CHEYENNE – A U.S. District Court judge denied a motion for a preliminary injunction Thursday that sought to halt Gov. Mark Gordon’s appointment of a new state superintendent of public instruction.
The decision cleared the way for Gordon to announce Thursday afternoon that he’d chosen Brian Schroeder, who has been a teacher and administrator in private schools in California, Wisconsin, Michigan and Wyoming, and worked as a family and youth counselor.
Most recently, Schroeder served as Head of School at Veritas Academy, a private Christian school in Cody, according to a news release from the governor’s office.
Schroeder will serve until January 2023, unless he runs for the office and is elected to the position this November.
Former State Superintendent of Public Instruction Jillian Balow announced Jan. 13 that she would be resigning from her position to take a similar job in Virginia.
On Tuesday, a group of more than a dozen plaintiffs, including former Speaker of the House Tom Lubnau, filed suit alleging that the process used by the Wyoming Republican State Central Committee on Saturday to select three possible appointees to replace Balow was unconstitutional. Plaintiffs said the process, which has been used before, violated the “one man, one vote” principle laid out in the Wyoming and U.S. constitutions.
The lawsuit asked the court for an injunction to prevent the governor from filling the position – at least until the committee selected candidates in a process that followed the “one man, one vote” principle. It also asked the court to stop the defendants from filling any state or federal position in a way that violates the “one man, one vote” principle.
In his order, Judge Scott W. Skavdahl said the plaintiffs ignored Supreme Court precedent in their argument and failed to demonstrate irreparable harm.
Pat Crank, a Cheyenne attorney representing the plaintiffs in the case, said after the order was issued Thursday that he respectfully disagreed with the judge’s decision, but that he was glad Skavdahl had the case because he’s an “amazing judge, public servant and lawyer, and I know he worked hard on it and reached a decision he was comfortable with.”
Crank said he would take a few days to speak with the plaintiffs in the case before deciding how to proceed.
“I’m really proud of the plaintiffs – I mean, this was a real diverse group of people that came together and said, ‘This is a really important issue, and we should follow the Constitution, and this process should be as fair and representative as possible.’ So I’m proud that they had the courage to do that,” he said.
Although Skavdahl denied his clients’ request, Crank said it was notable that the federal judge recognized in his order that voters from the state’s smallest counties have more influence on such decisions than those from larger counties, and that the Wyoming Legislature could be a venue through which this issue could be taken up in the future.
“Requiring proportional votes based on county population may be a more equitable way to conduct elections within the (State Central Committee), but the failure to conduct votes and abide by the ‘one person, one vote’ principle is not a violation of Equal Protection,” Skavdahl wrote in the order. “The Wyoming Legislature is afforded more deference in determining how to fill elected office vacancies. If voters feel their vote is diluted and are unhappy with the Governor’s appointment (or the three nominees submitted to the Governor), voters have the opportunity to cast a ballot in the next general election, when their votes are counted in compliance with ‘one man, one vote.’”
Skavdahl had said Wednesday morning that the court would make a decision by noon Thursday, after the defendants in the case – the Wyoming Republican Party and its chairman, Frank Eathorne, the Wyoming Republican State Central Committee and Gordon – submitted a brief in opposition to the motion, and the plaintiffs submitted an response to that.
Gordon had been ordered not to make an appointment until noon Thursday, or until he received an order from the court regarding the requested injunction.
The state’s election code gives the State Central Committee the power “to take official actions for the benefit of and in the interests of the citizens of the State of Wyoming,” the lawsuit said. Because Balow represented the Republican Party when she was elected, the governor is required to choose from three candidates submitted by the Republican State Central Committee.
In their response to the plaintiffs’ motion for a preliminary injunction, filed Wednesday, the governor’s legal counsel pointed out that the plaintiffs didn’t seem to be challenging his role in filling the position or the constitutionality of the process he is required to follow under statute to fill a statewide role. The plaintiffs were challenging the constitutionality of the process by which the State Central Committee submitted the three names to Gordon.
Still, the plaintiffs failed to prove they were entitled to a temporary restraining order or preliminary injunction, attorneys for the governor argued. The attorneys described a 1982 case involving the Puerto Rico Legislature, in which statute permitted a political party to fill an interim vacancy. Though the process was challenged in that case, a court rejected the challenge, saying the effect of such an appointment, rather than a full-scale election, was “minimal” and “does not fall disproportionately on any discrete group of voters, candidates or political parties.”
