But at the end of a hearing on a lawsuit that challenges
the Utah Board of Education election process, U.S. District Court Judge Clark
Waddoups only ordered that the names of two previously rejected candidates be
placed on the ballot for the November election.
That decision followed Waddoups’ ruling last Friday that
the process of picking state school board candidates for the ballot is
unconstitutional.
Waddoups ordered that Breck England’s name be placed on
the ballot for the district that covers Davis County, and that Pat Rusk’s name
appear on ballots for the west side of Salt Lake County, including sections of
West Jordan and Taylorsville.
The two candidates sued after they were rejected by a
committee appointed by Gov. Gary Herbert or by Herbert himself, in a process
that Waddoups said denied candidates their constitutional right of free speech.
State Elections Director Mark Thomas said clerks in
Davis and Salt Lake counties have time to print ballots and send them out by
Sept. 20, the deadline for mailing ballots to service members and others out of
state.
The ruling on the board’s election process comes amid
allegations of dysfunction among board members and the departures of both
Superintendent Martell Menlove and deputy superintendent Brenda Hales. Last
month, Hales stopped working, saying she would use vacation and other leave
until her retirement becomes official at the end of the year. Shortly after that, Menlove, who had previously
announced his retirement, decided he would leave rather than wait for a
permanent replacement as he once planned.
After Thursday’s hearing, England and Rusk said they
would begin campaigning, though both said they didn’t have a campaign
organization in place. “As a matter of fact I think the first candidate forum
for me would be tonight,” said England. “I’m going to be there. I’m going to
ask to be heard.”
The committee appointed by the governor selects at least
three people per district from among those who applied to be candidates. The
governor then chooses the final two whose names appear on ballots.
Before ordering that the two appear on election ballots,
Waddoups raised the question of whether it made sense to do so, given that he
had declared unconstitutional the selection process.
“If this [statute] is unconstitutional, it is void,”
Waddoups said. “If it is void any election attempted to be carried out under
this [statute] would not be in force.”
In last week’s ruling, he found the process restricted
speech because the committee and governor could make their decisions based on
any criteria. That could mean certain candidates are excluded because of their
views or could cause them to suppress certain positions in order to pass
muster, he said.
Before the hearing, attorneys for England and Rusk and
those representing the state reached an agreement to place them on the ballot.
But Waddoups initially balked because of the bigger question of the effect of
his previous decision.
Alan Smith, one of the candidates’ attorneys, cited
various cases in which judges had ordered names placed on election ballots.
But Waddoups objected that those cases might be too
different because “they don’t invalidate the entire election scheme, which is
essentially what my ruling does.”
Smith replied that no party was before the court
claiming that this year’s entire board election was invalid and that his clients
were only asking that their names be placed on the ballot.
Assistant Attorney General Thom Roberts, appearing for
Herbert and Lt. Gov. Spencer Cox, also told Waddoups the hearing called for a
narrow ruling.
While his clients got to be on the ballot, Smith also
said the lawsuit was not over. The complaint seeks a permanent injunction
stopping use of the selection process.
Ultimately though, Waddoups said, fixes to state law
“should be made by the state Legislature and not by the court.” Carmen Snow, a Washington County resident, also is a
plaintiff in the lawsuit but she was excluded from the ballot in the 2012
election. She wasn’t seeking to be placed on this year’s ballot.
tharvey@sltrib.com
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