Judge orders do-over in Millard GOP commission race

A state judge has tossed out an election for the Millard County Commission and ordered a new Republican primary for the seat after finding enough examples of illegal votes in the June faceoff to cast doubt on the outcome of the incumbent's five-vote win.

Fourth District Judge Claudia Laycock's ruling — the first of its kind in recent memory — has left officials scratching their heads, however, since it appears state law does not give the judge the authority to order a new election.

Jim Dyer appeared to have come up five votes shy of knocking off incumbent Jim Withers in the GOP primary for the commission seat.

Dyer and his supporters challenged seven ballots cast in the race and argued that one voter was turned away at the polling place when he should have been allowed to vote. The commission, including Withers, voted unanimously to reject the arguments and accept the election results.

But Dyer went to court, and Laycock ruled in his favor on each count, finding the seven ballots should have been disqualified — either because the registration forms weren't properly filled out, they were not affiliated with the Republican Party and therefore could not vote in the closed GOP primary, or absentee ballots were submitted after the deadline.

"Because I cannot determine who received the highest number of legal votes, I cannot declare either candidate elected or confirm the election result," Laycock wrote. "Therefore, the only options remaining are annulling or setting aside the election."

Dyer said that, while courts are "a crapshoot," he believed he would prevail since he was right on the legal issues.

The disturbing part, he said, is that all of the objections before the court were presented earlier to the commission when it sat, as the canvassing board, and the three members, including Withers, rejected the arguments.

"You've got the commissioners, one of whom was soundly defeated … and you've got one, Jim Withers, who is basically trying to vote to place himself on the ballot as the nominee based on this primary, which is highly flawed," Dyer said. "I don't know how anyone who would look at this in a reasonable, adult manner, wouldn't see there were problems with that."

Withers said he rejected the arguments from his rival based on the advice of the county clerk, who conducted the election and told them to rely on their judgment of voter intent with contested ballots.

"I probably never would have expected something like this to happen, but it is what it is," Withers said. "The only concern I have is the financial burden that will come to Millard County to do the process again. I don't think it will be cheap to do that. And you always worry about taking taxpayers' money and using it for things that maybe aren't necessary."

The judge ordered a new primary election to be held "as promptly as possible" for that commission seat.

The primary do-over would need to be held to choose the Republican nominee before the Nov. 4 general election, although no Democrat is running.

"We're proceeding the best we can," said County Clerk Norma Brunson. She would not say whether the county was considering appealing the ruling. "It's a new animal."

The prospect of a new primary becomes problematic, according to Mark Thomas, the state director of elections.

First, Dyer didn't sue the county clerk, but rather his opponent, Withers. However, the judge ordered the clerk, who was not a party to the case, to conduct the new runoff.

"I'm not sure she can do that, because she wasn't a party to the lawsuit," Thomas said. "[Second], I'm not sure she can order the election. The way I read the statute is it says the office becomes vacant. So we're still trying to read the opinion and provide some guidance to the county."

Thomas said it appears the law would call for someone to be appointed to fill the vacancy. That appointed commissioner would serve until the next election in 2016.

If the county does stage a new primary, Dyer said he has little confidence in the county clerk, who ran the original "botched election," to conduct the second one in a fair manner.

"It's going to be difficult and expensive and the worst part is it was all unnecessary," Dyer said. "It's just that kind of status-quo attitude that seems to be very strong in this county and with some government officials who think they don't have to play by the rules."

gehrke@sltrib.com

Twitter: @RobertGehrke