Rather than trying to stop the district-split question from appearing on the Nov. 6 ballot in Cottonwood Heights, Midvale, Sandy, Draper, Alta, some unincorporated areas and West Jordan, Herriman is asking a federal court to stop the vote-validation process.

Blake Ostler, who represented Herriman and a handful of individuals at U.S. District Court on Tuesday, conceded it's too late to stop the election - the machines are programmed and provisional, absentee and early voting ballots are set with the district-split question included.

So to keep the proposed splits from moving forward, Ostler argues it would be less burdensome if the court simply forbade the county and state from validating those votes.

"There would be no undue burden on the county if it did not count votes," Ostler said. "At this point, I don't think we can do anything else."

In question is whether the east-side cities, unincorporated areas and West Jordan can vote to break from Jordan School District without input from west-side cities in the current district.

Herriman insists that any vote preventing its residents, along with those in Riverton and Bluffdale, from casting ballots on the issue would violate constitutional due-process and equal-protection rights.

"I don't understand the rationale for some to vote on an issue that involves others," said Herriman Mayor Lynn Crane at U.S. District Court early Tuesday. "I want to see this issue decided fairly to everyone involved."

But Thom Roberts, who represented Lt. Gov. Gary Herbert on Tuesday, urged the federal court not to intrude on state matters.

"It would be looking down and dictating to the state, 'You don't have authority on how you establish your political subdivisions, so we will be monitoring you,' " Roberts said.

Federal Judge Ted Stewart said he would rule on the dispute before the election - "probably well before that."

In another development, the east-side cities entered the lawsuit late Monday evening as intervenors. Attorney Jeffrey Shields said that position will let them argue, among other things, that Jordan District has grown so big that it fails to respond to their needs.

"We are the primary interest. . . . [We] have spent considerable time and energy to get this election on board, and we very much oppose any effort to tinker with the election," Shields said. "This should not be stopped midstream. If word gets out that ballots might not be counted, that could affect the outcome of the election."

He said the federal court should not intervene in local affairs except when dealing with desegregation - as in Brown v. Board of Education - or disabilities. Shields added that the east-side cities have more disabled students than the west side, so that is not in question here.

But Ostler said a vote would do more than create a new school district. It would unseat elected school board members, transfer personnel and students, establish transition teams and have other effects on west-siders without allowing them to vote.

"The right to vote is the most fundamental in a democratic system," he said. "Taking that away is something a democratic government cannot do."

Backers of the upcoming split vote, including Utah Attorney General Mark Shurtleff, have maintained that the process is constitutional. They point to rules that allow cities to incorporate without votes from the outside, such as a New York case that let Staten Island voters choose to secede from New York City.

If Jordan School District is divided, Ostler said, the west side would be left behind with all of its explosive growth and would carry all the same burdens as the departing east-side cities, except for coming up with a new name.

sgehrke@sltrib.com