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Gray pursues voter residency restrictions beyond what lawmakers seek

Working outside the legislative process, the secretary of state proposed a rules change to add requirements to the voter registration process.

Chuck Gray, Secretary of State (Dan Cepeda, Oil City News)

by Maggie Mullen, WyoFile

If you have a valid Wyoming driver’s license, you’ve got the one piece of documentation currently required by state law to register to vote. If not, a few more things are required of you. 

Either way, that’s insufficient, according to both lawmakers and Secretary of State Chuck Gray, who have different ideas for tightening the residency requirement for registering to vote in Wyoming. 

Both efforts are intended to ensure Wyoming elections are decided by Wyoming residents, supporters say, but the two go about that in different ways. 

Lawmakers are pursuing legislation that would add language to the oath residents take when registering to vote attesting that they’ve lived in the state for at least 30 days. Gray supports the bill, and has proposed a new rule via an executive rulemaking process that would take things a step further by requiring Wyomingites to provide proof of residency to qualify to vote. 

“Our rulemaking ensures that only Wyomingites are able to vote and NOT non-residents and illegal aliens,” Gray wrote in a text to WyoFile in response to an email. 

Both efforts are fixing a problem Wyoming doesn’t have, critics say — some of whom also worry that Gray’s proposed rules may usurp legislative authority. The secretary of state disagrees.

“These newfound attacks on longstanding duties of Constitutional officers are simply another false attack from the radical Left to try to prevent us from ever being able to achieve anything conservative, like election integrity measures,” Gray wrote.

The voter registration changes proposed by Gray, as well as lawmakers, in recent years are indicative of a push to raise the barrier to vote in the name of election integrity and security. Yet, evidence suggests Wyoming’s election process is secure. There have been just three instances of voter fraud in Wyoming in the past 23 years, according to a database created by The Heritage Foundation, a conservative think tank.  

‘Bona fide resident’

In May, Gray pitched the Joint Corporations, Elections and Political Subdivisions Committee on the idea of creating a 30-day residency requirement for voters.

State statute requires a person registering to vote in Wyoming to be a “bona fide resident” of the state. However, there’s nothing in law or the secretary of state’s election rules that defines “bona fide resident” or a means for county clerks to confirm the eligibility of applicants in the voter registration process. 

Creating a 30-day residency requirement would provide clarity “as to who can vote and in what situations they can register,” Gray told lawmakers at the time. 

The committee largely abided and ultimately voted in October to sponsor a bill that would add a line to the sworn oath residents make when registering to vote. 

“I am a bona fide resident of the state of Wyoming and this county; I have resided in the state for not less than thirty (30) days before the date of the election,” the proposed line reads.  

The committee’s work pleased Gray, but only so much. 

“While I would like the durational residency requirement bill to be even stronger, it is a good step in the right direction,” Gray wrote in a Nov. 6 press release

On Dec. 7, Gray announced he’d be taking things a step further and proposed a rules change that would require voters to provide proof of their residency. 

“There is no mechanism, absent a challenge, for a person registering to vote to provide proof of identity for purposes of proving he or she is a bona fide resident of Wyoming, as required by Wyoming law,” Gray argued in a statement attached to the proposed rules. 

“As such, the proposed rules amend Chapter 2 to provide a uniform process whereby persons registering to vote may present proof of identification for purposes of proving identity and residency.” 

The rulemaking process is a routine part of state government and is necessary for many reasons, according to Wyoming’s Administrative Rule Review Handbook, such as issues that are either too complex and broad or too narrow and obscure to lend itself to regulation by statute, or in areas of law that need to be consistently updated to comply with federal regulations. 

“The Wyoming State Legislature does have the power to delegate its inherent authority to make rules and regulations to an administrative agency and uses that power routinely,” the handbook states. 

There are several places in the Wyoming Election Code where the Legislature has charged the secretary of state with rulemaking, including specifying what documents count as “adequate proof of the identity of a voter” for purposes of voter registration. 

In Gray’s view, that also gives him the authority to require voters to provide proof of residency. 

More specifically, Gray proposes that a qualifying ID card could count as proof of both identity and residency if it shows the voter’s current address. If that ID shows another address or none at all, additional documentation that indicates a voter’s current address will be required. That could include a utility bill, bank statement or paycheck.

Volunteer election officials help voters at the Natrona County Fairgrounds during the Nov. 8, 2022 general election. (Dustin Bleizeffer/WyoFile)

‘ENTIRELY different’

But not everyone is convinced the secretary of state’s office has the power to independently make the proposed change.

“I believe that the rule changes that Secretary of State Gray is proposing go beyond what is allowed through the rulemaking process,” Jenn Lowe told WyoFile. 

