CHEYENNE – After a heated 2016 election season, Wyoming lawmakers are looking to implement several new regulations relating to political campaigns during elections.
During its meetings this week in Lander, the Wyoming Legislature Joint Corporations, Elections and Political Subdivisions Committee advanced several draft bills for further consideration relating to election issues. And some of those pieces of proposed legislation pertain to a slew of controversial incidents in Wyoming in 2016.
Just weeks before the 2016 general election, the Wyoming Republican Party filed a complaint with the secretary of state’s office alleging left-wing political groups based in Laramie engaged in shadowy tactics stemming from a series of mailers critical of Republican candidates.
The mailers described in the GOP complaint alleged that the source of funding, a group known as Forward Wyoming Advocacy, was connected to another organization, ELLA WY, which was hired by several Democratic candidates for consulting services. While any firm connection between candidates, their campaigns and Forward Wyoming Advocacy is yet unclear, Republicans alleged it constituted a violation of Wyoming election law.
But after the complaint was filed, there was apparent confusion on how to proceed investigating the complaint. The secretary of state forwarded the complaint to the attorney general, who sent it on to the Albany County Attorney’s office. Albany County Attorney Peggy Trent questioned the protocol, and the case bounced back to the attorney general.
“That case was in limbo,” Secretary of State Ed Murray said Thursday. “The disposition of it is yet to be determined. But far too long went by with confusion and without a streamlined pathway to prosecution.”
That case was the impetus for a draft bill that would provide a clearer pathway of investigation and prosecution that Murray said was “previously discombobulated.”
“There were a number of inconsistencies (in the current law),” he said. “My office collaborated very closely with the attorney general’s office and with the Legislature and (Legislative Service Office) to streamline and bring some clarity to the violation and enforcement provisions.”
The bill clarifies that complaints against a statewide legislative candidate, committee or organization should be filed with the secretary of state, and if found to have merit, would be referred to the attorney general for potential prosecution. Complaints against municipal or county candidates would be referred to the county clerk in the appropriate jurisdiction, and then sent to the district or county attorney for prosecution.
Sen. Tara Nethercott, R-Cheyenne, one of the committee members, said her 2016 campaign was affected by the mailers in the stymied case. She said the lack of progress in pursuing the complaint is unacceptable.
“I’m not aware of a campaign in southeast Wyoming that wasn’t affected by mailers that put out this information,” she said.
Sourcing the money
Controversy surrounding mailers critical of candidates wasn’t limited to the left, however.
Mailers funded by the Wyoming Republican Party in 2016 critical of Democratic candidates were not required to be filed as independent expenditures, thereby not required to conspicuously identify the source of the communication and the cost with the Secretary of State. Under current law, political advertising that doesn’t explicitly advocate voting for or against a candidate isn’t considered an independent expenditure.
The most recent example, said Rep. Dan Zwonitzer, R-Cheyenne, was a mailer that included a depiction of former state representative and minority leader Mary Throne, a Cheyenne Democrat, hugging former Democratic presidential candidate Hillary Clinton in a digitally altered picture. The original picture was of Throne hugging former Rep. Rosie Burger, R-Big Horn.
“Technically, that was not an independent expenditure, because it didn’t say ‘Don’t vote for Mary Throne,’ it just said, ‘Mary Throne loves Hillary Clinton,’” Zwonitzer said.
Another provision in a draft bill advanced by the committee is intended to address some of those issues, Zwonitzer said. The proposed legislation would make it unlawful for candidates or their campaigns, political action committees and other organizations to pay for advertising or campaign literature without making clear how it was paid for.
“Currently, we don’t have any regulations on what’s called electioneering communication, but we’re going to include that in the law,” Zwonitzer said. “Anything where you’re spending a lot of money but you’re not expressly stating whether you’re for or against a candidate, but only implying, would be included.”
Penalties too stiff?
Rep. James Byrd, D-Cheyenne, another committee member, said he doesn’t have a problem with laws that would hold “dark money” accountable in campaigns on both sides of the aisle. However, he does take issue with another proposed bill the committee advanced for further consideration when it meets again in coming weeks.
The draft bill Byrd is concerned about has to do with penalties for those who fraudulently register or vote when they know it’s illegal. First offenses include fines and possible jail time. A second offense would be considered a felony. For an egregious offense where a prosecutor could prove intent, a person could get a felony and possible jail time for the first offense.
Byrd said he’s “adamantly against the bill,” and finds it “ill-conceived” because of the penalties.
“Our jails are full of people who are nonviolent felons,” he said. “Now you’re going to make someone a felon for a voting violation. There’s no logic there.”
Based on several complaints, Zwonitzer said the committee wanted to address instances such as people voting in multiple precincts, which he called “precinct jumping.”
“It’s tough to investigate if you own more than one property, then switch registration back and forth and it’s not a clear violation of the law,” he said.
Byrd said he thinks there are other ways to address those sorts of problems, such as using technology that tracks whether people have voted in other precincts across the state and purges people from voting rolls for violations. Additionally, he said the people who would suffer the worst penalties would be the poor without resources for crafty legal defense.
“Say you’re from Maine, where you can vote as a felon,” Byrd said in a hypothetical scenario. “You move to Wyoming, and you register to vote, and now you’ve committed another felony. The guy’s defense is, ‘I didn’t know – I voted in Maine,’ but he doesn’t have the financial resources to defend himself. Then the guy who has three houses in different counties just throws cash at it. It will just be a speed bump between coffee and lunch.
“I understand we need to do something for people who intend to defraud the voting system willfully, but this is not it.”
Nethercott, on the other hand, supports the proposed legislation because, she said, there needs to be strong deterrence for those who would fraudulently vote.
“I think the integrity of our voting system in this state and country is of paramount importance, and any threat to that legitimacy is a true threat to democracy,” she said.
The provisions of each bill are up for debate at the committee’s next meeting scheduled for Nov. 8, almost exactly a year before the 2018 election.