School District Voters Sue Over Voting Exclusion

§ 53a-2-118.1(3)--as well as in the long term. detachment in the statute--at times requiring a vote of all residents in the existing can and do vote for the county, state, and federal officials who exercise primary basis review. the detachment elections permitted under the utah statute serve a wood, an individual, on behalf of dist. v. state bd. of educ., 654 p.2d 168 (cal. 1982), in which a plurality applied ability of voters to select their government representatives. rather, it was -11- "that nonresidents likely to be affected by this sort of municipal action have a importantly, none of these cases held strict scrutiny should apply to voting together, holt and lockport thus indicate courts should defer to the voting board initiatives to create a new district, allowing the entire school district to vote proposal to detach a portion of a school district on the general election ballot, and district and the remaining jordan school district then began the process of in a series of cases following reynolds and avery, the court addressed and this case also presents standing and justiciability issues that do not bear of an election involving the choice of legislative representatives," the court stages of federal judicial proceedings. "[i]t is not enough that a dispute was very christopher brems, an local control of public school districts by extending the franchise only to those these holdings. see ball v. james, 451 u.s. 355 (1981) (upholding arizona choice of legislative representatives"). indeed, the jordan school district voters on relevant electoral criteria. utah made a determination that the geographical or what the magnitude of those effects will be. the question is whether the controversy was capable of repetition, yet evading review). this exception to second, although the district court held herriman city had neither rights to determination for an abuse of discretion. see alameda water & sanitation dist. b. equal protection and applicable review 58, 71 (1989), that logic applies equally to herbert and swensen. herriman city the district court denied the injunction request after concluding herriman instead, the court held that hunter, lockport, holt, and the supreme court's other without federal constitutional limitation or guidance.") brems, an individual, on behalf of comports with the requirements of equal protection. holt. similarly, in lockport, the court could have viewed the relevant the statutory scheme challenged in this case is a residency restriction based in failing to apply the heightened standard. kansas city, 347 f. supp. 837 (w.d. mo. 1970) (upholding annexation statute with this understanding of the scope of the right to vote, the question lightfoot, 364 u.s. 339, 341 (1960) (rejecting an alabama boundary statute that curiam) (analyzing law restricting vote in a municipal revenue bond election to (1978), the plaintiffs were residents of the town of holt, a small unincorporated governmental decisions to be made at recurring general elections. for this even if the comparison to other statutory provisions were relevant to the c. rational basis review applies to the detachment statute -21- may be true. but in the eyes of the state, their interest is still genuinely different see utah code ann. §§ 53a-2-118(5)(a), -118.1(3)(a)(i). swensen argues (1) the tax increases, an abiding property tax disparity with the detaching school district, incorporation referendum to county residents of area proposed to be incorporated have in treating voters residing in separate governmental units or electoral school district detachment statute. that created a procedure allowing residents of staten island to decide whether the we conclude the utah detachment statute withstands rational basis review. moving party. see somoza, 513 f.3d at 1210. the neighborhoods would substantially impact the larger city's tax base. see id. in deciding on the validity of the state's voting classifications, lockport did not discriminating between voters in different governmental units, the implications the crux of the voters' equal protection argument is that while a state may district's student population, would encompass the cities predominately in the claimed this exclusion from voting violated equal protection principles.3 -19- district. the california supreme court revisited fullerton ten years later, and secondary authorities support this analysis. see, e.g., osborne m. despite the fact the statute subjected holt's residents to tuscaloosa's police and restrictions utah has devised as a result of these distinctive interests are we start with a line of cases beginning over one hundred years ago. in because suits against state officials in their official capacities are no different county clerk, acknowledged that discriminating among voters within such a governmental unit live or the parties lack a legally cognizable interest in the outcome." murphy v. city and the excluded voters failed to show a reasonable likelihood of succeeding new england health care employees pension fund, 429 f.3d 935, 943 (10th cir. here is now moot and this case is no longer justiciable. applies, and compelling government interests must justify restrictions of the discrimination between voters in different governmental or electoral units when it yet be subject to future federal court restrictions. this is sufficient to satisfy the substantial portion of salt lake county. the proposed new district, which would limited voting in school board elections to parents or property owners, expressly the lockport court did not expressly state it was applying rational basis presented a thornier equal protection problem. but, given the "genuine difference observed, as construed in the light of federalism." id. at 477. that may have substantial economic or cultural consequences on voters excluded third, the single-shot nature of the referendum supports applying rational of phoenix, or hill. the supreme court upheld the alabama law at issue in holt, be excluded. see utah code ann. §§ 10-2-109, -111. amendment. because herriman city would not be able to bring a claim as a we need not wrestle long with whether the utah detachment statute the election occurred as scheduled in november 2007, and residents of the in all these respects the state is supreme, and its legislative body . . . taxpaying residents); kramer v. union free sch. dist. no. 15, 395 u.s. 621 matters of interest to the state). before the court became whether the alabama statute satisfied rational basis the context of states' authority to determine the boundaries for purposes of voting several conclusions flow from these cases. when a state law discriminates her mootness argument is unavailing. further, as we concluded above, the issue v. browner, 9 f.3d 88, 90 (10th cir. 1993). purpose." id. at 70. in light of the "extraordinarily wide latitude [that states marianne carter, an individual, (1990). pointing to this rule, the detaching cities argue the equal protection issue as one commentator puts it, the supreme court sought to reconcile the substituted for gary r. herbert. detachment's impact--most notably the financial consequences they will the voters of the smaller city--who overwhelmingly opposed annexation-- this third statutory method of detachment did not exist when the cities they do reside in the same governmental unit as those residents allowed to vote, government's action triggers strict scrutiny--"only applies within that provisions has no bearing on whether the state has legitimately limited the others similarly situated; tamara geographic classification based upon the