SALT LAKE CITY — A federal judge Thursday ordered that Pat Rusk and Breck England be placed on the ballot for the upcoming State School Board election after ruling that Utah's system for selecting board candidates is unconstitutional.
Rusk and England had previously been rejected for candidacy by a nominating and recruiting committee appointed to vet candidates by Gov. Gary Herbert.
But after finding that the "unfettered discretion” of the review committee violated free speech rights, U.S. District Judge Clark Waddoups issued a temporary injunction restoring Rusk and England's candidacy but leaving the question of future electoral systems unresolved.
"We will leave for another day as to whether someone else will challenge the statute," Waddoups said. "We will leave for another day as to whether the Legislature will add a proposed amendment to the statute that will satisfy constitutional requirements."
Following the ruling, England said he felt "totally vindicated."
He said the current system — in which the review committee selects three or more candidates per district to forward to the governor, who then selects the final two names for the ballot — allows the governor to exert undue control over the State School Board and exclude individuals who are not deemed to be politically acceptable.
"We’re going to fight a good campaign," England said. "We’re going to make our case and then the voters will make the decision, and that’s how it should be."
Rusk said that more than the prospect of her own campaign, she is excited that the current process of selecting candidates will not continue.
"It’s a win for anyone that (policymakers) will have to find another way to elect candidates for the ballot because it really was unfair," she said.
The candidate review and selection process has been a frequently criticized aspect of Utah politics for years, drawing opposition from elected officials, voters and educators.
Modifying the statute has been a perennial point of discussion at the Utah Legislature, but division over whether the State School Board should be partisan, nonpartisan or appointed has impeded reform.
At the start of Thursday's hearing, Waddoups was presented with the remedy agreed upon by all the involved parties that Rusk and England be restored to the ballot while the larger issue of how board members are elected be left to either future legislative or judicial action.
But Waddoups questioned whether he had the authority to place candidates on the ballot, and whether November's election could be allowed to proceed at all after the existing statute was struck down.
He initially suggested that November's State School Board election be abandoned, with an incumbent board being preserved and any vacancies filled by the appropriate statutory processes.
"If this statute is unconstitutional as I have found, it is void," Waddoups said. "If it is a void and unlawful statue, any election attempted to be carried out pursuant to this statute would be void, which would leave us with the status quo."
Because the selection process was deemed unconstitutional, there could be grounds for the 63 individuals who filed for candidacy only to be either rejected by the review committee, governor or voters to challenge the outcome of the election, he said.
"How do we deal with the subsequent challenge down the road that the entire election was void?" Waddoups said.
But Alan Smith, an attorney representing Rusk and England, argued that any remedy should be tailored to address the rights of the plaintiffs before the court.
"Somebody may take a run at that and want to present that issue to the court," he said of the potential validity of November's election. "But nobody here is doing that today."
Smith also said that abandoning the election would be "the final irony in the case," because any board vacancies would be filled by gubernatorial appointment, which is the underlying issue presented in the case.
"After all is said and done, the core right that the plaintiffs seek to vindicate in this proceeding is their right to speak as candidates and run for election," Smith said. "That’s why were’re here. They want to be on that ballot, and they want to run for office."
Attorneys for the Utah Attorney General's Office similarly argued that the issues at hand were the rights of England and Rusk, and not potential challenges that may or may not arise from additional candidates.
"The hypothetical plaintiffs who may be kept from election are not before the court," said Parker Douglas, the attorney general's chief of staff.
Waddoups said he was persuaded by the attorneys' arguments and ultimately accepted the proposed stipulated order submitted by the parties.
He also added that the manner by which the state conducts elections "should not be crafted by the court," and the matter will need to be corrected by the proper legislative authority.