Gov. candidate Phil Lyman questioned Utah’s elections. We looked into the process

Since the night of Utah’s June 25 primary election, Republican gubernatorial candidate Phil Lyman has called for an independent audit and has refused to concede to incumbent Gov. Spencer Cox until after his team analyzes the results.

The Associated Press called the race at 8:23 p.m. on June 25 with 64% of the votes counted. It is not uncommon for races to be called shortly after polls close as soon as it is clear it would be mathematically impossible for the trailing candidate to get enough votes to win.

Cox and his running mate Lt. Gov. Deidre Henderson beat Lyman and his running mate, Natalie Clawson, by about 9 points, 54.5% to 45.5%, according to the latest tally .

The Lyman campaign has made a long list of claims about Utah elections in the days leading up to, and following, his loss.

Lyman, a certified public accountant, said current election audit practices were “nothing like a good audit,” and said Lt. Gov. Deidre Henderson role as the state’s chief election officer has led to Utah having “selections,” not elections. He also called state election officials “obstinate in their efforts to subvert citizens’ requests to public records and transparency.” And he endorsed the idea that the state’s interest in publicly releasing voters’ information outweighs their right to privacy.

The Lyman campaign’s request to obtain Cox’s signature gathering packets was denied because of a state law — a law Lyman voted for . The law makes signatures private information in addition to other parts of code that allows voters to make their information private.

The claims made about Utah’s elections likely left voters with questions about the fairness of the elections process. To answer those questions, the Deseret News spoke to county and state election officials as well as Utah House Speaker Mike Schultz and an election law expert.

Built-in safeguards in Utah elections

The safety of Utah elections is built from the ground up, beginning with elected election officials in every county in the state. The Deseret News spoke with clerks from Utah, Sevier, Cache, Salt Lake, Davis and Tooele counties to understand these safeguards.

“The actual everyday work of voter registration, ballot preparation, tabulation, counting and reporting, that is all done independently of the lieutenant governor’s office by each individually, independently elected county clerk,” Davis County Clerk Brian McKenzie told the Deseret News.

There are “hundreds” of checks to ensure that ballots are valid, that they were cast by registered voters and are counted accurately, McKenzie said. This includes tracking every ballot “through the entire process” and tracing every ballot back to “a vote credit in participating in the election.”

Before a single mail-in ballot is ever sent out, county clerks and their staff, like Sevier County lead deputy clerk auditor Barbara Crowther, are tasked with making sure they have an accurate voter registration list. County election officers regularly update voter rolls to reflect changes in residence and to ensure that newly convicted felons and deceased individuals are removed, Crowther said.

Once ballots are sent out, there are checks in place to guarantee there will only be one vote recorded per voter. Each ballot envelope carries a unique nine-digit “absentee ID number,” Crowther explained, that allows ballots to be tracked through the system and prevents voters from casting more than one ballot.

Lifelong Logan resident Bryson Behm has been the county clerk since an April special election that followed years of him working in county election departments. He says rigorous chain of custody documentation begins from the moment ballots are picked up from the drop box or post office, with pairs of election workers clocking in, tracking their time, taking down the name of the post office employee ced, counting the ballots and sealing them with specially numbered zip ties.

“We’re all about seals,” Behm said. After ballots are tabulated in what Behm refers to as “a more secure, encrypted Scantron machine,” they are sealed again in secure totes that only he and one other election worker have a key to.

Signatures checked on ballots

But before ballots are ever counted, or even opened, there must be a signature that corresponds with one the state has on record, Behm said. Ballot signatures are compared with up to five others, including the signature found on voters’ drivers license, by county employees with signature verification training.

If there is no signature, or a signature does not match those on record, county election officials will reach out to the corresponding voter through mail, and in many cases through text and phone call, to give voters the opportunity to provide the correct signature and confirm their ballot.

Tooele County Clerk Tracy Shaw takes her job of giving voters every opportunity to remedy rejected ballots very seriously.

“I babysit that process really closely myself,” Shaw said, explaining they call and email every voter that has a challenged ballot. Voters can remedy their ballots through a “text-to-cure” digital affidavit process or coming in-person, Shaw said.

Beyond scanning the unique barcode on every ballot and meticulously tracking every ballot each step of the way, “There’s a multitude of checks and balances already in place to procedurally make sure that people only get to vote once,” Salt Lake County Clerk Lannie Chapman said.

Prior to every election, each vote-counting machine is run through a series of “logic and accuracy” tests, using an already recorded selection of test ballots, to ensure it is tabulating completed ballots accurately, Chapman said.

And following every election, there is a public audit performed with 1% of total ballots cast as an additional verification that the system is working correctly. The process includes going through random batches of votes by hand and comparing each ballot to the image recorded by the tabulation machine which indicates with a green dot how every vote was recorded.

Voters participate in Utah County audit

Utah County Clerk Aaron Davidson views public participation in this 1% audit as a priority. So much so that he doubles the time and quantity of his audit by allowing public participants to select another 1% of ballots at random to verify, for a total of 2% of his votes, or around 2,000 ballots, that are recounted by hand.