Like in that case, “this statutory process did not deprive Wyoming voters of fair and effective representation, regardless of the procedure the committee followed to select the nominees,” Gordon’s counsel wrote.
Representing the governor in this matter were Wyoming Attorney General Bridget Hill, Special Assistant Attorney General Jay Jerde and Chief Deputy Attorney General Ryan Schelhaas.
Crank rejected this argument in a brief response Wednesday. Crank argued the case out of Puerto Rico involved a much different situation, as a “one man, one vote” election among party members had taken place, and that principle was not part of the challenge, as admitted by Gordon in his brief.
A separate brief in opposition to the temporary restraining order and injunction was filed Wednesday by Brian Shuck, legal counsel for the Wyoming Republican Party, Eathorne and the Republican State Central Committee.
Shuck argued that none of the cases outlined by the plaintiffs in their motion “involves state political committees nominating potential successors to a vacant statewide office that will ultimately be filled by gubernatorial appointment” – the involvement of the governor makes this situation different from all of the cases they cited.
“And, in any case, plaintiffs do not establish that even if the nomination process had occurred using their preferred method, the outcome here would not change, making (an injunction) effectively meaningless,” Shuck wrote.
The motion should also be denied because plaintiffs “waited until two days before the statutory appointment deadline to challenge it,” he continued, even though the statute laying out the process for an interim appointment to a vacant statewide office has been law for more than 60 years – including while some of the plaintiffs were in the Legislature.
This statute does not outline the process by which a state central committee must choose its three recommendations to the governor, nor do the Wyoming Republican Party’s bylaws.
It’s in the public interest to carry out the process and reject the temporary restraining order and injunction, Shuck wrote.
Shuck and Eathorne did not respond Thursday to requests for comment.
How the candidates were chosen
The lawsuit’s complaint lays out the process by which the State Central Committee chose its three candidates at a Saturday meeting in Douglas. Rather than voting in a way proportional to the counties’ widely varying populations, which the suit says would have been fair, the committee allowed three representatives from each of the 23 county central committees – a state committeeman and a committeewoman from the county, plus the county chairman – to vote.
Along with these 69 total votes, the bylaws allow Chairman Eathorne, the state party vice chairman, the state party secretary and the national committeeman and national committeewoman to each cast a vote. The Casper Star-Tribune reported after Saturday’s meeting that 73 total votes had been cast.
The committee’s three picks were Thomas Kelly, with 62 votes, Marti Halverson, with 56, and Schroeder – who was ultimately chosen by Gordon – with 52.
Along with Lubnau, who currently serves as Campbell County state committeeman and voted in Saturday’s proceedings, the other 15 plaintiffs were described as regular voters from across the political spectrum who represent several of Wyoming’s counties.
The complaint said that, based on the way the vote was conducted, a registered voter in Niobrara County, the smallest county by population size, had between 24 and 40 times the influence of a voter in Laramie County, the largest by population size.
“As a Laramie County registered Republican voter, my voting rights have been taken from me without my consent or permission,” retired Cheyenne attorney and former Wyoming Republican State Chairman Jack Speight wrote in an affidavit accompanying the suit.
The lawsuit came after Lubnau sent a letter before Saturday’s meeting to Eathorne and Shuck expressing very similar concerns.
In his Jan. 20 letter, Lubnau asked the party to conduct the State Central Committee vote in a way that recognized “extreme differences in population among Wyoming’s 23 counties” and allocate votes on the basis of county population.
Not doing so would violate “one man, one vote” principles laid out in the U.S. and Wyoming constitutions and disenfranchise voters in more populated counties, Lubnau wrote.
When presented with this argument, the complaint says Eathorne rejected members’ requests to follow Lubnau’s advice. The complaint quotes Eathorne as saying during Saturday’s meeting: “The Wyoming Republican Party is a private entity, we are not conducting a public election, and so, the, uh, complaints lodged in our direction do not apply in this case, and that is my ruling.”
The lawsuit argued that the selection process to replace the state superintendent of public instruction “is not a private matter, and several federal courts have ruled in several contexts that the selection of a state elected official must follow one man, one vote principles.”
The complaint notes that the procedure has been used before by the State Central Committee. U.S. Sen. John Barrasso, Secretary of State Edward Buchanan and Gov. Gordon, in his former position of state treasurer, were all nominated as one of three candidates by the committee in the past.