boundaries of a proposed new political lockport, 430 u.s. at 268. id. at 473 (emphasis added) (citing hunter, 207 u.s. 161). the court relied on them. see 207 u.s. 161. the supreme court's lockport and holt decisions significant logistical and administrative burdens, including appointing a transition -2- participation in hospital district detachment referendum to residents of area nor are we persuaded by the argument that inconsistent methods of alleged illegality again. see morse v. republican party va., 517 u.s. 186, 235 -37- comfortably within the established exception to mootness for disputes "capable of the second secession case, city of new york, involved a new york statute zachary t. shields and michael d. stanger, callister nebeker & mccullough, the initiating cities allows the citizens to review the action of their elected 4 (1970) (considering law restricting vote in a general obligation bond election to residents of the annexing city and a separate vote of the residents of the area to be protection grounds. see id. at 262­63. * "claims by other local residents that they are sufficiently affected by a local unit's individual, on behalf of himself and area may be give[n] more weight than that of the other, or the franchise only residents in the proposed new district would vote in the election.2 purposes--and we generally defer to these delineations--as long as the separate springs v. climax molybdenum co., 587 f.3d 1071, 1079 (10th cir. 2009) 749 f.2d 968, 990 n.19 (2d cir. 1984), we find that the district court should not bell (with thom d. roberts, assistant utah attorney general; and mark l. reviewing the constitutionality of the new york law, the supreme court carter, an individual, on behalf of interests. id. at 269. the existence of genuine and distinct interests between electoral scheme furthers, among other things, the state's interests in promoting -17- plaintiff, he concludes, the district court abused its discretion in permitting the situations where the existence of any nominate `claim' or `defense' is difficult to involve fundamental rights nor proceed along suspect lines. see heller v. doe, to recur when a party has a reasonable expectation that it will be subjected to the vested with largely unrestricted power to determine the boundaries and manner of these are two very different standards, and the jordan school district officials and confirm their agreement and dedication to the new district. states do interest in the governance of a district--say, commuting workers or second-home reasonable expectation that the same complaining party [will] be subjected to the while these holdings shed light on the appropriate equal protection we therefore reject swensen's challenges to the voters' standing as well as -27- true the words "claim or defense," as they appear in rule 24(b), should not be divergent issues may include tax burdens, the use of tax revenues, local control governance, 92 colum. l. rev. 775, 800 (1992) ("[t]he supreme court considers erroneous conclusion of law). in particular, he asserts, herriman city lacks "a boundary cannot be drawn where it excludes voters who are as "substantially interests and thus did not violate equal protection. id. at 71. injunctive relief in federal court against the lieutenant governor of utah, at that than suits against the state itself, see will v. mich. dep't of state police, 491 u.s. for education in the same area. these justifications attest to the statute's cross-appellees, reynolds, jr., local government law § 70, at 253 & n.4 (2d ed. 2001) (citing we must first address several preliminary jurisdictional matters, including and thus properly granted summary judgment in favor of the detaching cities. p.2d 1198 (cal. 1992) (holding that restricting voter participation in a municipal dist., 741 n.e.2d 683 (ill. app. ct. 2000) (holding that limiting voter against finding that strict scrutiny review should apply.9 5 salt lake city, utah, for intervenors-defendants/appellees) for defendants- requirements on the availability of the ballot." 395 u.s. at 625. and in hill, the discriminate on an invidious basis, such as race or sex. see, e.g., gomillion v. debt servicing obligations, and approximately $40.5 million in division costs (as but did not give other voters in new york city an opportunity to vote on the district, the voters would again be excluded from participating in the election on on the merits with their claim that the utah statutory scheme violated equal record and draw all reasonable inferences in the light most favorable to the non- two local election boundary decisions are particularly helpful: moorman v. revenues is sufficiently rational to uphold the constitutionality of legislation. see -5- fully litigated before its conclusion. the excluded voters were unable to file their outcome of the election. phoenix, and other earlier cases--disenfranchisement of those affected by a local review. but the wide discretion it applied in analyzing the statute is consistent and the district court erred in applying rational basis review to the detachment statute herself and others similarly situated; city to intervene. in local elections. holt emphasized this point, holding, "a government unit may a reasonable expectation that the excluded voters will be subjected to the same proposed new school district voted to create the district. the cities in the new our article iii case-or-controversy requirement continues through all on the distinct interest of that subdivision of the state." 562 n.e.2d at 121. constitutional even when the city exercised certain police and other powers over -6- much alive when suit was filed." lewis v. cont'l bank corp., 494 u.s. 472, 477 boundaries of local communities justified examining such residency restrictions "reasonable expectation" or a "demonstrated probability" that "the same 731 (e.d. mo. 1984) (upholding an annexation statute providing for a vote of the find that rational basis review is the appropriate level of scrutiny. concluded the school district detachment statute advances legitimate state policies on behalf of herself and others "applying the same legal standard used by the district court." somoza v. univ. of ("[p]arties seeking to intervene under rule 24(a) or (b) need not establish the utah statute giving only residents in a proposed new district the right to vote franchise. for example, strict scrutiny is appropriate where states differentiate 9 apply to strike down the statutory scheme, they argue, and the district court erred against voters residing in different governmental units or electoral districts even as state residents").6 must hold elections for its new school board as a result of the separation, see id. challenged action--the november 2007 election--was too short in duration to be removed "all save four or five of [a city's] 400" black voters). 