Matthew Malcom; Jeff Thomas; Jim Rooks; Joshua Malcom; Christina Kitchen; and Jim Roscoe v. Chuck Gray, in his capacity as Wyoming Secretary of State
CourtWyoming Supreme Court
Date FiledOctober 1, 2026
DocketS-26-0029
StatusPublished
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Full Opinion
IN THE SUPREME COURT, STATE OF WYOMING
2026 WY 108
APRIL TERM, A.D. 2026
October 1, 2026
MATTHEW MALCOM; JEFF THOMAS;
JIM ROOKS; JOSHUA MALCOM;
CHRISTINA KITCHEN; and JIM
ROSCOE,
Appellants
(Plaintiffs),
S-26-0029
v.
CHUCK GRAY, in his capacity as
Wyoming Secretary of State,
Appellee
(Defendant).
Appeal from the District Court of Laramie County
The Honorable Nathaniel S. Hibben, Judge
Representing Appellants:
William P. Schwartz and Leah C. Schwartz, Parsons Behle & Latimer, Jackson,
Wyoming; Benjamin J. Rowland, Davis & Cannon, LLP, Cheyenne, Wyoming.
Argument by Mr. Schwartz.
Representing Appellee:
Keith G. Kautz, Wyoming Attorney General; Mackenzie Williams, Deputy
Attorney General; Dami Metzler, Senior Assistant Attorney General. Argument by
Mr. Williams.
Representing Amicus Curiae the Equality State Policy Center and the League of Women
Voters of Wyoming:
Amanda K. Achord and Haultain E. Corbett, Lonabaugh and Riggs, LLP, Sheridan,
Wyoming.
Before BOOMGAARDEN, C.J., and GRAY, FENN, and JAROSH, JJ., and EAMES,
D.J.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] Appellants challenged Wyoming’s “sore loser,” closed primary, and party
affiliation deadline statutes. The district court held the statutes were a valid exercise of
legislative authority. Appellants appeal only the district court’s ruling concerning the party
affiliation statutes. Those statutes establish a 96-day party affiliation deadline before the
primary election (the “96-day Freeze Period” or the “party affiliation deadline”), Wyo.
Stat. Ann. §§ 22-3-115, 22-5-212, and 22-5-214. Appellants contend the 96-day Freeze
Period violates their rights under the Wyoming Constitution to “open, free and equal”
elections, to the “untrammeled exercise of the right of suffrage,” Wyo. Const. art. 1, § 27,
and to equal political rights. Wyo. Const. art. 1, § 3. After balancing the right to vote
against the legislature’s duty to “secure the purity of elections” and to “guard against
abuses of the elective franchise,” Wyo. Const. art. 6, § 13, we conclude the party affiliation
deadline is not an unconstitutionally onerous burden on Appellants’ right to vote and does
not violate equal protection guarantees. We affirm.
ISSUES
[¶2] The Appellants raise two issues, which we rephrase:
1. Does the 96-day Freeze Period unconstitutionally
burden qualified Wyoming electors’ rights to “open,
free and equal” elections and to the “untrammeled
exercise of the right of suffrage” under Wyo. Const. art.
1, § 27?
2. Does the 96-day Freeze Period violate the guarantee of
equal political rights to vote under Wyo. Const. art. 1,
§ 3, by imposing an extra-constitutional condition on
voting in a primary election?
FACTS
[¶3] The facts are not in dispute. The legislature amended Wyo. Stat. Ann. §§ 22-3-
115(a)(vi), 22-5-212, and 22-5-214 to require electors wishing to change their party
affiliation to do so 96 days prior to the primary election. Wyo. Stat. Ann. § 22-3-115(a)(vi)
allows an elector to cancel their registration “at any time except for the period for which
party changes are prohibited as specified in W.S. 22-5-214.” Wyo. Stat. Ann. § 22-5-212
makes primary ballots available to electors who “declare or change party affiliation in
accordance with W.S. 22-5-214.” Wyo. Stat. Ann. § 22-5-214(a) states that for “a primary
election, an elector may declare or change party affiliation . . . before the first day on which
an application for [party] nomination [for office] may be filed under W.S. 22-5-209.” Wyo.
