Speight et al v. Wyoming Governor Gordon et al

IN THE UNITED STATES DISTRICT COURT^'
"/;"i f„ " V X
11:^1
FOR THE DISTRICT OF WYOMING .
JOHN B. SPEIGHT,REX ARNEY,
ROBIN HURLESS,et al.,
Plaintiffs,
vs.
WYOMING GOVERNOR MARK
GORDON,in his official capacity,
WYOMING REPUBLICAN STATE
CENTRAL COMMITTEE,WYOMING
REPUBLICAN PARTY CHAIRMAN,
and WYOMING REPUBLICAN PARTY,
Defendants.
Case No. 22-CV-0016-SWS
ORDER DENYING PLAINTIFFS' MOTION FOR A TEMPORARY
RESTRAINING ORDER
This motion comes before the Court on Plaintiffs Motion for a Temporary
Restraining Order and Preliminary Injunction(ECF No.6)and the related complaint(ECF
No. 1), both filed on January 25,2022. Defendants were given notice ofthe complaint and
the motion(ECF No. 8), and Defendant Wyoming Governor Mark Gordon submitted his
wntten response (ECF No. 14), as have Defendants Wyoming Republican State Central
Committee and the Republican Party Chairman (ECF No. 20). The Court held a status
conference on January 26,2022 to discuss the temporary restraining order.(ECF No. 10.)
Plaintiffs argue they have a likelihood of success on the merits but ignore Supreme Court
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precedent relevant to their case. Additionally, Plaintiffs have not demonstrated any
irreparable harm. Having considered the Plaintiffs' motion and complaint,the Defendants'
responses, and Plaintiffs' reply(ECF No. 18), the Court finds the Motionfor a Temporary
Restraining Order and Preliminary Injunction should be DENIED.
Background
This case arises out ofa dispute over filling a statewide elected position vacancy for
the remainder of the elected term. On January 16, 2022, State Superintendent of Public
Instruction Jillian Balow resigned from her position, leaving the position vacant.(ECF No.
1 at 10.) Pursuant to Wyoming Statute § 22-18-111 (2021), since the vacancy occurred
after Balow's second year in office, the Wyoming governor must appoint a successor to
fill the position for the remainder ofthe elected term, which ends January 2023. Wyo. Stat.
Ann.§ 22-2-105(a)(ii)(2021); Wyo. Const. Art. 4,§ 11.
This appointment process is at the heart ofthe dispute. As a "Major Political Party,"
the Wyoming Republican Party is governed by Wyoming Statute § 22-4-\0\,etseq., which
gives the Party a proportional number ofcommitteemen and committeewomen. Wyo. Stat.
Ann. § 22-4-101(b). The proportional representation is decided by precinct' votes—for
every 250 votes in a political precinct that go toward the political party, the precinct gets
one committeeman and committeewoman. § 22-4-101(c). No political precinct has less
than one committeeman and committeewoman, but the precincts may have up to as many
committeemen and committeewomen as are proportionate to the votes. Id. The
'Wyoming Statutes define a "precinct" as"an area with established boundaries within a political subdivision used
for casting and counting votes." Wyo. Stat. Ann. § 22-l-102(xlvii)(2021).
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committeemen and committeewomen from each precinct make up the County Central
Committee ("CCC"). § 22-4-101(b). The CCC then elects a county chairman, a state
committeeman, and a state committeewoman. Wyo. Stat. Ann. § 22-5-105 (2021); Wyo.
Stat. Ann. § 22-4-110 (2021). The elected officials in these positions comprise the State
Central Committee ("SCC"). The SCC overall is composed of the three elected
representatives ofeach county along with a state committeeman, a state committeewoman,
and a county chairman. § 22-4-110.
This leads to an interesting outcome, where the CCC is proportionate to the
precincts and votes within its county, but the SCC for each county is comprised of only
three members—^the chairman, the committeeman, and the committeewoman—^regardless
of how many voters (or voters of a certain party) are in the county. See § 22-4-110. As a
result, each county has equal numbers ofrepresentation on the Wyoming Republican Party
SCC.
