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With 2014 Elections Looming, Ninth Circuit Agrees to Hear Native Voting-Rights Appeal

On February 20, the United States Court of Appeals for the Ninth Circuit said it would hear the appeal of a Montana voting-rights lawsuit.

On February 20, the United States Court of Appeals for the Ninth Circuit, which includes the nine westernmost states, said it would hear the appeal of a Montana voting-rights lawsuit. The appeal arose when a Montana federal judge, Richard Cebull, denied a 2012 request from Native voters for a preliminary injunction ordering early-voting/late-registration satellite offices on the Northern Cheyenne, Crow and Fort Belknap reservations. The judge made his decision on October 30, 2012, and filed his order on Election Day, November 6.

“This lawsuit, filed after months of requests for the satellite offices, could not be more timely,” said Blackfeet tribal member Tom Rodgers, who is working with Four Directions, a voting-rights group. “We see similar issues for tribes nationwide—efforts to impede Native registration, to limit the time for voting and to make it more difficult. All rights in a democracy flow from the right to vote.” For several election cycles, Four Directions has pressed for Native access to early voting, a convenient form of balloting that has increased election participation nationwide.

Rodgers, who was the whistleblower in the Jack Abramoff scandal, called the Montana lawsuit one of many interactions of policy and politics that’ll play out as early as the 2014 midterm elections. “Important Senate races are coming up in Montana, Alaska and South Dakota, where the Native vote can be the decider. The U.S. Supreme Court is hearing a voting-rights case right now, and there are numerous voting-related bills in Congress and state legislatures, including efforts to remake the Electoral College.”

In a measure of the Montana lawsuit's prominence, the Coalition of Large Tribes approved a resolution in support of it, tribes nationwide including Lytton Rancheria and the Tule River Indian Tribe have supported it financially, and the United States Department of Justice filed an amicus brief on behalf of the plaintiffs.

In Montana, early voting is called “in-person absentee voting,” while “late registration” is a month-long period leading up to the general election. Currently, reservation residents struggle to find transportation to do both in the distant, non-Native—and according to court documents, often hostile—border towns that make up the county seats.

The Montana suit’s lead plaintiff is Mark Wandering Medicine, a Northern Cheyenne tribal member who must travel 182 miles roundtrip to his county seat; lead defendant is Secretary of State Linda McCulloch, who oversees elections. Tribal representatives and Four Directions staffers contacted McCulloch in May 2012 about setting up satellite stations, only to be rebuffed for months. This prompted Four Directions consultant Bret Healy to charge that McCulloch had purposely “run out the clock” on the opportunity to set up the offices. Terri L. McCoy, McCulloch’s communications director, said she could not comment on an ongoing lawsuit.

The other 13 defendants are county officials who handle non-tribal elections for the reservations. According to the Native voters’ complaint, all three counties in question have lost or settled Voting Rights Act lawsuits at some point.

Briefs from the Native voters’ attorney, Steven Sandven of Sioux City, South Dakota, and defendants’ counsel, Sara Frankenstein, of Rapid City, are due in March and April, respectively. Voting cases are usually expedited, but the Court of Appeals has not indicated when it will rule, or whether it will require oral arguments before doing so, said Frankenstein.

In Cebull’s order denying the preliminary injunction, he wrote that the Native plaintiffs did not enjoy equal voting rights: “It is undisputed that Native Americans living on the three Indian Reservations face greater hardships to in-person absentee voting than residents of the three counties who do not live on the reservations.” However, other ways to vote and evidence that Natives had elected “representatives of their choice” persuaded him that the claim, under the Voting Rights Act and the 14th Amendment’s Equal Protection Clause, wasn’t likely to succeed.

Healy was not impressed: “So, what’s that say? ‘We ain’t as racist as we used to be, and that’s good enough’?”

Greg Lembrich, an attorney with Pillsbury Winthrop Shaw Pittman and legal director of Four Directions, took issue with the judge’s analysis. “When I read the Equal Protection Clause, I don’t see an asterisk on the word ‘equal’ and a note that it has degrees. Equal means equal.”

The judge also wrote that he was swayed by the “significant hardship” the counties would have experienced in setting up the satellite offices. Four Directions had offered to pay for the offices, but Frankenstein dismissed the idea, saying the group’s estimate was too low. “Everyone talks about rights, but they have a cost,” she said. “We all can’t have everything we want.”

Frankenstein added that anyone who needs to register to vote and finds it hard to get to the county seat can do so before the month-long late-registration period begins. “Government needs to have deadlines to function,” she said.

Healy questioned Cebull’s fitness to hear the case. In March 2012, the judge achieved national notoriety by sending a crude, racially charged e-mail about President Obama’s mother. A New York Times editorial asked “whether [Cebull] possesses the balance and impartiality essential for any federal judge.” After a firestorm of criticism and calls for Cebull’s retirement, he told local press that the email was racist but he wasn’t and that in future he wouldn’t send non-work-related e-mails from his office computer.

“Judge Cebull is morally compromised when it comes to race,” said Healy. “He should not be hearing a case that turns on it.”

“It’s the 21st century, and Indian country is still fighting these battles,” said Rodgers. “It’s shocking.”