Stat. Ann. § 22-5-209 provides that an application for party nomination must be filed “not
1
more than ninety-six (96) days and not later than eighty-one (81) days next preceding the
primary election.” 1
[¶4] After the Freeze Period statutes took effect, Chuck Gray, the Wyoming Secretary of
State (the Secretary), issued Directive No. 2023-01 to Wyoming’s County Clerks
(Directive). The Directive recognizes that registered voters may not declare or change
party affiliation during the Freeze Period. It instructs County Clerks to “permit an
unregistered elector who otherwise meets the qualifications to register to vote, to declare
an affiliation with a major political party upon registration, during [the Freeze Period].”
(Emphasis added.)
[¶5] The Appellants were impacted in different ways by the challenged amendments.
Appellants Matthew Malcom, Jeff Thomas, and Jim Rooks were qualified electors who ran
for party nominations in the primary election held on August 20, 2024. Matthew Malcom
sought the Republican nomination for House District 61. Jeff Thomas sought the
Republican nomination for House District 4. Jim Rooks ran in the Democratic primary for
Teton County Commission. None succeeded in their primaries, and they abandoned their
efforts to appear on the ballot.
[¶6] Appellants Joshua Malcom, Christina Kitchen, and Jim Roscoe were qualified
electors who were unable to vote for candidates of their choice in the 2024 primary election.
Joshua Malcom was not affiliated with a political party, and because he was not registered
as a Republican, he was unable to vote for his brother, Matthew Malcom, in the Republican
primary. Christina Kitchen was a registered Republican and was unable to vote for her
brother-in-law, Jim Rooks, in the Democratic primary. Both Joshua Malcom and Christina
Kitchen voted for their preferred candidates in the general election by casting write-in
votes. Jim Roscoe is a registered Republican but wants to vote for candidates in primary
elections regardless of his party affiliation.
[¶7] Appellants sued the Secretary in his official capacity as the chief election officer for
the State of Wyoming. In the district court, the Appellants challenged various sections of
the election code, including those described above. On cross-motions for summary
judgment, the district court held the statutes were a valid exercise of the legislature’s
authority to structure elections and did not abridge citizens’ core rights to vote for
candidates of their choice or to seek and hold public offices. Appellants appeal the district
court’s ruling on the 96-day Freeze Period for party registration.
1
Before enactment of 2023 Wyo. Sess. Laws ch. 151 (HB 103), an elector could change party affiliation
by filing with the county clerk or at the polls on election day. See Wyo. Stat. Ann. §§ 22-5-212, 22-5-214
(2021); see also id. § 22-3-115(a)(vi) (LexisNexis 2021).
2
STANDARD OF REVIEW
[¶8] This Court reviews “a district court’s rulings on summary judgment and the
constitutionality of statutes de novo.” State v. Johnson, 2026 WY 1, ¶ 12, 582 P.3d 380,
389–90 (Wyo. 2026) (citation omitted). “We accord no deference to the district court . . .
and may affirm the summary judgment on any legal grounds appearing in the record.”
Schroth, Tr. of Robert E. & Linda M. Schroth Revocable Living Tr. dated 8/20/2004 v.
Kirk, 2025 WY 24, ¶ 24, 564 P.3d 570, 579 (Wyo. 2025) (citations omitted). Summary
judgment is appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” W.R.C.P. 56(a). The parties have
stipulated to the material facts, and therefore, there are no factual issues precluding
summary judgment. The issues before the Court present only questions of law.
[¶9] When we interpret the constitution, “[w]e are guided primarily by the intent of the
drafters.” Johnson, ¶ 15, 582 P.3d at 390 (quoting Gordon v. State by & through Capitol
Bldg. Rehab., 2018 WY 32, ¶ 30, 413 P.3d 1093, 1103 (Wyo. 2018), overruled by Johnson,
¶ 30, 582 P.3d at 395); see also Rasmussen v. Baker, 7 Wyo. 117, 50 P. 819, 822 (1897)
(“The constitution derives its force from the people who adopted it, and it is the intention
of the people which is to be sought for.” (citation omitted)).
In determining that intent, we look first to the plain and
unambiguous language used in the text[.] If the language is
plain and unambiguous, there is no room left for construction.
It must be presumed that in [the] case of a constitution the
people have intended whatever has been plainly expressed.
Courts are not at liberty to depart from that meaning which is
plainly declared.
Johnson, ¶ 15, 582 P.3d at 390–91 (quoting Gordon, ¶ 30, 413 P.3d at 1103).