551 u.s. at 463 (quotations omitted). the same controversy is sufficiently likely the state and lacks both standing and the authority to bring a fourteenth denver, 513 f.3d 1206, 1211 (10th cir. 2008). summary judgment is appropriate that the same controversy involving the same complainant will recur. indeed, the cases suggest just the opposite. the seminal case of kramer v. union see lujan v. defenders of wildlife, 504 u.s. 555, 560­61 (1992). swensen filed omitted); see also branson sch. dist. re-82 v. romer, 161 f.3d 619, 628 (10th that allowed residents of annexing city to vote, but permitting residents of area to after reviewing hunter, lockport, holt, and other supreme court voting should stay out of them if principles of due process and equal protection are mootness applies where "(1) the challenged action [is] in its duration too short to at the state. see utah code ann. § 67-5-1(2) (mandating the utah attorney time gary r. herbert, and the salt lake county clerk, sherrie swensen. they areas that would comprise the new school district would be most directly affected, and -12- utah law provides three ways to initiate the process of creating a new governmental unit as the entire county. had it done so, the differently-weighted in precisely this way. government's borders." briffault, who rules at home?, supra at 387 (emphasis discriminates on an invidious basis--e.g., along racial lines--in a manner that 1235­36 (d. utah 2007). in conclusion, the supreme court has left a state's ability to change the but the core holding of hunter has district). strict scrutiny is also appropriate where a state disqualifies residents and affected by" an election, as the excluded jordan school district voters instead, in determining whether equal protection principles permit 7 clerk of court personnel. see utah code ann. § 53a-2-118.1(3)­(4). finally, the detachment interlocal agreement, the cities are seeking to create a new, smaller district that is appellate court subsequently affirmed the holding, finding the state's decision to in a second case, the supreme court again emphasized the leeway states -24- 53a-2-118(2)(a). from those seeking to form the new district--in the long term, for example, -28- cir. 1998); hous. auth. of kaw tribe v. city of ponca city, 952 f.2d 1183, 1188 71 (quotation omitted) (emphasis added). did not violate the equal protection clause); givorns v. city of valley, 598 so. 2d have taxable personal property); city of phoenix v. kolodziejski, 399 u.s. 204 law, the voters claim their inability to vote under the detachment statute results n.48 (1996); storer v. brown, 415 u.s. 724, 727­28 & n.8 (1973). here, there is action that they too ought to be enfranchised or equally represented." richard and thus provided them with the franchise. all the residents of that political swensen is the salt lake county clerk charged with placing a proposal to u. chi. l. rev. 339, 350­51 (1993). summary judgment. proposed new district, joined the suit as well. violation of the equal protection clause." id. at 268. in finding that new york's remedy from her that will redress their injuries, and (2) the excluded voters' affects the jordan school district's self-governance in the short term--the district reason, the equal protection principles involved are calibrated less stringently. combined population of both jurisdictions determine the annexation question. and will only strike the law down if the state's classification "rests on grounds find.") (internal quotation marks omitted). its borders." id. at 68­69. "[n]o one would suggest," the holt court observed, distinctions were made based on governmental units or electoral districts wherein before tacha, murphy, and tymkovich, circuit judges. the interlocal agreement, is not a litigant. eastern part of the jordan school district as well as a small portion of a districts differently. examining an alabama statute that excluded residents their fourteenth amendment equal protection rights since they have a substantial within the remaining portion of the jordan school district were considering at 69. nonresidents do not have a right to participate even where internal authority and discretion to recognize that these different interests determine the does not permit all of the voters of [the larger city] to vote on what amounts to excluded voters lack standing to assert their claims because they cannot obtain a vote in tuscaloosa's elections, alabama state law subjected them to tuscaloosa's the ballot. see id. §§ 53a-2-118(5)(a), -118.1(3)(a)(i). agreed, but nevertheless allowed herriman city to intervene under rule 24(b) of in essence, the jordan school district voters contend strict scrutiny review -20- existing school district. the appropriate challenge, she argues, should be directed subdivision to be created if approved by the electorate of the smaller, but -31- the jordan school district, but outside of the proposed new district, sought on the core equal protection claim. we address these arguments separately below. v. 2. standing and permissive intervention established supreme court precedent persuades us that the utah detachment within the boundary of the governmental unit at issue (tuscaloosa), the case did of community-based school districts, encouraging the creation of smaller school in holt, for example, the supreme court utilized tuscaloosa's city limits as allows cities, through an election open only to residents in the proposed new having determined that rational basis review applies, we consider whether overall voters in the county) rejected a new county charter, city voters challenged applies whenever a state legislature excludes residents of a governmental unit or cases from holt to lockport to city of new york all affirm that, when states use sherrie swensen, as salt lake unincorporated areas outside the cities approved the measure. see id. at 260. -7- declined to follow the case, noting it was a plurality opinion lacking precedential district and at times requiring only a vote in the new district--means the statute san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 40, 49­50 (1973). cross-appellant, -13- composition of a basic unit of government: the local school district. compelling added it after the cities initially failed to put the detachment issue on the ballot city of cottonwood heights, if "there is no genuine issue of material fact and . . . the moving party is entitled possibly have a claim in common with the other plaintiffs because, as explained appellees. wide discretion in structuring political subdivisions and conferring authority upon of city and non-city voters in adopting a new county charter, the absence of governmental tasks to local subdivisions," and these subdivisions' discrete of it. struck down laws denying the franchise to residents within the boundaries of the is circumscribed, though, in some instances. for example, strict scrutiny applies shortly before the scheduled election, a number of voters residing within allowed voters from different parts of a county to have a greater voice in constitutionality of the vote being challenged, there are distinct rational the parties filed cross-motions for summary judgment in january 2008. the jordan school district voters strongly contest this final point, arguing id. (emphasis added). subject to certain important limitations discussed below, agricultural improvement district election wherein only landowners voted and for the foregoing reasons, we affirm the district court's grant of detachment statute, she cannot cure any constitutional infirmities. whatever alleged constitutional violation before us is the denial of the right to vote. the district attorneys, salt lake city, utah, for defendant-appellee swensen, and individual, on behalf of himself and annexation or adjustment of political boundaries. amendment equal protection claim. established to provide a one-shot election to determine the structure of local u.s. 161 (1907). the election at issue in hunter would have combined the city excluded voters still lack standing because they cannot show redressability. involving different governmental units or electoral districts. to the contrary, substantial deference. id. at 266. the procedure was not designed to restrict the among eligible voters within the same electoral district, strict scrutiny review order federal courts may craft in this case, she has no power to enforce it upon the independent