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.
I understand for Wyoming residents and transplanted Wyoming natives who still care about their home state’s politics, this matters very much.
But for the rest of us, this doesn’t matter at all, right? Wyoming has one at-large Congressional seat with ZERO potential for a 2nd, so there’s no Congressional seat redistricting. The state is ruby red in Presidential contests, and even Obama who competed in so many longtime red states didn’t give the state a first look. And Freudenthal passed the last time a U.S. Senate seat was open, and now won’t see another open Senate seat likely for a long time.
This all leaves me just shrugging over Freudenthal.
I am a big fan of Freudenthal, and I think that if he were able to run again, he would win with relative ease, as heavyweights like Colin Simpson would sit the election out. Still you gotta figure that if he wanted to do run again, he would challenge the law quickly, since the closer the challenge is to 2010, the more it will become a negative issue in the race.
Plus, word leaked out that the governor included his wife on a list of three potential names for an open federal judgeship that were forwarded to the administration. While the first lady is an accomplished lawyer in Wyoming, that did not sit well with a lot of people, and it has led some to conclude Gov. Dave is going to retire. Let’s hope he challenges the provision, and soon.
while I am pretty sure Freudenthal would win re-election if the term limits were overturned, I certainly could see such an action as hurting him. It would be viewed as a rather self serving act and going against the wishes of the people of WY.
if I read the opinion of the Supreme Court correctly, Freudenthal wouldnt have to challenge the law, if only a voter challenges the law with the argument that the law hinders him unconstitutionally from voting for Freudenthal for a third time.
Perhaps that would avoid the negative implications of a lawsuit from Freudenthal against the law, if a Democratic voter would file that lawsuit instead of Freudenthal himself.