Laramie County, Wyoming, with a population of 100,512, receives the same three
representative members as Niobrara County, Wyoming, with a population of only 2,422.
However, raw population numbers are not the crux of the analysis—rather the important
population for this case is the population of registered Republicans in each county. See
Seergy v. Kings County Republicans County Committee,459 F.2d 308,315(2d Cir. 1972).
As ofJanuary 1, 2022, in Niobrara County,there are 1,182 registered Republicans,^ a total
of 0.6% of the total percent of Wyoming registered Republicans. (ECF No. 20-2.) In
^ The Wyoming Secretary of State maintains and publishes a monthly tally of the "Statewide Summary Wyoming
Voter Registration" which is available at https://sos.wyo.gov/Elections/DocsA^RStats/2022/22JanVR_Stats.pdf.
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contrast, Laramie County has 28,691 registered Republicans, making up 14.62% of the
total percent of Wyoming registered Republicans.(Id.)
The Wyoming Republican Party SCC is made up ofthree elected officials from each
county,^ plus the same three elected officials from a national committee, the State Party
Chairman and the State Party Vice-Chairman, for a total ofseventy-four votes on the SSC.
(ECF No.7 at 8.) While the Wyoming Republican Party bylaws are relatively silent on this
process, the bylaws expressly state "[i]n any event, no member of the State Central
Committee shall be able to exercise more than one vote."(2020 Bylaws of the Wyoming
Republican Party, Art. V § 1, ECF No. 1-1 at 16.) Besides this statement, the bylaws do
not require proportional voting, nor do the bylaws give any more specification on the
process offilling vacancies for state elected officials.(See id.)
In the event of a vacancy in a state elected office past the two-year mark of a four-
year term, the Wyoming governor appoints a temporary successor to serve the remainder
of the term. § 22-18-111. The governor makes this appointment from a list of three
nominees chosen by a SCC vote. § 22-18-1 l(a)(i). If the elected official represented a
political party during their election, the governor may only choose nominees provided by
the SCC for that party.(Id.)For the Wyoming Republican Party,these nominees are chosen
by election through the seventy-four voting members of the SCC.(ECF No. 1 at 10-11.)
Once the SCC provides the three nominees to the governor, the governor must make a
decision within five days. § 22-18-11 l(a)(i).
^ There are twenty-three counties in Wyoming. Before accounting for the national committee votes, three votes per
county comes to a total of sixty-nine votes.
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In this case, Superintendent Balow resigned on January 16,2022.(ECF No. 1 at 10.)
The see scheduled its vote to designate three nominees to replace the vacant
superintendent seat on January 22, 2022.(EeF No. 10 at 11-12.) On January 20, 2022,
Plaintiff Tom Lubnau sent a letter to Frank Eathome, ehairman of the Wyoming
Republican Party, and the entire Wyoming Republican Party asking for the scheduled vote
to be conducted proportionally by county. {Id. at 12.) In this letter, Mr. Lubnau argued the
vote was contrary to the Equal Protection Clause in the United States and Wyoming
Constitutions.(ECF No. 1-2.) Mr. Lubnau requested the SCC follow the "one man, one
vote" principle. {Id.)
At the meeting on January 22, Mr. Eathome declined to conduct a proportional vote
because "[t]he Wyoming Republican Party is a private entity, we are not conducting a
public election[.]"(ECF No. 1 at 12.) The vote continued as planned, with each member
of the SCC submitting one non-weighted vote. {Id. at 13.) The results showed Thomas
Kelly received sixty-two votes; Marti Halverson received fifty-six votes; Brian Schroeder
received fifty-two votes; Megan Degenfelder received nineteen votes; and Plaintiff David
Northrup received seven votes.(ECF No. 20-1.) In accordance with § 22-18-111(a), the
Committee submitted the list of three nominees (Mr. Kelly, Ms. Halverson, and Mr.
