David Northrup

Former Wyoming Speaker of the House Tom Lubnau and 15 others — including former Powell lawmaker David Northrup — are suing Gov. Mark Gordon and the Wyoming Republican Party 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. Having the Republican Party’s state central committee — generally made up of one chairman, one committeeman and one committeewoman from each county — responsible for nominating replacements defies the “one man-one vote” principle in both the Wyoming and U.S. constitutions, the plaintiffs say.

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. 

A total of 12 Republicans — including Northrup — applied for the vacant position, with the party selecting Veritas Academy Head of School Brian Schroeder of Cody, American Military University department chair Thomas Kelly of Sheridan and former state Rep. Marti Halverson of Etna as finalists.

Gordon was set to make a choice between those three candidates by today (Thursday), as required by state law, but U.S. District Court Judge Scott Skavdahl has ordered the governor to hold off until he can rule on the plaintiffs’ request for a temporary restraining order.

Beyond Lubnau and Northrup, they include Cody attorneys George and Steve Simonton; former state lawmakers Rex Arney, Ruth Ann Petroff and Charles Pelkey; and 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 Jan. 20, 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. 

In a Wednesday statement, Party Chairman Eathorne said the party followed the law and panned the plaintiffs as “Democrats and a handful of self-important RINOs and Cheney supporters.” His email blast underscored how the current suit is in some ways a continuation of an ongoing battle between more conservative and more moderate factions of the GOP.

“They cannot stand that the Wyoming Republican grassroots has risen up and can outvote the lobbyists and lawyers who have controlled Wyoming politics in the past,” Eathorne wrote. “These are the same people who support Liz Cheney, fight to preserve the ability for Democrats to crossover and interfere in Wyoming Republican primaries, vigorously oppose runoff elections, and seek to tear down and defeat Conservative principles.”

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. 

Wyoming Secretary of State Ed Buchanan also took office in this manner, as did U.S. Sen. John Barrasso; Gordon became state treasurer through the same process in 2007. 

“At the end of the day we all need to follow the Constitution,” said Pat Crank, a Cheyenne attorney and former attorney general under Gov. Dave Freudenthal, 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?” 

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 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.

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

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

Judge Skavdahl said he’ll issue an initial ruling by noon today (Thursday).

(Powell Tribune Editor CJ Baker contributed reporting.)