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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.
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State schools on track to earn D and F grades this year. > B2