Schroeder) to Govemor Mark Gordon, who must make his decision on January 27, 2022.
(ECF No.7 at 2(citing § 22-18-11 l(a)(i)).
On January 25, 2022, Plaintiffs filed a complaint with this Court, arguing the
process violated Wyoming voters' constitutional rights.(ECF No. 1.) In conjunction with
this complaint. Plaintiffs also filed a Motion for a Temporary Restraining Order and a
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Preliminary Injunction (ECF No. 6) asking this Court to prevent Governor Gordon from
selecting a new Superintendent ofPublic Instruction on January 27, 2022. Plaintiffs argue
"Wyoming statutes, as supplemented by Republican State Party Bylaws and as
implemented by the party in selecting the three persons for this vacancy, violate their equal
protection rights guaranteed by the Fourteenth Amendment to the U.S. Constitution."(ECF
No. 7 at 2.) The process for filling vacancies violates the "one man, one vote" principle
integral to this country's electoral process. {Id.) The vote to select three nominees should
have been conducted with each county getting a vote proportional to the number of
Republican votes in their coimty.{Id.)
Plaintiffs assert they are not making a facial constitutional challenge to the
Wyoming statutes. (ECF No. 7 at 21.) While not explicitly stated, they appear to be
challenging the Wyoming statutes, in conjunction with the Wyoming Republican Party
bylaws, as applied to plaintiffs."^ {See id.) Specifically, Plaintiffs seem to take issue with
the bylaws requiring only one vote per State Central Committee member, arguing this
prevents members from following the "one person, one vote" principle articulated in Baker
V. Carr,369 U.S. 186,208(1962). In other words,this requirement leads to an inequitable
outcome where certain counties' votes hold more weight.(ECF No. 1 at 15-16.)
In response. Defendants point to a seminal United States Supreme Court case,
Rodriguez, to counter Plaintiffs' argument.(ECF No. 14 at 6; ECF No. 19 at 11-12);
Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982). Defendants also argue this
Plaintiffs' complaint argues the "matter involves the federal constitutional question of whether the actions of
[Defendants] in exercising the authority given to them pursuant to Wyoming Statutes violated the Equal Protection
Clause ofthe U.S. and the equal protection provisions of the Wyoming Constitution."(ECF No. 1 at 6.)
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system to fill elected vacancies has been in place for sixty years, but Plaintiffs have only
decided to challenge it two days before the Governor needed to appoint a replacement.
(ECF No. 19 at 4.) Because of the delay in waiting to file suit over this issue, Plaintiffs
cannot show there is irreparable injury—Plaintiffs should have taken up this argument well
before the contention over Superintendent Balow's resignation. (ECF No. 19 at 13.)
Defendants point out Plaintiffs have not shown the results ofthe nomination process would
be any different under a proportional voting system.(ECF No. 19 at 6-7.) Without concrete
and particularized injury. Plaintiffs cannot bring an as-applied challenge to the nomination
process.(Id. at 7.)
Legal Standard
The motion before this Court asks for a temporary restraining order and a
preliminary injunction.(ECF No. 6.) Because Defendants had an opportunity to submit
briefings on the topic, this Court will address the motion as a preliminary injunction. See
Williams v. Bednars, No. 3:21-CV-00394, 2021 WL 1093111, at *1-2(N.D. Tex. Mar. 4,
2021) (addressing a "motion for a temporary restraining order and/or a preliminary
injunction" through the same analysis when Defendants had notice ofthe motions)."When
addressing a motion for temporary restraining order, the court applies the same standard as
it applies to a motion for preliminary injunction." Rangel-Lopez v. Cox, 344 F. Supp. 3d
1285, 1289 (D. Kan. 2018). A temporary restraining order (and, by extension, a
preliminary injunction) is meant to preserve the status quo before a final decision on the
merits. Resolution Trust Corp. v. Cruce,972 F.2d 1195,1198(10th Cir. 1992);see Schrier
V. University ofColorado,427 F.3d 1253, 1260(10th Cir. 2005).
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A preliminary injunction has the limited purpose of preserving the relative
positions of the parties until a trial on the merits can be held. It is an
extraordinary remedy never awarded as of right. A party may be granted a
preliminary injunction only when monetary or other traditional legal
remedies are inadequate, and the right to relief is clear and unequivocal.
