Brownsox just put a blurb up on the frontpage about the possibility of overturning Wyoming's term limit law in order to allow Democratic Governor Dave Freudenthal to serve a 3rd term.
The short version of the story: Wyoming had term limits for its Governor (passed by the legislature) and for its state legislators (passed via ballot initiative). The Wyoming Supreme Court overturned the legislature's term limits in 2004, but did not rule on the gubernatorial term limits.
The Washington Post has an article on the issue, in which they claim:
there is a strong sense that if Freudenthal challenged the constitutionality of his own term limits, it would be a slam-dunk victory for the incumbent.
So, curious about the validity of all this speculation based on a 2004 Wyoming Supreme Court case, I decided to actually read the case.
Here's what happened: Wyoming passed term limits for its state legislators via ballot initiative, back in 1992. Then, in 2004, two state legislators and a group of constituents challenged the constitutionality of the law. The Wyoming Supreme Court agreed with them and overturned the law.
Here was the precise question before the court, in the court's own words:
"the precise question is whether the constitutional qualifications are unambiguously meant to be exclusive."
The court looked at Article 3 § 2 of the Wyoming constitution, which lays out the qualifications for state legislators: "No person shall be a senator who has not attained the age of twenty-five years, or a representative who has not attained the age of twenty-one years, and who is not a citizen of the United States and of this state and who has not, for at least twelve months next preceding his election resided within the county or district in which he was elected."
The court also throws in Article 1 § 3: "the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of ... any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction."
So there are the constitutional qualifications for state legislators. No term limits are in there. The court's conclusion:
"The question is simply whether it was the framers' intent to allow the legislature to add qualifications to those established in the constitution... we have concluded there was no such intent."
The decision of the Wyoming Supreme Court was unanimous.
So are the Gubernatorial term limits also unconstitutional?
Well, for one thing, the case doesn't turn on the distinction between a ballot initiative and a law passed by the legislature. (Remember: the gubernatorial limits were enacted by the legislature, while the legislative limits were enacted by ballot initiative.) In fact, the court at one point notes that ballot initiatives are usually given more deference. And the court at numerous points seems to forget that it was dealing with a ballot initiative; look at the phrase "allow the legislature" in the quote above about the framers' intent. Also check out this sentence:
"In other words, the inherent and reserved powers of the people do not include, under this constitution, the right to enact via the initiative a law that could not be enacted by the legislature."
This would imply that term limit laws cannot be enacted by the legislature, either.
Nor are the constitution's qualifications for governor significantly different than the qualifications for state legislators. Here are the governor's constitutional requirements: "No person shall be eligible to the office of governor unless he be a citizen of the United States and a qualified elector of the state, who has attained the age of thirty years, and who has resided 5 years next preceding the election within the state or territory, nor shall he be eligible to any other office during the term for which he was elected." Article 4 § 2
Finally, the court gives pretty strong hints that the gubernatorial term limits are probably unconstitutional, but it is well-aware of the fact that this issue wasn't properly before it:
"the appellant legislators cannot raise the question of the constitutionality of the term limit law as it affects the qualifications for governor... Accordingly, we will limit our holding to those constitutional provisions involving legislative qualifications."
I think it's pretty obvious that Dave Freudenthal could win this case if he decided to challenge the law. One of my only questions is how this would look to the people of Wyoming. I'm not particularly familiar with Wyoming politics. I know that Dave Freudenthal is enormously popular and won re-election with 70% of the vote. But would suing to overturn term limits significantly damage that popularity? I have no idea.
For the record, it seems that Freudenthal is in fact aware of, and exploring the possibility of overturning the law:
Asked about the possibility that Freudenthal would seek a third term, his spokeswoman Cara Eastwood said only: "When the governor has something to announce, he will announce it."
Unless there are plans for a constitutional challenge, why would a term-limited Governor have anything to announce about running for re-election?