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Voting Rights Violation Argued; PART ONE

RAPID CITY, S.D. - In Martin, S.D., town officials claim everyone is
treated equally. That there is no discrimination between American Indians
and non-Indians, and residents and officials say it may be the most
integrated town in America. Yet an opposing view argues that the town
should be under adult supervision - from the Department of Justice.

Martin officials claim there is no racial barrier to voting, registering or
running in city elections, so therefore when wards were redrawn according
to population based on the 2000 census, there was no need to consider race.
These claims were made in U.S. District court.

After 90 years with the same boundaries for its three small wards, Martin
city officials were told they had to use the 2000 census and redraw the
boundaries. They were told there was a problem with population distribution
per ward.

The boundaries were then redrawn, discovered to still be wrong after an
ordinance was passed, and later it was found that race should have been
taken into consideration with the new boundaries and there was a violation
of the Voting Rights Act.

The city of Martin has an American Indian population of 44 percent, Bennett
County's population, where Martin is located is more than 60 percent
American Indian. Each of the three present wards were drawn to include an
American Indian population of 33 percent. There was no intention of
changing that percentage, according to testimony from various city council
members and the mayor.

The council was notified of a race problem in its new ward boundary plan by
way of the Black Hills Council of Local Government. That organization was
hired to redraw the boundaries and was informed of the problem by the
American Civil Liberties Union.

Mayor Bill Kuxhaus has been a member of the Black Hills government group
for at least 10 years. He said the reason for not including race in the
plans was that more information was needed and time was running short.

"We had to pick up nominating petitions and return them in time. We had to
know which ward people lived in," Kuxhaus said.

Plaintiffs tried to argue that in the town of just slightly more than 1,000
people, everyone knew each other, where they lived and what race they
belonged to. The town officials claimed that people of American Indian
heritage lived throughout the town, integrated within the community.

"We didn't have information to take race into account. We didn't have time
to go door to door," Kuxhaus said.

Plaintiff's questions to town officials tried to prove that while the
council members were dealing with the population distribution of the wards
they did have time to consider race.

The ACLU informed the Black Hills Local Government organization of the
problems with the redistricting. Maps drawn by experts were sent to town
officials, which were rejected. The maps included at least one district
that would contain a majority of American Indian residents - council
members testified that would have been "illegal."

"When we looked at plan A, we thought we would be run out of town on a rail
if we adopted that plan. Everyone asked for straight lines so it would be
easy to know where people lived.

"We thought a ward with mostly one race would be gerrymandering. My
definition of creating a ward with one certain race as a majority would not
be constitutional," Kuxhaus said.

Plaintiffs said a ward with an American Indian majority would be fair so
preferred candidates would have a chance at election.

Scott Larson, city councilman said, "Martin residents don't consider race,
I don't see why it should play part.

Janet Speidel, city finance officer told the court that "Martin did not
have a problem, the ACLU had a problem."

Witnesses said that creating a ward with an American Indian majority may
not allow for non-Indian candidates to run, and would not give American
Indians a chance to vote for them.

The plaintiffs argued that the town of Martin has violated the Voting
Rights Act of 1965, section 2, and also the 14th and 15th amendments of the
U.S. Constitution, by not considering race.

Throughout the two-week trial both sides argued whether or not American
Indian residents in the city and the county voted as a bloc or not.

The plaintiffs offered the testimony of several expert witnesses from the
Political Science arena that showed cohesion among the American Indian
population in voting patterns and that because of that non-Indian bloc
voting would veto any preferred candidate the American Indian population
would have.

The defense provided the testimony of one expert, Dr. Ronald Weber Ph.D.,
professor at the University of Wisconsin, Milwaukee, who testified that all
of the plaintiff's experts were wrong in their analysis.

Weber compared figures from two different types of analysis that showed a
disparity in voting patterns between the county and city among American
Indian voters. He said that indicated none of the data could be used.
However, Dr. Richard Engstrom, University of New Orleans, a plaintiff
witness, said all of the data and analysis of those experts pointed to the
obvious conclusion that there was racial polarization in the voting
patterns.

What must be proven is that there is compactness within the wards or
districts of minority or majority population voters; that minorities and
majorities vote in cohesion. These are referred to as the three "Gingles"
factors, which followed a voting rights case, Thornburg v. Gingles as heard
by the U.S. Supreme Court.

The defense, according to case law, could attempt to show that the town is
very much a racially mixed and integrated community where race would be no
factor in the redrawing of ward boundaries.

Plaintiffs, through the ACLU conducted quantitative and qualitative
analyses, one of which was an exit poll at the 2003 election. Interviews of
some 47 people were conducted to add to information about the voting
patterns of American Indians and non-Indians in Bennett County and Martin.

The defense argued that what happened in Bennett County, outside the city
limits of Martin, did not reflect the voting patterns of the people who
lived in Martin. They presented evidence of one study that showed Charles
Cummings, sheriff's candidate preferred by American Indians, received 100
percent of the American Indian vote in the county and in Martin, only 78
percent.

The defense tried to show that creating a separate ward with the majority
American Indians it would be only 54 percent majority and that would create
a fragile ward. Sara Frankenstein, attorney for Martin, said that if only
10 American Indians moved out it would change the majority.

Weber said to be viable at least 60 percent should be included in a
minority/majority ward. He admitted he couldn't draw such a ward. He said
it was not workable.

"If wards one and two could be evidence of intent to make race dominate,
then it can be seen as gerrymandering," Weber said. He made reference to a
proposed six ward map of Martin where two wards would be minority/majority.

Census figures from 2000 indicate, however, that Martin has lost non-Indian
population while the American Indian numbers have increased.

The exit poll conducted by Dr. Steven Cole of Research Design Associates,
Inc. was criticized for not be inclusive enough of all the voters.

To prove collective voter preference for a specific candidate, or cohesion,
the plaintiffs and defense expert witness disagree on what criteria to use.
Dr. Weber for the defense said it would be impossible given the data in
Martin to show any cohesion. The plaintiff's experts were less rigid. Weber
used a threshold of 60 percent to prove cohesion, therefore the defense
showed where American Indian voters did not vote as a bloc.

A more liberal definition of percentages by the plaintiff's witness would
show that cohesion did exist in most elections in Martin. They used a less
stringent percentage to prove their case. With those numbers it would show
that American Indians' preferred candidates lost most races and
non-Indians, as was the accusation, turned out in larger numbers to defeat
those candidates.

"Martin is not a majority/ minority population," Weber said. He added that
he could not trust the numbers to determine a cohesive voting pattern for
American Indians.

Dr. Engstrom said Bennett County is racially polarized. Weber has not
brought any evidence to prove the analysis is not valid.

"I think it shows Native American cohesion and that their candidates of
choice were defeated," Engstrom said.

One of the factors to consider is that when minorities vote in sufficient
numbers yet their candidate of choice is defeated by majority bloc voting.

Frankenstein said under the plaintiff's experts' definition of cohesion,
using a simple majority, cohesion can always be found.

"This throws Gingles factors two and three out the door," she said. In that
case the court must, according to case law, find in favor of the
defendants.

Bryan Sells, ACLU attorney told the court that boundary lines in Martin
deny the minority voters the opportunity to elect a candidate of their
choice.

Sells said proposed maps are just ideas that show it is possible to create
a majority American Indian ward that can allow for election of preferred
candidates.

"All evidence points to some dilution of minority voters and whites can