CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 4/7/2023 1

Modification of Utah’s Signature Requirements 

for a Prospective Candidate 

During an Infectious Pandemic 

Garbett v. Herbert (2:20-cv-245) and 

Brown v. Herbert (1:20-cv-52) (Robert J. Shelby, D. Utah) 

A district court modified the ballot-petition signature requirement 

for a prospective gubernatorial candidate because of social distancing during the Covid-19 global infectious pandemic. Even with the 

modified requirement, the plaintiff was unable to qualify for the 

primary-election ballot. After the injunction was issued, a prospective legislative candidate sought relief from the ballot-petition signature requirements, but the court denied the second plaintiff relief. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

Covid-19; case assignment; primary election; interlocutory appeal; 

intervention; pro se party. 

A district judge modified the ballot-petition signature requirement for a prospective gubernatorial candidate because of social distancing during the 

Covid-19 global infectious pandemic. The judge declined to extend the relief 

to a legislative candidate. 

Gubernatorial Candidate 

A prospective candidate for the Republican gubernatorial primary election in 

Utah filed a federal complaint in the District of Utah on April 13, 2020—the 

deadline for submitting ballot-petition signatures—alleging that Utah had 

failed to provide prospective candidates with adequate methods of collecting 

signatures during the Covid-19 pandemic.1 On the next day, the plaintiff 

filed a motion for a preliminary injunction2 and a motion for expedited briefing and hearing.3

 Two days after that, she filed a stipulated motion for expedited briefing, hearing, and decision before the April 29 certification of candidates for the ballot.4

 On April 16, Judge Robert J. Shelby agreed to order 

briefing on the injunction completed by the end of the day on April 24.5

1. Complaint, Garbett v. Herbert, No. 2:20-cv-245 (D. Utah Apr. 13, 2020), D.E. 2; Garbett v. Herbert, 458 F. Supp. 3d 1328, 1331, 1335 (D. Utah 2020). 

2. Preliminary-Injunction Motion, Garbett, No. 2:20-cv-245 (D. Utah Apr. 14, 2020), 

D.E. 6; Garbett v. Herbert, 514 F. Supp. 3d 1342, 1344 (D. Utah 2021); Garbett, 458 F. Supp. 

3d at 1335. 

3. Motion, Garbett, No. 2:20-cv-245 (D. Utah Apr. 14, 2020), D.E. 7. 

4. Motion, id. (Apr. 16, 2020), D.E. 15; Garbett, 458 F. Supp. 3d at 1335. 

5. Order, Garbett, No. 2:20-cv-245 (D. Utah Apr. 16, 2020), D.E. 16. 

The court initially assigned the case to Magistrate Judge Paul M. Warner, but the filing of 

a preliminary-injunction motion triggered random reassignment to a district judge. Docket 

Sheet, id. (Apr. 13, 2020) [hereinafter Garbett Docket Sheet] (D.E. 1, 13, 14). 

Tim Reagan interviewed Judge Shelby for this report by telephone on October 14, 2020.
Modification of Utah’s Signature Requirements for a Prospective Candidate 

During an Infectious Pandemic 

2 Federal Judicial Center 4/7/2023 

At a telephonic hearing on April 27, Judge Shelby granted the candidate 

relief,6

 issuing an opinion on April 29 explaining the decision.7

One way the State could have narrowly tailored its election framework 

in response to the COVID-19 pandemic would have been to reduce the 

number of required signatures proportional to the time lost for signaturegathering due to health concerns. . . . Thus, to appear on the ballot, the 

court will require Garbett to produce sixty-eight percent of the normal signature requirement . . . .8

The hearing was open to the public.9 Contact information was posted on 

the court’s calendar and in the docket sheet.10 Persons on the call were told 

that recording the hearing was not permitted.11 Because the hearing did not 

include testimony from witnesses, it was not held by videoconference.12 Later 

during the pandemic, after videoconference capabilities had been enhanced, 

it might have been held by videoconference even without witnesses.13

On May 2, Utah submitted to the court a tally of the plaintiff’s submitted 

ballot-petition signatures, an amount insufficient to qualify for the ballot under the court’s revised requirement.14 On May 4, the court of appeals approved the plaintiff’s voluntary dismissal of an interlocutory appeal.15

Legislative Candidate 

On April 30—over two weeks after learning that her signature count was 

short—a prospective candidate for Utah’s legislature filed a motion to intervene in the gubernatorial candidate’s case to benefit from the injunction.16

She also moved for expedited consideration.17 Acting as her own attorney, 

she filed a separate action on Friday, May 1, seeking an extension of the signature deadline and allowance for electronic submission of signatures.18 On 

Monday, she filed a motion for a temporary restraining order or a preliminary injunction19 and a motion for expedited briefing.20

6. Garbett Docket Sheet, supra note 5 (D.E. 25); see Order, Garbett, No. 2:20-cv-245 (D. 

Utah May 1, 2020), D.E. 40 (denying reconsideration). 

7. Garbett, 458 F. Supp. 3d 1328. 

8. Id. at 1352; see Garbett v. Herbert, 514 F. Supp. 3d 1342, 1344 (D. Utah 2021). 

9. Interview with Judge Robert J. Shelby, Oct. 14, 2020. 

10. Garbett Docket Sheet, supra note 5 (D.E. 18); Interview with Judge Robert J. Shelby, 

Oct. 14, 2020. 

11. Interview with Judge Robert J. Shelby, Oct. 14, 2020. 

12. Id.

13. Id. 

14. Notice, Garbett v. Herbert, No. 2:20-cv-245 (D. Utah May 2, 2020), D.E. 42; see Garbett v. Herbert, 514 F. Supp. 3d 1342, 1344, 1347 (D. Utah 2021). 

15. Order, Garbett v. Herbert, No. 20-4051 (May 4, 2020); see Garbett 514 F. Supp. 3d at 

1347. 

16. Intervention Motion, Garbett, No. 2:20-cv-245 (D. Utah Apr. 30, 2020), D.E. 32. 

17. Motion, id. (Apr. 30, 2020), D.E. 33. 

18. Complaint, Brown v. Herbert, No. 1:20-cv-52 (D. Utah May 1, 2020), D.E. 2; see

Amended Complaint, id. (May 1, 2020), D.E. 3. 

19. Motion, id. (May 4, 2020), D.E. 11. 

20. Motion, id. (May 4, 2020), D.E. 13. 
Modification of Utah’s Signature Requirements for a Prospective Candidate 

During an Infectious Pandemic 

Federal Judicial Center 4/7/2023 3

Judge Bruce S. Jenkins granted the defendants’ motion to transfer the 

second case to Judge Shelby.21 At a May 6 telephonic status conference, Judge 

Shelby set the case for hearing on May 13, noting the defendants’ agreement 

not to mail ballots involving the legislative district at issue before May 14.22

At the telephonic hearing, Judge Shelby denied the plaintiff immediate relief.23 Judge Shelby granted a stipulated dismissal on May 26.24

Summary Judgment 

Determining on January 22, 2021, that the case was moot, Judge Shelby 

granted summary judgment to the defendants in the gubernatorial candidate’s action.25

21. Transfer Order, id. (May 4, 2020), D.E. 10; see Transfer Motion, id. (May 4, 2020), 

D.E. 6. 

22. Docket Sheet, id. (May 1, 2020) (D.E. 15). 

23. Id. (D.E. 21). 

24. Order, id. (May 26, 2020), D.E. 23. 

25. Garbett v. Herbert, 514 F. Supp. 3d 1342 (D. Utah 2021).