Jenkins - Supreme Court

IN THE
SUPREME COURT OF THE STATE OF UTAH
COLBY JENKINS,
Petitioner,
v.
BEAVER COUNTY, GINGER MCMULLIN,
GARFIELD COUNTY, CAMILLE MOORE, IRON COUNTY, JON WHITTAKER,
KANE COUNTY, CHAMEILL LAMB, MILLARD COUNTY, MARKI ROWLEY,
PIUTE COUNTY, KALI GLEAVE, SEVIER COUNTY, STEVEN C. WALL,
WASHINGTON COUNTY, FELICIA SNOW,
WAYNE COUNTY, RYAN SULLIVAN,
and LIEUTENANT GOVERNOR DEIDRE HENDERSON,
Respondents.
No. 20240815
ORDER
This matter is before the court on Colby Jenkins’s amended petition for
extraordinary relief, filed on July 31, 2024. We requested expedited responses
from the Lieutenant Governor, counties, and county clerks named in the petition,
and we held oral argument on August 9, 2024. For the reasons explained below,
we deny the petition.
ANALYSIS
The petition arises out of the 2024 primary election contest between Colby
Jenkins and Celeste Maloy to become the Utah Republican Party candidate for
the United States House of Representatives in Utah’s Second Congressional
District. Following the tally of the ballots and a recount, election officials
determined Ms. Maloy had prevailed by a narrow margin. During the tallying
process, some ballots were rejected as untimely because they were not
postmarked by the deadline specified in Utah’s election code, which requires
that, “to be valid, a ballot . . . must be . . . clearly postmarked before election day,
Page | 1
or otherwise clearly marked by the post office as received by the post office
before election day.” UTAH CODE § 20A-3a-204(2)(a)(i).
Mr. Jenkins challenges the rejection of these late ballots. He asserts that
many of the ballots were mailed before election day but were not postmarked by
the deadline because of variations in United States Postal Service practices for
processing mail from different regions of the state. Specifically, he alleges that
while most Utah mail is processed in Salt Lake City, some mail from southern
Utah is processed in Las Vegas, and he asserts that it takes longer for such mail
to receive a postmark. He seeks an order from this court requiring that the
untimely ballots be accepted and counted.
As an initial matter, the Lieutenant Governor questions whether Mr.

Jenkins possesses the third-party standing that would allow him to assert
constitutional arguments on behalf of the voters whose ballots were not counted.
See generally Planned Parenthood Ass’n of Utah v. Utah, 2024 UT 28, ¶¶ 45–81, ____
P.3d. ____. We note that the Lieutenant Governor does not contend that Mr.
Jenkins lacks traditional standing, the absence of which might rob this court of
jurisdiction over the petition. Rather, the Lieutenant Governor suggests that Mr.
Jenkins runs afoul of the prudential concerns that keep us from normally
allowing someone to raise the arguments that might more properly belong to
another. The party asserting third-party standing bears the burden of
establishing its ability to raise others’ claims. See id. ¶ 48. Here, Mr. Jenkins did
not attempt to meet that burden in his petition, and, when given the opportunity
at oral argument, he did not address the requirements for third-party standing.
But we need not decide whether Mr. Jenkins’ claims assert arguments that
belong to other voters. Nor must we decide whether he possesses third-party
standing. This is because his petition falls well short of establishing that he is
entitled to the relief he seeks.
In his petition, Mr. Jenkins fails to identify any instance where election
officials failed to comply with any statutory mandate. Instead, he maintains that
the statutory postmark requirement is unconstitutional for two reasons. First, he
argues that the requirement results in differential treatment of ballots mailed by
voters depending on where the mail is processed. Second, he argues that relying
on the United States Postal Service to postmark ballots interferes with the
fundamental right to vote. Mr. Jenkins has failed to meet his burden of
demonstrating an entitlement to the relief he requests because he has not
adequately briefed either constitutional argument. See, e.g., 1600 Barberry Lane 8
LLC v. Cottonwood Residential O.P. LP, 2021 UT 15, ¶ 53, 493 P.3d 580 (holding that
a party who fails to adequately brief an issue “will almost certainly fail” to satisfy
that party’s burden of persuasion (cleaned up)); Pinder v. Duchesne Cnty. Sheriff,
2020 UT 68, ¶ 36, 478 P.3d 610 (same).
Page | 2
I. Mr. Jenkins’ Argument that the Statutory Postmark Requirement Results in
Unequal Treatment of Voters in Violation of Article I, Section 2 of the Utah
Constitution
Mr. Jenkins first asserts that the statutory postmark requirement violates
article I, section 2 of the Utah Constitution, which states: “All political power is
inherent in the people; and all free governments are founded on their authority
for their equal protection and benefit, and they have the right to alter or reform
their government as the public welfare may require.” UTAH CONST. art. I, § 2. Mr.
Jenkins claims the statutory postmark requirement violates that provision
because it is inconsistent with equal protection principles. Although article I,
section 2 references “equal protection,” Mr. Jenkins’ petition cites no case where
we have analyzed an equal protection challenge under that constitutional
provision. Indeed, his petition fails to cite any Utah case addressing any aspect of
that (or any other constitutional) provision. Nor does he analyze the plain
language of the constitutional text and its original public meaning. See State v.
Barnett, 2023 UT 20, ¶ 10, 537 P.3d 212. And even if we were to interpret his
article I, section 2 claim as an equal protection claim under article I, section 24,
Mr. Jenkins’ petition again fails to cite any cases or provide any analysis
pertaining to that provision.
At oral argument, Mr. Jenkins referenced League of Women Voters of Utah v.

