The Native voting-rights lawsuit, Wandering Medicine v. McCulloch, is headed back to Montana district court for a rematch. On October 30, the Ninth Circuit Court of Appeals, sitting in Portland, Oregon, dismissed the Montana tribal members’ appeal in the suit because it applied to reservation polling places they’d been denied for the 2012 election, and that election is over.
However, the appeals panel also “vacated” the district court’s denial of the offices. In November 2012, the lower-court judge acknowledged that Montana’s Native people don’t have equal voting opportunities. However, since they have had some success electing representatives of their choice, they don’t need any more access, the judge reasoned.
That judge has since retired following an unrelated scandal. Thanks to the Ninth Circuit’s decision, a new judge will hear the case and decide whether the reservation polling places should be provided in future elections.
Plaintiffs’ attorney David Bradley Olsen, of Henson & Efron, in Minneapolis, called the Ninth Circuit decision a victory. He said the original lower-court judge had applied the law incorrectly.
That’s right, said Laughlin McDonald, special counsel and director emeritus of the American Civil Liberties Union’s Voting Rights Project. Under the law governing vote-denial claims like Wandering Medicine v. McCulloch, the fact that some Indians have elected candidates of their choice does not justify denying other Indians the right to vote, McDonald said.
The lawsuit arose in 2012 after counties overlapping the Northern Cheyenne, Crow and Fort Belknap reservations refused to provide them with satellite late-registration/early-voting offices. Sixteen tribal members sued, saying the offices would give them voting access equal to that of other Montanans. After the lower court denied the Native plaintiffs’ request, they appealed to the Ninth Circuit.
Rosebud Sioux civil-rights leader OJ Semans was pleased that the Ninth Circuit required oral arguments in Portland. Semans’s voting-rights group, Four Directions, had helped the Montana tribes request the polling places and organize the lawsuit. “The judges questioned the counties’ attorney sharply—about their supposed ‘hardship’ in setting up the polling places, for example. And we heard a Justice Department attorney explain how to apply the Voting Rights Act correctly in a vote-denial case like this one.”
“The appeals judges’ questions for the counties' attorney, Ms. [Sara] Frankenstein may cause her and the counties to rethink their strategy,” said Olsen. They might even seek a settlement to avoid the cost of continuing to fight the lawsuit, he speculated.
Frankenstein did not respond to a request for a comment. Terri McCoy, spokesperson for Montana’s secretary of state and head elections officer Linda McCulloch, who is lead defendant, could not discuss an ongoing lawsuit.
For his part, Olsen was optimistic that ultimately the Montana counties would provide Native voters with the polling places and equal access to voting.
This article was written with support from the George Polk Center for Investigative Reporting.