Wyoming laws that aim to keep primary elections “pure” and rooted in the Republican and Democratic parties don’t violate the state Constitution, a Cheyenne-based judge ruled Friday.
Laramie County District Court Judge Nathaniel Hibben in a summary judgment order upheld the arguments the Wyoming Attorney General’s Office waged on behalf of Secretary of State Chuck Gray, after a slate of independent-minded candidates challenged the state’s “sore loser” law and crossover-voting ban.
The “sore loser” law forbids a failed primary election candidate from getting onto the ballot via a petition as an independent candidate. Those candidates still may wage write-in campaigns.
Gray in a Friday statement called the judgment a “huge win for the integrity of Wyoming’s elections.”
“Protecting the election process by banning crossover voting has been a key part of our administration’s election integrity agenda,” said Gray in the statement. “With this ruling, it is confirmed what we, the citizens of Wyoming, knew all along: these laws are constitutional, and pivotal to ensuring election integrity in Wyoming.”
One of the plaintiffs, former Jackson City Councilman and Teton County Commission candidate Jim Rooks, countered. He told Cowboy State Daily that the ruling only exacerbates an increasingly extremist, closed-minded and partisan-dependent political culture in a Wyoming that is straying from its individualistic roots.
“I see it playing out at every level,” said Rooks. “I’m disappointed in my home state. I used to think Wyoming was just the best state politically, in so many different ways… Independent people and independent thought.”
But the misfortune isn’t from his own burnout, said Rooks.
“I just think you should be able to vote for the person you want to vote for. And I think we’ve regressed within our communities and our state by not allowing that to happen,” he said.
Rooks said he’s inclined to believe he and the other plaintiffs will appeal to the Wyoming Supreme Court.
Hibben’s ruling predicts that as well, stating, “this dispute will inevitably be resolved” by the higher court.
Rooks referred Cowboy State Daily to his attorney, Bill Schwartz, to ask about the prospect of appeal. Schwartz did not immediately respond to a voicemail request for comment.
Wyoming lawmakers are now contemplating ways to restrict independent candidates who didn't lose a primary election.
A legislative committee this week adopted a bill that, if it became law, would make unaffiliated or independent candidates for partisan political offices swear that they are unaffiliated with any party.
It would also make them give notice that they’re circulating a petition for nomination at least 81 days before the primary election, and it would increase their petition signature threshold from 2% to 5% of the total number of votes cast for that office in the last general election.
Crossover Voting
Wyoming Republicans sounded alarms about crossover voting and primary election impurities after the initial 2018 election of Gov. Mark Gordon, a moderate Republican.
Many Democratic-minded voters in Wyoming are registered as Republicans so they can vote in the Republican primary elections and thereby influence the overwhelmingly GOP governance.
The GOP-supermajority legislature in 2023 passed a law banning crossover voting by confining party-switching to before the date by which primary-election candidates file for office.
But this challenge to that law was brought in part by both Republicans and Democrats who sought to run as independents after losing their primary election bids. Voters who wanted to vote for these candidates but couldn’t due to the closed primary system also sued.
Either way, Hibben ruled, the equal protection and voter-access rights the plaintiffs invoked fall to the Wyoming Supreme Court’s century-plus standard of presuming, generally, that what the legislature does is constitutional.
“This presumption is not a mere courtesy,” wrote Hibben. “It is a cornerstone of the separation of powers, reflecting the judiciary’s respect for the plenary authority of the legislative branch.”
In the federal court system, laws are subject to the rigorous legal standard of “strict scrutiny” when they may abridge a fundamental right.
But in the state system, wrote Hibben, it’s not always that simple. He referenced state cases in which the high court did not subject laws implicating election-access rights under the state constitution to the strict scrutiny standard.
He also invoked a case from last month, in which the Wyoming Supreme Court called upon more than a century of jurisprudence dating back to the pre-statehood territorial court, to reiterate that people challenging state laws under the Wyoming Constitution generally must show the court that those laws are unconstitutional beyond a reasonable doubt.
The plaintiffs here failed to do that, wrote Hibben.
Not The Same As That One Time
The plaintiffs had referenced the case of Maxfield v. State, in which Wyoming elected officials challenged the term limits the legislature placed upon them, as heaping more candidacy prerequisites on them than the Wyoming Constitution requires.
It’s not a perfect argument though, Hibben countered, since the plaintiffs affected by the “sore loser” law still could wage write-in campaigns – and the voters who weren’t able to vote for them in the primary election due to party boundaries still could have written them onto the general election ballot.
“The Wyoming Supreme Court has never held that the loser of a primary election nonetheless has a right to have their name printed on the general ballot, nor has it held that an individual has a right to a ‘second bite at the apple,’” wrote Hibben.
In the Maxfield case, conversely, the elected officials who were confined unconstitutionally to term limits had been barred from running altogether.
And it was under Article 6, Section 13 of the Wyoming Constitution – which is essentially a legislative permit to pass laws to secure the “purity” of elections – that lawmakers tightened their primary elections, the judge added.
With Whom You Wish
Hibben indicated that the case is a clash of rights.
On the one hand, the plaintiffs asserted their state constitutional rights to access elections as candidates and as voters.
On the other hand, the Republican and Democratic Parties still have an association right under the First Amendment to the U.S. Constitution, by which they can keep non-members out of their confined processes, wrote Hibben.
“Political parties have a right ‘to identify the people who constitute the association and to select a standard bearer who best represents the party’s ideologies and preferences,’” he added, quoting from the 2023 case of Conrad v. Uinta County Republican Party.
People can debate whether partisan primaries are good election policy, but for a judge to stop the state from restricting those party primaries to legitimate party members would burden the parties’ association rights, Hibben wrote.
Clair McFarland can be reached at clair@cowboystatedaily.com.