article iii standing so long as another party with constitutional citing these facts and relying on the supreme court's equal protection case we also note that this school district detachment statute is consistent with harris, salt lake city, utah on the opening brief), for appellants/cross- separation of the jordan school district's population would not raise division thus lacks both independent standing and the authority to bring this fourteenth proposed new district's boundaries. they argue utah's detachment law violates 6 of the right to vote, to be a matter for political judgment of state legislatures § 53a-2-118(5)(a)(i). lower courts applying these principles, however, support our conclusion that utah evans, hill, cipriano, and city of phoenix. the court noted these earlier cases among voters in a particular district on the basis of personal characteristics such herbert argues the district court abused its discretion because, as a matter may do as it will, unrestrained by any provision of the constitution of opposed to $25.8 million for the new district). on top of these financial costs lie have its own standing to intervene under rule 24(b). see, e.g., city of colo. is arbitrary and unconstitutionally narrow. commc'ns, inc., 508 u.s. 307, 313 (1993). instead, we uphold a statute if there of the state of utah,* i. background 253 (citing holt). strictly interpreted so as to preclude permissive intervention. see nuesse v. -38- appellees, cross-appellants, and intervenors-defendants/appellees. strict scrutiny. see 421 u.s. at 297. thus, even non-residents with a substantial authority, its reasoning was questionable, and that no other court had cited it. see accordingly, while we recognize that the district court's discretion under 8 but no major decision has adopted a substantial interest test for elections claims against her are now moot because she has already placed the detachment hunter remains good law. see, e.g., hess v. port auth. trans-hudson corp., 513 herself and others similarly situated; this case presents an equal protection challenge to a utah statute that have allowed herriman city to participate as an intervenor against the state. judgment ruling dismissing the equal protection claim, the district court alleged illegality. that is so because, as the district court observed, other areas in addition to these cases, numerous other authorities addressing analogous in 2007, several cities1 team, allocating property between the districts, and transferring educators and with sufficiently different interests." 430 u.s. at 259, 271. in our view, this some group of affected residents an equally weighted vote, or any vote at all." voters have improperly conflated them. as in lockport, where the new york law be annexed to vote); bd. of supervisors v. local agency formation comm'n, 838 these cases, we see that the supreme court has consistently favored the political judge the wisdom, fairness, or logic of legislative choices." fcc v. beach her argument that the issue is moot. strengthening county government. under the law, county voters could increase midland county, 390 u.s. 474 (1968). the second prong of the "capable of repetition" exception requires a appellee/cross-appellant bell, t.j. tsakalos and david h.t. wayment, deputy to vote); hayward v. edwards, 456 f. supp. 1151 (d. s.c. 1977), aff'd sub nom under the rational basis test"). first, rational basis review accords with hunter's holding that states have two cases from the late 1970s, however, support the conclusion that the "consistent with . . . the wide discretion the states have in forming and allocating objected to the statute, arguing that it effectively diluted their votes because of or electoral district on the basis of a prohibited characteristic such as wealth and rights decisions, see id. at 471­73, the moorman court held that: corporation. all this may be done, conditionally or unconditionally, that issue. in these circumstances, we conclude a reasonable expectation exists "in general a case becomes moot when the issues presented are no longer rule 24(b) is very broad, see united states v. hooker chem. & plastics corp., in explaining its holding, the court explained that the "line heretofore marked by government are matters for the individual states to resolve, and the federal courts united states court of appeals a question best left to the legislature, not a federal court. we therefore find district, to detach from an existing school district. (...continued) school district: (1) through a citizen initiative petition; (2) at the request of the first recognized that the "single-shot" nature of the referendum procedure was due from an impermissible voting restriction. strict scrutiny review should therefore minor and disabled person on behalf of living in a federal zone even though they were residents of the state and within every duly enacted state law, the supreme court held equal protection did not makes the franchise co-extensive with the political entity whose officials state electoral classification has created," lockport, 430 u.s. at 268, the statute's -30- deferred to state laws restricting the franchise in local boundary elections. was the official responsible for running the local detachment election, and may state, its officials, or any local government entity seeking detachment from an easily could have used a boundary extending beyond the city and encompassing district court noted, "full litigation on the merits was simply not possible before deference and utah's discretion in structuring its political subdivisions counsel reduced the size of their existing school district because they were outside the ii. herriman city (1969) (addressing law restricting voting in a school district election to those significant, separating community." id. at 917. the special interests of staten using the second method. see herriman city v. swensen, 521 f. supp. 2d 1233, briffault, who rules at home? one person/one vote and local governments, 60 city of midvale, portion of statute which allowed property owners to veto annexation); murphy v. u.s. 30, 47 (1994) (citing hunter and affirming that "ultimate control of every votes by property valuation). neither party argues these cases bear on the issue would merit strict scrutiny review.10 even where the consent of the inhabitants of the disconnected area need not be review, i.e., whether it had a "rational relationship to [a] legitimate state lacks a rational basis. what may or may not occur under other statutory recognized "both the wide discretion the states have in forming and allocating residency and boundary concerns this case presents. almost all of the cases from governmental units may have qua units." id. at 269. given the differing interests limited voter participation to residents of the detaching neighborhoods. see id. scrutinizing standard of review. within the geographical boundaries of the state of maryland, and they are treated sims, 377 u.s. 533 (1964). the voters here argue the statute's detachment -35- noted that new york retained "the power to impose reasonable . . . residency governmental tasks to local subdivisions, and the discrete interests that such local and professions. see 439 u.s. at 61­63. but because the issue in holt dealt with amendment equal protection claim against utah or its officers. the district court jeffrey r. olsen, mackey price thompson & ostler, salt lake city, utah on the on the expansive articulation of state power over political subdivisions. first, and defining the electoral community making up those entities. more expand or contract the territorial area [of a city], unite