Back in February, we learned about an intriguing possibility in the Wyoming governor’s race – incumbent Dem Dave Freudenthal might seek to overturn the state’s term-limit law, which would otherwise turn him out of office next year. How could he do this?
It turns out that back in 2004, Wyoming’s Supreme Court struck down term limits that applied to state legislators. The court ruled that such limits could only be imposed by changing the state’s constitution, not (as voters had attempted) via ballot initiative. Even though the same law covered both legislators and statewide officeholders (including the governor’s office), for procedural reasons, the court limited its ruling to just the state lege. The court’s explanation tells us quite a lot, though:
The parties have not addressed this issue, but we note that the constitutionality of a statute may only be questioned by a party whose rights are affected thereby. Likewise, a party cannot assert that a statute is unconstitutional as to other persons or classes of persons. These precepts suggest that the appellant legislators cannot raise the question of the constitutionality of the term limit law as it affects the qualifications for governor… and for secretary of state, auditor, treasurer, and superintendent of public instruction….. Furthermore, the appellant voters have not alleged an inability to vote for particular candidates for the executive branch offices. Accordingly, we will limit our holding to those constitutional provisions involving legislative qualifications. (Citations removed.)
In other words, because no one had properly raised the gubernatorial issue, the court could not rule on it. But it sure sounds like they would have nuked gov term limits if only they could have. On the merits (ie, instituting term limits via ballot initiative vs. constitutional amendment), there just isn’t any daylight between state legislative jobs and the governor’s mansion.
It’s rare to see something like this in the legal world, but if Freudenthal raised a challenge, it’s almost impossible to see how gubernatorial term limits could survive. The real issues, then, are “will he?” and “when does he have to file suit?” As to the first question, a spokesman left the door wide open several months ago, and I haven’t heard anything since.
And as far as timing goes, Freudenthal can afford to wait. The legislative term limits suit was filed in January of 2004 in district court (which sided with the plaintiffs), and was then appealed directly to the state supreme court, which ruled in May (upholding the lower court). It was a close shave because Wyoming’s filing deadline was just a few weeks later, so Freudenthal probably wouldn’t want to wait that long. On the flipside, as I suggest above, this case has basically already been argued and all but decided. It could probably get resolved in even less time than the original four-month-long suit.
So Freudenthal could probably wait another half year, maybe even longer. But personally, I think he should declare his intentions sooner rather than later, and if he decides to challenge the law, do it right away. While our chances of holding on to the governor’s mansion would be slim without him running again, the uncertainty and delay will only make an already difficult challenge even harder for Democrats.