U.S. Postal Service, said Ferate. But more importantly, he said, voters cannot control the postal service.
This is a constitutional issue, said Ferate. The statute “gives the post office a specific responsibility within this instance, a meaningful role in delivering mail.”
The second issue deals with an equal protection claim. This claim differs from Jenkins’ argument in federal court because they are asking for relief under the Utah Constitution instead of the U.S. Constitution, said Ferate.
Ferate cited the Utah Supreme Court’s decision on the ballot initiative gerrymandering case as precedent for the relief.
Justice Jill Pohlman asked Ferate why it isn’t the voter’s responsibility to ensure their ballots are postmarked? Ferate responded that in law school, they all learned about the “mailbox rule.”
“The moment we put it in the mail, it counts under traditional legal processes unless otherwise certified,” said Ferate. He referred to other states’ laws around ballots that mandate ballots must be in by 7 p.m. on Election Day.
If Utah’s law was like this, then Ferate said it would be the responsibility of the voter. “But Utah has this instance in place that actually restricts that voter’s ability to actually have that clear dictate,” said Ferate. “It says the post office, another civil authority that is not involved actually has a responsibility that is out of the control of that voter.”
Ferate said he was unable to find a state where there was a lawsuit over a law that gives a time deadline to get a ballot in. But Utah’s law is different. He said voters can mail their ballots and have it arrive on June 24 in Las Vegas, but it does not receive a postmark until the next day.
If you live in Salt Lake City, Ferate said it is easy to walk into a post office. But in southern Utah, there are fewer post offices.
Giving the example of cure letters, Ferate said they were not challenging this, but some voters did not receive a cure letter until after the deadline to respond to the letter. A cure letter is sent to voters whose signature may have not matched a signature record on file.
“This isn’t Utah contracting with the Postal Service. This isn’t Utah going out and even partnering with the Postal Service,” said Ferate. “This is a civil authority that statutorily is instructed to have a responsibility in this that they did not ask for. So, the voter doesn’t necessarily ask for it.”
When Ferate was asked what the constitutional test would be, he responded, “Does the civil authority bear a burden or an obligation under Utah law?”
Ferate said if counties like Washington County advised voters more effectively that their ballots may be postmarked late unless they mail them early, he said it would not fix the constitutional issue.
“I think our position is that there should have been more information and warning,” said Ferate. “But even nonetheless, I don’t think that that would have cured the constitutional infirmity here.”
Some of the late postmarked ballots were processed in Salt Lake City, not Las Vegas. Ferate said this does not impact his argument.
“Salt Lake doesn’t have the issue of it coming in, being held, and then going out,” said Ferate. “Salt Lake seems to historically have the ability to actually process these efficiently.” He said if he was given access to the information that some of the ballots were actually processed in Salt Lake City, they would have challenged those ballots, too.
“I think they should all be counted, to be perfectly honest,” said Ferate. But he would not be opposed to a narrow ruling since the filing focused on the ballots that traveled through Las Vegas.
Attorney for Lieutenant Governor Office: Election officials followed the law
County clerks and the Lieutenant Governor’s Office followed all the relevant laws, said Sarah Goldberg, assistant solicitor general. “They notified voters of all methods of voting and all deadlines.”
Goldberg said the Utah Supreme Court should dismiss the petition with prejudice so they can continue to work on meeting state and federal deadlines for the general election. The lieutenant governor has to certify names for the general election ballot by Aug. 31 and then after that deadline, county clerks begin printing ballots.
It is a voter’s responsibility to ensure their ballot gets postmarked on time, said Goldberg. Since there are multiple ways to vote including drop boxes and in-person voting, she said she did not see how the postmark deadline could be an undue burden.
Since the state has a ballot tracking system, a concerned voter could see their vote has not been counted and go to a polling place and cast a ballot, said Goldberg. She said there are drop boxes and polling locations in every county in the state.
Goldberg said she did not see how the postmark deadline is interference.
“I would also say there’s no statute that gives the Postal Service an actual duty under any of the election code I’m aware,” said Goldberg. “And so, I don’t see how it’s somehow interfering with the right to vote.”
Counties tell voters to make sure their ballots are postmarked by the deadline, said Goldberg. She said since we do not know where they may have been delays, a narrowly tailored order to count ballots processed through Las Vegas may not work.
“We don’t know that they all went through Las Vegas and we don’t know that there weren’t delays in other places,” said Goldberg. “And so that would be treating those people who mailed the ballot and maybe it took two days to get postmarked through Las Vegas differently than someone who their ballot went somewhere else.”
Goldberg asked the justices to deny the petition.
Jenkins’ law response
Associate Chief Justice John A. Pearce told Ferate it concerned him that the court granted an expedited hearing based on the petition that stated ballots would be printed in mid-August. In Utah, general election ballots are not printed until after the Aug. 31 deadline.
Ferate said most states begin their printing earlier and that was the information he was going on.
“Procedurally, if you’re telling me I need to go to each and every county and file a lawsuit in 20 days and get multiple decisions and then bring them back to you and then make you rush even faster than we currently are, I think that that’s functionally a problem more than frankly bringing this to you now when you have 21 days to make a decision,” said Ferate.
Ferate responded to the state’s argument by saying he does not think the post office intended for their postmark to be used as a validation.
Chief Justice Matthew Durrant said the court would take this matter under advisement.