the whole or a moorman involved several neighborhoods seeking simultaneous detachment exercising jurisdiction under 28 u.s.c. § 1291, we affirm. so long as the residents of the affected areas are treated alike within methods--citizen initiative or school board action--puts the issue before all legal those in different governmental units or electoral districts counsels against our whether to create their own school districts. see swensen, 2008 wl 723725, at statute must be judged--as the district court concluded--by whether its limitation herbert, an appellee and cross-appellant in this case, is charged with why courts have always deferred to state electoral schemes regarding annexations according to swensen, because she has merely ministerial duties under the because swensen's role under the detachment statutory scheme is ongoing, contain approximately forty-three percent of the then-existing jordan school shurtleff, utah attorney general, salt lake city, utah for defendant- since hunter, however, the supreme court has placed two key limitations -40- detachment statute raises--whether, in a voter referendum on a proposed franchise to qualified voters living within the boundaries of the area to be (intervenors) within the jordan school district it can demonstrate that the excluded area is substantially less interested in or and are equally interested in the detachment issue. they concede a state may students. the issue in the case, they argue, is thus moot. city of herriman, a rational basis review applies here. with or without the consent of the citizens, or even against their protest. have a veto power over the election. as we previously found, states have the so while she may not be able to enforce a federal remedy against the state, she municipalities' boundaries. it may expand the electoral district to include all residents of the existing district, this is justifications for the law, including, among many others, supporting the creation a rational basis equal protection analysis is highly deferential to state same action again." weinstein v. bradford, 423 u.s. 147, 149 (1975). both constitutional right to participate in the political processes bringing it about." id. instead of strict scrutiny, and (2) even if rational basis review was appropriate, one hand, and voter equality on the other.5 maintain. rather, lockport looked to whether the state could point to a "genuine bring an equal protection challenge, but we also conclude the district court erred satisfy rule 24(b)'s requirements. this being the case, however, nothing would entered into an interlocal agreement to detach from the district. at the time, the of law, herriman city does not satisfy rule 24(b)'s requirements. see dejulius v. on residence cannot defer simplistically to political boundaries, they assert, but repetition, yet evading review." fec v. wis. right to life, inc., 551 u.s. 449, constitutionality. curiae and present its views in that manner. * * * upon them," the alabama law was reasonably related to legitimate governmental boundary determinations were entitled to deference, see id. at 269­72. when read herriman city asserts is foreclosed, herriman city has no claim and thus cannot the utah statute bears a rational relationship to legitimate state purposes. the the supreme court unanimously rejected the challenge, holding that states are second, equal protection prohibits states from restricting or diluting votes applying strict scrutiny. legislatures, and we accord a strong presumption of validity to laws that neither for the reasons discussed below, we disagree. the voters had genuinely different interests. lockport emphasized, in fact, the "genuine differences" in the relevant protection context, the question is not whether there will be extraterritorial effects organizing the new school district has proceeded as outlined in the detachment city, draper city, and midvale city. the city of alta, which also entered into "tension between state efforts to design local governments serving particular local strict scrutiny to strike down a state law that provided for an election to create a though the residents lived outside tuscaloosa's boundaries and were ineligible to from a large city and annexation into two adjoining, smaller cities. see 504 f. for the district of utah we conclude the detachment statute furthers reasonable government interests and principles, we agree with the district court that rational basis review applies and the creation of a new school district under the third method puts the issue before after a majority of those who lived outside the cities (but a minority of the tymkovich, circuit judge. annexed); in re petition for detachment of land from morrison comm. hosp. review. these cases hold that states have considerable leeway in discriminating legal issues support our conclusion that the deferential standard of scrutiny is with no other standard. gomillion, 364 u.s. at 345; lockport, 430 u.s. at 268. strict scrutiny also utah's identification of the distinctive interests within particular school districts. hunter and observing that "the validity of [detachment] statutes has been upheld persons residing in the proposed area of detachment--and found rational basis stemming from the challenged statute. nor can she argue that, at the time the colum. l. rev. 775, 794 (1992) (discussing cases) (emphasis added). that is relevant political boundaries for voting purposes. and therefore withstands rational basis review. this case also presents standing and permissive intervention issues. reasons, they argue, do not justify those burdens given the voters' substantial vote" mandate of the equal protection clause. see id. at 62­63. classification has created;" and, if so, (2) "whether any resulting enhancement of scrutiny review applies when the state defines that particular district so as to rev. 1491, 1494­95 (1980) (stating the "historic state power to define the we agree that herriman city should not have been permitted to intervene. solely at the whim and behest of their state" (internal quotation marks omitted)). restrictions based on voters' residency outside the relevant electoral district. jordan school district was one of the forty largest in the country and served a find the district court correctly determined herriman city lacked authority to claim" that "shares with the main action a common question of law or fact." fed. other courts addressing annexation and secession statutes have also the power of the county government by adopting a new charter, but only if may even be granted to one area and denied to another if a rational is appropriate. -26- satisfies rational basis review. the detaching cities provide a litany of detaching and creating the new school district as utah law prescribes. richard briffault, voting rights, home rule, and metropolitan governance, 92 neighboring school district. the intervenors initiated the detachment process detach a portion of a school district on the general election ballot, and placing particular entity exercising police power. see id. at 68. while the supreme court island residents justified limiting the vote to them. see id. new york's highest local level, inc., 430 u.s. 259 (1977), concerned a new york voting law that challenge this conclusion. voting rights decisions provided that "the state can legitimately adopt a school district held its election in november 2007, at which time the plaintiffs' 462 (2007); see also storer v. brown, 415 u.s. 724, 737 n.8 (1974) (finding that property ownership. use of tax revenues among the wealthier eastern cities is the actual reason for legitimately restrict the right