In what’s been an increasingly tight race, 2nd Congressional candidate Colby Jenkins sued Washington County Clerk Ryan Sullivan on Friday to obtain the county’s list of “uncured” ballots, which contain the names of voters whose signatures need to be confirmed before their votes are counted.

Washington County promptly objected to the argument, with County Attorney Eric Clarke writing in a Friday court filing the lawsuit is based on a “misinterpretation” of Utah election law. Washington County has never released this list to a candidate, nor do they have to, and the decision to withhold it is an effort to protect voter privacy, Sullivan said in a statement posted to the county’s Facebook page.

A judge in Utah’s 5th District Court in St. George scheduled a hearing Monday morning to consider the case.

The suit comes amid an extremely tight Republican primary race for the 2nd Congressional District, with Jenkins trailing Rep. Celeste Maloy by just 314 votes as of Friday. Jenkins’ campaign says there could be enough unconfirmed votes to trigger a recount, and possibly flip the race.

“There are more than enough ballots left in Washington County to not only push this race into recount territory, but to significantly cut Congresswoman Maloy’s lead and make a recount much more perilous for her,” the Jenkins campaign said in a news release.

‘Uncured’ votes

Ballots are sometimes rejected by poll workers because the voter’s signature is incomplete, or does not match their voter registration records. County officials then try to reach the voter to confirm their intent — until they can, those ballots are left “uncured” and will not count.

In Washington County, the deadline to cure ballots is Monday, July 8. The county will then begin its canvass on Tuesday, where it certifies the election.

The Jenkins campaign was seeking the list of Washington County voters with uncured ballots in hopes it could help urge voters to get their signatures confirmed over the weekend. Attorneys for Jenkins argue there are 531 ballots in the county awaiting confirmation and that his campaign should get a copy of that list by Friday, although the court later announced it will weigh in Monday.

For a recount, Utah law requires a margin of equal or less than 0.25% of the total number of votes cast. There have been about 106,902 votes cast in the 2nd Congressional District race so far, putting the required recount margin at roughly 267. As of Friday, Jenkins was just 47 votes away from reaching that threshold.

“It looks very possible that we’ll go into a recount. A recount only counts the ballots that were certified, and so we have to get this cure list, we have to get all of these ballots in before the canvassing begins,” said Greg Powers, Jenkins’ campaign manager. “That way we have the maximum number of our votes in as possible before the actual recount starts.”

Once the recount starts, Powers said, those uncured ballots will be void. “Their only chance for their vote to count and their voice to be heard is right there,” he said.

It’s worth noting that the voter cure list would include names and contact information, but not information about what candidate the person is for. Ballots aren’t opened and counted until the signatures on the envelopes have been verified.

‘Any insinuation that we’re trying to rig the election is false’

Powers said the campaign would have preferred a ruling on Friday — without the cure list, they can’t work to confirm ballots over the weekend.

“Whether (Sullivan’s) motives are good or nefarious, the result at this point is that if he gets his way, fewer voters will have their voice heard in Washington County because of his actions,” Powers said.

In response, Sullivan said that “any insinuation that we are trying to rig the election is false.”

The Jenkins campaign initially asked the Washington County Clerk’s Office for a copy of the ballot cure list on June 28, according to court documents. The campaign also asked Salt Lake County for its list of uncured ballots — Salt Lake County provided the campaign with a list, Powers said, but Washington County did not.

Clarke, Washington County’s attorney, argued Sullivan’s decision not to provide the list was lawful.

“A county clerk has the discretion under state law to decide whether to provide the requested ballot cure lists,” Clarke wrote on Friday, asking the court to deny Jenkins’ request.

Powers called that a “silly” response.

“They admit that they could give the list, why not give the list in the interest of transparency?” he said.

Sullivan reassured voters on Friday that the clerk-auditor”s office is going “above and beyond” to cure ballots.

“Washington County has reached out to every individual whose signature needs curing, informing them that they need to cure their signature before their ballot can be counted,” the county said in a statement. A letter was sent to each voter with an uncured ballot, the county said, and voters who provided their contact information were notified via email, text and call.

“This is a voter privacy issue for me. I don’t want to release voter information to campaign volunteers only to have them show up at a voter’s doorstep and potentially harass them into disclosing who they voted for,” Sullivan said in a statement.

Though Maloy holds a slight edge in the overall race, Jenkins currently has about 59% of the vote in Washington County, compared to the freshman congresswoman’s 41%.

“We find it a suspicious coincidence that such a large outstanding number of ballots are being withheld in a county that Mr. Jenkins is winning with nearly 60% of the vote,” the campaign said in a statement Friday, with Jenkins pointing out on X that Clarke endorsed Maloy.

Clarke, in a prepared statement, said Washington County is “aggressively defending our county from Jenkins’ legal claim — which has no basis in fact.”

“The Utah Legislature wrote the law to give counties discretion in whether to release cure lists,” Clarke said. “Any claim otherwise ignores both the statutory language and legislative intent.”

Counties don’t usually release cure lists before the canvass

County officials noted that Washington County, “along with the vast majority of other counties in our state, have never released a cure list to a candidate.”

It’s unclear why Salt Lake County released its cure list (Salt Lake County Clerk Lannie Chapman did not respond to a request for comment Friday). However, Davis County Clerk Brian McKenzie told Utah News Dispatch he has typically opted not to release cure lists before the county canvass because until then they are in flux or considered “draft” records and therefore, in most cases, not public records.

“One of the things we never want to have happen is if we’ve contacted a voter and corrected the issue with their ballot, it’s been cured, we wouldn’t want somebody to contact them, you know, 10 minutes later and say, ‘Hey, I’ve got a list right here that says your ballot has not been counted.’ And the voter says, ‘Well I just talked with the clerk’s office, and it’s been counted,” McKenzie said.

Such situations, he said, can cause “confusion.”

“When we have confusion, when we have miscommunication, that’s when we get frustration and that’s when confidence in the voting system can be degraded,” McKenzie said. “That’s the whole reason why draft records are not normally public, because they’re not finalized.”

Utah News Dispatch is a nonprofit, nonpartisan news source covering government, policy and the issues most impacting the lives of Utahns.