Under Rule 65 of the Federal Rules of Civil Procedure, a party seeking a
preliminary injunction must show:(1) the movant is substantially likely to
succeed on the merits; (2) the movant will suffer irreparable injury if the
injunction is denied;(3)the movant's threatened injury outweighs the injury
the opposing party will suffer under the injunction; and (4) the injunction
would not be adverse to the public interest.
DTC Energy Grp., Inc. v. Hirschfeld, 912 F.3d 1263, 1269-70 (10th Cir. 2018)(internal
citations and quotation marks omitted).
The moving party has the burden to demonstrate they are entitled to a preliminary
injunction or a temporary restraining order. Kiowa Indian Tribe of Oklahoma v. Hoover,
150 F.3d 1163, 1171 (10th Cir. 1998). While it is not necessary that plaintiffs prove their
likelihood of success beyond all doubt, plaintiffs must show a reasonable probability they
will ultimately be entitled to the reliefsought on the merits. Continental Oil Co. v. Frontier
Refining Co., 338 F.2d 780, 781 (10th Cir. 1964)(per curiam). They must show more than
a mere possibility of success on the merits. People's Trust Federal Credit Union v.
National Credit Union Administration Board, 350 F.Supp.3d 1129, 1139(D.N.M. 2018).
Analysis
1. Likelihood of Success on the Merits
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The Plaintiffs^ cite to Seergy v. Kings County Republican County Committee as
strong support for their likelihood of success.(ECF No.7 at 9-10.) Additionally, they cite
to a United States Supreme Court case, a Tenth Circuit case, and a Wyoming Supreme
Court case highlighting the importance ofthe "one man,one vote" principle. {Id. at 11-13
{citing Marchioro v. Chaney,442 U.S. 191 (1979); Associated Enterprises, Inc. v. Toltec
Watershed Imp. Dist., 490 P.2d 1069(Wyo. 1971){aff'd 410 U.S. 743 (1973)); Semple v.
Griswold, 934 F.3d 1134(10th Cir. 2019)).
At first blush,Seergy appears to mirror Plaintiffs' claims and proposed relief. In that
case. Republican voters and members ofthe Kings County Republican County Committee
brought a § 1983 action contesting a recently adopted election law. Seergy, 459 F.2d at
309. The committee makeup in New York followed the same makeup as the Wyoming
system—each precinct received proportional representation based on the number of
Republican votes. Id. at 310. However, at the county committee level, each county
committee only received two committee members, regardless of the number of
Republicans in the county. Id. at 311.The new law gave each county committee an equal
number of votes, rather than apportioning the votes to correspond with the number of
Republican voters in the district. Id. Specifically, the law only gave each member of each
county committee one vote. Id. The plaintiffs argued that violated the "one man,one vote"
^ Defendants contest standing, arguing there is not concrete and particularized injury to Plaintiffs.(ECF No. 19 at 5-
6.) While there are sixteen plaintiffs in this matter, the Court does not find it necessary to conduct an in-depth
analysis ofstanding at this time. It appears that one plaintiff was a contender for the nomination at the Jan. 22
meeting(ECF No.7 at 17)and other plaintiffs are registered Republicans selected to serve on the SCC, who feel
their vote is not weighed equally(ECF No. 1 at 2). For the limited purposes of analyzing the Motionfor Temporary
Restraining Order and Preliminary Injunction only, this Court will assume Plaintiffs have standing.
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principle because districts with a low number of Republican voters would have greater
voting strength compared to districts with a higher number ofRepublican voters.Id. at 310,
312. Importantly, in Seergy, the plaintiffs were challenging a newly adopted law that had
not yet been utilized by the Republican party. Id. at 309-10.
