By Phil Roberts
Published in Capitol Times (Cheyenne), January 1983
Sometime in March three young Cheyenne attorneys will present oral arguments before the Supreme Court of the United States in a case that may change the organization of the Wyoming legislature for a generation.
It will be one of only 246 cases to be heard by the nation’s highest court and it will be the first time any of the three lawyers have appeared there.
The case, officially known as Brown. v. Thomson, presents some intriguing issue on legislative representation. Should a county be entitled to a representative in the legislature regardless of its population? Are there unique circumstances that justify giving an area representation?
The focus of the case is Niobrara County in east central Wyoming next to the Nebraska border. With its county courthouse locate at Lusk, the county is rolling hills of grassland some small dryland farms. Now inhabited mostly by ranchers and small businessmen, the county was formed in 1911 from part of Converse County the west. Originally settled by ranchers who took notice of the cattle country along the route of the Cheyenne-Deadwood stage road, real growth came when the railroad built through the southern third of the present-day county in 1885-86. Homesteaders and businessmen were joined by oil workers in the years before World War I when the Lance Creek oil fields in the county were among the most productive in the U. S.
with roughly the same land area as Laramie County, the population today is barely that of one Cheyenne neighborhood–2,924 people. During the same period that neighboring Converse County (Douglas) had a population boom of 137 percent, Niobrara was the only county in the sate to show no growth from 1970-80. The oil fields were no longer active and unlike nearby Campbell or Converse counties, there is coal in Niobrara.
Until recently, even future prospects for growth appeared dim. Nearly one person in six is over 65 years old, compared with just one in 12 in Laramie County. The average age in Niobrara is the highest of any county in the state.
Despite the small population, Niobrara County residents have exerted great influence over Wyoming. As late at the mid-1970s, two of the five top elected officials were Niobrarans. It was partially through the efforts of one of these, State Treasurer Jim Griffith, that the site of the new women’s correctional center is Lusk. It is just one project that will bring more people to their county, Niobrarans believe.
Had the population of the rest of Wyoming remained static like it had in the previous two decades, Niobrara County’s decline would have been barely noticed, even by the state legislature. But this time, when the calculation were made for representation, it was determined that one legislative seat would be allotted for each 7,453 people, with fractions of that total rounded to the nearest whole number.
The formula worked for 22 counties, including Sublette with 4,548 people which had only 62.1 percent of the population necessary for a legislator. Nonetheless, when rounded to the nearest whole number, Sublette still rated one legislator.
But not so Niobrara.
The county’s population was just 39 percent of the necessary number. Rounded to the nearest whole number, it gave Niobrara zero legislators.
During the legislative discussion of the issue, the House decided Niobrara could share a legislator with it southern neighbor. Goshen County, which had a population six times larger–12,040.
The Wyoming League of Women Voters has a membership of about 450 people. Watching over the legislative deliberations on apportionment were League members concerned that like in two prior apportionments, equality would not be fairly observed. In both earlier instances (1960 and 1970) the League did not become actively involved because other organizations handled the litigation for “equitable representation.”
“When the House combined Niobrara with Goshen to get the number fairly equitable, it wasn’t a perfect solution,” Margaret Brown, then president of the League said. “But was one we could live with.”
But Niobrarans believed the House action was not something they could live with and before the issue came up for debate in the Senate, it seemed that half of the county was in the Capital City lobbying to save their legislative seat.
Badges, similar to those worn by lobbyists, seemed to sprout from every lapel. It proclaimed in red letters, “Save Niobrara.” One observer who was new to the state said he thought the badges were a sign of support the protection of “some rare and endangered species.” Niobrarans agree with that–the endangered species was their legislator.
A decade ago the county lost its sole state senator when the county was combined with Converse County to form one senatorial district. This time around, county residents were in no mood to have a share a House seat with an adjacent county, too.