[W]e follow harmonizing rules when interpreting the
constitution and statutes. . . .
Our cases explain that every statement in the
constitution must be interpreted in light of the entire
document, rather than as a series of sequestered
pronouncements, and that the constitution should not be
interpreted to render any portion of it meaningless, with
all portions of it read in pari materia and every word,
clause and sentence considered so that no part will be
inoperative or superfluous.
3
Saunders [v. Hornecker], 2015 WY 34, ¶ 19, 344 P.3d [771,
777 (Wyo. 2015)] (citations omitted); see also Hede v.
Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 162 (Wyo. 2005)
(discussing the same rules in the context of statutory
interpretation).
Johnson, ¶ 16, 582 P.3d at 391.
This Court generally uses the following standard when
reviewing the constitutionality of a Wyoming law: “Statutes
are presumed to be constitutional, and we will resolve any
doubt in favor of constitutionality.” Vaughn v. State, 2017 WY
29, ¶ 7, 391 P.3d 1086, 1091 (Wyo. 2017) (citing Kammerer v.
State, 2014 WY 50, ¶ 5, 322 P.3d 827, 830 (Wyo. 2014)). In
most cases, the [party challenging constitutionality of a statute]
bears the burden of proving the statute is unconstitutional.
Normally, this burden is heavy in that appellant must clearly
and exactly show the unconstitutionality beyond any
reasonable doubt. Michael v. Hertzler, 900 P.2d 1144, 1146
(Wyo. 1995) (quoting Miller v. City of Laramie, 880 P.2d 594,
597 (Wyo. 1994)).
Hicks v. State, 2025 WY 113, ¶ 83, 578 P.3d 366, 389 (Wyo. 2025).
DISCUSSION
I. Does the 96-day Freeze Period unconstitutionally burden qualified Wyoming
electors’ rights to “open, free and equal” elections and to the “untrammeled
exercise of the right of suffrage” under Wyo. Const. art. 1, § 27?
[¶10] Appellants first contend the 96-day Freeze Period violates their fundamental right
to vote guaranteed by article 1, section 27 of the Wyoming Constitution. The Secretary
responds that voting in a primary election is not a fundamental right because primaries are
not constitutionally protected elections, and even if they were, the Freeze Period is a valid
exercise of legislative authority. We first confirm that the right to vote is fundamental. We
next decide the Secretary’s threshold argument that a primary is not a constitutionally
protected election. We then discuss the analytical framework and level of scrutiny we
apply to the constitutional provisions at issue.
A. The Right to Vote Is Fundamental
[¶11] The right to vote in Wyoming elections is a fundamental political right under the
Wyoming Constitution. Brimmer v. Thomson, 521 P.2d 574, 578 (Wyo. 1974) (“The right
4
to vote is a fundamental right[.]”). Article 1, section 27 guarantees “open, free and equal”
elections and the “untrammeled exercise of the right of suffrage.” Article 1, section 3
protects equal political rights and prohibits laws affecting those rights based on any
circumstance or condition other than individual competency or unworthiness determined
by a court. Wyoming courts have long recognized the fundamental nature of the right to
vote and consistently apply “strict protection” of those rights through liberal construction
of voting rights in favor of the voters. Brimmer, 521 P.2d at 578 (“The right to vote is . . .
entitled to the strict protection of the courts.”).
B. Primary Elections Are Constitutional Elections
[¶12] The Secretary contends primary elections are not elections in the constitutional
sense because primaries were not used to select candidates at the time the Wyoming
Constitution was adopted. From that premise, he argues the right to vote protected by
article 1, sections 3 and 27 does not extend to voting in primaries. We disagree.
[¶13] The Secretary relies on decisions from other states construing their own
constitutions. 2 Those cases do not shed light on the meaning of the Wyoming Constitution.
[¶14] Sister-state authority may inform the inquiry when the constitutional text and
structure are similar. It cannot supply a limitation our constitution does not contain.