The court first stated political parties, such as the Kings County Republicans, are
only required to recognize constitutional protections when adopting "procedures used by a
State as an integral part of the election process[.]" Id. at 313 (internal citations and
quotations omitted). Accordingly, the Second Circuit held the Equal Protections Clause
was not violated by the mere passage ofthe law because in internal affairs ofthe committee,
proportional representation was not required. Id. at 313-14. However, "[i]n those rare
instances where committeemen perform public electoral functions (e.g. the nomination of
candidates to fill vacancies ...), the county committee is required by the Equal Protection
Clause to apply the "one-man, one-vote" principle" because it was a function integral to
the election process. Id. at 314(internal quotations omitted).
It should be noted, unlike Wyoming's statutes, whereby the SCC selects three names
that are then submitted to the Governor for selection, the New York law simply allowed
the committee to select the nominee to fill the vacancy. Elect. Law Art. 6 § 131 (1971).
Wyoming's process provides the Governor, who is elected through a popular vote, only
three nominees. § 22-18-1 l(a)(i). The Governor is then tasked with choosing one nominee
to appoint to the position. Id. Republican voters in Wyoming are represented through the
SCC but are also afforded representation in accordance with the Equal Protection clause
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by electing the Governor. Wyoming's process gives more discretion to a second elected
official in the nomination process when compared to the New York statute.
While the composition of the committee is somewhat similar to the case brought
before the Court in this matter,that is where the similarity ends.Seergy was decided nearly
fifly years ago, before the Supreme Court's landmark decision in Rodriguez,In Rodriguez,
the Puerto Rico general legislature authorized a vote, pursuant to Puerto Rico statutes, to
fill a vacancy in the Puerto Rico House ofRepresentatives that occurred between elections.
Rodriguez,457 U.S. at 3-4. Because the vacant seat had formerly been filled by a democrat,
the Popular Democratic Party argued only electors registered as democrats could vote in
the special election. Id. The Puerto Rico Supreme Court interpreted the election statute to
read the Democratic Party could nominate a replacement without the vote within sixty days
ofthe vacancy. Id. If no candidate was selected within sixty days, any candidate could run
in the special election, regardless of party affiliation. Id. at 5. The court was not persuaded
this procedure violated the Constitution, because "the Constitution does not expressly
require a fixed method for filling vacancies in a state or commonwealth legislature." Id.
Additionally, the appointment system served a compelling interest by ensuring stability of
the legislature between elections. Id.
The United States Supreme Court took the issue up on certiorari, to decide whether
qualified voters of any party had a federal constitutional right to elect legislative
representatives, including representatives who fill a vacancy between general election
periods. Id. at 6. The Court began by reiterating there was no per se Constitutional
guarantee ofthe right to vote. San Antonio School Dist. V. Rodriguez,411 U.S. 1, 35 n. 78
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(1973). Citizens had the right to vote for the legislature during election periods and the
interim vacancy appointment policy did not restrict voters from participation in the
democratic process. Id. at 10. All citizens could exercise their right to vote in general
elections and the interim process for vacancies applied uniformly for every political party.
Id.
Ultimately, the Supreme Court held the Constitution did not prohibit states from
filling legislative vacancies through an appointment process. Id. at 11. This is especially
true when the process does not disproportionately affect any one group of voters, specific
candidates, or political parties. Id. at 12. The decision in this case created precedent
allowing an exception to general voting rights principles when,in special circumstances, it
was necessary to fill an elected official's vacancy. Plaintiffs argue Rodriguez is not
synonymous to the facts here because it did not involve "one man, one vote"(ECF No. 18
at 2)but based on precedent released after Rodriguez, this Court disagrees.
Following Rodriguez,the United States District Court in Kansas ruled on a situation
similar to the one presented by Plaintiffs. In Gietzen, after a vacancy in the Kansas State
Board of Education, plaintiffs challenged the Kansas statute, which governed filling the
vacancy,on Equal Protection grounds. Gietzen v. McMillon,857 F.Supp.Ill,778(D.Kan.
