By Leo Wolfson, State Politics Reporter
A lawsuit challenging Wyoming’s law prohibiting electioneering within 100 yards of a polling place on Election Day is still being considered by the U.S. Court of Appeals for the 10th Circuit, more than six months after final oral arguments were made in the case.
Since those arguments May 17, Chief Judges Jerome Holmes, Scott Matheson Jr. and Veronica Rossman haven’t made any rulings or decisions.
Don’t Stand So Close To Me
It is illegal in Wyoming to distribute electioneering materials, which can include petitions, campaign fliers, political signs and other political documents, within 100 yards of an active polling place on Election Day, and within 100 feet all other days.
In 2021, U.S. District Court Judge Nancy Freudenthal ruled that Wyoming’s electioneering restriction violates the First Amendment.
About six months later in February, Laramie County Clerk Debra Lee, Laramie County District Attorney Leigh Anne Manlove and former Wyoming Secretary of State Ed Buchanan appealed the decision.
What’s The Harm?
Political activists John Frank and Grassfire LLC are challenging the law, claiming people have a right to campaign and gather signatures closer to polling places.
When it comes to Election Day efforts, Klein said he would be fine with a 100-foot rule, while he believes electioneering around courthouses once the pre-election and absentee voting period begins should be allowed as long as electioneers don’t physically impede anyone’s way in or out of a polling place.
“Is someone collecting signatures from someone on their way out really disruptive?” Klein questioned.
Steve Klein, a Washington, D.C. attorney and member of Wyoming Liberty Group, a nonpartisan group that encourages citizen participation in government and free speech, is representing the original plaintiffs in the case.
Mixed Legal Standing
The state and county officials argue in their appeal that the precedent set by the U.S. Supreme Court’s 1992 decision of Burson v. Freeman, although featuring some dissent among the justices, dictates a decision being made on the narrowest grounds.
“The state’s restricted zone is reasonable and does not significantly impinge on Frank or Grassfire’s rights,” the state writes in a 2020 filing. “The little case law that exists applying Burson to electioneering buffer zones larger than 100 feet misapplies Burson or is otherwise unpersuasive.”
In the Burson case, the Supreme Court upheld the state of Tennessee’s right to enforce a law restricting campaigning within 100 feet of a polling place.
“The Burson plurality’s standard opinion is controlling precedent that should be applied in this case,” the state’s attorneys wrote in a May filing.
‘A Lot To Chew On’
In 2015 in Kentucky, a 6th Circuit Court judge ruled a 300-foot buffer unconstitutional after the plaintiff successfully argued the size of the zone was arbitrary with no compelling interest to back it up.
Wyoming had a buffer zone of 60 feet prior to 1973. A 1988 lawsuit, NBC v. Karpan, forced the Wyoming Legislature to allow exit polling within the buffer zone after an outright ban was found to be unconstitutional.
Louisiana’s electioneering buffer is the highest in the nation at 600 feet, a distance that has been challenged in court multiple times.
Klein said he feels confident the court of appeals will uphold the lower court’s decision when it comes to the Election Day distances, but is less sure how it will rule on early and absentee electioneering distance, an issue he said the court has never considered before.
“It’s pretty novel,” he said. “The court is really taking this seriously. There’s a lot to chew on.”
Klein said he has no idea when a decision could be released on the case, but hopes the judges will come back with a decision before the upcoming legislative session so lawmakers can make potential changes to laws immediately.
He said if they lose the appeal, he will encourage his clients to take their case to the U.S. Supreme Court.
In 2014, Don Wills, an independent candidate for governor, challenged the state’s 100-yard law after the election, arguing it prevented him from collecting signatures from voters after his volunteers were forced to leave from where they were working outside the Laramie County Courthouse.
A similar instance happened to Republican gubernatorial candidate Foster Friess in 2018 when he was told he had to be 100 yards from the property line of the Cam-Plex Wyoming Center in Gillette on Election Day.
“Sometimes we joke, when you give 100 feet they take 100 yards,” Klein said.
This fall, a conservative voter guide was distributed on the Campbell County Courthouse steps “on at least one day during the absentee voting period,” according to a complaint made to the Wyoming Secretary of State’s office.
Klein said he was pleased to see the Laramie County Courthouse did not enforce its 100-yard rule in the November election. But in Crook County, there were supporters of write-in state Senate candidate Roger Connett who were asked by local law enforcement to remove campaign signs that were too close to a polling place.
There were many allegations of voter intimidation raised in other states like Arizona leading up to the November election, with claims of election watchers showing up in military gear, filming voters with their phones and following them to their cars.
Axios reported in October that far-right extremist groups Proud Boys and the Oath Keepers attempted to sway the upcoming midterms in favor of their preferred candidates by signing up as poll workers and drop-box watchers.
Klein said if voters feel intimidated by those surrounding polling places, they should vote by mail.
In Wyoming, there were no documented instances of acts of voter intimidation. There was an organized effort made by the Wyoming Republican Party to train hundreds of volunteers to serve as poll watchers throughout the state.