The lobbying effort worked. The State Senate refused to go along with the House plan. Niobrara had to have at least one legislator, the upper house argued. As the clock was ticking off the final hours of the legislative session, the House and Senate still couldn’t agree on what to do about Niobrara. It was the last act of the session when the Senate and House agreed on a compromise–Niobrara could have one legislator, as long as it was not challenged on constitutional grounds in which case the rest of the apportionment would not be affected by the result of the lawsuit. One extra chair would added for Niobrara.
Prior the session, the League of Women Voters already had gone record “In favor of one man, one vote,” Brown said. The decision then had to be made at the 450-member organization’s annul meeting whether it would take legal action “to carry out our positions,” Brown said, adding that the organization “knew it would be an expensive case for us–a very low budget group.”
The prohibitively expensive legal fees were avoided when Sue Davidson, a Cheyenne attorney with the firm of Urbigkit and Whitehead, offered to take the case for no fee as long the League raised sufficient funds in donation to pay the court expenses.
A native of Laramie, Davidson was graduated from the University of Wyoming in 1974 and took her J.D. degree in law from UW in 1978. She said she viewed the case as essentially one of “equitable representation,” pointing to the Supreme Court decisions allowing no more than a ten percent differential between population in state legislative district. She questioned the exception made for Niobrara County. “The Constitution specifically prohibits local laws such as that exception,” she noted.
While the League was attempting to bring the case to court, Richard Barrett (grandson of one Niobrara County’s most famous citizens, the late Senator and Governor Frank Barrett, and son of 10th Circuit Judge James Barrett), received a letter from the League addressed to all members of the Wyoming State Bar. “The League was soliciting help with the reapportionment case and they made some disparaging remarks about Niobrara County that really made me angry,” Barrett said.
Born in Lusk in 1952, Barrett moved with the family to Cheyenne when his father was named the state
attorney general in 1967. He graduated from the University of Wyoming with a degree in journalism in 1973 and graduated from the UW College of Law in 1977.
“I wrote a scathing letter to the president of the organization (Brown) and then sent copies to several other people,” Barrett said. One copy of his letter ended up in print on the editorial page of the Lusk Herald. A few days later, several county residents contacted him at his Cheyenne offices (the firm of Hathaway, Speight and Kunz) and asked him to file as an intervening party in the suit brought by the League. “Well, I guess so,” Barrett told them, still angry with the League’s letter.
The League brought the suit in U S. District Court in Cheyenne. Named as defendant in the case was the state’s election board. Secretary of State Thyra Thomson chairs the board and, consequently, her name is on the suit as defendant.
Because the suit was against the state, the attorney general’s office furnished counsel for the defendant. As a result, Randall Cox, another young lawyer, was assigned the case.
A three-judge federal panel heard the case in March 1982. Presiding judge was Ewing T. Kerr. Other judges hearing the case were U. S. District Judge Clarence Brimmer and U. S. District Judge William Doyle (who sits on the federal bench in Colorado).
Davidson set forth the League’s position in simple terms: the reapportionment plan violates one-man, one-vote. Cox, for the state, responded it was a rational state policy to maintain the integrity of county representation districts.
But the interveners “took over the case,” Brown notes.
Numerous witnesses were called to testify about Niobrara County’s “uniqueness.” Former State Senate President James Thompson testified about the improbability of any Niobrara resident being elected to the House should the county be combined with a larger neighbor. High school librarian Dorothy Lohr testified about the problems Niobrara had in breaking away from Converse County in 1911. The witnesses kept drumming the theme– “Niobrara IS a unique area that sets it apart from other counties.”
When the court’s decision was announced some weeks later, Davidson said she wass “surprised.” The court unanimously upheld the state’s position. Niobrara could keep its legislator, the court said. Barrett was ecstatic over the result although he and other legal experts knew the League might appeal to the Supreme Court of the United States.
“The expense of conducting the appeal was going to be high,’ Brown said. “but the League knew it was necessary.’ The $2,500 charge for trial transcripts is one indication of the high cost of the litigation, Brown said.
And the League appealed. “We were not picking on Niobrara County, she argued. “It just happened that Niobrara County was first.”
