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State elections officials plan Tuesday to ask the Utah Supreme Court to reverse a judge's order that Millard County hold a new primary runoff for a disputed County Commission race after the outcome of the razor-thin contest was called into question by a handful of disqualified ballots.
"It's become pretty clear to us that we need further direction from the court," said Mark Thomas, the state elections director. "So essentially the lieutenant governor's office is going to the Supreme Court on an emergency appeal to get clarification on this issue."
At issue is the Republican primary for the Millard County Commission race in which incumbent Jim Withers appeared to have held off challenger Jim Dyer by a narrow five-vote margin. No Democrat is running for the seat.
Dyer and his supporters challenged a number of ballots, and earlier this month 4th District Judge Claudia Laycock ruled that seven ballots were improperly counted and one voter was wrongly denied a vote. Based on those votes, Laycock said there was no way to know who truly won the election and ordered the county to redo the vote.
Thomas said there are three questions arising from Laycock's order: whether the court has the authority to order a special election, whether the judge misinterpreted Utah election code, and whether she can order the county clerk to conduct an election when the clerk was not a defendant in Dyer's lawsuit.
"We will be stating that we believe the judge exceeded her authority in ordering a special election," Thomas said. The state will also argue that if Dyer wanted to challenge how the election was conducted and votes were counted, he should have sued the county clerk, not his opponent, Withers.
Dyer said he would prefer to see the clerk abide by the judge's order
"We have a court order that says exactly what is supposed to take place, and I think a lot of people are relying on the court order to have those things occur," he said. "All the legal tap dancing in the world doesn't change the fact that this is a highly flawed election. It's black and white."
Even if the judge had the authority to order a do-over, Thomas contends, there is no way for the county clerk to hold the election and comply with deadlines in state law.
Ballots for the Nov. 4 general election have to be prepared 45 days before the vote, meaning the results would have to be tallied by Sept. 19. But even if the primary were held around that time, ballots for that election also are required by law to be prepared 45 days in advance, meaning that deadline has already passed.
Thomas suggested there is another, simpler and cheaper way to determine the victor. The judge knows the names of all seven voters whose votes were improperly counted. She could, Thomas said, summon them to court, put them under oath and ask the voters whom they voted for and figure out which candidate got the most votes.
"In this case, we feel like maybe she can determine the outcome," he said.
In her ruling, however, Laycock refused to try to discern which candidate received votes on any of the disqualified ballots, saying doing so would violate Utah's Constitutional guarantee to a secret ballot.
Typically the state high court will consider appeals such as this one on an expedited schedule.