A federal court is being asked to stop Gov. Mark Gordon’s work to appoint a new superintendent of public instruction because of allegations the process used to pick three nominees for the job was unconstitutional.
Sixteen Wyoming residents, including several former legislators, filed a lawsuit in U.S. District Court on Tuesday, alleging the selection process to pick nominees for the superintendent’s office failed to properly weight votes based on county population, reducing the influence of counties with larger populations. The lawsuit filed against the Wyoming Republican Party’s central committee and party Chair Frank Eathroen said such a disparity is a violation of the Equal Protection Clause of the U.S. and Wyoming constitutions.
“The vote by the Wyoming Republican Party, which was supervised and controlled by (Wyoming GOP Chair Frank) Eathorne, was not conducted pursuant to one man one vote principals required by the Wyoming and United States Constitutions,” the lawsuit said.
Republican Jillian Balow resigned from the superintendent of public instruction’s office on Jan. 16 to take a similar job in Virginia. Under Wyoming law, Gordon must appoint someone to finish out her term — which ends in January 2023 — from a list of three nominees forwarded to him by the central committee of the Wyoming Republican Party.
The central committee, during a meeting in Douglas in Saturday, selected former legislator Marti Halverson and educators Brian Schroeder and Thomas Kelly as the three nominees from a field of 12 applicants.
Gordon interviewed the three Tuesday. By law he is supposed to appoint a successor Balow on Thursday, although the lawsuit asks that the process be halted on the grounds that the GOP’s selection process was unconstitutional.
The central committee is made up of three party members from each county, which the lawsuit said gives smaller counties as much weight in voting as large counties, violating the concept of one vote for each person.
“The citizens and voters of any county that is more populous than Wyoming’s smallest county by population, Niobrara County, will be denied their constitutional rights of equal protection under all state and federal laws and the bedrock principle of Wyoming and the United States that all citizens are entitled to the application of one man one vote,” it said.
Because the selection process for the nominees was unconstitutional, Gordon should be halted in his work to appoint a successor to Balow, according to the lawsuit and a request for a temporary restraining order also filed on Tuesday.
The lawsuit asks the court to rule the process used to name the nominees is unconstitutional and to order the state Republican Party not to nominate any candidates for vacancies in statewide or federal office.
The central committee selected the three nominees for the job during a meeting in Douglas on Saturday. Members were asked by one of the people named as a plaintiff in the lawsuit, former legislator and Gillette attorney Tom Lubnau, to change the nomination process to weight votes according to each county’s population.
However, the request was denied and Eathorne responded that the process used by the party Saturday is the same one that has been used to fill vacancies in statewide office for decades.
Pat Crank, a former Wyoming attorney general who filed the lawsuit for the group, told Cowboy State Daily on Tuesday that while the system may have been used in the past, it is now time to make the process comply with the Wyoming and U.S. Constitutions.
“The selection of an important office like superintendent should be done in as fair and as reasonable a method as possible and in absolute compliance with the constitution,” he said. “This process was not and so that’s why my clients wanted to bring a challenge to this process.”
Crank noted that such processes change over time and pointed as an example to the practice of advising a person of his or her right to remain silent after being arrested.
In addition to Lubnau, a former Wyoming House speaker, other plaintiffs to the lawsuit include former legislators Rex Arney and Charles Pekley, former Casper Star-Tribune Publisher Robin Hurless, former University of Wyoming official Chris Boswell, former Star-Tribune Editor Dan Neal and Cheyenne attorney Jack Speight.
Another one of the plaintiffs is Dave Northrup, a former legislator and one of the 12 people who unsuccessfully applied to the GOP to become one of the three nominees for the job.
The group includes both Republicans and Democrats and come from larger counties such as Laramie, Natrona, Campbell and Sheridan, Crank said.
“One of the critical factors in bringing a lawsuit is that you have people that have standing to make appropriate claims,” he said. “I certainly wanted to have a cross-spectrum of both political parties and people from the counties that suffered harm, the more populous counties.”
Arney, a Sheridan attorney, said he joined the lawsuit because he believes the process to replace Balow and other state officers who leave before the end of their term should be handled through a special election.
“I just feel it’s important that when replacing an elected officer, the process should be equivalent to somebody going into a primary or special election where we essentially have one man, one vote,” Arney told Cowboy State Daily on Tuesday. “There should be proportional voting in a case like this.”
