WEST JORDAN — Salt Lake County Clerk Sherrie Swensen said she believes her office has been unfairly targeted by Rep. Mia Love's lawsuit against her challenging voter signature verification.
After nearly a two-hour hearing Thursday, including questions about why Utah and other counties in the 4th Congressional District weren't also sued, 3rd District Judge James Gardner took the case under advisement.
Swensen told reporters after the hearing that she was surprised by the lawsuit filed Wednesday by the GOP congresswoman and her campaign because she said she's been assured her office was giving Love's poll watchers the access they needed.
"I was really shocked by it because we've got them watching in all areas, getting really close sometimes to the process," the longtime Democratic clerk said. She said allowing that to become interactive "would become a tug of war of chaos."
Much of the case made in court by Love's attorney, Robert Harrington, focused on what he said were deficiencies in the affidavit forms the Salt Lake County clerk has voters fill out if the signatures on their mail-in ballots don't match what's on file.
Harrington argued the forms don't include specific information called for in the law, including attesting to casting an absentee ballot, and said the "underlying guiding principle we should follow is let's get it right."
But Loren Washburn, the attorney representing Love's Democratic opponent, Salt Lake County Mayor Ben McAdams, said Utah County's affidavit forms leave out similar information.
Washburn said the lawsuit seeks to treat voters differently based on where they live and would lead to the "fundamental disenfranchisement" of those in Salt Lake County, McAdams' stronghold in a race that's still too close to call.
The judge picked up on the issue, questioning Harrington twice about why only Salt Lake County was sued before getting an answer. "You don't just want to get it right in Salt Lake County, do you?" Gardner asked.
Harrington responded by saying the Utah County affidavit did include attesting to filling out an absentee ballot, making it a "lot better" than Salt Lake County's, even though other information was also left out.
When Gardner pressed him with a reminder that his response could come up in future litigation after the election results are finalized, Harrington said he was still evaluating the Utah County form.
Love's attorney told the court he was not trying to "cherry-pick" by filing against Salt Lake County, but noted that's where 85 percent of 4th District voters live. He also said "timing was of the essence" and the campaign had limited resources.
The judge also questioned why the issue was only now being brought before the court, at the 11th hour in the election process.
"You knew how this process worked before the election," Gardner said.
Again, the judge had to ask twice before Harrington replied "things happen fast."
Swensen said after the hearing that the same affidavit form was used during Love's last election, in 2016. She said her office has been sending the forms out since Oct. 18 and, of the more than 3,000 sent out, 855 have been returned.
"I think this is unfair," she said of the lawsuit. "If they were really going to question it, this same type of affidavit is used throughout the state of Utah, I assure you. So I think it was targeted at Salt Lake County."
Harrington told reporters he thinks the county has a "serious problem" with its affidavit, "a clear violation of the election code" that needs to be addressed. "We're just looking for a fair process."
He said the lawsuit wasn't targeting Salt Lake County but he would not amend his complaint to include other counties. "Obviously, we're totally for universal application among the counties."
McAdams' campaign manager, Andrew Roberts, called the case "a thinly veiled attempt by Congresswoman Love to disenfranchise the voters of Salt Lake County and Salt Lake County only," but all voters "should be deeply disturbed by this." He said the suit was a "waste of time."
Votes continue to be counted in the 4th District, which includes portions of Salt Lake and Utah counties as well as Juab and Sanpete counties.
The latest results released by Salt Lake County shortly before 5 p.m. Thursday expanded McAdams' lead from 873 votes to 1,002 votes. He now has 127,013 votes to 126,011 for Love.
Utah County is not set to release new numbers until Friday. The final vote canvass by counties will not be completed until Tuesday.
McAdams, in Washington attending the orientation for new members of Congress, said in a tweet Wednesday that Love's lawsuit "smacks of desperation. Utah voters deserve better than this."
The lawsuit filed by Love and her campaign Wednesday sought a court order to allow them the opportunity to analyze and challenge the county's determination on whether signatures on ballot envelopes match those on file.
They asked the court to stop the county from separating ballots from signed envelopes while that analysis was being done and also to halt the counting of provisional ballots cast so those, too, could potentially be challenged.
In an exhibit attached to the lawsuit, Love's attorney asked Swensen in a Monday email to "refrain from tabulating and/or separating any related ballot envelopes from the ballot themselves" where there are questions.
The Salt Lake County District Attorney's Office, in its motion to dismiss the lawsuit, said Love and her campaign were seeking "to interrupt the process" of vote counting and that "voters have a right to privacy in their voting."
Earlier Thursday, Gov. Gary Herbert said "there is no evidence of voter fraud in Utah," in response to a question about Love's lawsuit during his monthly news conference on KUED.
"The elections in Utah have been very good," the governor said.
But Herbert remained critical of the ballot tallying in Utah County, where he said there have been problems since 2006 when the Help America Vote Act was implemented.
Those problems have been persistent, the governor, a former Utah County commissioner, said. "Utah County can do better and the people of Utah County deserve better."
Contributing: Amy Joi O'Donoghue
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