John S. Adams, USA TODAY | 10:50a.m. EDT March 18, 2013
Arguments are scheduled in a lawsuit over tribal members' ability to vote.
Photo: Audrey S Hall, The Great Falls, Mont., Tribune)
Plaintiffs say the state refused to set up voting offices on reservations before the presidential election
Attorney argues secretary of State lacks authority to open or run such offices
Outcome could affect Indian voters throughout the West
HELENA, Mont. - Arguments are scheduled this month in a federal lawsuit over whether state and county election officials did enough to give tribal members on reservations the ability to vote in the 2012 national election.
The 9th U.S. District Court of Appeals denied a request by defendants led by Montana Secretary of State Linda McCulloch to dismiss the appeal for lack of jurisdiction in late February.
The plaintiffs from the Crow, Northern Cheyenne and Fort Belknap reservations say McCulloch and county election officials violated the Voting Rights Act by refusing to set up satellite voting offices on remote, poverty-stricken Indian reservations before the presidential election in November.
The U.S. Department of Justice's Civil Rights Division, the American Civil Liberties Union of Montana and the national ACLU Voting Rights Project back the claim that the tribal members on those reservations are at a voting disadvantage compared with white voters.
The plaintiffs say the only option to register to vote after the regular close of registration is at county courthouses in white population centers that are sometimes up to 100 miles from where most tribal members live.
"The purpose of the lawsuit has been to provide Native Americans the same equal access to voting that other people in this country enjoy," said Tom Rodgers, an Indian activist who has been pushing the state to open satellite voting locations since May.
McCulloch's office declined to comment, citing the pending litigation. McCulloch's attorney argued in court that the secretary of State lacks statutory authority to open or run satellite election offices.
"The decision on whether or not to establish satellite offices does not belong to the secretary of State but to the county with the approval of the county commissioners," the state argued in court briefs.
Sara Frankenstein, the Rapid City, S.D.-based attorney representing the counties in the case, said Montana voting rules don't accommodate duplicate late-registration and early voting locations in the same county.
"In my opinion, they're knocking on the wrong door," Frankenstein said. "They're suing people instead of lobbying the Legislature, which is what everyone else does when they want to change the law."
Rodgers scoffed at that notion.
"For the secretary of State or Sara Frankenstein to say 'come back and lobby for a bill' with this Republican Legislature is political negligence bordering on incompetence," Rodgers said.
If the plaintiffs succeed in their lawsuit, tribal members across the state could gain easier access to late registration and early voting, which in turn could help sway the outcomes of close elections.
The lawsuit could also set a precedent throughout the jurisdiction of the 9th U.S. Circuit Court of Appeals that could affect Indian voters throughout the West.
The Justice Department commissioned a study that found voting-age Indians on rural reservations in Montana experienced poverty levels two to four times greater than their white counterparts, had to travel up to an average of 28 miles farther to get to the courthouse than whites, and were far less likely to have access to a vehicle.
Rodgers, a member of Montana's Blackfeet Tribe, was born in Browning, Mont. A lobbyist on Capitol Hill, Rodgers is the man who blew the whistle on Jack Abramoff, the infamous Washington "super-lobbyist" at the center of one of the biggest political corruption scandals to rock the nation's Capitol in decades.
Rodgers is focusing his attention on this lawsuit.
"What wins elections is money, ideas and votes. Native Americans don't have much money, but we have ideas, and we have votes," Rodgers said. "We can control political outcomes, and we have."
Rodgers points to slim Democratic victories in places such as Montana, North Dakota and Arizona as evidence that strong Indian turnout can help sway elections.
The 2006 Montana Senate race is a prime example, he said.
That's the year Democratic challenger Jon Tester upset three-term Republican Sen. Conrad Burns in one of the tightest U.S. Senate races in the country.
Tester won by 3,562 votes, and results showed voters in precincts with high Indian populations went strongly in his favor.
In North Dakota, Indian voters helped Democratic Sen. Heidi Heitkamp win a narrow victory in 2012. In Arizona, Democratic Congresswoman Ann Kirkpatrick spent the final days of her 2012 campaign traveling across the White Mount Apache reservation, where voters cast ballots heavily in her favor.
Presidential campaigns also seek the Indian vote.
Chris Stearns is a Navajo attorney who served as Democratic Vice President Al Gore's campaign director in North Dakota during Gore's 2000 presidential bid. In 2004, Stearns worked in New Mexico, organizing Indian voters on behalf of presidential hopeful Sen. John Kerry, D-Mass.
"New Mexico used to be a swing state. Now it's no longer a swing state, and that is due in part to Indian voters," Stearns said.
Stearns said states such as Arizona, Nevada and Colorado could be trending in that direction as well.
"As people see these are the states that have a lot of Natives, they are going to say to say to themselves, 'The Indian vote can make a difference,' " Stearns said.