- Derek Carlisle
- Senate Bill 78, a new law that makes state school board elections partisan, is currently being challenged in court.
The clock is ticking for a district court judge to rule whether hopefuls vying for a seat on the state's education board will have to affiliate with a political party before the next election cycle.
On Nov. 22, Judge Andrew Stone heard arguments in Utah's 3rd District Court in a lawsuit trying to block Senate Bill 78, which created partisan elections for the Utah State School Board.
During the preliminary injunction hearing, lawyers briefly outlined their cases, and at its conclusion, the judge indicated that he needed more time to review the motions and consider the arguments before siding with one party or the other. But, as the campaign seasons get longer and longer, Stone also recognized how pressed he is to make a ruling before potential 2018 candidates decide whether they want to toss their hats into the ring.
"I am conscious of the urgency regarding this decision so we'll get something out quickly," Stone said from the bench before taking the matter under advisement. As of press time, no decision had been rendered.
A coterie made up of individuals and education organizations—including the Utah PTA, Utahns for Public Schools and ABU Education Fund—sued the state in June over SB78. The plaintiffs alleged that the law violates a section of the state constitution that bars "partisan tests or qualifications as a condition of employment in the state's education systems," the lawsuit states. Additionally, the plaintiffs argue that if school board members were elected through partisan caucuses, it would violate the "one person one vote" principle.
At issue, in part, is whether school board members are actually employees. Last week, an attorney for the plaintiffs argued that by any reasonable definition, they were.
"They are given salaries. They are given benefits. They are subject to some of the same penalties as ordinary employees. Administratively, they are certainly treated as employees," attorney Alan Smith said in court.
The state, however, contests that there is a difference between a partisan test and partisanship. And in this case, running as a party member doesn't disqualify someone from appearing on the ballot.
"That's what partisan elections mean, a political party gets to put a candidate on [the ballot], there is no requirement that a board member be from any political party or a particular political party or can't be from one. And that's what we think of when we think of a partisan test," said Assistant Attorney General Thom Roberts, counselor for the state.
Roberts also noted that folks who run in nonpartisan races are, on occasion, linked to political parties, regardless of whether they're required to disclose any affiliation on their candidacy forms. And no one, he said, would argue that prior affiliation should keep them off the ticket.
Instead, the state argued, the constitution is meant to protect the state's education employees from political retaliation. Prohibiting partisan tests, Roberts said, was the state's way of preventing a newly elected superintendent from cleaning house in the education system because one was a Democrat or Republican. But that segment of the constitution wasn't to be applied to fair elections, he countered.
Finally, Roberts said, the constitution doesn't limit the Legislature's authority from creating an election framework that includes partisan races.
Smith argued that a 1950 amendment to the state constitution, which eliminated the election of a state school superintendent, was, in fact, an expressed limitation put on the legislature by Utah voters.
"You can't gainsay that history, Your Honor. It is crystal clear what they intended," he said, adding, "It's irrefutable that when the people of Utah went to the polls in 1950, they were taking politics out of schools."
A judge struck down Utah's prior practice in 2014 of having the governor select two school board candidates in each district from a pool narrowed by a committee. Then, two years later, the school board seats were filled in a nonpartisan election while the Legislature figured out a new system.
Filling seats on education boards varies from state to state. Colorado, for instance, has partisan school board elections for seven of its board members. Four of the 11 seats in Nevada—one from each congressional district—are won in nonpartisan races, while the remaining seats are appointments from various officials or bodies. In Wyoming, 10 of the 13 members are directly appointed to six-year terms by the governor.
During the 2016 legislative session, lawmakers presented SB78 as a way to winnow the candidate field. Sen. Ann Millner, R-Ogden, who sponsored the bill, pointed to a glut of 19 candidates from one district who were all eyeing the school board that year.
"That would mean there would be 19 names on the ballot and someone could be elected with a very small percentage of the vote," she said.
But opponents say the law is a way to signal to voters a candidate's political leanings and any value qualifications that are ascribed.
"Indeed, the sponsors and spokespersons for SB78 and similar bills maintained that this vetting process, including the testing and qualifying of candidates through caucuses, conventions and political affiliation, was the primary reason for making Board races partisan," the lawsuit states.
After the plaintiffs filed suit, the state submitted a motion for partial summary judgment at the end of October asking that the judge rule that Senate Bill 78 doesn't violate the state constitution because affiliation with a political party doesn't disqualify a person for running for the state board.
Several times throughout the hearing last Wednesday, Roberts reiterated the state's stance that partisan elections are merely a means for a party to get a candidate on the ballot but doesn't stop a candidate from running as a minority party, with no party affiliation or as a write-in.
While that's true, critics of the law have highlighted the reality that non-GOP candidates in many districts are nearly unelectable, except in the few districts where Democrats are sure to win. On either side, parties impose "political purity, fitness or soundness" tests on their candidates, the lawsuit states.
"Because Utah is so heavily dominated by a single political party, the alternatives to running as the nominated candidate of the dominant party are entirely cosmetic, if not completely futile," the complaint states. "Gerrymandered safe districts, for both major political parties, are the rule in the vast majority of districts, and they ensure dominant party election victories. To run as an unaffiliated candidate is a guaranteed defeat."