Judge sides with Lt. Gov. over ‘moms’ election fraud pursuit

A Fourth District Court judge dismissed a civil lawsuit last week filed by two “moms” seeking to make public normally secure voting records as part of a wide-ranging effort to prove various election fraud claims.

Jennifer Orten, of Draper, and Sophie Anderson, of Salt Lake City, brought the lawsuit after multiple records requests across various Utah counties were denied, including here in Millard County.

The women’s efforts are best described as Utah’s version of the “big lie”—a notion spread by ultra-right radicals arguing that widespread fraud affected the outcome of the 2020 presidential election. 

Not a thimble’s worth of solid evidence has emerged in 22 months since the 2020 election to support such claims, despite dozens of lawsuits and ballot audits across multiple states. 

Judge Derek Pullan pulled the plug on the women’s lawsuit—they sued Utah, Juab and Millard counties in March—after hearing arguments during a motion to dismiss hearing Wednesday. The hearing was spurred by Lt. Gov. Deidre Henderson’s office, which filed a motion to dismiss in May. The lieutenant governor is the state’s top election officer. 

Chad Shattuck, a Draper attorney representing the plaintiffs, attempted to convince the judge the ladies’ efforts were part of the Constitution’s checks and balances tradition, whereby the public is the sovereign and government officials the servants. Seeking the election records, he said, was merely a means by which the public was checking the veracity of the state’s election work. Besides, he argued, all the women wanted was copies of election machine databases, tabulator tapes, cast vote records and ballot images, terms for materials not specifically protected nor defined by state code. 

At one point Pullan called the attorney’s argument “extraordinary.” 

“You assert on behalf of two voters the right to see ballot images of every other voter? That’s extraordinary,” the judge said. 

Shattuck said he didn’t believe it was. 

The attorney argued that state code preserves original ballots in order to verify vote totals should a candidate contest the results of an election. It’s not to hide the information, he said, but the opposite. 

“Copies and digital images aren’t afforded the same protection,” he told the judge. 

Pullan then stopped Shattuck and asked what would happen if a “bad actor” secured the information his clients seek and then proceeded to alter the data, “inserting into the public mind uncertainty about the integrity of the election.” 

“This really goes to the heart of the republic,” the judge said. 

Shattuck said the original ballot documents prevent such chicanery since they are preserved by law and can be used to prove any deceit by bad actors. 

The judge didn’t bite. 

“The damage is done, right?” The judge asked in response. “In an age of misinformation, the damage is done.” 

Shattuck said by that logic all media would be censored in order to control the dissemination of misinformation. 

The judge wondered aloud that with the broad definition of “ballot” in the state’s election code, why wouldn’t the state mean all kinds of information, not just specifically a ballot. 

The definitions in state code, which don’t match letter for letter the information typically used in modern electronic vote counting, essentially set up a strange factual debate among the attorneys present—Assistant Attorney General Scott Cheney represented the Lt. Governor’s Office and Gregory Hoole represented Utah County as well as served as de facto attorney for Juab and Millard counties. 

Shattuck attempted to persuade the judge the state’s election code specificity didn’t cover all types of ballot information, just strictly the ballot itself, “not all possible copies of such or data derived from such.” 

“I guess my trouble, Mr. Shattuck, is we’re dealing with government records that are of significant consequence to the people and are highly sensitive in that regard,” the judge said. 

Pullan added that in his thinking he can go back 200 years when paper ballots were the only medium for casting a vote. “We wouldn’t let those paper ballots out to anybody,” he said, adding that he believes voters wanted such material secure even then. 

“It would seem to me distribution of sensitive election materials to anybody that asks for them is really inviting significant mischief into the election process,” the judge said. 

Still, Shattuck made the argument repeatedly that Utah’s open records statute, GRAMA, “expressly” prohibits the withholding of records that aren’t specifically identified by other codes as being unavailable for public inspection. 

“The sovereign should always be able to look at the sovereign’s checkbook and see what numbers are there,” the plaintiffs’ attorney said. “We’re not trying to throw out the election code, we’re trying to get enforcement of it.” 

During Cheney’s concluding rebuttal of Shattuck’s arguments, he rightly pointed out that the state’s election code delegates the handling of election material to elected officials in each county, elected by their constituents to manage elections in a safe and secure manner and according to the law. 

The code, he said, spells out specifically the duties of elections officials—namely county clerks—including an array of transparency functions that make nearly every bit of an election open to the public. Vote canvassing, poll watching, supervised ballot counting and other means of public participation are expressly allowed by law in order to ensure election integrity and the public confidence in election outcomes, he argued. 

Cheney later buttressed this by reading from a 1903 Utah Supreme Court case, Farrell v. Larsen, which involved election ballot security rules more than 100 years ago. The court’s conclusions in that case was that if ballot security wasn’t maintained “the door to fraud and corruption would be wide open.” 

Cheney said ballot safeguards in current statute were legislated almost from the beginning of Utah statehood and were put in place to guarantee the security of casting secret votes. 

When given his opportunity to conclude, Hoole returned to the questions surrounding the factual debate and whether election records should only be protected from public scrutiny if they are specifically enumerated within the law. 

He referred to GRAMA’s own language that says “a record is public unless otherwise expressly provided by statute.” 

“In the very next section of the GRAMA statute, it says ‘the following records are not public,’” Hoole said, before reading a portion of the records law that specifically states any material governed by another statute is not considered public unless that other statute says as much— voting records are governed by the state’s election code. 

Hoole said there are hundreds of statutes in the Utah Code and it would be impractical for all of them to enumerate exactly what is and isn’t considered public records within them. 

“If you have a statute that governs access to records, GRAMA is simply inapplicable. As far as I’m concerned, your honor, that is the beginning and the end of the analysis,” Hoole said. 

Judge Pullman’s dismissal of the lawsuit came several hours after the initial hearing. He upheld the Lt. Governor’s motion to dismiss and reiterated the harm to elections that handing over sensitive voter information to unauthorized members of the public could have. He specifically cited bad actors using such data as a way to manufacture “evidence” to support “baseless” claims of fraud that undermine public confidence. 

“In the hierarchy of records maintained by the government, few are more sensitive than the election materials petitioners seek. By restricting access to these materials, the election code preserves the integrity of both elections and election contests,” Pullan ruled. 

The judge said if the plaintiffs felt access to the number of election records defined by state law is too broad, or, that the number of people granted access is too narrow, then their remedy is through the legislature, not the courts. 

Asked if the attorneys had any questions, Hoole and Cheney said they did not. Shattuck said he did but felt they could be perceived as argumentative and so declined to ask any. To which the judge responded, perhaps such questions could form the basis for an appeal. 

Millard County Attorney Pat Finlinson, though not part of the proceedings, watched the hearing. 

He said previously that when he met personally with the plaintiffs and their attorney earlier this year he advised them that getting their case before the courts was likely the only way they could access the records they sought. 

He also said to them it was a matter of risk management for the county to deny their records request—he’d rather see the county sued, he said, than he or other elected officials accidentally run afoul of state and federal election laws by handing over secure election materials. 

Finlinson might have been the only county attorney in Utah to actually sit down and attempt to understand what Orten and Anderson were trying to do, he said. 

“I really honestly wanted to understand what it was they were looking for and what their claim was,” he said. “It was a good meeting.” 

Ultimately, though, they failed to show him, he said, any actual proof they said they had uncovered showing election fraud in Millard County or anywhere else. 

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