to participate in its political processes to those who the only exception to this case law is fullerton joint union high sch. 509 u.s. 312, 319­21 (1993). rational basis review is not a license for us "to "difference in voting jurisprudence between election laws providing for the rights independent of those expressly provided to them by the state") (quotation may merit strict scrutiny, it also recognized that the same unit "may legitimately controversy will recur involving the same complaining party." wis. right to life, added). it also suggests that states should be given much leeway in determining swensen, no. 2:07-cv-711 ts, 2008 wl 723725 (d. utah mar. 14, 2008). voters claim they are as "substantially interested and affected" as those residents residents of the larger city argued this law violated equal protection "because it owners--may be restricted from elections in a district. co-extensive with their political boundaries. limiting the franchise to those in entity were allowed to vote. while it may have been better for the legislature to is any "reasonably conceivable state of facts" that could provide for its basis, id., utah's law satisfies such review. in a cross-appeal, herbert argues herriman city is a political subdivision of before us. free school district, for example, while striking down a new york statute that detaching from the jordan school district. even if this were the only rational complaint challenging the november election until late september 2007. as the see lockport, 430 u.s. at 266. so, for example, unlike the residents of the have] in creating various types of political subdivisions and conferring authority as wealth, property ownership, or taxpayer status. see hill v. stone, 421 u.s. 289 in permitting herriman city to intervene. law provides that the voters residing within the boundaries of a proposed new city existing political entity sought to detach and either join another jurisdiction or when the outcome of a particular election affects them. of a county--as opposed to their interests as a homogeneous unit--the court sims, 377 u.s. 533 (1964), and extended to local governments in avery v. district board elections permitting only property owners to vote and weighting voters in the existing school district. see id. § 53a-2-118(4)(d)(i). but initiating government. "the equal protection principles applicable in gauging the fairness framework, none squarely addresses the constitutionality of a statute restricting municipal actions can have "equally dramatic" extraterritorial effects. id. at 70. we review the district court's grant of summary judgment de novo, neither states nor their political subdivisions may draw boundaries that statute that allowed separate votes of annexing and annexed areas; striking -39- elements: injury in fact, a causal connection between the injury and the conduct circumstances are present here. board of the existing or future districts; or (3) at the request of a city or group of while lockport did not specifically address voting rights in boundary application of equal protection analysis, the state will be given considerable those areas, statutory provisions for a wide variety of voting schemes bd. of supervisors, 838 p.2d at 1207­10. can limit the franchise only to those voters within the detaching district. have a claim or defense that shares at least some aspect with a claim or defense *3. if a city decides to create a new district within the remaining jordan school protection. see herriman city v. swensen, 521 f. supp. 2d 1233 (d. utah 2007). the de-annexation of part of their city, a matter in which they claim a substantial the hunter court affirmed that the "state is supreme" in constructing defendant-appellee. statute. school board elections have been held, substantial money and time have court observed that classifications on the basis of residency are exempt from localized use of tax revenues so that taxes collected within a local area are used state boundaries. see evans v. cornman, 398 u.s. 419, 421 (1970) (voters "live experience because of the split. these include both short- and long-term property himself and others similarly situated, addition, the state has the right to draw different boundaries for voting police and sanitary regulations, the criminal jurisdiction of tuscaloosa's courts, that guide our inquiry. most notably, states have significant power in allocating summary judgment in favor of the defendants on both the facial and as-applied at the very least, this suggests the principle from cipriano, city of -3- -8- owning or leasing taxable property or having children enrolled in that school the relevant political boundary for its equal protection analysis, but it just as to demonstrate they were substantially interested in and affected by the the irreducible constitutional minimum of standing contains three also note that in 2009 the new district began to provide educational services to its basin water storage dist., 410 u.s. 719 (1973) (upholding california water the relevant boundaries for voting. sanitary regulations, criminal jurisdiction, and power to license businesses, trades, only a narrow line of supreme court cases applying rational basis review complained of, and a likelihood that a favorable decision will redress the injury. against those "residing beyond the geographic confines of the governmental entity to voting restrictions discriminating among voters in specialty districts tempers their relatively small population when compared to pittsburgh. see id. at 177. the first case, town of lockport v. citizens for community action at the -32- also morgan v. city of florissant, 147 f.3d 772, 774 (8th cir. 1998) (noting the sponsored the proposal. thus, the relevant jurisdiction is the entire school for substantially affected excluded voters could be sidestepped. qualified voters in local annexation elections in hunter v. city of pittsburgh, 207 restrictions on municipal elections: an equal protection analysis, 93 harv. l. -18- plaintiff-appellants/ d. the detachment statute furthers legitimate state interests reply brief, and catherine l. brabson and john n. brems, parsons kinghorn first, the district court correctly held herriman city may not challenge the as the district court correctly concluded, however, this case fits [our] voting qualifications decisions coincides with the geographical boundary of moorman and city of new york considered the precise issue the utah invalidate the voting law. see id. at 271­73. not fall within the constrictions of the supreme court's previous voting rights subdivisions. see hunter, 207 u.s. at 178­79; hess, 513 u.s. at 47. this power been spent, and the detachment process has gone forward as planned. the cities borough should detach from the rest of new york city. the procedure involved -16- on appeal, the excluded voters make two equal protection arguments: (1) must begin with a review of the interests of the voters and non-voters in the elisabeth a. shumaker comes to referenda, lockport focused on two inquiries: (1) "whether there is a (continued...) not act irrationally in concluding that voters outside the new district should not and tuscaloosa's power to license businesses, trades, and professions. see id. at invidious discrimination, and the presumption of constitutionality entitled to applies when state law discriminates among voters in the same governmental unit -29- hunter for the proposition that "these difficult policy problems of local law accommodated the distinctive interests of the cities and unincorporated parts similarly situated; brett wood, an restrictions states employ when addressing boundary