Wyoming GOP drops lawsuit against Laramie County clerk, but blame game continues

The Wyoming Republican Party has settled its civil lawsuit against Laramie County Clerk Debra Lee over the testing of election equipment performed last year. 

The legal dispute began last August when the state GOP sued Lee for improperly testing ballot tabulators. The matter appeared to resolve itself fairly quickly when the parties reached an agreement and settled less than two weeks later. 

The issue, however, rekindled in October when the state party accused Lee of not fulfilling the obligations of that agreement. A Laramie County District Court judge was set to determine whether the clerk was in compliance when the state party chose to dismiss the complaint on May 23. 

Though the legal dispute may be quashed, both parties continue to point fingers. 

The state party maintains Lee “refused to provide the evidence of testing as directed by the court,” while the clerk contends that the state GOP’s “failure to meaningfully respond to our earlier offers needlessly dragged the case on for many months and continued to rack up thousands in legal bills.”

How we got here

Wyoming law requires county clerks to use test ballots to confirm the accuracy of electronic tabulating equipment at least two weeks before an election. 

Part of that involves the clerk assigning a different number of votes to each candidate for an office. The idea is to produce distinct results in order to confirm the accuracy of the machines.

“If candidates have the same number of votes, you can’t definitively say that the votes intended for that person were counted that way,” Malcolm Ervin, president of the County Clerks’ Association, previously told WyoFile.

But ahead of the 2024 primary election, several counties’ tests, including Laramie County, instead used the identical number of votes. 

As such, Secretary of State Chuck Gray sent an Aug. 12 letter asking local election officials to conduct retests. Several did so, including Laramie County on Aug. 13.

But by then, the lawsuit had already been filed and the state GOP had remaining concerns about the accuracy of the vote tabulators. That’s when Laramie County and the state GOP struck a compromise.

The day before the Aug. 20 election, they entered a consent decree — a court-approved settlement between parties that outlines the terms of the resolution. 

Part of that agreement included additional testing of Laramie County’s tabulation machines — both before and after the election — that extended beyond the statutory requirements. 

Test receipts

The consent decree also required Lee to provide certain documentation to the state GOP — which is where much of the legal dispute rested until last week. 

The agreement required the clerk to provide “a written statement describing any non-public testing conducted by the defendant of the DS200 tabulation machines, describing the date of such test, the parties conducting the test, and the nature of the test. Defendant shall, if available, provide the test deck summary sheets and the corresponding post-test receipts from the tabulation machines.”

Lee maintains that she met those requirements. 

After entering the consent decree, Lee learned that there was no easily obtainable method of printing duplicate receipts from the tabulator machines, according to a prehearing memo prepared by Lee’s attorney and former Republican state lawmaker Tim Stubson.

The receipts in her possession “were on lengthy strands of thermal paper,” according to the memo, which raised “concerns that trying to copy those receipts could damage them and compromise the integrity of the official election records that must be retained and protected” by the clerk’s office. 

After Lee determined that a duplicate copy was not readily available, she notified the plaintiffs via her attorney and provided a statement to meet the requirements of the consent decree. 

“It is important to keep in mind that Clerk Lee made multiple offers to the plaintiffs to allow them to inspect the test receipts and if desired to even take pictures of the receipts for their records,” Stubson wrote. 

By the time the plaintiffs responded several weeks later, and “demanded that they be allowed to review the receipts,” they had been sealed, as is required by state law, and the tabulator machines had been cleared and readied for the general election. 

“The plain language of the consent decree contemplated that a statement could be provided in lieu of test receipts if they proved to be unavailable,” the memo states. “That is exactly what happened here.”

The plaintiffs disagree. More specifically, the state GOP argued in its own filings that Lee failed to provide the specific information required by the consent decree and, as such, was in contempt of court. 

The test receipts were sought “because there were genuine concerns as to whether or not [the] defendant had ever tested the tabulation machines, publicly or privately,” Caleb Wilkins, the state GOP’s attorney, argued in a pretrial memo. 

“In the absence of such testing, there were, and are, genuine questions as to whether the tabulation machines would correctly tabulate votes cast in the election.” 

The state GOP also alleged that Lee and her election manager confirmed that all “deliverables continue to exist in a format that can be copied and provided to the plaintiffs as required by the consent decree.”

Settlement

“When the Wyoming GOP offered to settle the complaint days before the hearing, we reluctantly agreed in order to put an end to this matter and not incur additional cost to taxpayers,” Lee wrote in a statement to WyoFile. 

The litigation cost Laramie County roughly $50,000 “and hundreds of hours of the Laramie County Clerk staff,” Lee wrote. 

“Under the guise of ‘integrity,’ the Wyoming GOP’s barrage of demands during a critical period in electoral operations (during the election) threatened to jeopardize the successful administration of Laramie County’s Primary and General elections,” she wrote. 

Meanwhile, the party maintains the clerk was at fault. 

“Why the Laramie County clerk initially chose not to follow Wyoming election statutes, why she ignored the requests of the Laramie County Republican Party to properly test the machines resulting in forcing the hand of the Wyoming Republican Party to file suit, and why she chose to violate the court ordered consent decree resulting from that suit we may never know for certain,” Wyoming GOP Chairman Bryan Miller said Tuesday in a statement to WyoFile.  

“But be it known to all involved in the state’s election process that the Wyoming Republican Party stands firm in protecting the integrity of Wyoming’s elections.”

The case’s dismissal last week was “with prejudice,” meaning it’s a final judgment and the case cannot be brought back to court.