Wyoming’s starting point remains the text as the people adopted it. Rasmussen, 50 P. at
822. “Decisions from other states’ courts may provide some guidance in the interpretation
of constitutional provisions,” but “each case is controlled by the specific wording of the
constitutional provision” at issue. Cathcart v. Meyer, 2004 WY 49, ¶ 51, 88 P.3d 1050,
1069 (Wyo. 2004) (citation omitted). The wording of constitutions varies from state to
state and limits how far out-of-state cases can take us. Id. ¶¶ 51–55, 88 P.3d at 1069–70
(illustrating “the difficulty in finding guidance in out-of-state cases”). The cases cited by
the Secretary exemplify the problem. Several of them construed constitutions that granted
the right to vote only for specified officers, not in “any election.” See Wyo. Const. art. 6,
§ 2. Others involved party-run primaries that the State did not conduct. Wyoming’s text
is broader, and Wyoming primaries are conducted under the state election code. The out-
2
See, e.g., Seaman v. Baughman, 47 N.W. 1091, 1092 (Iowa 1891) (“‘election,’ in its broadest sense,
signifies a choice . . . but in the sense in which it is used in the constitution it means a choice of persons for
public offices . . . .” (citations omitted)); Woodruff v. State, 52 A. 294, 296 (N.J. Sup. Ct. 1902) (penal
statutes at issue made a distinction between primary and general elections); Ledgerwood v. Pitts, 125 S.W.
1036, 1039 (Tenn. 1910) (“the limitations and safeguards of the Constitution apply exclusively to the final
election when the officer is chosen in the mode required by the Constitution”); State ex rel. Dunn v. Coburn,
168 S.W. 956, 958 (Mo. 1914) (“the word ‘elections’ as used [in the state constitution] has reference to
‘choosing a person or persons for office by vote, and nowhere in the sense of nominating a candidate for
an office by a political party’” (citations omitted)); In re Jamestown Caucus L., 112 A. 900, 901 (R.I. 1921);
McLain v. Fish, 251 S.W. 686, 689–90 (Ark. 1923) (“Constitutional provisions with respect to elections do
not apply to party primaries.” (citation omitted)).
5
of-state decisions therefore do not answer whether a Wyoming primary is an “election”
under article 1, sections 3 and 27. 3
[¶15] It is true that when the Wyoming Constitution was adopted in 1889, primary
elections did not exist. 4 The Century Dictionary, which both parties cite for usage
contemporaneous with the Wyoming Constitution’s adoption, defined “election” as:
1. A deliberate act of choice; particularly, a choice of means
for accomplishing a given end. . . .
2. The choice of a person or persons for office of any kind by
the voting of a body of qualified or authorized electors. . . .
3. The act or process of choosing a person or persons for
office by vote; a polling for office; also, the occasion or set
time and provision for making such choice: as, a general or
a special election . . . .
4. By extension, a public vote upon a proposition submitted;
a poll for the decision by vote of any public matter or
question . . . .
Election, The Century Dictionary, (1895)
https://archive.org/details/cu31924091890602/page/1866/mode/1up (last visited Sept. 23,
2026).
[¶16] The Secretary isolates the second of several listed meanings—“choice of a person
or persons for office”—and argues primary elections do not result in that choice and
therefore could not be included in the voting rights clauses of the Wyoming Constitution.
The Appellants focus on the first definition provided by the dictionary and argue primary
3
See Ledgerwood, 125 S.W. at 1039 (right to “vote for members of the General Assembly and civil
officers”); In re Jamestown Caucus L., 112 A. at 901 (right to vote “in the election of all civil officers”);
cf. Wyo. Const. art. 6, § 2. See also McLain, 251 S.W. at 689–90 (parties “had a right to prescribe the tests
for the voters at the primary elections”); Robinson v. Holman, 26 S.W.2d 66, 68 (Ark. 1930) (the State
“ha[d] nothing to do with the holding of primary elections”).
4
The Wyoming Constitution was adopted in 1889. Wyo. Const. preamble. Even prior to that, voting rights
had been established by the Wyoming Territory. Slaymaker v. Phillips, 5 Wyo. 453, 40 P. 971, 972 (1895).
The legislature enacted statutes establishing the first primary elections in 1911. 1911 Wyo. Sess. Laws ch.
23, § 1. At that time, the law required primaries to “be conducted as required for general elections under
the general election laws of the State of Wyoming.” 1911 Wyo. Sess. Laws ch. 23, § 17. Since then,
primary elections have been treated as elections, in every sense of the word. The current Election Code
defines “[e]lection” as “all elections participated in by the voters of a city, town, county, district or the
state,” Wyo. Stat. Ann. § 22-1-102(a)(xiii), and specifies its provisions apply to “[g]eneral” and “[p]rimary”
elections. Wyo. Stat. Ann. § 22-2-101(a)(i-ii).
