Superintendent of Public Instruction selection process sparks lawsuit

CASPER — Former Wyoming Speaker of the House Tom Lubnau and 15 others are suing Gov. Mark Gordon, the Wyoming Republican Party, the party’s chairman and the Wyoming Republican State Central Committee over the recent state superintendent selection process. 

The complaint, filed Tuesday in federal court, claims that the process of selecting the superintendent spot left vacant by Jillian Balow’s resignation is unconstitutional because a political party’s central committee — which is made up of one county chairman, one county committeeman and one county committeewoman — is responsible for nominating replacements, thereby defying the “one man-one vote” principle in both the Wyoming and U.S. constitutions. 

More specifically, the number of votes each county gets in the process is not proportional to its population, meaning Laramie County, population 99,500, has the same number of votes as Niobrara County, population 2,400, even though it’s roughly 41 times the size. That, according to the plaintiffs, is unconstitutional. In the lawsuit, the plaintiffs request that the court “temporarily and permanently” prohibit Gordon from making a decision on one of the three candidates, which he is statutorily required to do within the next few days.

The suit, however, extends its focus beyond the superintendent vacancy alone, and asks that the court disallow the defendants “from taking any actions to select candidates for vacancies in Statewide or federal offices” in any way that violates the one man-one vote principle. 

Gordon intends to make a decision on a candidate by Thursday, his spokesman told the Star-Tribune. 

“[The governor] will carry out his duty within the five-day window according to the law,” said Michael Pearlman, director of communications for Gordon. 

Lubnau, who’s a practicing attorney and the current Campbell County state committeeman, is joined by 15 other plaintiffs. 

They include Dave Northrup, a former state lawmaker and unsuccessful candidate for the superintendent position; Doug Camblin, the Campbell County GOP committeeman; Rex Arney, a former state lawmaker — as well as a dozen voters from all across the political spectrum. 

Lubnau sent a letter detailing his concerns over the constitutionality to Frank Eathorne, the party chairman, and Brian Shuck, the party’s lawyer, on Thursday, two days before the meeting in which the central committee selected the superintendent. 

“Considering the extreme differences in population among Wyoming’s 23 counties, any vote on a county basis would disenfranchise voters in the more populated counties and would constitute a violation of constitutional principles,” the letter read. 

Party counsel didn’t mince words when asked about the letter Saturday. 

“Tom Lubnau’s position is absolutely preposterous,” Shuck said. 

Wyoming Secretary of State Ed Buchanan also took office in this manner, as did U.S. Sen. John Barrasso. 

Buchanan told the Star-Tribune on Monday that when he was going through the selection process, he was not approached about the constitutionality of the situation. 

According to state statute, when the position of state superintendent is vacated, the central committee of the political party that person is affiliated with is responsible for nominating three candidates. The governor is then responsible for choosing one of the three. 

“At the end of the day we all need to follow the Constitution,” said Pat Crank, a Cheyenne attorney who is representing the group suing the GOP. 

Lubnau was not present at the Saturday meeting when the GOP officials voted on the three candidates, but the issue was raised at the meeting. 

“This is not an election, it’s a selection process,” Joey Correnti, the Carbon County GOP chairman, told the Star-Tribune. “Why didn’t he address it when he was Speaker of the House?” 

Eathorne later echoed those sentiments to the entire body. 

Eathorne also told the Star-Tribune that he was advised by two party lawyers, Mitch Edwards and Shuck, that he should go ahead with the process. 

“If it gets challenged in court, it gets challenged in court,” he said Saturday. 

Because Lubnau was the Speaker of the House, the most powerful position in the House, Republican party leadership questioned why Lubnau was bringing up the issue now as opposed to years ago. 

“I think everybody in the room is asking, ‘Why now?’” Eathorne said. 

Crank argued that if something is unconstitutional, it’s not always ruled unconstitutional right off the bat, like being read your Miranda Rights when you’re arrested. 

“As we have more and more of these types of selections, that’s why it’s coming up now and it didn’t come up later. It has reached a boiling point,” Crank said. 

The state superintendent of public instruction is the chief education officer in the state and sits on a number of other important state boards. 

“The superintendent of public instruction sets education policy and funding,” Crank said. “It’s a real critical office.” 

The candidate who is ultimately chosen by Gordon will serve out the remainder of Balow’s term, which ends in January 2023. 

But that person will also have a head start if he or she chooses to run to keep the office. Incumbency offers benefits like name recognition. 

Three out of 11 candidates were selected in a landslide vote Saturday. The committee chose Thomas Kelly, with 67 votes, Marti Halverson, with 56 votes, and Brian Schroeder, with 52. 

The fourth-place candidate, Megan Degenfelder, the former chief policy officer for the Wyoming Department of Education, received only 19 votes.