“Niobrara County people kept saying the legislature was taking away their representation,” Brown said. “It was not the case at all. That’s the last thing the League would ever stand for. They’d still have representation,” Brown asserted.
Barrett agrees that Niobrara might well be first–“the first small county to lose their representatives if the League were to prevail.” He asserts that “if this sort of thing were allowed to happen, all of the legislature would be from Casper, Rock Springs, Gillette and the large towns and none of the smaller counties would have their own representative.”
Brown views Barrett’s argument as specious. “A legislator’s job is to represent all of his constituents regardless of where they live,” she said. She pointed to the Carbon County delegation in the last legislature. “Until this election, we had no representative from Rawlins. My nearest legislator was 75 miles away in Baggs, Encampment or on the Sweetwater. If I lived in Shirley Basin, they would have been even further from me, and right in my own county,” she said. “”We aren’t taking away Niobrara’s representation. We’ll just saying that people in Washakie County deserved similar representation. (Washakie, with 9,496 people, stood to possibly pick up one seat had Niobrara been combined with Goshen County for legislative representation).
Brown said the decision to bring the suit “didn’t hurt the membership of the League.” She said as many people joined the League over the issue as dropped out the organization because of the stand.
Counsel for all parties are unsure of what the court may rule. “You can’t second-guess the Supreme Court on cases like this,” Cox said. Davidson said she believes the court might rule on the constitutionality of multi-member districts although it is not part of the League’s case. Brown said the League would favor such a result. Under the present multi-member district concept, as many as five Laramie County legislators live in one neighborhood in north Cheyenne while not one of the nine legislators live in the south side, for example. A similar situation also exists in Natrona County.
Attorney Cox disagrees. “Subdistricting is not an issue in the case and I would doubt that if it were dragged in, kicking and screaming, the court would rule on it. He said multi-member districts have never been declared unconstitutional by the court and because Wyoming has never had a history of subdistricting, the court would never order it in this case.
A 1981 University of Wyoming College of Law graduate, Cox said the state’s case will be argued a little differently than it was before the District Court.
“We pointed out prior cases in the lower court,” he said. “Before the Supreme Court, we will concentrate more on the trends in equal protection.” He said there is no evidence of discrimination on the part of legislators who gave Niobrara the seat. “The legislature can hardly be charged with discriminating against their own constituents,” he added. He dismissed the League’s “numerical” argument by pointing to the context for those types of decisions. When you look behind those particular reapportionment acts, it is clear that racial discrimination is involved,” Cox said. The situation does not apply the Niobrara case at all, he concluded.
“No more than two cases per year ever go to the U. S. Supreme Court from Wyoming,” Cox said. “That doesn’t give much opportunity for any lawyer to appear before that body,” he pointed out. The Niobrara litigation will be his first Supreme Court appearance as well as the first for Davidson and Barrett.
Davidson concluded that she was very confident that the court would rule in the League’s favor. “Our position is based solidly on past precedent,” she stated.
Barrett is equally confident that his home county still will have its own legislator once the Supreme Court decision is announced.
A few things have changed since the case was brought early last year. Brown is longer president of the Wyoming League of Women Voters. She is a newly elected Republican legislator from traditionally Democratic Carbon County. One of the interveners has a different status now, too. Niobrara County’s sole legislator whose job was in jeopardy because of the League case does not have to worry about losing his seat because of an adverse decision. Rep. Russ Thompson was defeated for reelection in November by Mel Zumbrunnen, a political independent who shares similar views on the Niobrara issue.
Such are the ironies of politics, the law, and case of Niobrara County v. The League of Women Voters.
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Editor’s Note (March 3, 2018): The Supreme Court of the United States upheld the State/Intervenor position and Niobrara retained its representative. The victory proved to be temporary. After the next census in 1990, the 100-year-old method of at-large county representation was changed to single-member districts. In the opinion of this writer, the overall access to representation has diminished steadily under the new system–not only for Niobrara County, but for most of the counties in the state.
–Phil Roberts