Utah State Legislature, 2024 UT 21, ____ P.3d. ____, and asserted it was an equal
protection case. It wasn’t. That decision addressed the allocation of legislative
authority between the people and the state legislature in the particular context of
initiatives altering or reforming the government. Mr. Jenkins also cited Gallivan v.
Walker, 2002 UT 89, 54 P.3d 1069. Although the court’s opinion in that case
addressed article I, section 24 in the context of a challenge to a multi-county
signature requirement for initiatives, Mr. Jenkins has not explained how that
analysis has any bearing on the statutory postmark provision at issue here, let
alone mandates the relief he seeks. “Mere mention of a constitutional right,
phrase, or principle does not raise a constitutional claim.” Salt Lake City v. Kidd,
2019 UT 4, ¶ 35, 435 P.3d 248. As we have observed, “[a] party may not simply
point toward a pile of sand and expect the court to build a castle. In both district
and appellate courts, the development of an argument is a party’s responsibility
. . . .” Id.
We also note that the evidence in the record before us shows that the late
ballots Mr. Jenkins seeks to have counted were not all processed in Las Vegas.
Mr. Jenkins’ petition alleges that approximately 1,171 ballots were rejected as
postmarked after the statutory deadline. But according to the respondents’
declarations, most of those ballots were not processed by the Las Vegas facility
where the alleged delays occurred. For example, of the 659 ballots that were
rejected for unclear or late postmarks in Washington County, only 244 were
processed in Las Vegas. And we do not know how many of those 244 ballots
were placed in the mail before primary election day. But we are not required to
Page | 3
resolve these factual questions because, regardless of the number of ballots at
issue, Mr. Jenkins has not demonstrated a constitutional violation.
II. Mr. Jenkins’ Argument that the Statutory Postmark Requirement Interferes with
the Right to Vote in Violation of Article I, Section 17 of the Utah Constitution
Mr. Jenkins’ argument under article I, section 17 of the Utah Constitution

is likewise inadequately briefed. That provision states in relevant part: “All
elections shall be free, and no power, civil or military, shall at any time interfere
to prevent the free exercise of the right of suffrage.” UTAH CONST. art. I, § 17. In
essence, Mr. Jenkins argues that the statutory postmark requirement relies on the
United States Postal Service to postmark ballots and that such reliance on the
Postal Service is a form of interference that article I, section 17 proscribes. But his
petition does not analyze the meaning of article I, section 17. In particular, he
offers no textual analysis or caselaw that speaks to the meaning of the word
“interfere,” nor any test this court should employ to assess whether a civil power
has unconstitutionally interfered with the right to vote.
Nor does Mr. Jenkins give us anything, in the form of caselaw or