6
elections are “[a] deliberate act of choice” and therefore must be included in the voting
rights clauses. Both readings are too narrow. Definitions two, three, and four all describe
voting—choosing persons for office, or a public vote on a public question. A primary
election is the first step in “[t]he act or process of choosing a person . . . for office by vote.”
Certainly, choosing a candidate through the primary process is a public matter or question.
Accepting the same contemporaneous source both parties cite, a primary is properly treated
as an “election” within the voting-rights provisions of the Wyoming Constitution.
[¶17] When a state makes the primary part of the process of election choice, federal cases
have resolved the question consistently with this view. In United States v. Classic, 313
U.S. 299, 318, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368 (1941), the United States Supreme Court
held Louisiana’s primary was an “integral part of the election machinery” subject to the
federal constitution’s elections clause:
Where the state law has made the primary an integral part of
the procedure of choice, or where in fact the primary
effectively controls the choice, the right of the elector to have
his ballot counted at the primary, is likewise included in the
right protected by [United States Constitution,] Article I, § 2.
And this right of participation is protected just as is the right to
vote at the election, where the primary is by law made an
integral part of the election machinery, whether the voter
exercises his right in a party primary which invariably,
sometimes or never determines the ultimate choice of the
representative.
Id. at 318–19, 61 S.Ct. at 1039. In Smith v. Allwright, the United States Supreme Court
recognized Classic “erased” any “doubt as to whether or not [Federal] primaries were a
part of ‘elections’ subject to Federal” constitutional guarantees. Smith v. Allwright, 321
U.S. 649, 660, 64 S.Ct. 757, 763, 88 L.Ed. 987 (1944). The Court held, “It may now be
taken as a postulate that the right to vote in . . . a primary for the nomination of candidates
without discrimination by the State, like the right to vote in a general election, is a right
secured by the Constitution.” Id. at 661–62, 64 S.Ct. at 764 (declaring unconstitutional the
Texas Democratic party’s exclusion of black voters from its primaries).
[¶18] In Wyoming, a statutory process determines elections of state and federal offices
and that process includes the primary. See Wyo. Stat. Ann. §§ 22-1-101 through -102
(Wyoming Election Code) and Wyo. Stat. Ann. §§ 22-6-117, -119 (primary elections).
Primaries are therefore “elections” within the voting-rights provisions of the Wyoming
Constitution, and the right to vote in them is a fundamental right.
7
[¶19] This conclusion does not decide the claim or, by itself, fix the applicable
constitutional test. Before turning to the Freeze Period, we discuss how this Court reviews
a challenge to an election statute under article 1, section 27.
C. Analytical Framework
[¶20] Having concluded that a primary is an “election” under the Wyoming Constitution,
we turn to the constitutional test or level of scrutiny that governs a claim that a statute
violates a constitutional right. We have explained that “[i]f the right implicated is an
ordinary rather than a fundamental right, we apply a rational basis test” to determine
whether a challenged statute is constitutional. Johnson, ¶ 13, 582 P.3d at 390 (citation
omitted). “Under the rational basis test, we determine whether the statute[] [is] reasonably
related to a legitimate government interest.” Sheesley v. State, 2019 WY 32, ¶ 12, 437 P.3d
830, 836 (Wyo. 2019) (citation omitted). However, if the law affects a citizen’s
fundamental right, “we carefully assess the nature of the right considering the express
constitutional language from which it is derived to determine whether strict scrutiny or
some other test for constitutionality should apply.” Johnson, ¶ 14, 582 P.3d at 390.
[¶21] The Appellants assert that because the right to vote in a primary election is a
fundamental right, it necessarily invokes a strict scrutiny analysis. The Secretary, on the
other hand, contends the right to vote in a primary election is not the same as the right to
vote in a general election and that rational basis review applies. As explained above,
because our voting-rights precedent treats the franchise as fundamental while our
Constitution separately charges the legislature with securing the purity of elections, strict
scrutiny does not automatically apply. We must therefore determine the appropriate
constitutional test when a plaintiff claims an election law unduly burdens the right to vote.
1. Our Election Cases
[¶22] This Court has taken a textual approach to evaluating election law claims under the
Wyoming Constitution. In doing so, we have never applied strict scrutiny. In Brimmer v.
