Dan Dockstader

Eric Barlow

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The Wyoming State Legislature has voted to hold a special session to combat federal vaccine mandates, but another obstacle remains.

When results of the vote came in Thursday evening, there were 36 lawmakers in the House and 18 in the Senate in favor of the special session, clearing the majority that was needed in each chamber (The Senate has 30 members, while the House currently has 59, following the recent resignation of Rep. Hans Hunt, R-Newcastle).

But once they gather, lawmakers will need to approve rules for the session. That will necessitate another vote on the session’s first day, and it requires a supermajority — or two-thirds — of each chamber. Past votes on the special session have not received a two-thirds majority. 

If the rules proposed by legislative leadership do not obtain the needed votes, those leaders will move to adjourn the session, according to an Oct. 12 memo from Senate President Dan Dockstader, R-Afton, and Speaker of the House Eric Barlow, R-Gillette. 

“We will ask the respective majority floor leader to move for an immediate adjournment of the special session without considering any legislation,” they wrote in the memo.

That move to adjourn would require a roll call vote. If leadership had the votes, the session would end. But if they don’t, then the Legislature could either default to the rules of the most recent session — which would allow bills outside the scope of vaccine mandates and possibly prolong the session — or lawmakers could negotiate until enough of them can agree on a set of rules. 

Before lawmakers can convene to vote on the proposed rules, they will be considered at a Joint Rules Committee meeting next week. It’s unclear where and when that meeting will be held, but it’s open to the public. 

All Democrats, who make up roughly 10% of the Legislature, have consistently voted against the session and are not expected to change course. 

Individual lawmakers’ votes on the special session will become public early next week, once all the mail ballots have been received, according to Matt Obrecht, director of the Legislative Service Office. All five lawmakers based in Park County — Reps. Dan Laursen, R-Powell, Rachel Rodriguez Williams, R-Cody, and Sandy Newsome, R-Cody, and Sens. R.J. Kost, R-Powell, and Tim French, R-Powell — said they voted in support of calling the special session.

The session is set to take place Oct. 26-28, and if the rules are passed, it will “certainly” take place in-person in Cheyenne. Holding a special session in person will cost roughly $25,000 a day. 

“The presiding officers may allow some legislators to appear remotely, but the vast majority [if not all] of the members will be at the Capitol,” Obrecht said said in an email. 

If the session operates as currently proposed, the public will have a chance to comment on the first day when the Senate and House committees are hearing bills. 

Democrats took issue with this aspect of the process, arguing that speeding up the lawmaking limits the public’s ability to be involved. 

Typically, the public would be able to comment as a bill travels from one chamber to the next, but in the format now proposed, both chambers will be hearing identical bills — or what are called mirror bills — so Wyomingites can’t be present for all discussion on the bill. 

Lawmakers are aiming to take on the Biden administration’s executive order that requires employees at companies with over 100 workers to be vaccinated. 

Some lawmakers are already drafting legislation. 

Rep. Chuck Gray, R-Casper, requested two bills for the session, he said. One would ban vaccine passports, while the other attempts to ban vaccine mandates. 

As it stands, Gray’s bill banning mandates is not currently confined to companies over 100 employees. It classifies firing, demoting, promoting, compensating or refusing to hire based on vaccination status as a “discriminatory or unfair employment practice.” 

If companies violate Gray’s bill, they could face civil penalties of up to $500,000 payable to each party. There may also be criminal penalties: a misdemeanor with jail time of up to six months, a fine of up to $750, or both. 

If adopted, the $500,000 fine would drastically exceed most other employment discrimination payments. Most claims in Wyoming — which can stem from discrimination on the basis of disability, age, sex, race, creed, color, national origin, ancestry or pregnancy — are paid out on a case-by-case basis based on the employee’s lost income and legal fees. They average around $40,000 per claim, according to the Equal Employment Opportunity Commission. 

Sen. Tom James, R-Rock Springs, is taking a narrower approach to the issue that would also institute a misdemeanor. His bill bars any “public servant” from enforcing or attempting to enforce “any act, law, statute, rule or regulation of the United States government relating to mandating covid vaccination,” James posted on Facebook. Anyone violating the rule could be guilty of a misdemeanor and face up to one year in jail, a fine of up to $2,000, or both. 

State statutes can’t supersede federal law according to the U.S. Constitution, so it remains to be seen what effect the bills would have if they become law. 

All bill requests are due at noon Thursday, so they can be posted publicly before the session begins.

The Wyoming Republican Party had urged its members to contact lawmakers in support of a special session and Chairman Frank Eathorne credited them for getting the session called.

“Take a victory lap!” he said, also encouraging Republicans to attend the session and “show your support for brave lawmakers who are willing to take a stand for liberty.”

Organizers of a Sept. 18 rally against vaccine mandates and passports in Cody are encouraging mandate opponents to continue contacting lawmakers, suggesting they encourage legislators to focus only on the mandate and to approve rules that allow legislation to be fast-tracked at the special session.

“It is critical we not allow ‘politics’ and political games to sidetrack or water down the needed results: Clearly worded, unambigious legislation that prevents the Federal Government, Wyoming Governmental entities (e.g. State, County, Local, School board) or any businesses from requiring COVID vaccinations of Wyoming as a condition of employment or to participate in economic and social life,” said a message sent by Dave McMillan of Cody.

The group also encouraged local residents to tell Gov. Mark Gordon that “we expect him to work with the Legislature to pass this legislation.”

Regardless of what happens at the session, Gordon has repeatedly signaled that he also plans to combat the executive order in the courts. 

In early September, after Biden issued his executive order, Gordon announced the state was preparing to challenge the mandate in court. He followed that up with a second and third statement saying he remains committed to fighting the mandate using the judicial system.

Last week, however, Gordon cautioned all government officials, presumably including lawmakers, to “resist the temptation to intrude in private sector interests.”

(Tribune Editor CJ Baker contributed reporting.)