argument, that would allow us to conclude that the statutory postmark
requirement invites unconstitutional interference with the right to vote. And a
constitutional violation is not apparent under these facts. Voters who wish to
take advantage of mail-in voting can ensure that their ballots are timely
postmarked by mailing them well in advance of the election deadline or by
taking their ballots to the post office and asking for them to be postmarked.1
CONCLUSION
Jenkins has failed to adequately brief his constitutional challenges to
subsection 20A-3a-204(2)(a) of the Utah Code, and he therefore has failed to meet
his burden of demonstrating that he is entitled to the relief he seeks. Accordingly,
we deny his petition for extraordinary relief.
FOR THE COURT on this
13th day of August, 2024:
_________________________________________
Matthew B. Durrant
Chief Justice
Voters also have the option to bypass the Postal Service entirely by
1
returning their ballots to either a ballot drop box or a polling location.

Page | 4
CERTIFICATE OF SERVICE
I hereby certify that on August 13, 2024, a true and correct copy of the foregoing
ORDER was sent by electronic mail to be delivered to:
SARAH E GOLDBERG
ASSISTANT SOLICITOR GENERAL
SGOLDBERG@AGUTAH.GOV
CASEY W JEWKES
SEVIER COUNTY ATTORNEY'S OFFICE
CJEWKES@SEVIER.UTAH.GOV
VICTORIA H HALES
ST GEORGE CITY ATTORNEY'S OFFICE
VICTORIA.HALES@WCATTORNEY.COM
ERIC W CLARKE
WASHINGTON COUNTY ATTORNEY'S OFFICE
ERIC.CLARKE@WASHCO.UTAH.GOV
VON J CHRISTIANSEN
LEO G KANELL
BEAVER COUNTY ATTOREY
VJCHRISTIANSEN@BEAVER.UTAH.GOV
LGKANELL@BEAVER.UTAH.GOV
PATRICK S FINLINSON
MILLARD COUNTY DEPUTY ATTORNEY'S OFFICE
PFINLINSON@CO.MILLARD.UT.US
BARRY L HUNTINGTON
GARFIELD COUNTY ATTORNEY
GARFIELDCOUNTYATTORNEY@SCINTERNET.NET
SCOTT D CHENEY
ASSISTANT SOLICITOR GENERAL
SCHENEY@AGUTAH.GOV
1
CHAD E DOTSON
IRON COUNTY ATTORNEY
CDOTSON@IRONCOUNTY.NET
SCOTT M BURNS
BURNS LAW OFFICE PC
BURNSLAW7@GMAIL.COM
ROBERT C VAN DYKE

KANE COUNTY ATTORNEY'S OFFICE
ATTORNEY@KANE.UTAH.GOV
KYLE J KAISER
ASSISTANT ATTORNEY GENERAL
KKAISER@AGUTAH.GOV
MICHAEL C WINN
WINN AT LAW PLLC
MICHAEL@WAYNE.UTAH.GOV
R SCOTT YOUNG
SPENCER FANE LLP
RSYOUNG@SPENCERFANE.COM
A.J. FERATE
COURTNEY D POWELL
SPENCER FANE LLP
AJFERATE@SPENCERFANE.COM
CPOWELL@SPENCERFANE.COM
By _______________________________
Nicole Gray
Clerk of Court

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IN THE

SUPREME COURT OF THE STATE OF UTAH

As an initial matter, the Lieutenant Governor questions whether Mr.

At oral argument, Mr. Jenkins referenced League of Women Voters of Utah v.

Mr. Jenkins’ argument under article I, section 17 of the Utah Constitution

Nor does Mr. Jenkins give us anything, in the form of caselaw or

FOR THE COURT on this

13th day of August, 2024:

returning their ballots to either a ballot drop box or a polling location.

ROBERT C VAN DYKE

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