Thomson, we described the right to vote as fundamental and entitled to “the strict protection
of the courts,” and we construed the statute in favor of those seeking to take part in the
election. Brimmer, 521 P.2d at 578. Brimmer’s holding was a construction of the law in
favor of the voter. It was not an application of strict scrutiny. Id. In Shumway v. Worthey,
we considered whether the Wyoming Election Code prescribed an unconstitutional method
of deciding the outcome of a ballot proposition election. There, the appellants contended
strict scrutiny applied because the fundamental right to vote was at stake. Shumway v.
Worthey, 2001 WY 130, ¶ 9, 37 P.3d 361, 366 (Wyo. 2001). We “decline[d] to accept [that
request] as a part of our review standard . . . .” Id. In Shumway citing Murphy v. State
Canvassing Bd., we explained, “[Q]uite the opposite is true. . . . [A]nd we construe statutes
that confer or extend the elective franchise liberally (as opposed to those limiting the right
to vote in some way, which then invokes strict scrutiny).” Id. (citing Murphy v. State
8
Canvassing Bd., 12 P.3d 677, 680 (Wyo. 2000)). The parenthetical does not decide which
test is appropriate here. Its remark that some restrictions “invoke[] strict scrutiny” was
dictum, and the Court there construed the statute to protect the franchise rather than to
strike it down. Murphy did not adopt a test for constitutional challenges to election statutes.
It answered certified questions about whether a candidate defeated in one party’s primary,
but nominated by write-in in the other, could appear on the general election ballot. Murphy,
12 P.3d at 678. The Court applied the Brimmer “strict protection of the courts” rule—and
did not “interpret the election laws so as to disenfranchise the electors who chose to
exercise their votes for Murphy.” Id. at 682.
[¶23] As noted above, this Court has never applied strict scrutiny as the ground of decision
on voting rights. Brimmer recognized voting rights were entitled to “the strict protection
of the courts.” Shumway did not apply strict scrutiny. Murphy did not adopt a test for
constitutional challenges to election statutes. We will not read our precedent to require
strict scrutiny of a uniform deadline that does not shut qualified electors out or refuse to
count ballots already cast. The Freeze Period does neither. This reading fits Brimmer’s
“strict protection” and gives effect to both article 1, section 27 and article 6, section 13.
2. The Constitutional Text
[¶24] Two decisions after Murphy and Shumway support our reading of those cases.
Neither applied strict scrutiny. Cathcart, ¶¶ 47, 50, 88 P.3d at 1068 (holding law placing
term limits on state legislators violated Wyo. Const. art. 1, § 3, art. 3, §§ 2 and 52(g)) and
Maxfield v. State, 2013 WY 14, 294 P.3d 895 (Wyo. 2013) (holding law placing term limits
on state officers violated Wyo. Const. art. 1, § 3). In Cathcart and Maxfield, we
emphasized the plain language of the constitution, Cathcart, ¶ 48, 88 P.3d at 1068;
Maxfield, ¶ 34, 294 P.3d at 903, and asked whether the challenged term limit statute fell
within the framers’ intent. Cathcart, ¶ 49, 88 P.3d at 1068 (“The question is simply
whether it was the framers’ intent to allow the legislature to add qualifications to those
established in the constitution.”); Maxfield, ¶ 34, 294 P.3d at 903 (“The broad language
used by the framers does not support [appellants’] reading [of the constitution].”).
[¶25] The claims at issue here depend on the language of the voting-rights provisions of
the Wyoming Constitution, and we begin with those provisions. Wyo. Const. art. 1, § 27
provides that “[e]lections shall be open, free and equal, and no power, civil or military,
shall at any time interfere to prevent an untrammeled exercise of the right of suffrage.”
This provision protects voters’ interests, as explained above. Supra ¶¶ 10–11. Wyo. Const.
art. 6, § 13 requires the legislature to “pass laws to secure the purity of elections, and guard
against abuses of the elective franchise.” We measure the 96-day Freeze Period against
these provisions. Not every restriction on voting is constitutionally forbidden. Article 1,
section 27 protects the franchise. Article 6, section 13 directs the legislature to regulate
elections to keep them pure. We give effect to both. Election laws will necessarily impose
some burden upon voters. As the United States Supreme Court has said,
9
“[A]s a practical matter, there must be a substantial regulation
of elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic
processes.” Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274,
1279, 39 L.Ed.2d 714 (1974). To achieve these necessary
objectives, States have enacted comprehensive and sometimes
complex election codes. Each provision of these schemes,
whether it governs the registration and qualifications of voters,
the selection and eligibility of candidates, or the voting process
itself, inevitably affects—at least to some degree—the
individual’s right to vote and his right to associate with others
for political ends. Nevertheless, the state’s important
regulatory interests are generally sufficient to justify
reasonable, nondiscriminatory restrictions.
Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569–70, 75 L.Ed.2d 547
(1983); see also Conrad v. Uinta Cnty. Republican Party, 2023 WY 46, ¶ 26, 529 P.3d
482, 493 (Wyo. 2023) (“[I]t is also clear that States may, and inevitably must, enact
reasonable regulations of parties, elections, and ballots to reduce election-and campaign-
related disorder.” (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358,
117 S.Ct. 1364, 1369, 137 L.Ed.2d 589 (1997))).
[¶26] The district court recognized, as do we, that the application of strict scrutiny to every
election law would “paralyze the Legislature’s ability to perform its separate constitutional
duty to administer elections.” It explained, “Under the Wyoming [C]onstitution, it is
difficult, if not impossible to square [Appellants’] claim of strict scrutiny with the
constitutional requirement that ‘[t]he legislature shall pass laws to secure the purity of
elections, and guard against abuses of the elective franchise.’” (quoting Wyo. Const. art. 6,
§ 12). Additionally, “Article 1, § 27 requires that elections be ‘open, free and equal,’ which
suggests the State has an interest in ensuring elections are uniform, comprehensible, and
orderly. Strict scrutiny for every election regulation would render [this] provision[] a
nullity, or close to it.” We therefore do not apply strict scrutiny to every law that touches
the fundamental right to vote. We continue to recognize that the franchise is entitled to the
strict protection of the courts.
3. Weighing the Interests
[¶27] In Conrad, ¶ 24, 529 P.3d at 492, we recognized that election law challenges based
on the federal constitution are governed by Tenth Circuit precedent applying the Anderson-
Burdick test.
Under that test,
10
a court considering a challenge to a state election law
must weigh the character and magnitude of the asserted
injury to the rights protected by the First and Fourteenth
Amendments that the [political party] seeks to vindicate
against the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking
into consideration the extent to which those interests
make it necessary to burden the [political party’s] rights.
[Utah Republican Party v. ]Cox, 892 F.3d [1066,] 1077 [(10th
Cir. 2018)] (quoting Burdick [v. Takushi], 504 U.S. [428,] 434,
112 S.Ct. [2059,] 2063, [119 L.Ed.2d 245 (1992),] and
Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564,
1570, 75 L.Ed.2d 547 (1983)) (some quotation marks omitted).
If a regulation is found to impose “severe burdens” on a
political party’s associational rights, it must be “narrowly
tailored to serve a compelling state interest.” Clingman v.
Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 2035, 161 L.Ed.2d
920 (2005) (citing Timmons, 520 U.S. at 358, 117 S.Ct. 1364).
“However, when regulations impose lesser burdens, ‘a State’s
important regulatory interests will usually be enough to justify
reasonable, nondiscriminatory restrictions.’” Clingman, 544
U.S. at 586–87, 125 S.Ct. at 2035 (quoting Timmons, 520 U.S.
at 358, 117 S.Ct. 1364).
Conrad, ¶ 27, 529 P.3d at 493 (declining to apply the Anderson-Burdick test because the
issue of whether the election code violated the Republican Party’s federal constitutional
right to freedom of association was not properly before the Court). As we have said, our
cases require “strict protection” of the right to vote, Brimmer, 521 P.2d at 578, and they
recognize the State’s authority to regulate elections. Conrad, ¶ 26, 529 P.3d at 493. We
find that article 1, section 27’s guarantee of “open, free and equal” elections and article 6,
section 13’s command that the legislature safeguard election purity require a unified
constitutional balancing approach. In conducting that analysis, we use the Anderson-
Burdick sliding scale as a tool to inform our assessment; we do not adopt it as controlling
doctrine.
[¶28] Under Anderson-Burdick, scrutiny varies with the burden the statute places on the
rights secured by the constitution—the “character and magnitude of the asserted” injury.