“They actually participate. They put their hands on the ballots. They’re not just observers, they’re actually auditors,” Davidson said. “They have to take an oath of office for a day. So they’re deputized clerks for a day.”

During the “canvass” period, election officials perform statistical analyses of election results to confirm that the total number of processed ballots aligns with the number of registered voters in a given area. A canvass meeting is then held, usually two weeks after the election, where county commissioners or county council members certify county election results and double-check the accuracy of overall numbers to catch any anomalies.

While the election process is decentralized in Utah, security measures are standardized across the state. Ryan Cowley, director of elections in the Lieutenant Governor’s Office, said county clerks must certify their voter registration lists with his office to provide an additional check that the state is “registering people who are real people” and meet the criteria of being at least 18 years old, citizens and “live where they say they live.”

The last few years have seen a number of statewide implementations to heighten election security and voter confidence.

“We’ve done a lot over the last few years to codify and standardize those practices among clerks by chain of custody, doing that within view of the public, doing that within areas under camera surveillance,” Cowley said.

Steps the Utah Legislature has taken to strengthen Utah elections

After the 2022 elections, the Legislative Audit Subcommittee requested an audit of Utah’s election system and controls to see what processes the state needed to improve, according to Schultz, R-Hooper, who was on the audit subcommittee at the time.

“We found there were no widespread issues,” Schultz said, adding there were some areas found where Utah could improve. “But the good part was what the committee said about it — citizens should have confidence in our election systems.”

After the audit was carried out, the Utah Legislature passed several bills to strengthen the integrity of the state’s elections. The bills implemented better processes for verifying signatures on ballots, cleaning up voter rolls and increasing security of elections.

But what Schutlz said was perhaps the biggest change was a bill he sponsored in the 2023 session: an audit of elections every election cycle. Lyman voted for this bill.

“Now every general election and primary election in the state will be audited,” Schultz said. “Auditors are out right now auditing those elections.”

Schultz explained an important part of the law he passed is who does the audit. “We had the legislative branch do the audit instead of the executive branch, because we wanted it to be independent — give it more credibility.”

Independent auditors are in every county and in the Lieutenant Governor’s Office, Schultz said. “They really can audit however they want. They have pretty much full access to do whatever they want.”

This audit is different from the process the Lieutenant Governor’s Office put into place to audit 1% of the ballots publicly. It is focused on cybersecurity and dives into the technical aspects of the technology used. After the conclusion of the election, the Legislature will get a report back.

Schultz said he’s looking forward to the results of the upcoming audit because he wants to find every way to make Utah elections better and give the public more confidence.

“You look at some of the other states across the nation and I’m very fortunate that we have the county clerks that we have here in the state of Utah because I do believe they do a pretty good job,” Schultz said.

When speaking about transparency in Utah elections, Schultz said there has been an attempt to balance privacy of voters with public information. He said he thinks more information is better.

“It’s kind of interesting — some of these groups and people that were saying we want our voter information protected and not open to the public have now come full circle and are saying they want more transparency,” Schultz said. He said he’s hopeful with the push for more transparency, legislators may be able to walk back how much information is redacted by law.

What the Lieutenant Governor’s Office does and does not do

The lieutenant governor oversees elections, but per state code , she cannot assume the duties of county clerks. To understand the difference between the two, Cowley said it’s easiest to start with what county clerks do.

“They’re the ones who actually conduct the election,” Cowley said. “They’re the ones who are doing voter registrations, they’re mailing out ballots, they’re counting ballots, during the signature review, they’re the ones doing that. If they challenge a ballot, they’re the ones who are working with the voters, they’re the ones who are tabulating the votes.”

Cowley said the Lieutenant Governor’s Office does not count a single ballot and are, instead, in charge of oversight which includes training and guidance.

When asked about the kind of training the office provides, Cowley gave the example of signature verification training.

“Every poll worker, election worker that does signature verification, there’s a training module that they have to do and we worked with a lot of the county clerks with the forensic documents examiner to provide that training to those people doing the signature verification,” Cowley said.

In addition to providing training, the Lieutenant Governor’s Office randomly selects 1% of each county’s ballots to be audited. Ballots are processed in batches. The county clerk gives the office a list of all the batches and then the office selects 1% of the ballots, so the clerks don’t know ahead of time which ballots will be audited.

This audit is done in a public meeting and no more than half of the people participating can be employees of the clerk’s office, Cowley said.

State code also stipulates that the Lieutenant Governor’s Office is responsible for ensuring that all voting equipment in the state complies with requirements. Cowley said all equipment in Utah used to tabulate votes has to be certified by the Election Assistance Commission.

“Part of that is that any software or equipment that’s used has to go through a third-party independent labs test,” Cowley said. The third-party lab test looks at many different scenarios and different ballots to not only see if the machines are counting votes correctly, but also looking deeper into the software.

Clerks do additional tests where they will run ballots through the machines where they know the results and compare it to what the machine counted, Cowley said. “We also do software hash validations to ensure that nothing in that code has changed. The equipment is never connected to the internet.”

