Run-off election off table, open primary and ranked choice still in play
June 17, 2021
On hearing that it would be impossible to introduce run-off elections in time for the 2022 elections, the Joint Corporations, Elections & Political Subdivisions Committee has opted to not move ahead with legislation to do so. However, ranked choice or open primaries are still on the table for now.
After hearing two hours of testimony from the Secretary of State’s Office and Wyoming’s county clerks at its meeting last week, the committee realized the time window is too narrow for all the necessary steps, says Senator Ogden Driskill, co-chairman of the committee.
The senator agrees that voters seem to want changes to the election process and is adamant that the wishes of constituents should always be respected. However, he says, the simple truth is that this particular piece of legislation was not workable in the timeframe available.
Representative Chip Neiman neither withdrew his request for committee members to sign a pledge to support the bill, says Driskill, nor proposed any alterations that would fix it. The pledge just outlined the problem, the senator says, and at no point offered a solution.
“With no suggestions from the person that pushed the pledge, I didn’t see anybody on the committee offer to bring a bill because obviously it wasn’t going to meet muster,” Driskill says.
“We’ve got to do honest solutions that work as a committee. We can’t deal with ‘I think this will work’ at this level.”
The committee’s decision caused anger in some circles, Driskill says, but he feels that those who are continuing to push for run-off elections are deliberately ignoring the facts. It’s one half of a legislator’s job to hear the voices of constituents, he says, but the other half is to find out if their ideas will work.
“I understand the frustration, I really do, but I also have to deal in realities,” he says.
Doing Things Properly
County Clerk Linda Fritz was among those who testified to the committee that implementing run-off elections by 2022 is not possible. She wants the public to be aware that there’s a difference between making a promise to do something and actually being able to make it happen.
Fritz uses the analogy of asking contractors to give you a bid to build a house by the end of the week.
“One contractor comes to you and says it can’t be done if you want it done right. Another contractor says if that’s what you want, I can give you what you want,” Fritz says.
If you give the job to that second contractor, she says, the plumbing will go awry within days of moving in and the electricals will never quite work properly.
“The responsible contractor doesn’t promise you something that can’t happen,” she says. The same thing applies to the bill that was put forward for run-off elections, she says: “It can’t happen, and if they push this through on us, we are going to have a house that crumbles.”
Driskill agrees, pointing out that there are serious implications to a flawed piece of legislation.
“I really don’t want to violate federal election laws and have the Biden administration step in and run my elections, and that’s a potential cost if you intentionally pass a piece of legislation that will not work within the federal voting rights,” he says.
While both Fritz and Driskill support the idea of exploring changes to Wyoming elections, they say the real issue with the bill has nothing to do with willingness and everything to do with how long it would take to implement run-off elections. Doing so quickly would be incredibly challenging at any time, Fritz says, but it will be impossible by 2022 with the addition of redistricting.
Bear in mind, she says, that a run-off election will require a primary to take place in May.
Fritz explains that redistricting must happen every ten years along with the census, according to the U.S. Constitution. The Wyoming Constitution expands on this by saying that redistricting must take place during the budget session following the census, which in this case is the 2022 Legislative Session.
To make run-off elections happen next year, Fritz says, would require a constitutional amendment that changes when the legislative body can meet to complete redistricting, which would allow this to be done earlier. However, that constitutional amendment would first need to go on a ballot for voters to approve, which would require a special election.
This is where the first timing issue crops up: Fritz does not believe there is sufficient time left this year to complete the statutory steps involved in the process of preparing a special election, as the legislature is no longer meeting in special session and therefore cannot propose one.
Without that amendment, the legislature will meet at the beginning of the year and the ordinary course of legislation would make it unlikely that a bill to introduce run-off elections could be signed before March. Once signed, the Secretary of State’s Office would need to complete the necessary steps for implementation and then pass the baton to the county clerks to implement.
This process again creates problems as it would involve time-locked steps such as two weeks of advertising and a public hearing. As Secretary of State Ed Buchanan stated in a memo to the committee:
“The current process in statute requires clerks to meet with their commissioners to assign election districts. Following that meeting, clerks must begin the laborious task of modifying the statewide voter registration system to reflect any changes that occurred due to the reapportionment.”
Changes to the system require a minimum of 30 days, Buchanan said. Additional tasks that must be complete before an election include preparing ballots, printing and shipping ballots, testing voting equipment and more, all of which he said would mean redistricting must be complete no later than December 10 for a May primary to take place.
Other timing issues also exist, Fritz says. For a May primary, for example, ballots would need to be sent out to voters who are eligible to vote absentee through the Uniformed and Overseas Citizens Absentee Voting Act by the middle of March.
This would leave zero time for the law to implemented, says Fritz, so it couldn’t be done. “Because of redistricting, we could not meet federal laws,” Fritz says.
Plus, she says, candidates for seats for which the run-off election applied would need to file their candidacy in February for a May primary, but the bill to create that primary would not yet have been passed. You can’t file for an election that doesn’t yet exist, she points out.
“You can’t promise what can’t be done, no matter how much people want it, if it’s not possible,” says Fritz, explaining why she testified at the committee meeting after having conversations with Crook County’s legislators to explain the impossibilities.
“The complications are wide-ranging,” Fritz says. “If they put in a bill for2022 and the legislative body passes it, we will instantly fail in our election process, without question. We can’t do it.”
For this reason, Fritz has been outspoken about Representative Chip Neiman’s proposed pledge, which she believes the pledge put undue pressure on the committee, forcing legislators to sign off on the idea because not doing so will affect their re-election chances. Run-off elections are certainly possible in Wyoming, she says – just not in 2022.
Driskill points out that his own support for run-off elections is not new: when the legislation was first introduced last year, he says he “stretched his neck” to get it out of committee.
“That bill did make it out of committee and onto the floor,” he says. “The entire body got a look at that bill, but it wasn’t workable.”
The committee knew the bill needed work before the session, he continues, and suggested the sponsor work with county clerks. Unfortunately, that this did not happen caused “the bill to go up in flames.”
An open primary or ranked choice elections would be less of a timing issue for 2022, says Fritz, as neither would require changes to be implemented until the regular August primary. The committee has left both of these options on the table.
Driskill says he’s not sure where he is on supporting either of these options, as he has not yet had enough time to properly evaluate them. The committee still has two meetings scheduled before the next session, so he’s not ruling out a return of the run-off election question.
“The only way I see it moving forward is with somebody spending a lot of work to get the bill in a workable form,” Driskill cautions. “As long as all you get is opposition that’s mad and they’re not willing to work to fix it, my guess is it continues to fail.”
Driskill would be happy to present a run-off bill, he says, but only if the clerks and secretary of state tell him it’s constitutional and workable. If that happens, he says, he’d be more than willing to sponsor it.
“I’m not anti run-off bills, but I am all about solutions,” he says. “I support run-off elections if they’re done in a format that works.”
Meanwhile, Fritz says she will be continuing her efforts to spread awareness and understanding of the reasons run-off elections are impossible to implement so quickly.
“I would like people to come and talk to me if they have questions,” she says. “Promises should not be made for something that cannot happen.”
For those with queries about election integrity in Wyoming, Fritz also has an explanatory video available upon request that walks through much of the election process.