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Don't count votes, west-siders urge

Court ruling sought on legality of balloting for school district split

The city of Herriman's argument in the Jordan School District split debate sounds like an age-old philosophical question: If a tree falls with no one there, does it make a sound?

Except in this case, the question is: If a vote is cast and no one tallies it, does it really count?

City officials hope not. In a hearing at U.S. District Court Tuesday, an attorney representing the city asked Judge Ted Stewart to forbid Salt Lake County Clerk Sherrie Swensen from tallying east-side-only votes regarding the creation of a new school district on Nov. 6.

If everyone in the Jordan School District — including west-side residents — is not allowed to vote on the issue, the election would be unconstitutional, says attorney Blake Ostler, who represents the city of Herriman and individual voters in a federal lawsuit filed against Swensen and Lt. Gov. Gary Herbert.

"I'm not asking to stop the election," Ostler said. "I'm asking for the votes not to be counted. I'm asking for whatever relief will protect my clients' interest. That includes not counting the votes, not canvassing the votes, not having Gary Herbert ratifying the votes. Whatever will protect my clients' rights is what we're asking for."

Ostler said he would have asked the court to cancel the vote, but he said too many hours have already been spent programming voting machines and preparing absentee ballots. While reprogramming the machines would have been difficult and burdensome, Ostler said simply not counting the votes would be easy.

The brunt of Ostler's complaint centers around the argument that not allowing Herriman residents to vote on the new district on Nov. 6 would be a violation of the First Amendment and 14th Amendment because the city and its residents would be directly affected by the outcome of the vote. If the east-side cities in the Jordan School District — Sandy, Draper, Midvale, Cottonwood Heights and Alta — split off, the remaining cities would essentially have a new district, too, but without a choice, Ostler said.

Residents in the resulting Jordan School District should have a vote because they will have to pay higher taxes to balance out the loss of east-side residents and resources, Ostler said.

Under current Utah code, west-side residents are not allowed to vote in the election because the district split was initiated by east-side cities. As a justification for the law, representatives of Herbert, Swensen and the five east-side cities cited similarities between the district's situation and common de-annexation cases where only the annexing entity is allowed to vote on what happens to its area.

According to assistant attorney general Thom Roberts, who represents Herbert, the state regulates who votes on an issue based on who initiates the process.

"If a school district wanted to change itself, all the people that voted those people in vote to ratify that decision," Roberts said. "Here, you have a situation where the cities have gotten together and said, 'We think this is a good idea.' The Legislature has allowed them to make that decision based on their feasibility study and empowered them to do it."

Herriman Mayor Lynn Crane says an east-side split from the Jordan School District is different than an annexation because the east side will keep many of the resources that have been provided by the west side.

"The difference is, when (cities) annex, they don't take assets from whom they leave," Crane said. "If (the east-side cities) want to create their own school district and leave the (Jordan School District's) assets alone, I'm fine."

Unless Stewart intervenes and rules that the election is unconstitutional, Roberts said Swensen will be required by law to tally the votes, and Herbert will be required to ratify the results.

Stewart said he will make a decision before the Nov. 6 vote.