The 10th Circuit Court of Appeals in Denver says it will not expedite an appeal to ensure west-siders have a say in the Nov. 6 vote to split the Jordan School District.

City officials in Herriman and a handful of residents involved in a lawsuit against Lt. Gov. Gary Herbert and Salt Lake County Clerk Sherrie Swensen filed an appeal to the 10th Circuit Court in hopes of intervening in the upcoming east-side only election toward forming a new district.

Their contention is that an election severing the district would also affect taxpayers on the west side. The group's attorney, Blake Ostler, asked the court to expedite his clients' appeal in hopes of finding a resolution before Nov. 6, but that is now unlikely.

Ostler called the ruling denying his clients' motion for expedited appeal a neutral move, which simply means that the court will take its time in weighing the case. The lawsuit says not allowing west-side voters a say in whether the east side will peel off and create a new district is unconstitutional and discriminatory to disabled students — a majority of whom live on the west side and would be affected by a split.

Although a federal judge ruled on Oct. 11 that the city likely won't succeed in its lawsuit, Ostler holds strong that his side will prevail.

"What we're seeking is whatever will preserve the constitutional rights of the plaintiffs," he said. "That may mean not counting votes, that may mean undoing the election after it's done ... or that formation of the school district can't take place until everyone's vote is counted."

Ostler asked federal U.S. District Court Judge Ted Stewart in early October to order a preliminary injunction on the election and forbid Swensen from counting the east-side only votes if the west side is not included, but the request was denied. The city and those involved in the lawsuit then opted to appeal Stewart's decision in the 10th Circuit Court of Appeals, but the actual lawsuit remains in the trial court.

Assistant Attorney General Thom Roberts, who is defending Herbert and Swensen, was not surprised by the court's denial to expedite a ruling.

The state argued any proceeding before the election could affect its outcome and that halting the state's process to create a new political subdivision is a weighty matter that would require deliberation.

"I'm not sure it reflects on the merits other than time was short, (and) there were big issues" to decide, Roberts said. "On behalf of the elected officials, they were really worried everything was going to get stopped and the election not be able to go forward."

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