1994). The Kansas statute allowed an election in the district convention to determine who
would be nominated to fill any vacancy in the Kansas State Board of Education. Id. The
person elected by the district would be appointed by the governor to fill the vacancy for
the remainder of the term. Id. The person appointed needed to be a member of the same
political party as the previously elected official who filled the vacancy. Id. The plaintiffs
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challenged the statute, arguing the manner by which the district convention elected
replacements violated the "one man,one vote" rule. Id. at 780.
The district court first determined the statute could be analyzed under a rational
basis standard of review, following Rodriguez. Id. at 782-83. Because the Kansas statute
did not affect a suspect class,"it is difficult to understand why a scheme chosen by Kansas
to fill such vacancies is subject to heightened scrutiny." Id. at 783. The Court next
concluded the Kansas statute for filling State Board of Education vacancies survived
rational basis. Id. The statute had a rational purpose "including expediency and economy
in the filling ofunexpected vacancies" in the State Board ofEducation.Id. Because "states
are entitled to deference in fashioning schemes to fill unexpected vacancies in
governmental positions[,]" the statute was constitutional Id.', see also Trinsey v.
Commonwealth ofPennsylvania, 941 F.2d 224,234(3d Cir. 1991).
Plaintiffs' arguments ignore the precedent set by Rodriguez and followed by
Geitzen. The Wyoming legislature was well within its Constitutional bounds when it
enacted § 22-18-111. Plaintiffs are correct in asserting, generally, whenever a state
government decides to select candidates to perform governmental functions via a popular
election, the Equal Protections Clause of the Fourteenth Amendment requires each voter
have an equal opportunity to participate in that election. Hadley v. Junior College District,
397 U.S. 50, 54 (1970). This requires election districts to ensure voters are represented
proportionally. Id. This precedent has indeed been recognized by both the Tenth Circuit
in Semple v. Griswold and the Wyoming Supreme Court in Associated Enterprises.Semple,
934 F.3d at 1136-37; Associated Enterprises, 490 P.2d at 1070. In Semple, the Tenth
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Circuit analyzed "one man, one vote" in the context of amending the state constitution.
Similarly distinguishable, Associated Enterprises discussed how "one man, one vote" did
not apply to the creation ofwatershed improvement districts.^ Associated Enterprises,Inc.,
490 P.2d at 1070. As Defendants point out,"[n]ot one ofthe Plaintiffs' cited cases involves
state political committees nominating potential successors to a vacant statewide office that
will ultimately be filled by gubernatorial appointment."(ECF No.20 at 4.)
It is clear from past precedent that"one man,one vote" is a respected legal principle
when citizens vote in general popular elections. Education is considered "a vital
governmental function" and when state or local decisions by a vote affect education, the
Equal Protections clause applies. Hadley,397 U.S. at 56. However,this right to vote is not
a constitutionally protected right per se and when states adopt laws to fill unexpected
vacancies, as opposed to general elections, states have more deference under the Equal
Protections clause. Gietzen, 857 F.Supp. at 783; San Antonio School Dist, 411 U.S. at 35
n. 78. In fact, Rodriguez cited Wyoming's statute detailing the appointment process to fill
vacancies, noting it was common to fill vacancies without a popular election. Rodriguez,
457 U.S. at 5, n. 4. The Rodriguez opinion used Wyoming as one example of how common
it is for vacancies to be filled through a different process than popular election. Id.
The Second Circuit did not have the benefit ofthe Rodriguez decision when it came
down with the opinion in Seergy, as it was decided ten years earlier. Additionally, the
^ Plaintiffs also cite to Marchioro v. Chaney to support the proposition of"one man,one vote" when filling
vacancies.(ECF No.7 at 11.) Marchioro does acknowledge interim legislative appointments to fill vacancies should
comply with the "one man,one vote" rule, but only briefly in a footnote. Marchioro,442 U.S. at 197, n. 12. The
case does not analyze this concept in depth and, similar to Seergy, this case was decided before Rodriguez.
