CHEYENNE — A U.S. District Court judge said Wednesday morning the court would rule on a temporary restraining order seeking to halt the governor’s appointment of a new state superintendent of public instruction by noon Thursday.
A status conference in the case was held by telephone at 9 a.m. Wednesday before U.S. District Judge Scott W. Skavdahl, according to PACER, an online database for federal court documents.
Defendants in the case were ordered to submit a briefing on the motion for a temporary restraining order by 5 p.m. Wednesday.
The court was expected to provide a ruling by noon Thursday.
Gov. Mark Gordon was ordered not to make an appointment until then or until he receives an order from the court regarding the temporary restraining order.
Pat Crank, a Cheyenne attorney representing the plaintiffs in the case, said Wednesday morning’s action was what he’d hoped would happen.
“I think Judge Skavdahl is handling this exactly as he should: he’s being cautious and careful, and wants to give the defendants a chance to respond to our motion, which is fair, and that’s the way the U.S. judicial system works,” Crank said.
The minutes of the status hearing also said Skavdahl disclosed to the parties a personal relationship with one of the plaintiff’s families. Crank said none of representatives for the defendants objected.
Wyoming Attorney General Bridget Hill, Wyoming Republican Party attorney Brian Shuck and Tyler Green were present for the defense, according to PACER.
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 to select three possible appointees to replace former State Superintendent of Public Instruction Jillian 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 selects candidates in a process that follows 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.
Because the three candidate selections were provided to him on Saturday, by state statute, the governor has until sometime Thursday to select the new state superintendent. A spokesperson for Gordon said Tuesday that he would continue to follow statute unless otherwise ordered by the court.
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 suit says.
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.
Balow announced Jan. 13 that she would be resigning from her position to take a similar job in Virginia. The candidate whom Gordon ultimately selects will serve until January 2023, unless re-elected this November.
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 67 votes, Marti Halverson, with 56, and Brian Schroeder, with 52.
Along with Lubnau, who currently serves as Campbell County state committeeman and voted in Saturday’s proceedings, the other 15 plaintiffs are described as regular voters from across the political spectrum who represent several of Wyoming’s counties.
The complaint says 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 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 argues 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 Gordon, in his former position of state treasurer, were all nominated as one of three candidates by the committee in the past.
Shuck did not respond immediately respond to a request for comment. Eathorne has so far not responded to a Tuesday email seeking comment.