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Brown v. Cox

Supreme Court of Utah

January 11, 2017

Melvin R. Brown, Petitioner,
v.
Spencer Cox, Utah Lieutenant Governor, et al., [1] Respondents.

         On Direct Appeal

          Duane L. Ostler, Keven J. Stratton, Scott O. Stratton, Orem, for petitioner

          Sean D. Reyes, Att'y Gen., Thom D. Roberts, Asst. Att'y Gen., Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for respondent Spencer Cox

          Robert K. Hilder, David L. Thomas, Jami R. Brackin, Coalville, for respondent Kent Jones

          David R. Irvine, Janet I. Jenson, Salt Lake City, for respondent Logan Wilde

          Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham, and Justice Himonas joined.

          OPINION

          PEARCE, JUSTICE

         INTRODUCTION

         ¶1 Petitioner Melvin Brown lost his Republican Primary election for the Utah House of Representatives by nine votes. He challenges that result under Utah's election contest statute, Utah Code section 20A-4-403(2). Brown argues that he would have prevailed if a number of disqualified ballots had been counted. Brown filed a verified complaint in this court under Utah Code section 20A-4-403(2). Utah Code section 20A-4-403(2)(a) instructs a registered voter to file a petition in the district court where the petitioner resides if the election involves voters from a single county and to file in the Utah Supreme Court when the voter contests a multi-county election.

         ¶2 We hold that Utah Code section 20A-4-403(2)(a)(ii), which purports to provide this court with original jurisdiction over multi-county election contests, is an unconstitutional expansion of this court's original jurisdiction.

         BACKGROUND

         ¶3 The primary election for Utah House District 53 was held on June 28, 2016. District 53 includes the north of Duchesne County and all of Daggett, Morgan, Rich, and Summit Counties. Approximately 95 percent of voters cast their ballots by mail. Because the difference between votes cast for Logan Wilde and votes cast for Brown equaled less than 0.25 percent of the total number of votes cast for all candidates, the county clerks recounted the ballots. See Utah Code § 20A-4-401(1)(a). Election officials disqualified thirty-two ballots under Utah Code section 20A-3-302(5) because the signatures on the ballots did not match the voters' signatures maintained on file. Election officers rejected another seventy ballots because the ballots had not been postmarked or "otherwise clearly marked by the post office as received by the post office before election day, " as Utah Code section 20A-3-306(2)(b) mandates. Brown requested that the Lieutenant Governor recount the ballots in accordance with Utah Code section 20A-4-401(1).

         ¶4 With respect to the thirty-two ballots disqualified for unverified signatures, Brown asked the Lieutenant Governor to verify that election officials followed the process Utah Code section 20A-3-302(5)(b) requires: to "immediately contact the voter to verify the signature" before disqualification. With respect to the seventy ballots postmarked on election day, Brown asserted that although many rural voters placed their ballots in the mail on the day before the election, their ballots were not postmarked until the day of the election. After investigation, the Lieutenant Governor expressed sympathy to Brown but concluded that the statute did not allow the contested votes to count. Following an official canvass, the Lieutenant Governor certified Wilde as the winner of the primary election by nine votes.

         ¶5 On August 12, 2016, Brown filed a verified complaint in this court contesting the results of the primary election under Utah Code section 20A-4-403(2). Brown names as respondents the Lieutenant Governor, the Utah State Board of Canvassers, the county clerks of the affected counties, and government official "John Does 1-10 . . . who are or may be responsible for multi-county elections in the State of Utah."[2] The Complaint raises two causes of action that track the two issues Brown raised in his letter to the Lieutenant Governor. First, Brown asks us to "open the ballots" and to obtain "further evidence . . . from the 70 voters as to when and where they mailed their ballots." Brown argues that those seventy voters substantially complied with the election statute by placing their ballots in the mail prior to election day and should not be disenfranchised by having their votes disqualified. He further contends that if we determine that Brown received at least ten additional votes, we should issue a Writ of Mandamus to respondents and order them to count the seventy votes that were not postmarked before election day. Second, with regard to the remaining thirty-two ballots disqualified for unverified voter signatures, Brown hypothesizes that respondents "may not have fully complied" with statutory requirements laid out in Utah Code section 20A-3-302(5) because respondents "may not have individually contacted the voters . . . to verify the signature as required by . . . statute." With regard to his second cause of action, Brown requests that this court issue a Writ of Mandamus directing respondents to recognize all ballots that were improperly disqualified.

         ¶6 This court held a scheduling conference on August 23, 2016. We invited the parties to brief whether Utah Code section 20A-4-403(2)(a)(ii) unconstitutionally expanded this court's jurisdiction.[3] Both Brown and the Lieutenant Governor argue that Utah's Election Code is entitled to a strong presumption of constitutionality. Brown argues that the jurisdiction conferred by section 20A-4-403(2)(a) is constitutional because "it does nothing more than specify Supreme Court jurisdiction in multi-county elections . . . for pursuit of an extraordinary writ in an election contest." Furthermore, Brown argues that we cannot limit the Legislature's power to expand this court's jurisdiction.

         ¶7 The Lieutenant Governor suggests that we interpret the Verified Complaint as a petition for extraordinary writ. The Lieutenant Governor argues that, though the requirements found in section 20A-4-403(2)(a)(ii) do not overlap precisely with the court rules that govern petitions for extraordinary writ, we should hold that the statute "fill[s] the gaps" in our rules of procedure for special statutory proceedings such as election contests.

         ¶8 Wilde disagrees with Brown and the Lieutenant Governor. Wilde argues that the election contest statute is an unconstitutional expansion of this court's original jurisdiction. Wilde identifies two problems this court would face if the statute conferred jurisdiction: (1) the Utah Supreme Court would be required to act as a finder of fact and (2) the floodgates of litigation ...


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