Jonathan Lange: Wyomingites Should Question AG’s Opinion On Secrecy Of Election Records

Transparency is a timeless principle of election integrity. According to the National Democratic Institute, “A transparent election process is one in which each step is open to scrutiny by stakeholders (political parties, election observers and voters alike).”

So vital is transparency to citizen control of government, that the people have included it in the Wyoming Constitution’s Declaration of Rights: “Elections shall be open, free and fair,” (Art. 1, Sec. 27).

Despite their constitutional guarantees, the rights of Wyoming citizens to scrutinize public election records are being denied. In 2022, then-Secretary of State Ed Buchanan asked the attorney general for an opinion on whether paper ballots are covered by Wyoming’s Public Records Act.

Attorney General Bridget Hill’s 16-page response claimed that the Constitution prohibits citizens from inspecting ballots even though the Public Records Act doesn’t explicitly say so. Now, a penetrating analysis of her opinion has been sent to every county clerk and every lawmaker in the state.

Evanston resident, Richard Ong, served as an attorney both for the Federal Government and in private practice before retiring to Evanston. Although he is not a member of the Wyoming Bar, he knows a thing or two about the law. His critique is devastating.

The law at issue, Wyoming’s Public Records Act (W.S. 16-4-201-205), designates, “any written communication or other information, whether in paper, electronic, or other physical form, received by a governmental entity in furtherance of the transaction of public business,“ as “public records” which “shall be open for inspection by any person.”

Hill’s memo admits up front that election records fit the definition of “public records.” She further admits that there is nothing in the Wyoming Statutes that explicitly exempts them from disclosure.

Still, she claims: “Unlike many other public records, voting records in the form of election ballots have special protections under the Wyoming Constitution,” (Opinion, 7). She also states that they “cannot, therefore, be disclosed under the [Public Records] Act,” (Opinion, 10).

Hill’s entire opinion stands or falls on whether she is reading Article 6, Section 11 correctly. More specifically, it hinges on the meaning of its final clause “…the secrecy of the ballot shall be made compulsory.”

Hill begins by quoting the Constitution verbatim, but immediately pivots to a paraphrase of the critical clause.

She simply asserts that Wyoming’s Constitution “makes ‘the secrecy of the ballot. . . compulsory,’” (Opinion, 6, emphasis mine). Her opinion neither calls attention to the missing words, nor explains why she changed the wording from “shall be made” to “makes.”

The Constitution, as written, assigns to the elected legislature the job of making ballot secrecy compulsory. Ong shows that Wyoming’s 1890 legislature understood this well and that it “enacted several statutes that unmistakably dealt with making secrecy compulsory.”

Ong also points out that two of the delegates to the constitutional convention, Asbury B. Conaway and Charles N. Potter, later served as justices on the Wyoming Supreme Court.

In two separate cases before the Court, they underscored that “the compulsory secrecy of the ballot” is not constitutionally defined but assigned to the Wyoming legislature to enact.

In fact, the proceedings of the 1889 constitutional convention show that a proposal to make ballot secrecy self-executing was explicitly rejected in favor of delegating the power to the legislature.

Anyone interested in upholding Wyoming’s transparency laws should read both Hill’s opinion and Ong’s analysis. They speak for themselves.

Ask your county clerk, your representative and your senator which one they think is more persuasive, and why.

It is a serious matter to deny citizens their right to inspect public records—especially election records. Erroneous arguments should not overturn legislative acts.

It is true that the attorney general’s opinion holds no statutory or constitutional authority over the secretary of state or the county clerks.

Nevertheless, the opinions of an attorney general carry great weight and inevitably influence election officials. For that reason, this opinion should either be revised or withdrawn.

Wyomingites have a constitutional right to open elections. The National Democratic Institute explains why: “Providing transparency in an election helps establish trust and public confidence in the process, as voters have a means to verify the results are an accurate reflection of the will of the people.”

Election officials should be very reluctant to remove transparency and only do so if the law is absolutely clear.

Jonathan Lange is a Lutheran Church—Missouri Synod pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. Follow his blog at https://jonathanlange.substack.com/. Email: JLange64@protonmail.com.