Failed candidate’s suit moves to 10th Circuit Court of Appeals

After being dismissed in the U.S. District Court, GOP candidate Jan Garbett is now asking that the 10th Circuit Court of Appeals in Denver hear her case concerning access to the June primary ballot via voter signature gathering.

SALT LAKE CITY — Failed GOP gubernatorial candidate Jan Garbett is continuing her legal battle to have her name added to the ballot for the Republican primary in June.

Garbett’s campaign staff announced May 1 that they were taking her case to the 10th Circuit Court of Appeals in Denver. That announcement came on the heels of a ruling by U.S. District Judge Robert J. Shelby in Salt Lake City that denied Garbett’s attempt to circumvent Utah election laws to reach the primary ballot.

Shelby also denied a similar suit by Provo entrepreneur Jeff Burningham. Both former candidates had alleged that Utah’s statewide social distancing and self-isolation guidelines had prevented them from gathering the 28,000 voter signatures required to quality for the primary ballot.

Burningham will abide by Shelby’s decision, according to campaign spokesman Michael Jolley. But the former candidate also issued a statement criticizing Utah’s handling of signature gathering process in the midst of the Coronavirus outbreak.

“While most other states made significant elections accommodations during a global pandemic,” Burningham said, “ours did virtually nothing. That feels wrong and is at the heart of why I was running in the first place.”

Prior to the Coronavirus outbreak in mid-March, the majority of Utah candidates for state and federal level offices had planned to take advantage of a 2014 change to Utah election laws that allows candidates to sidestep the risk of failing to be nominated by their party’s convention by gathering signatures from registered voters. The threshold for reaching the primary ballot via signature gathering was 28,000 for gubernatorial candidates.

But the social distancing and isolation guidelines issued by state officials quickly brought traditional canvassing methods to a grinding halt.

Under mounting political pressure, Gov. Gary Herbert threw a lifeline to GOP gubernatorial candidates by issuing an executive order allowing them to gather signatures online. But the Garbett campaign contended that change was primarily intended to benefit deep-pocket candidates like former Gov. Jon Huntsman, Jr.

Because Herbert’s executive order left the signature gathering threshold to qualify for the primary ballot at 28,000, Garbett’s attorneys targeted that number in their original suit to the U.S. District court filed in mid-April. That filing alleged that the Coronavirus crisis made that threshold unattainable and requested that Judge Shelby order that Garbett’s name be added to the primary ballot.

Shelby responded instead by ordering that the ballot threshold be lowered to 19,040 signatures and directed the Lieutenant Governor’s Office to begin the process of reviewing the more than 21,000 signatures that Garbett’s campaign had gathered.

By April 29, state officials had already reviewed more than 3,000 of Garbett’s signatures and found that more than 1,800 were invalid. At that point, they advised Judge Shelby that it was mathematically impossible for Garbett to achieve even the lower ballot threshold.

When Garbett’s attorneys then argued that the ballot threshold should be lowered again to just 13,660 signatures, Shelby denied that motion on May 1.

In its current appeal to the 10th Circuit Court, the Garbett campaign now alleges that Herbert’s executive order placed an unconstitutional burden on its signature gathering effort.

“We are appealing because Judge Shelby’s remedy didn’t fix the unconstitutional burden he identified in Utah’s signature laws during the Coronavirus,” Garbett said, which she described as “already one of the most difficult standards in the country.”

She said other courts dealing with the Coronavirus issue have lowered voter signature thresholds by at least half and even more in some cases. Garbett added that her appeal to the 10th Circuit Court is “ … not merely about furthering her campaign, but about ensuring the right to ballot access for all candidates, current and future, against the entrenched interests of Utah’s political establishment.”

While Garbett’s suit is pending, four Republican candidates for governor are on the primary ballot. They are Lt. Gov. Spencer Cox, former Gov. Jon Huntsman Jr., former Utah GOP Chairman Thomas Wright and former Utah House Speaker Greg Hughes.

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