Wyoming’s secretary of state asked a state judge Thursday to dismiss one voter’s attempt to get former President Donald Trump and U.S. Sen. Cynthia Lummis off the state’s 2024 ballots.
Retired Laramie attorney Tim Newcomb filed a legal petition against Gray's office Nov. 1, asking Albany County District Court Judge Misha Westby to set a hearing date and ultimately preclude Trump and Lummis, both Republicans, from appearing on Wyoming’s election ballots.
He argued they are unfit for office, had been involved in an “insurrection” and should be excluded under the 14th Amendment to the U.S. Constitution.
Secretary of State Chuck Gray’s Thursday motion asks to dismiss Newcomb’s case altogether, saying Newcomb failed to show he’s situated to make the complaint, and the complaint has no legal basis.
“The Court should dismiss this case because Newcomb’s claims, to the extent he cogently articulates any, are not justiciable,” reads the Thursday motion, which Senior Assistant Attorney General Mackenzie Williams penned on Gray’s behalf.
As for Gray, his comments on the matter in a Thursday statement were more fiery. He called Newcomb’s effort “outrageously wrong and repugnant to our electoral process” and a “blatant, radical attempt to interfere with Wyoming’s elections.”
“The weaponization of the 14th Amendment to remove political opponents from the ballot undermines the sanctity of the Constitution,” said Gray. “We are committed to protecting the integrity of our elections and ensuring that the people of Wyoming can choose who to elect for themselves.”
Find The Harm
The legal motion filed in Albany County District Court launches three main arguments: that Newcomb lacks legal standing, that the issue is not ripe for such a petition, and that Newcomb didn’t follow the lawful process for removing a candidate from an election.
Williams argued that Newcomb doesn’t have “standing,” or a personal situation warranting the court’s intervention.
To have standing, one must be asserting actual rights, must show a controversy a judge can fix, there must be a way for the judge to fix it, and the petitioner must show the incompatibility between his rights claims and those of his legal adversary.
A civil lawsuit that doesn’t have any of those four features is just “an exercise in academics,” not a question for the courts, according to prior case law.
Williams’ motion says Newcomb can’t meet any of those four factors, adding that he certainly cannot meet the first, which requires him to identify a “tangible interest which has been harmed.”
That harm can’t be universal: it must be somewhat unique to the petitioner.
“He alleges one fact related to standing — that he is a ‘registered Wyoming voter,’” says the motion. “His allegation that Trump and Lummis’ names appearing on the ballot ‘corrupts Wyoming’s election integrity’ is both conclusory and lacks any particular application to Newcomb himself.”
Too Early
Secondly, the motion says the issue isn’t ripe for court intervention.
The concept of ripeness dictates that courts don’t intervene in problems until they actually become a problem, or could imminently.
Trump may be up for election next November. Lummis isn’t up for reelection until 2026.
The Process
The motion argues that another symptom that Newcomb lacks “ripeness” is that he “would suffer no hardship from dismissal,” because Wyoming law gives another way for a person to challenge Lummis’ election.
Wyoming law allows for a qualified elector to challenge a candidate for some offices – Senate included – after the election, if the elector believes the candidate is ineligible for office. In those challenges, the person being challenged would be part of the process so that she could defend herself.
Williams’ motion notes that Newcomb did not join Lummis and Trump as parties in his petition, and they cannot defend themselves except by being joined to the case.
Not For Trump Though
For Trump, a challenge would look different, says the motion.
The Wyoming Legislature has “expressly reserved to itself the right” to adjudicate whether a presidential candidate is fit for office.
“This court should not allow Newcomb – or anyone else – to circumvent Wyoming’s election contest statutes and obvious legislative intent by … (trying to prevent) any candidate from appearing on the ballot,” the motion says.
Because Of The Rebels
Section 3 of the 14th Amendment says people who were involved in insurrections are unfit to serve in various offices. It doesn’t specify enforcement against presidential candidates.
Newcomb argued that Trump provoked an insurrection Jan. 6, 2021, and was therefore unfit to serve.
Williams’ motion argues that only Congress can enforce that provision, according to the same amendment’s Section 5.
“Congress has not empowered state courts to adjudicate allegations that a potential candidate is ineligible under Section 3,” says the motion.
The 14th Amendment was a reaction to the Civil War. Section 3 was designed to keep Confederate rebels from returning to Congress and other political seats.
And The Rebel Judge
The motion cites a criminal appeal from 1869 where a state prisoner asked to be let out of prison. The man said his conviction was invalid because his sentencing judge had joined the rebellion against the Union.
U.S. Supreme Court Justice Salmon Chase concluded that Congress could “make Section 3 operative,” and likewise could override it, the motion says.
Clair McFarland can be reached at clair@cowboystatedaily.com.
