If it wasn’t official before, it is now. The Utah State School Board (“USBE”) nomination and election process is an absolute mess.
After Judge Waddoups ruled last week to allow two candidates for the USBE back on the ballot, a third–Joel David Wright–asked the court to do the same for him and successfully got himself a place on voters’ ballots.
At this point, the Utah Legislature has failed at multiple attempts to reform a board of education selection process that no one really likes, a federal court has struck down that process, and three candidates have successfully petitioned (under an expedited timeline) to be put back in front of voters, while numerous other candidates remain excluded, despite the ruling. If you watch the news over the next couple days, I suspect you’ll see more candidates asking Waddoups for the same treatment. There were over sixty eliminated.
And this difficult process is made even more difficult because everything is under an extraordinarily expedited timeline. Ballots must be mailed on no later than tomorrow — Friday, September 19, 2014.
What does the ruling mean? What is likely to happen?
1. Although the USBE nominating process is a state election process, the claim is brought under federal law. Why?
Although jurisdictional questions are often complex, the answer to this one is simple. Many people are under the misapprehension that federal courts can’t declare state laws unconstitutional. On the contrary, federal courts can hear any claims where federal law is implicated.
Here, although it was a state law is being challenged, the basis for the challenge is the United States Constitution (federal law) and the vehicle for the challenge was Section 1983, a federal law that allows for a private right of action for government violation of constitutional rights — in this case, the First Amendment.
The reality is that, this claim could have been brought in either state or federal court. I suspect this case was brought in federal court because similar parties lost on a similar case in state court a few years ago.
2. Why doesn’t Judge Waddoups’ simply order everyone placed back on the ballot?
Because he found the process to be unconstitutional, Judge Waddoups has to grant a remedy. However, he can only grant relief to the parties before the court. Because not all of the candidates have petitioned for reinstatement, Judge Waddoups cannot place them all back on the ballot.
I’ve seen a lot of people calling Judge Waddoups an activist judge for choosing which candidates get put back on the ballot. The reality is that Judge Waddoups hasn’t done any picking or choosing. Up to this point, he’s placed everyone back on the ballot who has asked for it. If he were to simply mandate that all candidates be put back on the ballot — including those who have not yet requested any relief — then he would be an activist judge. Simply put, he’s done what he can do.
3. Can the Governor or Lieutenant Governor order all candidates back on the ballot?
This is a very interesting question. I’m not certain, but I suspect the answer is no. The Utah Constitution provides that, “[t]he membership of the board shall be established and elected as provided by statute,” which strongly suggests that control over the process is given to the legislature, and not the executive branch. But the legislatively proscribed process has been declared facially unconstitutional.
It seems like the legislature could convene and either try to create a new process (too late for that now), or simply order all candidates back on the ballot for this election while a new process is debated next session, but it hasn’t, and I don’t expect that they will. Legislative wheels move too slowly. It is much less clear to me if the Governor can simply — even in partial reliance upon a process declared unconstitutional — order everyone back on the ballot.
If the Governor order all candidates back on the ballot, he could be opening himself up to a lawsuit, post-election, by a losing candidate who (1) was expressly placed on the ballot by the Governor via the (now) unconstitutional process; or (2) one of the three candidates who have successfully petitioned Judge Waddoups thus far. The argument would be that they were somehow entitled to stand for reelection in a smaller field because some candidates did not follow the judicial process to get their names back on the ballot.
While I could envision such a claim being brought (even if unlikely), it is hard for me to see any outcome where a judge — state or federal — would invalidate election results on the basis that some candidate had a superior right to placement on the ballot by virtue of the fact that he or she successfully challenged the process. They would, in effect, be asking the judge to reconvene an election on the grounds that others shouldn’t have been given the same rights as them because their name wasn’t part of a lawsuit. That seems way too messy, and I suspect it would never happen.
At the point, however, I believe that we’ll see more petitioning for candidates to be added today, and maybe even tomorrow, and that Governor Herbert will simply leave it up to individuals to try to file and secure their own ballot access. However, the realities of adding names, adjusting layouts, and reprinting ballots (because I assume a number of ballots have already been printed) may make it difficult for additional candidates to be added, and could factor into further decisions by Judge Waddoups, especially if requests for relief start trailing into tomorrow (Friday, September 19, 2014) or tomorrow afternoon.
And I would be shocked if we don’t (finally) see electoral reform at the legislature this coming winter.