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Gov. Gordon rejects Secretary of State Gray’s voter residency rules

Following a recommendation of legislative staff and the Management Council, Gordon determined Gray’s rules went outside the scope of his office’s statutory authority.

A Teton County Library polling station during the primary election Aug. 18, 2020. (Angus M. Thuermer, Jr./WyoFile)

For the second time in two months, Gov. Mark Gordon rejected rules proposed by Secretary of State Chuck Gray on the basis that the regulations exceed the scope of the secretary’s legal authority. 

Wyoming residents are currently required to provide proof of identity when registering to vote. Gray’s rules proposed adding proof of residency to the process. 

That’s not Gray’s job to decide, Gordon concluded. 

“Unless and until the Legislature grants the Secretary of State more explicit authority allowing for rulemaking to add to those statutory requirements at the time of registration, I believe these rules are a breach of the separation of powers with the legislative branch, as indicated by the Management Council’s recommendation,” Gordon wrote in a letter outlining his decision. 

Fraudulent voter registrations, Gordon noted in an accompanying statement, are not a significant problem in Wyoming. There have been just three instances of voter fraud in Wyoming in the past 23 years, according to a database created by the Heritage Foundation, a conservative think tank. Of the elected officials who have cast doubt on the security of Wyoming’s elections — including Gray — none have publicly questioned the legitimacy of their own election results. 

Gray has long maintained the rules were needed to ensure Wyoming elections are decided by Wyoming residents, a position he reiterated in a statement Friday. 

“I strongly disagree with Governor Gordon’s decision to veto our proposed rules, which were a necessary and commonsense measure to ensure that illegal aliens and non-residents would be prevented from registering to vote in Wyoming,” Gray wrote.

“These rules undertook a thorough vetting process, and received overwhelming support during the public comment period,” Gray wrote. “They should have been signed.”

Gray said an undocumented immigrant voted in Campbell County in the 2020 election. In Wyoming’s general election that year, more than 275,000 ballots were cast. About 140,000 people voted in the primary.

Gov. Mark Gordon delivers his State of the State address to the Wyoming Legislature on Feb. 12, 2024 in Cheyenne. (WyoFile/Ashton J. Hacke)

Gordon’s decision followed the recommendation of the Wyoming Legislature’s Management Council, which was informed by an official legal analysis that found the secretary did not have the authority. 

In February, Gordon line-item vetoed portions of Gray’s proposed rules related to environmental, social and governance investments, known as ESG. 

Legal analysis

Widely respected by past and present policymakers on both sides of the aisle, the Legislative Service Office is responsible for the exacting minutiae of lawmaking. It’s a strictly nonpartisan central office that works behind the scenes to draft bills and amendments as requested by lawmakers and committees, answer questions by legislators and provide legal research, among other things.

Its Legal Services Division, as is required by law, provides reviews of agency rules and regulations — hence its review of Gray’s proposed rules. 

LSO’s Feb. 28 review of the proposed rule spans four pages before coming to a simple conclusion.  

“Ultimately, there does not appear to be a provision in the Election Code, whether read separately or in conjunction with other provisions of the Code, that authorizes the Secretary of State to establish rules to require proof of residency when registering to vote,” LSO wrote. 

While the secretary of state’s office has the authority to establish what documents are sufficient enough for proof of identity to register to vote, LSO wrote, the agency lacked the authority to establish a requirement for a person to provide proof of residency. 

When LSO’s review was provided to the Legislature’s Management Council in March, lawmakers voted 7-2 in favor of adopting LSO’s recommendation that the proposed rules either be rescinded or amended. 

The Legislative Services Office at the Wyoming State Capitol. (Tennessee Watson/WyoFile)

Sens. Ogden Driskill (R-Devils Tower), Tara Nethercott (R-Cheyenne), Chris Rothfuss (D-Laramie) and Reps. Albert Sommers (R-Pinedale), Clark Stith (R-Rock Springs), Mike Yin (D-Jackson) and Dan Zwonitzer (R-Cheyenne) voted to support the recommendation. 

Sen. Dave Kinskey (R-Sheridan) and Rep. Chip Neiman (R-Hulett) were the two opposing votes. Sen. Larry Hicks (R-Baggs) did not cast a vote.

Gray’s response 

Since Gray first proposed the rules in December, he’s been steadfast that they’re both necessary and within his authority. 

While lawmakers and voter advocacy groups alike quickly raised red flags, the proposed rules were met with significant support at a public hearing in January. 

Gray noted the support in an April 9 letter to the governor, urging his support. 

“The rules underwent a thorough drafting and public comment process, in which several modifications were made to ensure adequate implementation for the 2024 election and to account for concerns raised by constituents during the public comment period,” Gray wrote. 

Secretary of State Chuck Gray exits the House of Representatives on the opening day of the 2024 legislative session. (Ashton J. Hacke/WyoFile)

Gray provided his own legal analysis in the letter before criticizing the work of the LSO. 

“I urge you to resist one-sided analysis aimed at crippling common-sense election integrity measures, and evaluate the rules in light of the clear statutory mandates set forth in the Wyoming Constitution and Wyoming Statute that are meant to ensure Wyomingites, and only Wyomingites, vote in Wyoming elections,” Gray wrote. 

Gray pointed to a section of state statute in a statement to WyoFile on Friday that “not only allows for the rule but actually calls for the rule.”

“W.S. 22-1-102(a)(xxvii) expressly defines the registration process as requiring “verification of the name and voter information of a qualified elector,’” Gray wrote. 

Gordon’s call

As is required by law, the governor had the final say on the rules. 

While there may always be room to improve Wyoming’s election laws, Gordon wrote, that’s the responsibility of the Legislature.

“The state’s election code … functions well and the countless hours spent by volunteers, election judges, canvassing boards, county clerks, town clerks, your office, and numerous others have ensured for decades that Wyomingites can trust the state’s election results.” 

Gordon pointed to the lack of a statutory definition of a “bona fide resident” of Wyoming as an example of opportunities for improvement. 

But there appears to be little appetite among lawmakers to work on election law — no election bills survived to the 2024 session. As such, the committee responsible has turned their attention elsewhere

This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.


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