changes. minority voting strength nonetheless amounts to invidious discrimination in limit voting rights to a particular governmental unit, but argue a relevant general, salt lake city, utah, for defendant-appellee and cross-appellant greg their state representatives, they participate directly in the process that provides for 5 holt were every bit as "substantially affected" as those in kramer, cipriano, city limit local voting rights to residents in a particular electoral district, strict finally, because the utah school district detachment statute distinguishes method burdens their voting rights and excludes them from having a voice in the relevant interests of the groups that the state electoral classification has created," obtained"); richard briffault, voting rights, home rule, and metropolitan above, herriman city does not have rights protected under the fourteenth the excluded voters emphasize that the split will substantially affect them. that -36- intervenors-defendants/appellees, and brent a. burnett, assistant utah attorney the excluded voters seize on this last justification, and assert that localized detached school district, the voters are not completely without a voice: through 2005) (stating a district court abuses its discretion when it bases its decision on an part of it with another municipality, repeal the charter and destroy the january 7, 2010 discretion in determining which boundary counts[,] even when it operates to deny election of the officials who govern their affairs. see 398 u.s. at 422­23; see -14- among voters having genuinely different relevant interests, rational basis review restrict voting to residents of staten island was "a reasonable classification based restrict the right to participate in its political processes to those who reside within drawing and redrawing of state political subdivisions, and laws involving the 1. supreme court framework united states court of appeals nevertheless, to intervene under rule 24(b) the proposed intervenor must before reaching the merits of the excluded voters' equal protection claims, equal protection challenges to the detachment statute. see herriman city v. when viewed together, these cases compel several important conclusions publish while a challenged election was over, the case was not moot because the jeffrey l. shields, callister nebeker & mccullough, salt lake city, utah, for formation of their political subdivisions and how they vote. see id. at 178­79. election from which they were excluded, the voters marshal evidence detailing the in violation of the "one person, one vote" principle announced in reynolds v. greg bell, as lieutenant governor intervenors-defendants/ finally, the excluded voters forget that the residents disenfranchised in lawsuit was filed, she was not the appropriate local official for injunctive relief. herriman city, also located in the jordan school district, but outside the specifically affirmed the "continue[d] . . . constitutional significance" of that real property taxpayers); cipriano v. city of houma, 395 u.s. 701 (1969) (per the creation (and detachment) of school districts. see holt, 439 u.s. at 77. the differences in the relevant political entities. for example, in citizen and school interest in the composition and boundaries of the jordan school district. community on the outskirts of incorporated tuscaloosa. see id. at 61. even constituencies (and arranging systems of local voting . . . accordingly)" and boundaries of its local governmental entities largely undisturbed. in the equal applying these principles to the utah school district detachment statute, we voting limitations in utah's school detachment statute are subject to rational basis the entire issue of local boundary-drawing, with its attendant impact on the scope and school board candidacy issues on the ballot. we reject both arguments. while instructive, none of the supreme court cases directly addresses the standing is permissible.") (internal citations and punctuation omitted). it is also over education, school district size, and allocation of resources. the voting n.y.s.2d 914, 916 (n.y. app. div.), aff'd, 562 n.e.2d 118 (n.y. 1990). these the united states . . . . the power is in the state, and those who legislate a. standing and justiciability issues * * * review to be appropriate.7 the district court correctly decided there were no genuine issues of material fact blake t. ostler, mackey price thompson & ostler, salt lake city, utah (with while we agree the utah statute implicates the right to vote, our review of rationally furthers legitimate state policies. applying the rational basis standard, district. 3 separate majorities of voters living in the cities and voters living in new school district, but limited voting to those residing in the proposed new presented in the main action. here, because the fourteenth amendment claim 2. lower court applications municipality; james lynn crane, it is true our case law supports the view that a prospective intervenor need not in the relevant interests of the groups [(i.e., city and non-city voters)] that the r. civ. p. 24(b)(1)(b) (emphasis added). herbert contends herriman city cannot second, there is no allegation that the jordan school district detachment swensen, however, cannot dispute that the district court has the power to basis exists for so providing. whenever a state law discriminates among voters for invidious reasons. see hunt, 455 u.s. 478, 481 (1982) (internal citation and punctuation omitted). the (1975) (examining law restricting the vote on a city bond issue to residents who electoral district from voting on local government boundary modifications, unless (10th cir. 1991). likewise, a political subdivision may not challenge the validity interest in the new school district's configuration and boundaries. in a summary interested and affected" as those residents who can vote. aplt. br. at 15, 31. may participate in the election, while residents from the surrounding county may self-governance accompanying the jordan school district's division, the excluded voting rights when it comes to the formation and boundaries of their political -23- equal protection grounds, but the state court declined to apply strict scrutiny. required. see, e.g., st. louis county v. city of town and country, 590 f. supp. voters' redressability requirement for standing. see lujan, 504 u.s. at 561. nature of the referendum provided for in the utah statute thus warrants a less existing utah municipal law. for example, the state's municipal incorporation school board candidates in the subsequently divided school districts on the ballot. hayward v. clay, 573 f.2d 187 (4th cir. 1978) (upholding portion of annexation at issue rested on the state's identification of the distinctive interests of the cities 61­63. the plaintiffs claimed tuscaloosa's exercise of extraterritorial discretion, holt, 439 u.s. at 71, see also lockport, 430 u.s. at 271, and did so in proposed to be detached did not violate the state's due process clause).8 himself and others similarly situated; noted, "are of limited relevance . . . in analyzing the propriety of recognizing where votes were weighted according to acreage); salyer land co. v. tulare lake importantly, the court has consistently upheld laws that give different supp. at 468. a kentucky law permitting referenda to accomplish these actions -22- appeal from the united states district court the appellants in this case were excluded from voting in an election that issue. aplt. br. at 15, 31. utah's detachment statute, they assert, excludes voters tenth circuit concerned," holt, 439 u.s. at 68, and "there is a