Despite complaints that he did not meet constitutional residency requirements, Rep. Clark Stith (R) took his seat in the House on Monday as representatives began to amend election laws to tighten rules.
Local Democrats complained last summer, to no avail, that he did not meet the requirements of the Wyoming Constitution to represent House District 48. Now, the situation has prompted a legislative committee to draft changes to state law.
Stith entered elected office through a weakness in election law, House Corporations, Elections and Political Subdivisions Committee Chairman Dan Zwonitzer (R-Cheyenne) said Monday. Zwonitzer now hopes to eliminate that weakness, he said.
Stith began his first legislative session Monday. Neither a county attorney nor the Wyoming Attorney General acted on a complaint filed by Democrats in Rock Springs, where HD-48 is located. Both public attorneys said the ultimate authority on an appointee’s qualifications to serve in the House of Representatives lies with members of the chamber itself.
No complaints were brought to the House, according to Speaker Steve Harshman (R-Casper), so Stith took his seat with his appointment unchallenged.
“The Wyoming Constitution requires candidates for office to commit to their district by actually residing there,” the Democrats’ complaint says, “well in advance of election to office. The language is not ambiguous.”
But the Constitution refers to an election, requiring 12 months prior residency in the district to qualify. It does not describe an appointment, Stith said.
Stith was appointed to replace former Rep. Mark Baker, who moved out of HD-48. Stith changed the address on his voter registration to his fiancee’s home, which sits in HD-48, just seven days before Baker’s official resignation, and after Baker told the Casper Star-Tribune he intended to give up his seat.
Stith had previously listed his residence as a home that he owns within HD-17, according to the Sweetwater County assessor’s website. He represented Ward 1 — not in HD 48 — on the Rock Springs City Council until two days after his address switch. Stith resigned from that post at a May 10 council meeting.
Stith told the council he spent the majority of time at his fiancee’s home and did not feel he should represent a ward in which he did not primarily reside, according to a local news report.
Five days later, Baker officially resigned from the HD-48 seat. Twenty days after that, Stith was appointed to Baker’s old seat by the Sweetwater County Commissioners. Stith was one of three applicants whose names were submitted to the commissioners by the local Republican party.
The facts about his change of residency, as laid out in the complaint against him, are “indisputable,” Stith told WyoFile. He has been living with his fiance since their engagement, he said.
“I thought about the residency requirement, and I thought about the constitution, and the plain reading of it is elections,” not appointments, Stith said.
Stith was aware of the complaints against him, and said that the only review of it could come from within the House of Representatives. The complainers, he said, didn’t have any other options. “They don’t get to run to district court about this,” he said.
Stith defended his ability to serve the residents of his district despite the recent residency change. His previous address is near the border of HD-48, and the city of Rock Springs has been oddly divided by various redistricting processes over the years, he said.
“I have the interests of the residents of Rock Springs and House District 48 at heart,” Stith wrote in an email. “Prior to 2017, I had previously lived for 5 years in what was then House District 48 (the boundaries have changed twice since), and ran for that seat in 2002.”
Stith provided a letter from Ryan Mulholland, who was chairman of the Wyoming Republican Party at the time of Stith’s appointment, that supported his eligibility. In the letter, Mulholland wrote that he was responding to concerns raised by the Sweetwater County Clerk. Mulholland’s letter was dated June 2, before three HD-48 voters filed complaints. The first of those complaints was dated June 12.
Complaints aren’t investigated
The lead signature on the complaints was Joe Barbuto, the current chairman of the Wyoming Democratic Party. Two other HD-48 voters, including Sweetwater Democratic Party Chairman Richard Pieper, joined him.
Despite those titles, the complaint was not rooted in party politics, Barbuto said. Even if Stith hadn’t received the seat, the commission would have appointed a different Republican, conferring the same advantages of incumbency in the November 2018 election, Barbuto said.
“This is about observing or respecting our state law and Constitution, and not allowing a really awful precedent to be set,” Barbuto said.
Barbuto’s first complaint went to Sweetwater County Attorney Daniel Erramouspe. The attorney’s response was that his office was not able to handle the complaint, Barbuto said.
On June 19, Stith was sworn into the House seat, at a ceremony where Harshman was present, according to an LSO news release. On July 28, Barbuto sent his complaint to the Attorney General. He copied Harshman and Minority Floor Leader Cathy Connolly (D-Laramie) on the correspondence, according to a copy Barbuto provided WyoFile.