Cowley also added there’s encryption and additional security measures.

“If anybody ever did hack into that equipment or tamper with it, the clerk would know,” Cowley said. “And at that point, we’d have to evaluate it.” He said he was not aware of any instances in the state where a machine has been tampered with.

Regarding election transparency, Cowley said voters can go into the clerk’s office to view any of the processes.

“Poll workers are allowed within six feet of any of the processes, so close enough that they can see it. The logic and accuracy test is a public meeting,” said Cowley. “Many of the processes are public. There’s a post-election audit that’s open to the public and then, the results are canvassed by the legislative bodies of the county.”

Signature gathering

Days before election night, Lyman’s running mate Natalie Clawson had submitted requests for the petitions of Gov. Spencer Cox, attorney general candidate Derek Brown and U.S. Senate candidate Brad Wilson.

Pointing toward a case where Washington County is investigating signatures submitted by state Sen. Don Ipson, R-St. George, the Lyman campaign said this is their impetus for looking into other candidates’ signatures — Cox and Wilson used the same signature-gathering company as Ipson while Brown used a different company.

Washington County attorney Eric Clarke told the Deseret News that Ipson’s signatures were being investigated and also said there was no evidence of a candidate or the company acting inappropriately. He said he was looking into it as a matter of due diligence. Tanner Leatham, owner of Gathering Inc., said a couple of contractors gathering signatures for Ipson weren’t using the company’s tools and gathered signatures from people who don’t live in Ipson’s district, which is why some of them were not valid.

Clawson’s request for copies of every signature and personal identifying information on the packets submitted by Cox, Brown and Wilson was denied because of state law. There’s a law on the books, which Lyman voted for, that made signatures protected information. Then, also there’s additional state code that allows voters to decide to withhold their information from all candidates for public office.

Instead of obtaining copies of the signature packets, Clawson was given the option of obtaining a list of signers which would exclude the identifying information of voters who chose to make that information private. She could have also chosen to review the packets at the end of July after the identifying information of some voters was redacted, as state law requires.

In a statement to the Deseret News, Lyman said, “It is clear that we want transparency when it comes to verifying Spencer Cox’s signatures on his candidacy petition. We would like to verify the list of people. I don’t want their signature, I want the complete list so we can review it.”

The Lyman campaign has pointed toward another part of state law that says government entities can disclose records that are private if they determine “the interests favoring access are greater than or equal to the interest favoring restriction of access.”

Election law expert Audrey Perry Martin said the balancing test between the competing interests is vague here. She said there isn’t a concrete answer to whether public interests could outweigh privacy interests in this case.

The issue over privacy as it pertains to signature-gathering has not been litigated in Utah courts, said Martin.

But privacy over election returns has been reviewed. Henderson released a statement saying, “this is a reminder that cast vote records, tabulator information, ballot images, tabulator tapes, back up project databases, and other election materials are considered ‘election returns’” and not subject to GRAMA.

Henderson cited a ruling from a 2022 lawsuit that arose after Jennifer Orten and Sophie Anderson sued several counties after their requests for election returns were denied, where the court found that the election materials sought by Orten and Anderson were among the most sensitive records.

“By restricting access to these records, the Election Code preserves the integrity of both elections and election contests,” the court said. “In the absence of these restrictions, the door to fraud and corruption would be left wide open. If plaintiffs believe that the number of election records to which access is restricted is too broad, or the number of people to whom access is given is too narrow, then plaintiff’s remedy is with the legislature.”

Henderson said, “The remedy for any individual wishing to contest an election is not through GRAMA, but through the courts.”

Lyman considering legal options

On election night, Lyman said he was considering his legal options. The Deseret News was unable to find record of Lyman filing a suit. Martin said litigation wouldn’t change the results of the election and the time to file a suit over signature gathering would have been as it was happening, not after signatures were turned in and certified.

“Big picture here: they’re not going to overturn the election,” Martin said. “... Once the ballots are printed, once the people are on the ballots, once it’s been certified by the lieutenant governor that these are the people who qualified, the process is done. Your ability to litigate that is over and it becomes a moot issue at that point.”

Martin said judges tend to give deference to state administrators, state election officials and local election officials to do their job “unless there’s overwhelming evidence of corruption.”

A suit against Utah’s signature gathering law has not been filed yet this year, but if it were, Martin said it’s unlikely to go anywhere in the lower courts.

It’s worth noting Utah’s signature gathering law has already been litigated. In 2019, the Supreme Court refused to hear the Utah Republican Party’s appeal of a 10th Circuit Court of Appeals ruling, which allowed the signature gathering law to stand.

Martin said while cases are never completely settled, it’s “highly unlikely” the Supreme Court would take up another suit against the law.

Usually state statutes prevail against the rules of political parties, but it’s still a complicated issue given that political parties are more similar to state actors than purely private institutions. Martin said even so, it’s “highly unlikely” Lyman’s name would be added to the general election ballot.