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The Utah Supreme Court struck down a district judge's ruling ordering a new election in a disputed Millard County primary, saying without a clear victor in the county commission race the local Republican Party should get to pick its candidate.

In a one-paragraph ruling, the court upheld 4th District Judge Laycock's determination that, due to seven inappropriately cast votes and one voter who was wrongly turned away from the polls, there was enough uncertainty to nullify incumbent Jim Withers' five-vote victory over challenger Jim Dyer.

But the court said Laycock erred when she ordered the county to conduct another primary election so voters could choose the GOP candidate for the county commission seat. Instead the court ordered that, absent a clear winner in the race, the Millard County Republican Party should be allowed to choose its candidate.

There is no Democratic candidate in the race. Candidates had until the close of business Friday to file to run as a write-in candidate, however.

During oral arguments before the court Friday on an emergency appeal by Lt. Gov. Spencer Cox, the justices seemed convinced that Laycock had overstepped her authority. Chief among them was Justice Tom Lee, who noted there was nothing in the law to allow the judge to order a new election and called the action "extraordinary."

Lee favored the course the court ultimately took — letting the GOP central committee choose the candidate, which is the process in place when a candidate dies, withdraws for health reasons or is disqualified from the ballot — even though those circumstances don't precisely fit the Millard County situation.

"Isn't that a better fit than making up a remedy that's not set forth in a statutory scheme anywhere?" Lee asked. He also suggested the judge's order improperly required the Millard County clerk to conduct the election, even though she was not named in Dyer's lawsuit.

Brent Johnson, the attorney representing Laycock — who, in an unusual circumstance, was sued by Cox, the state's elections chief —┬ádefended the ruling, arguing that simply tossing out the election and letting the party decide was not a good option because it voids the voice of the voters.

"That really isn't relief," he said. "So the judge felt she needed to order some type of relief in order to give the registered voters what they really came in for, which is an opportunity to select the candidate who will represent them."

Dyer's attorney, Dwight Beckstrand, argued that, because there isn't clear direction in the law, Laycock did the best she could to protect the rights of voters, even if her order placed a burden on the county.

"Yes it's an inconvenience to this county, but we're talking about preserving the constitutional right to vote," Beckstrand said. "I think the constitutional right to vote trumps any inconvenience to the county."

Assistant Attorney General Thom Roberts argued that the election results should be allowed to stand and Withers declared the winner.

Laycock could have overturned the results and declared Dyer the winner, but lacked the evidence to do so. The judge ruled the uncertainty was enough to void the election, Roberts said, but the law requires those challenging the election to prove the votes would have flipped the outcome. Without sufficient proof, he contended, the judge could not nullify the outcome.

During arguments, the justices grappled with how to prove the outcome may have been different. Because Utah's Constitution guarantees voters a secret ballot, there is no way to discern how disputed votes may have changed the tally. That would leave a court helpless, even if there was fairly clear evidence of impropriety, noted Justice Jill Parrish.

"Under the statute and the Constitution, the courts would be powerless to do anything because there would be no way to match up the ballots against the vote that was cast," she said.

Lee questioned if the voters who cast the disputed ballots could be called in by the judge and asked to waive their secret ballot right and say who they voted for — perhaps enabling the judge to declare a winner.

Todd MacFarlane, an attorney for Millard County voters challenging the election, said several voters were approached and asked who they voted for but all of them refused to say.

He suggested another possible solution: Both Dyer and Withers could be put on the November ballot as unaffiliated candidates — since neither can claim to be the party's nominee — with the winner becoming county commissioner.