20A-3a-804. Pre-election challenges to a voter‘s eligibility in writing — Procedure — Form of challenge.
(1)
Terms Used In Utah Code 20A-3a-804
Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Ballot: means the storage medium, including a paper, mechanical, or electronic storage medium, that records an individual voter's vote. See Utah Code 20A-1-102
Canvass: means the review of election returns and the official declaration of election results by the board of canvassers. See Utah Code 20A-1-102
Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
Election: means a regular general election, a municipal general election, a statewide special election, a local special election, a regular primary election, a municipal primary election, and a special district election. See Utah Code 20A-1-102
Election officer: means :
(a)
the lieutenant governor, for all statewide ballots and elections;
Election official: means any election officer, election judge, or poll worker. See Utah Code 20A-1-102
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Filer: means an individual who files a written statement challenging another individual's right to vote as provided in Section 20A-3a-804. See Utah Code 20A-3a-802
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
An individual may challenge an individual’s eligibility to vote by filing a written statement with the election officer in accordance with Subsection (1)(b) that:
(i)
lists the name and address of the individual filing the challenge;
(ii)
for each individual who is challenged:
(A)
identifies the name of the challenged individual;
(B)
lists the last known address or telephone number of the challenged individual;
(C)
provides the basis for the challenge, as provided under Section 20A-3a-803;
(D)
provides facts and circumstances supporting the basis provided; and
(E)
may include supporting documents, affidavits, or other evidence; and
(iii)
includes a signed affidavit, which is subject to penalties of perjury, swearing that:
(A)
the filer exercised due diligence to personally verify the facts and circumstances establishing the basis for the challenge; and
(B)
according to the filer’s personal knowledge and belief, the basis for the challenge under Section 20A-3a-803 for each challenged individual is valid.
(b)
An individual who files a written statement under Subsection (1)(a) shall file the written statement during the election officer‘s regular business hours:
(i)
at least 45 days before the day of the election; or
(ii)
if the challenge is to an individual who registered to vote between the day that is 45 days before the election and the day of the election:
(A)
on or before the day of the election; and
(B)
before the individual’s ballot is removed from a ballot envelope or otherwise separated from any information that could be used to identify the ballot as the individual’s ballot.
(c)
The challenge may not be based on unsupported allegations or allegations by an anonymous individual.
(d)
An election officer may require an individual who files a challenge under this section to file the challenge on a form provided by the election officer that meets the requirements of this section.
(2)
If the challenge is not in the proper form, is incomplete, or if the basis for the challenge does not meet the requirements of this part, the election officer shall dismiss the challenge and notify the filer in writing of the reasons for the dismissal.
(3)
(a)
Upon receipt of a challenge that meets the requirements for filing under this section, the election officer shall attempt to notify each challenged individual in accordance with Subsection (3)(b):
(i)
at least 28 days before the date of the election, if the election officer receives the challenge under Subsection (1)(b)(i); or
(ii)
within one business day, if the election officer receives the challenge under Subsection (1)(b)(ii).
(b)
The election officer shall attempt to notify each challenged individual:
(i)
that a challenge has been filed against the challenged individual;
(ii)
that the challenged individual may be required to cast a provisional ballot at the time the individual votes if the individual votes in person;
(iii)
that if the individual votes by mail, the individual’s ballot will be treated as a provisional ballot unless the challenge is resolved;
(iv)
of the basis for the challenge, which may include providing a copy of the challenge the filer filed with the election officer; and
(v)
that the challenged individual may submit information, a sworn statement, supporting documents, affidavits, or other evidence supporting the challenged individual’s eligibility to vote in the election to the election officer no later than:
(A)
21 days before the date of the election, if the election officer receives the challenge under Subsection (1)(b)(i); or
(B)
five days before the day on which the canvass is held, if the election officer receives the challenge under Subsection (1)(b)(ii).
(4)
(a)
The election officer shall determine whether each challenged individual is eligible to vote before the day on which:
(i)
early voting commences, if the election officer receives the challenge under Subsection (1)(b)(i); or
(ii)
the canvass is held, if the election officer receives the challenge under Subsection (1)(b)(ii).
(b)
(i)
The filer has the burden to prove, by clear and convincing evidence, that the basis for challenging the individual’s eligibility to vote is valid.
(ii)
The election officer shall resolve the challenge based on the available facts and information submitted, which may include voter registration records and other documents or information available to the election officer.
(5)
An individual who files a challenge in accordance with the requirements of this section is subject to criminal penalties for false statements as provided under Sections 76-8-503 and 76-8-504 and any other applicable criminal provision.
(6)
(a)
A challenged individual may appeal an election officer’s decision regarding the individual’s eligibility to vote to the district court having jurisdiction over the location where the challenge was filed.
(b)
The district court shall uphold the decision of the election officer unless the district court determines that the decision was arbitrary, capricious, or unlawful.
(c)
In making the district court’s determination, the district court’s review is limited to:
(i)
the information filed under Subsection (1)(a) by the filer;
(ii)
the information submitted under Subsection (3)(b)(v) by the challenged individual; and
(iii)
any additional facts and information used by the election official to determine whether the challenged individual is eligible to vote, as indicated by the election official.
(7)
A challenged individual may register to vote or change the location of the individual’s voter registration if otherwise permitted by law.
(8)
A document pertaining to a challenge filed under this section is a public record.
Renumbered and Amended by Chapter 31, 2020 General Session