See Anderson, 460 U.S. at 789, 103 S.Ct. at 1570; Burdick v. Takushi, 504 U.S. 428, 434,
112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992). At one end, regulations that impose severe
burdens on voting rights must be narrowly tailored to advance a compelling state interest.
At the other end, reasonable and nondiscriminatory restrictions are upheld if supported by
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the state’s important regulatory interests. See Burdick, 504 U.S. at 434–35, 112 S.Ct. at
2063–64. Courts applying the test must weigh all relevant factors, including the nature of
the burden, the legitimacy and strength of the state’s interests, and whether the burden is
necessary to serve those interests. See Burdick, 504 U.S. at 434–35, 112 S.Ct. at 2063–64;
Anderson, 460 U.S. at 788–89, 103 S.Ct. at 1569–70.
[¶29] The Wyoming constitutional provisions at issue require this Court to examine and
weigh dual constitutional commands, rights, and interests—the fundamental right to vote
in primary elections, and the constitutional directive that the Legislature “pass laws to
secure the purity of elections, and guard against abuses of the elective franchise.” We first
consider the magnitude of the asserted injury to the rights protected by the Wyoming
Constitution that the Appellants seek to vindicate. We then evaluate the precise interests
the State offers to justify the burden and then examine the legitimacy and strength of those
interests and the extent to which they make the burden necessary. The heavier the burden
on the constitutional right, the more tailored the statute must be.
D. Application to the 96-Day Freeze Period
[¶30] Appellants argue the Freeze Period violates the guarantees of “open, free and equal”
elections and of “untrammeled exercise of the right of suffrage.” Wyo. Const. art. 1, § 27.
Appellants contend the 96-day Freeze Period infringes upon electors’ right to vote because
it limits their ability to freely change political parties without restriction.
[¶31] The burden the 96-day Freeze Period places on the right to vote in a primary election
is slight. Every elector can declare or change party affiliation and vote in primary elections.
The freeze does not lock voters into a party. It sets a deadline—affiliation must be declared
or changed 96 days before the primary. Electors have fair notice of that deadline, and the
statutes provide clear rules for enforcement. Compare Rosario v. Rockefeller, 410 U.S.
752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973) (New York requirement that voters enroll in a
party at least 30 days prior to the preceding general election in order to vote in the
subsequent primary was reasonable and not an absolute bar to changing party affiliation)
with Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973) (striking down
Illinois rule prohibiting a person from voting in a primary if they had voted in another
party’s primary within the preceding 23 calendar months because the rule locked voters
into a preexisting party affiliation from one primary to the next, with the only escape being
to forego voting in any primary for nearly two years). The Freeze Period is a deadline with
notice, not a lock on party affiliation.
[¶32] The State’s justification for the 96-day Freeze Period is to secure “the purity of
elections, and guard against abuses of the elective franchise,” as the constitution requires,
by preventing party raiding. Party raiding occurs when voters of one party list themselves
as members of another party to influence or decide the results of that party’s primary. See
Rosario, 410 U.S. 752, 93 S.Ct. 1245; Kusper, 414 U.S. 51, 94 S.Ct. 303. By requiring
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party registration before candidates file, the 96-day Freeze Period limits last-minute
switching for the purpose of manipulating a party’s nominating process once the field of
candidates is known. The legislature tied the deadline to the first day candidates may file
because that is when voters first know the field. Wyo. Stat. Ann. § 22-5-209 sets that day
96 days before the primary. Once the candidates’ names are public, the incentive to switch
parties to influence someone else’s primary is at its highest. Requiring affiliation before
that date cuts off that last-minute switch. Until then, an elector may declare or change
party affiliation freely. Appellants do not show that the constitution required a shorter
cutoff or some other means of deterring raiding. The risk the legislature addressed is
affiliation after candidates are known. The line it drew—the first day of candidate filing
under § 22-5-209—is tied to that risk. A uniform deadline also serves article 1, section 27.
It applies the same rule to every elector on the same calendar. Where the burden is slight
and the rule is uniform, article 6, section 13 leaves that line drawing to the legislature. The
Freeze Period deters affiliation changes that are not motivated by genuine attachment to
the party and the state’s interest in doing so is legitimate and reasonable. See, e.g., Moody
v. N.Y. State Bd. of Elections, 86 N.Y.S.3d 25 (App. Div. 2018) (holding state’s 25-day
primary enrollment deadline “is rational