genuine difference in the votes among those living in the county's cities and rural parts would have wholly irrelevant to the achievement of the state's objective," holt, 439 u.s. at the supreme court first considered challenges to state laws defining 1 voters who will reside in the new district. to judgment as a matter of law." fed. r. civ. p. 56(c). we examine the factual after briefing and oral argument, the district court, among other things, granted nos. 08-4056 and 08-4075 because this dispute is capable of repetition but evades review, mootness districts more responsive to the needs of students and parents, and promoting the control over their day-to-day lives. and even as to their interaction with the jack d. duffy, guardian of c.d., a only residents within the proposed new school district's boundaries. see id. the ability of rural voters effectively to veto the charter changes on equal distinctive voter interests in a `single-shot' referendum." id. citing the financial and administrative consequences as well as the limitation on camp, 385 f.2d 694, 704 (d.c. cir. 1967) ("[i]ntervention has been allowed in holt distinguished the earlier voting limitation cases such as kramer, mootness and standing. be fully litigated prior to its cessation or expiration, and (2) there [is] a district or governmental unit equally, the right to vote is not compromised. in limited purpose--the alteration of school district boundaries--and leave other -34- standing on the same side as the intervenor remains in the case. [s]uch piggyback outside a city from participating in local elections, the court held a voting scheme prevent the district court from allowing herriman city to participate as an amicus sandy city, draper city, and ii. analysis interest." id. the larger city voters argued that, among other impacts, detaching the cities (also parties in this lawsuit) are cottonwood heights, sandy protect under the fourteenth amendment nor the authority to bring suit, it that because they are creatures of the state, political subdivisions "possess no annexed, but allowing the residents of the county outside the area to be annexed but when a subset of cities initiates the creation of a new school district via argue the relevant governmental unit is the entire jordan school district, and that (d.c. no. 2:07-cv-00711-ts) affected by the proposed modification. any analysis of voting restrictions based the federal rules of civil procedure. see swensen, 2008 wl 723725, at *5. we cities within the boundaries of an existing school district. see utah code ann. § regarding the first prong of the exception, neither party disputes that the decisions both upheld state restrictions on voting rights when a portion of an i. swensen -15- the detachment statute would nevertheless fail to pass constitutional muster.4 exclude voters who are "substantially interested in and affected by" the election at basis for the detachment statute, though, the goal of localizing property tax form a new one. placing school board candidates in the subsequently divided school districts on 2 this scheme presents is capable of repetition. general defend in all cases where state officers are parties and take charge in civil initiating the creation of a new school district under either of the first two -9- retained its vitality. as long as the state treats voters within the same electoral water dist. no. 1 v. city of wilson, 243 f.3d 1263, 1274 (10th cir. 2001) (noting the right to vote is fundamental under the constitution. see reynolds v. will be upheld against an equal protection attack, and the vote of one look to whether they discriminated against individuals "substantially interested in change cases, it did emphasize the "wide discretion the states have in forming constitutionality of a state statute under the fourteenth amendment. see rural enjoin her from conducting school district-related elections under her authority filing the certificate to create a new school district. see utah code ann. § 53a-2- constituencies different voices in elections, especially those involving the matter. see 557 n.y.s.2d at 915. the city challenged the state procedures on argues that, even assuming they can demonstrate the first two elements, the the franchise in a school district detachment election like the one presented here. and towns within a county, see id. at 268­69, the detachment law here rests on cases. see id. -25- franchise to the relevant class of voters under the statute. -33- units further reasonable government objectives. -4- of pittsburgh with a smaller neighboring community. state law required that the reconciled the competing demands of local control of political subdivisions on the defendant-appellee/ issues relating to social or racial characteristics. the excluded voters do not of a fellow political subdivision's actions under the fourteenth amendment, and allocating governmental tasks to local subdivisions," and indicated the court an individual, on behalf of himself and after considering utah's statute and the applicable equal protection 10 1338 (ala. 1992) (upholding under the rational basis test a statute limiting the would defer to a state's determination "that the residents of the annexing city and a feasibility study that the detaching cities commissioned concluded we now turn to the excluded voters' equal protection challenge to the utah genuine difference in the relevant interests of the groups that the state electoral unless such a suit is expressly authorized. see kaw tribe, 952 f.3d at 1190. jurisdiction over non-voting residents like them violated the "one person, one two referenda in which the residents of staten island would vote on detachment, interests of the voting groups between which the law discriminated. id. at 268. the excluded residents. in holt civic club v. city of tuscaloosa, 439 u.s. 60 federal enclave in evans, the residents here are not without any voice in the different local boundaries "to delimit the electorate for purposes of the but rational basis review applies when a state's voting laws discriminate wood, 504 f. supp. 467 (e.d. ky. 1980), and city of new york v. state, 557 difference in the relevant interests of the groups" in the separate governmental originally sought to form a new school district. the utah state legislature only reside within its borders." 439 u.s. at 68­69. using the third method utah law provides. see id. § 53a-2-118(2)(a)(iii). thus, detachment from an existing state political entity, a state may restrict voting to judgments of state legislatures in structuring political subdivisions within states others similarly situated; ryan appellees. the governmental unit at issue." id. at 70. because holt's residents were not 118(5)(b)(i)(b). swensen, also an appellee in this case, is charged with placing a 1. mootness see also note, state the election." swensen, 2008 wl 723725, at *3. iii. conclusion -10- does not preclude us from deciding this case. pursuant to federal rule of appellate procedure 43(c)(2), greg bell is nevertheless permitted the city to intervene under rule 24(b). we review such a cause of action accrued. furthermore, since the election, the process of state-created entity resides with the state . . . [and p]olitical subdivisions exist the residents of the area to be annexed formed sufficiently different constituencies units. id. (emphasis added). for the state are alone responsible for any unjust or oppressive exercise tenth circuit from the annexation election. reynolds, local government law, supra, at §§ 73, others similarly situated; danielle of the new district who were permitted to vote. aplt. reply br. at 2, 11. they