Courts • Ruling leaves in doubt which candidates
will be on November ballot.
A federal judge on Friday threw a wrench into the
election for the Utah State Board of Education, ruling that the process
approved by the Legislature for picking candidates is an unconstitutional restriction
on free speech rights.
U.S. District Judge Clark Waddoups ruled at the end of a
hearing on Friday after critiquing the method, which begins with a committee
appointed by the governor. Committee members interview those who want to be
candidates and then pass along a list to the governor, who makes the final
selection.
Waddoups noted that the system has no “neutral criteria”
for the interview and selection process, meaning it might be open to certain
political views and not others and could constrain what potential candidates
might want to say in order to be chosen.
“As the statute is written and applied it appears to be
a mechanism where a certain class of candidates is excluded from the election
process,” Waddoups said in a ruling from the bench.
The judge set a hearing for next Thursday to decide what
remedy he might order as a result of declaring the law unconstitutional.
Attorneys who filed the suit on behalf of two candidates
who were rejected by the committee or by Gov. Gary Herbert said they will ask
that the names of their clients, Breck England and Pat Rusk, be presented to
voters in the Nov. 4 election.
“We want our clients to be on the ballot,” said Alan
Smith, who brought the case along with David Irvine. They also represented
Carmen Snow, who was rejected as a candidate two years ago.
England, who was in the courtroom, said he also wanted
to be on the ballot after he was rejected by the committee for reasons that
were never disclosed.
“I think the judge clearly saw the system was
discriminatory and tended to freeze out people who are very qualified on an
arbitrary basis,” said England, who had hoped to fill a District 5 seat that
represents Davis County. “It made the electoral process just insurmountable.”
Marty Carpenter, spokesman for Herbert, said, “We are
reviewing the ruling issued by Judge Waddoups as we determine how best to
proceed.”
Assistant Utah Attorney General Thom Roberts said the
state has “long been concerned” about the law.
“There aren’t very many people who are champions of this
particular process,” Roberts said after the hearing. He had argued on behalf of
Herbert and Lt. Gov. Spencer Cox that England and other candidates had been
free to express themselves during the process and also could do the same run as
write-in candidates.
Originally about 70 Utahns filed to run for seven seats
on the 15-member board that oversees the state’s education system. The
committee narrowed the field to 37, interviewed them and passed on three
candidates for each of the open seats. Herbert picked 14 to appear on the
ballot.
Waddoups said he will hear arguments on Thursday on what
he might order as a result of his declaring the board nomination process
unconstitutional. But he expressed some doubt about whether he had the power to
order that rejected candidates be placed on the general election ballot.
If Waddoups orders that England’s and Rusk’s names be
printed on ballots, it could lead other rejected candidates to petition for the
same treatment, attorneys said.
Mark Thomas, the state elections director who sat though
the hearing, said federal and state laws mandate that county clerks have ballots
prepared 45 days before an election to ensure that there’s time to mail them to
military and overseas voters.
For the Nov. 4 election, that deadline is Sept. 20, or
just nine days after next week’s hearing. Clerks typically need a couple of
weeks to get ballots ready.
“This is a time frame where clerks have to be very
meticulous,” Thomas said. “The details matter. They don’t want to hurry and
rush.”
He suggested some clerks may opt to send out ballots by
the deadline but then supplement them if needed with additional ones, depending
on Waddoups’ order. tharvey@sltrib.com
Breck England
Pat Rusk
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