Nearly four months later, on Nov. 14, the AG’s office responded. “The Wyoming Legislature is the decision-maker as to the qualifications of a prospective member of that body,” the letter, signed by AG Peter Michael, said. “This office lacks authority to take action on your complaint.”
Harshman was aware of the complaints, he told WyoFile, which he said occurred at the local level. No member had brought the issue to him and he had not acted on it, he said.
“I have not heard one iota” from members, he said. Harshman agreed with the Attorney General that it is the responsibility of the Legislature to determine a representative’s eligibility. “The Legislature does seat its members,” he said.
Closing the barn door…
House Bill 40 would change state statute so that an appointee for a seat that is vacated mid-term would be subject to the same qualifications as an election candidate. The change is one of many contained in the bill. Zwonitzer alluded to the complaints against Stith’s appointment when explaining the bill to the House on Monday.
“We had a complaint this year on someone being appointed who didn’t fit the qualifications of the office,” Zwonitzer said, “we’re cleaning that up.”
Stith was among the vast majority of House members who voted in favor of introducing HB-40.
Though his complaints weren’t investigated by any official body, Barbuto told WyoFile the draft legislation justified his objections.
“If they’re willing to go to the lengths of changing our state law to address this, then they understand that Clark Stith does not meet the qualifications to serve in that office,” Barbuto said.
Cleaning up the language would help ensure that the spirit of the state’s Constitution is captured by statute, Zwonitzer said.
“It’s a conflict we have a lot between the letter of the law and the spirit of the law,” the Corporations, Elections, and Political Subdvisions Committee chairman said. “You can make an argument that appointments are different than running for office and meeting the qualifications.
“I would assume the founders probably believe that to be appointed you should fit the elected qualifications,” he said. “I can’t prove that.”
It is not clear whether the bill’s passage would affect Stith’s appointment, Zwonitzer said. The House would still have to take action to unseat him. The bill’s purpose is not to deal with Stith’s appointment specifically, but to ensure that the law will be tighter in the future, he said.
“We’re going to react and prevent it for the future,” Zwonitzer said, “but at this point he’s been sworn in, we’ve started the Legislature and he’s representing the people of Sweetwater County.”
Seeking public office
Stith has sought a seat in the statehouse, or a statewide office, for more than a decade.
He has run for the Legislature and lost three times. In 2000 he sought election to the Senate in SD-12 and lost by about 600 votes, according to the Wyoming Secretary of State website. In 2002 he ran for the HD-48 seat, and lost by 293 votes. In 2008, he ran for HD-17 and lost by 224 votes.
Stith ran for Secretary of State in 2014 and lost a four-way primary election with 9 percent of the vote, according to the elections website Ballotpedia.
In 2012, Stith was one of three candidates recommended by the Wyoming Republican Party to be appointed as state treasurer. Gov. Matt Mead appointed Mark Gordon, the current treasurer, instead.
By November, Stith said, he’ll have met the residency requirement to run for election in HD-48. “I do intend to be a candidate and I’ll qualify,” he said. He will run as an incumbent, often considered an advantage on the campaign trail.
In Republican Wyoming the residency requirements don’t apply to elections either. Here is a footnote from my “never-forthcoming book” about Wyoming in Mid-Century:
From 1993 until 2000, Dick Cheney was CEO of Halliburton oil service company in Texas and lived in Dallas. But on July 21, 2000, — four days before becoming George W. Bush’s running mate — he flew to Jackson, Wyo., and changed his voter registration to Teton County, Wyoming. He did this because the 12th Amendment to the U.S. Constitution would have prohibited the Texas electoral college electors from voting for Texas residents for both president and vice-president. Lawsuits in Texas and Florida challenging the sudden change in voter registration were rejected by the federal courts on grounds, among others, that the challengers had no “standing” to bring their suit. This avoidance of the merits brings to mind the Wyoming Supreme Court decision in the 1972 case Schieck v. Hathaway, 493 P.2d 759, where some Democrats challenged the eligibility of Dean Prosser to be a member of the Wyoming House of Representatives. At the time of the 1970 election, Prosser owned ranchland in both Wyoming and Colorado but resided in a residence located just south of the Wyoming state line. There was no question but that Prosser would have been fully qualified to be a member of the Colorado legislature if he had run in that state. But the Wyoming Supreme Court essentially refused to address that issue, ruling that the Legislature had determined that Prosser was a Wyoming resident and that was the end of the matter.