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decision in Seergy did not actually analyze the implications ofthe Equal Protections clause
for voters when filling a vacancy/The opinion merely discussed how this situation, should
it arise, would likely implicate a governmental function sufficient to require constitutional
protections. See Seergy, 459 F.2d at 314. This is less persuasive than Gietzen, which
actually analyzed a state statute discussing vacancies of elected positions, similar to Wyo.
Stat. § 22-18-111. Second Circuit dicta opining that nominating candidates to fill vacancies
would likely implicate the "one man, one vote" principle does not carry the same weight
as Tenth Circuit district court precedent specifically analyzing a state vacancy and
appointment statute. Other courts have approved an appointment process for filling
vacancies, even without complying with "one man, one vote." Tedards v. Ducey, 398
F.Supp.3d 529, 548(D. Ariz. 2019)(aff'd 951 F.3d 1041, 1069(9th Cir. 2020)); Trinsey,
941 F.2d at 234-235. Additionally, Geitzen is a more recent case which took into account
the precedent released since Seergy.
'Notably, the Second Circuit case did not rely on firm precedent when making its decision in Seergy.
In those rare instances where committeemen perform public electoral functions
(e.g. the nomination of candidates to fill vacancies or to run in special elections,
or the giving or consent to candidacies by non-members of the party), however,
the county committee is required by the Equal Protection Clause to apply the
"one-man,one-vote" principle, since in such cases it is unquestionably playing an
integral part in the state scheme of public elections. See Maxey v. Washington
State Democratic Committee, 319 F.Supp. 673,679(W.D. Wash. 1970).
Seergy,459 F.2d at 314.
The citation here draws inferences from the Maxey case to come to this conclusion. Maxey only discussed
equal representation when selecting delegates for the presidential elections. Maxey, 319 F.Supp. at 674. Maxey did
not discuss a statute designated to fill vacancies and was also decided prior to Rodriguez. The inferential citation to
Maxey by the court in Seergy only further shows there is not any strong precedent supporting the "one man,one
vote" principle when filling elected position vacancies.
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Not every voting law, even if it may implicate the Equal Protections Clause, is
subject to strict scrutiny. See City ofHerriman v. Bell, 590 F.3d 1176, 1184 (10th Cir.
2010). "To subject every voting regulation to strict scrutiny and to require that the
regulation be narrowly tailored to advance a compelling state interest. .. would tie the
hands of states seeking to assure that elections are operated equitably and efficiently."
Burdick v. Takushi, 504 U.S. 428, 433 (1992). Although every election statutory scheme
will affect voter rights in some way, when the State is furthering "important regulatory
interests" there is justification for "reasonable, nondiscriminatory restrictions" on voting.
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). There is also no evidence Wyoming's
statute or the Republican Party bylaws affect a suspect class. Accordingly, this Court
follows Gietzen and analyzes the Wyoming law using rational basis review. Gietzen, 857
F.Supp. at 783;see also Tedards,398 F.Supp.3d at 538; Trinsey, 941 F.2d at 234.
The rational basis standard of review only requires "that the means be rationally
related to a conceivable and legitimate state end." Petrella v. Brownback, 980 F.Supp.2d
1293, 1304(D. Kan. 2013)(citing Nguyen v. INS, 533 U.S. 53, 77 (2001)). Wyo. Stat. §
22-18-111 sprouts from the Wyoming State Constitution."When any office from any cause
becomes vacant, and no mode is provided by the constitution or law for filling such
vacancy,the governor shall have the power to fill the same by appointment." Wyo. Const.
Art. 4, § 7. Following the state constitution is a legitimate state interest. See Quilter v.
Voinovich, 981 F.Supp. 1032, 1051 (N.D. Ohio 1997). Additionally, this statute promotes
efficiency by preventing gaps in state elected positions after an unexpected vacancy. See
Gietzen, 857 F.Supp. at 783. These reasons withstand a rational basis review.
