The Legislature is obviously going to have to do something. They’ll have to come up with another process that hopefully will be constitutionally viable and fair to people. —Alan Smith, attorney
SALT LAKE CITY — With less than two months remaining before this year's election and the deadline to prepare ballots approaching, Utah's frequently criticized process of selecting State School Board candidates may have suffered a fatal blow.
On Friday, U.S. District Judge Clark Waddoups ruled that the state's selection of school board candidates — a multi-tiered process that includes vetting by a committee and final selection by the governor — violates constitutional guarantees of free speech.
Waddoups did not order remedies related to the case, which was brought against the governor, lieutenant governor and members of the governor's nomination committee by former candidates for State School Board.
An additional hearing was set for Thursday, during which Waddoups is expected to receive additional testimony and recommendations from the involved parties and issue a final order.
"Although Judge Waddoups found that the statute which provides the process for the committee to screen candidates unconstitutional, he did not issue a ruling on the remedy," Missy Larsen, spokeswoman for the Utah Attorney General's Office, said in a prepared statement. "Because of this, there will be a hearing next Thursday to hear possible remedies."
Larsen said Sunday that the Attorney General's Office would be involved in Thursday's hearing, but the specifics of how the state would proceed in light of Waddoup's ruling are still under review.
She also said that the potential of an appeal would not be considered until after Waddoups issues a final order on the case.
"It’s not complete at this point," she said of Waddoup's ruling.
The primary plaintiff in the case, Breck England, was one of 70 individuals who filed for candidacy in the upcoming State School Board election.
England was among the 37 candidates selected to be interviewed by the review committee, but he was not advanced to Gov. Gary Herbert for final consideration.
Pat Rusk, who similarly filed for candidacy this year, and Carmen Snow, who was rejected by the review committee during the 2012 election cycle, are also listed as plaintiffs.
State statute allows for the committee to advance a minimum of three names per school board seat to the governor, at which point the final two candidates are selected to be placed on the ballot.
Alan Smith, an attorney for the plaintiffs, said that having the statute struck down is a "major victory," but his clients also hope to see their names reinstated on the ballot following Waddoup's final order.
"They want a place on the ballot so when people go into the polling place and close the curtain behind them, they’ll see Pat Rusk’s name and see Breck England’s name and they’ll have the option to check those boxes," Smith said.
Smith said the way the statute is currently written, members of the review committee are given "unbridled discretion" to advance or reject candidates for any reason or no reason at all.
He said Snow's experience was one of the more overt instances of discrimination, where she was disqualified after extensive questioning by the committee regarding her involvement in campaigns against the 2007 school voucher bill that was ultimately overturned by a referendum vote.
"She was being criticized for her involvement in those efforts and that’s just a clear point of viewpoint discrimination," Smith said.
The review and selection process has frequently come under fire for minimizing the will of voters in the candidate selection process.
In several instances, incumbent board members have been disqualified from service without the input of their constituents and challengers have expressed discrimination based on the political views of the selection committee.
During the most recent legislative session, two bills were debated that would have created a direct election process for the State School Board — either through partisan or non-partisan channels — but both bills ultimately failed.
The State School Board also voted in February to support the creation of direct, non-partisan elections for board candidates.
On Sunday, Herbert's spokesman, Marty Carpenter, said the Governor's Office was aware of and reviewing Waddoups ruling and had not yet determined its next steps regarding the case.
Smith said that if his clients are not permitted to run this year, Utah's lawmakers will still have to install an alternative path to the ballot for future elections.
"The Legislature is obviously going to have to do something," he said. "They’ll have to come up with another process that hopefully will be constitutionally viable and fair to people."
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