Spenser Heaps, Deseret News
FILE - Sen. Ann Millner, R-Ogden, speaks at the Capitol in Salt Lake City on Wednesday, Feb. 8, 2017.

SALT LAKE CITY — Even as the Utah Supreme Court weighs the constitutionality of partisan State School Board elections, a Senate committee approved Tuesday a bill that says candidates affiliated with political parties could run for the state board along with unaffiliated and write-in candidates.

The Senate Education Committee voted 5-2 to support SB236, sponsored by Sen. Ann Millner, R-Ogden.

Millner said the legislation clarifies that candidates for State School Board can file as members of political parties, unaffiliated or as write-ins, which is the case for candidates for other state offices.

Several members of the public urged the committee to hold off acting on HB236 until the Utah Supreme Court rules on a constitutional challenge to 2016 legislation that calls for partisan State School Board elections. The court heard arguments in September but has not yet issued an opinion.

Earlier, 3rd District Judge Andrew H. Stone ruled that the law conflicts with the Utah Constitution. Stone, in granting the plaintiffs' motion for partial summary judgment, wrote that the challenge had "a strong likelihood of success on the merits.”

Stone's decision was appealed by state attorneys on behalf of Lt. Gov. Spencer Cox, the lone defendant in the case.

"What's significant about Judge Stone's decision is that the attorney general argued virtually the same language as is contained in SB236. Judge Stone found that argument and by extension the bill before you today, to be unconstitutional," said plaintiffs' attorney David Irvine, a former state legislator.

In that case, the plaintiffs asserted that the 2016 legislation, SB78, which changed the state Election Code, was an unconstitutional violation of Article X, Section 8 of the Utah Constitution. It provides that "no religious or partisan test or qualification shall be required as condition of employment, admission or attendance in the state's education system."

The defendants have maintained members of the State School Board are elected officials, not employees, so Article X, Section 8 does not apply.

State School Board member Carol Lear, one of the plaintiffs in the constitutional challenge, urged the committee not to take action until the court rules.

Lear said she was elected from a slate of nonpartisan candidates.

"I'm afraid this bill invites divisiveness and the most extreme elements of the parties to prevail," she said.

Chase Clyde of the Utah Education Association also urged the committee to stick with direct, nonpartisan State School Board elections and "encourage the committee to press pause on this and let's wait out and see what the courts decide on the partisan issue."

Royce Van Tassell, executive director of the Utah Association of Public Charter Schools, spoke in support of SB236.

The association "has had a long-standing position that partisan elections for the state board or governor appointment are entirely appropriate," Van Tassell said.

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The bill contains language that says if it approved by a two-thirds margin of each legislative house, it will take effect "upon approval by the governor, or the day following the constitutional time limit of Utah Constitution … without the governor's signature, or in the case of a veto, the date of veto override."

Earlier in this year's legislative session a freshman representative proposed a constitutional amendment to ask voters whether to change the elected State School Board to a nine-member board appointed by the governor.

After more than an hour of testimony and debate on HJR13 before the House Education Committee, the bill's sponsor Rep. Melissa Garff Ballard, R-North Salt Lake, asked the committee to hold the bill and refer companion legislation, HB242, to a task force for study.