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Additionally, the Wyoming Republican Party bylaws state every committee
member is only allowed one vote.(ECF No. 1-1 at 16.) While Plaintiffs feel this allows
disproportionate representation, there is certainly a rational basis for this rule. Ifcommittee
members were allowed more than one vote, there may be disproportionate elections or
jilted voting systems. Certainly, this bylaw could be amended to include proportional
voting by county population, but there is a rational basis for enacting and abiding with this
bylaw as written.
Requiring proportional votes based on county population may be a more equitable
way to conduct elections within the SCC,but the failure to conduct votes and abide by the
"one person, one vote" principle is not a violation of Equal Protection. The Wyoming
Legislature is afforded more deference in determining how to fill elected office vacancies.
Ifvoters 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."
Consequently, Plaintiffs are unable to prove their case would likely succeed on its
merits. When Plaintiffs cannot satisfy this first factor, a court is not required to analyze the
remaining factors for a preliminary injunction. See Nova Health Systems v. Edmondson,
460 F.3d 1295, 1299 (10th Cir. 2006)(affirming a district court's denial of a preliminary
injunction because plaintiff failed to show likelihood of success on the merits, without
analyzing the remaining three factors). However, it is worth mentioning that Plaintiffs do
not show any irreparable harm."[T]he showing of probable irreparable harm is the single
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most important prerequisite for the issuance ofa preliminary injunction." Schrier,427 F.3d
at 1268 (internal citations omitted).
Plaintiffs argue "[t]he impact on the rights of plaintiffs is difficult to overstate."
(ECF No. 7 at 20.) One of the plaintiffs, Mr. Northrup, could have been a nominee if the
Wyoming Republican Party used a proportional voting system, but as an unsuccessful
candidate, he was deprived of Equal Protection. {Id.) Additionally, "[i]mportant
constitutional rights will be forever lost once the Governor fills the vacant office[.]" This
argument does not include any cites to case law(or any authority)to support the conclusory
allegation. Plaintiffs do not elaborate why the Governor could not simply rescind the
appointment. Additionally, Plaintiffs do not give any reasons why the SCC could not
conduct a new vote. Most importantly. Plaintiffs do not provide any information that their
choice candidates would have been selected if the SCC vote had complied with "one man,
one vote." At most. Plaintiffs state "plaintiff Northrup could well have been one of the
nominees if a vote following one-man, one-vote principles had been used."(ECF No. 7 at
20)(emphasis added)."Could well have been" is not sufficient to show irreparable harm.
Plaintiffs' argument is further diminished by the tally sheet.(ECF 20-1.)Northrup received
only seven votes. {Id.) Comparatively, the three winning nominees received sixty-two,
fifly-six, and fifty-two votes respectively. {Id.) Plaintiffs do not provide any information
on how the voting system would change ifvotes were proportional, specifically, how many
votes each county "should" have under a proportional system.
Furthermore, irreparable harm seems unlikely because all Wyoming voters will
have an opportunity to elect a new Superintendent of Public Instruction in November
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2022—the Governor's appointment only fills the position for the next nine months. See
Tedards, 398 F.Supp.3d at 547(denying injunctive relief because plaintiffs could not show
a twenty-nine month senate appointment to fill a vacancy would result in irreparable
injury). Because Plaintiffs cannot show a likelihood of irreparable hann, they have failed
to satisfy the second factor required to justify a preliminary injunction or a temporary
restraining order.
Conclusion
Plaintiffs cannot demonstrate a likelihood of success on the merits because the case
law does not support their position. Additionally, Plaintiffs have failed to establish
irreparable injury. Because Plaintiffs cannot satisfy two ofthe four factors used to evaluate
a preliminary injunction and a temporary restraining order, they have failed to meet their
burden of proof. Thus, it is hereby
ORDERED that Plaintiffs' Motion for a Temporary Restraining Order and
Preliminary Injunction (ECF No. 6)is DENIED.
Dated this ^^day of January, 2022.
Scott W. Skavdahl
United States District Judge
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