Lowe is executive director of the Equality State Policy Center, a nonpartisan organization dedicated to state-government transparency and accountability. 

“This is making substantive changes to legislation,” Lowe said. 

The Secretary of State’s Office chose not to schedule a public hearing for the changes, but one must be held if 25 people, a government subdivision or an association with no less than 25 members make such a request. Lowe said her organization is planning to do just that. 

“I often hear people complaining about executive administrators … creating law through executive power,” Lowe said. “That’s essentially what’s happening here — a head of an executive office is changing the rules to those that he sees as appropriate.”

Rep. Mike Yin (D-Jackson) shares that concern. 

“Frankly, I think this [proposed rules change] kind of mirrors the administrative state that we are often critical about in the federal government, where they implement policy without legislation,” Yin said. 

Still, Yin commends the secretary for publicizing the public comment period. 

“I think it’s good to promote transparency around rules,” Yin said. “However, the Secretary should be honest about what he is trying to do. He’s trying to restrict the freedom to vote even further without going through the legislative process because he did not get what he wanted through the Legislature.” 

Gray stands by his proposal. 

While both the committee bill and the rules change proposal promote election integrity, the two are not the same, he maintains. 

“Our proposed rulemaking is ENTIRELY different from the durational residency requirement we proposed at the beginning of the interim,” Gray wrote to WyoFile in a text message. “Our rulemaking has to do with the documents provided to register to vote, which has always been handled via the Secretary of State’s rulemaking authority.” 

Other parties 

Gray also wrote that the proposal was partly initiated by the county clerks, who brought concerns to the Corporations Committee earlier this year. 

“We do appreciate that the Secretary of State’s office reached out to us and worked with us. I mean, we had a series of meetings about these [rules],” Platte County Clerk Malcolm Ervin told WyoFile. Ervin also serves as president of the County Clerks’ Association of Wyoming. 

“Are we satisfied with the proposed rule? Not quite, but we really appreciate them working alongside us and taking what we had to say to heart,” Ervin said. 

The clerks’ association hasn’t formally weighed in on the proposed rule change but Ervin said the group is now drafting comments to be submitted. 

That said, the clerks do not believe there’s been a problem in Wyoming with out-of-state residents misrepresenting themselves in order to interfere in elections, Ervin said. Rather, their concerns have to do with what is and is not in statute. 

In August, the association told lawmakers in a memo that county clerks get the brunt of accusations when citizens believe other voters are misrepresenting themselves as Wyoming residents. 

“CCAW’s concern is that certain individuals believe the clerk and election staff are responsible for requiring proof of residence at the time of registration,” the memo states. “However, this assumption is not supported by the Election Code.”

Furthermore, being the target of concerns and accusations has heightened clerks’ “sensitivity to the vague definition of ‘bona fide resident,’ which is present in Wyoming, and many other states’, Election Codes,” the memo adds.

A chart detailing the rulemaking process for Wyoming. (Courtesy/Secretary of State’s office)

What’s next

The last time a secretary of state revised Wyoming’s election procedure rules was 2022, when Gray’s predecessor, Secretary Ed Buchanan, was still in office.  

Those changes were made to “accurately reflect statutory changes made in 2021” with the passage of Wyoming’s voter ID bill, according to Buchanan’s Statement of Reasons. No legislation has preceded Gray’s proposed rules, and that’s a problem for Yin. 

“Any rulemaking authority has to come from delegated legislative authority. So if there is no statute that authorizes the rules that they’re implementing, then it’s not authorized rulemaking,” Yin said.

When it came to the residency requirement bill, Yin was one of two members of the Corporations Committee to vote against it. Co-Chairman Cale Case (R-Lander) was the other. Case doesn’t support the proposed rule change either. 

“It’s a very top-down, prescriptive effort to deal with a problem that we do not have,” he said. In fact, Case said he sees it doing more harm than good. 

“I’m worried that these proposed rules are gonna cause people to be disenfranchised. And it’s just because of the bureaucracy,” Case said. “If it’s too hard to vote, and you have to explain everything, it’s embarrassing, especially for some of my constituents — they’re residents here, but they’re also homeless. They deserve to vote.” 

Rep. Jared Olsen (R-Cheyenne), the other co-chairman of the committee — who supported the durational residency requirement bill — did not respond to WyoFile’s request for comment. 

The public has until Jan. 26 to comment on the proposed rule and can do so through the rules system or by emailing comments directly to Joe.Rubino@wyo.gov. 

From there, the Secretary of State’s Office will review and consider comments and decide whether to make changes. If Gray proceeds with the proposal, a 75-day period follows wherein both the Legislature and the attorney general separately review the proposal and provide feedback to the governor, who has the final say. 


This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.


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