Rep. Maloy wins recount, Jenkins' lawsuit contesting outcome still pending (2024)

Rep. Celeste Maloy beat Colby Jenkins in the 2nd Congressional District Republican primary recount on Monday by the closest margin in 30 years. But both candidates issued tentative statements as the Utah Supreme Court considers a lawsuit from Jenkins contesting the election results.

The final recount — coming nearly six weeks after Election Day — showed Maloy’s lead narrowing to 176 votes from the initial 214-vote lead after counties certified the initial count on July 9. Maloy said the consistency between the two counts is a reflection of the good job done by county election workers.

“The county clerks and their staffs have done amazing work to count and recount the ballots. Their process has been thorough, transparent and their remarkable accuracy should inspire confidence in our election system,” Maloy said in a statement.

“I recognize that there is ongoing litigation and I am eager to get a decision from the courts. We will continue to monitor the situation closely. Meanwhile, I will continue to focus on advancing a conservative agenda for the people of Utah’s 2nd District.”

Maloy’s early election-night lead of nearly 1,000 votes fell in subsequent days to just over 200 votes, within the recount threshold of roughly 270 votes, or .25% of total votes cast. Jenkins filed an official recount request on July 29 — the final day he could do so — giving all 13 counties seven days, until Aug. 5, to reexamine all rejected ballots and retabulate all viable ones.

The Maloy and Jenkins campaigns both suggested they did not expect the recount to change the outcome of the election. Jenkins is now relying on a petition pending before Utah’s highest court to rule on whether the 2nd District GOP race featured illegal votes that were counted or legal votes that were rejected.

“In every step of this process, we have advanced bit-by-bit and the votes we’ve gained in this recount are one more example of that,” Jenkins said in a statement. “What was a race that was too-close-to-call is now even closer. We eagerly await a decision from the Utah Supreme Court to ensure that every legal vote is counted, and every voice is heard.”

Jenkins takes legal steps to contest results

Jenkins’ appeal to the judicial branch to intervene in the election could be decided as soon as this week. Wednesday is the deadline for the respondents — which include Utah Lt. Gov. Deidre Henderson and all 13 county clerks in the 2nd District — to file a response to Jenkins’ allegations. The court’s justices will have until Friday to schedule a hearing for oral arguments or to dismiss the case.

Jenkins argues that election officials 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. Mail-in ballots must be stamped by post offices before Election Day to be counted by county election offices, according to state code.

Mail from all, or parts, of nine 2nd District counties is sent through the postal service’s Las Vegas Area Distribution Center to be postmarked before they arrive at county election offices. This travel time can sometimes delay postmarking by a day or more, the lawsuit alleges, potentially resulting in ballots being postmarked late even if they were placed in mail boxes on June 24, or earlier, and before the listed mail collection time.

The close race highlighted some points of concern with Utah’s primarily vote-by-mail election system.

Jenkins filed two lawsuits during the canvass period following the June 25 election — both of which were dismissed by a judge. Each of the lawsuits 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.

Jenkins’ campaign has since petitioned the Utah Supreme Court to challenge the certification of the Republican primary election using similar arguments.

Multiple voters are willing to sign affidavits that their ballots were put in the mail during the recommended time, the filing claims, adding that voters in the affected counties were not made aware that their ballots would be delayed even though the state legislature was aware of this problem before the election.

Over 1,000 ballots were rejected in the district’s population centers of Iron County and Washington County because of a late postmark from the U.S. Postal Service.

Troubles with ballot machines during recount

Two counties, Tooele and Washington, also experienced software errors during the recount process that prevented tabulation machines from updating the results of adjudicated ballots.

Adjudicated ballots are those with unclear markings that require poll workers to determine the voter’s intent. When attempting to input adjudicated ballots into the the vote tally kept by electronic election equipment, poll workers were met with an “error message” that the “adjudicated ballots were not reflected in the total results,” Washington County stated in a press release on Thursday.

After the Tooele County clerk conducted a hand recount of precincts with adjudicated ballots to get an accurate vote total for each candidate, she said the voter technology provider, Election Systems & Software, eventually found a way to avoid the software error by updating adjudicated ballots in small batches.

The Lieutenant Governor’s Office reached out to all 29 Utah counties and determined that Tooele and Washington were the only ones affected by the error. State election director Ryan Cowley and Henderson reviewed the problem and reported their findings and recommendations on Monday.

In a statement published Monday evening, Henderson said they were able to determine that the error was a result of ES&S’s ElectionWare software malfunctioning and not the result of human error.

“I am concerned about the software error that occurred, but glad that we were able to react quickly to understand its scope and impact and get it fixed in the recount. We will be investigating this further to ensure it never happens again,” Henderson said. “I’m grateful to the county clerks and my elections team for their swift and thorough action to resolve this issue and ensure we met the recount deadline.”

A historical congressional race

The Maloy-Jenkins matchup has been Utah’s closest congressional primary in 30 years. The 1994 3rd District GOP primary saw Emery County Commissioner Dixie Thompson pull ahead of Provo real estate developer Tom Draschil by just 156 votes out of the 31,596 votes cast. The margin barely fell within the then-broader recount threshold of .5%. The subsequent recount extended Thompson’s lead to 185 votes.

This year’s race was also a test for the endorsem*nts of some of the Republican Party’s biggest names.

Sen. Mike Lee broke with longtime personal precedent, and Utah political norms, by endorsing Jenkins, a political newcomer, against his freshly elected colleague. Maloy entered office in November after a special election to fill the seat left open by the resignation of her boss, former Rep. Chris Stewart.

The endorsem*nt marked Lee’s first time using his influence among Utah conservatives in a congressional primary at home. While some Lee supporters said his endorsem*nt turned out to be a net negative for his influence in the state, advisers to Lee and Jenkins said the gamble helped Lee’s political brand.

Lee and Jenkins focused their criticisms of Maloy on her approval of 2024 budget and government surveillance reauthorization bills that Lee opposed. Jenkins also said that Lee conducted an in-depth interview with him on how he would vote if elected before making the endorsem*nt.

A week before the election, Trump, the party’s GOP nominee for president, put his thumb on the scale for Maloy. Trump endorsed Maloy just hours after meeting with U.S. House Speaker Mike Johnson, who had also endorsed Maloy, along with Utah’s entire U.S. House delegation.

During her first term, Maloy introduced legislation — with Lee — to transfer some federal lands to Utah, passed a bill to improve government programs for women-owned small businesses, pushed the Justice Department to crack down on teen vaping and voted against further military aid to Ukraine.

Maloy’s vote in favor of the $1.2 trillion 2024 government funding package and her decision to renew Section 702 of the Foreign Intelligence Surveillance Act, after the failure of an amendment requiring warrants to collect information from Americans, both served as reasons for Lee’s endorsem*nt and fodder for Jenkins’ campaign attacks.