CASPER STAR-TRIBUNE: Federal court rules at-large elections violate Native American voting rights

April 30, 2010
Tom Morton

Fremont County must stop using its existing at-large system to elect commissioners because it violates the Voting Rights Act by diluting the strength of the Indian vote, a federal judge ruled Thursday.

Instead, county officials must submit a voting plan to the court by June 30 to create five districts in the county so residents on the Wind River Indian Reservation can better achieve fair representation on the five-member commission, U.S. District Judge Alan Johnson wrote.

The ruling comes more than three years after a nine-day bench trial in February 2007 before Johnson in which five enrolled members of the Eastern Shoshone and Northern Arapaho tribes stated their case against Fremont County, its commissioners and the county court clerk.

Three weeks ago, attorneys for the Indians asked the Denver-based 10th Circuit Court of Appeals to force Johnson to make a decision.

The 102-page opinion did just that.

In it, Johnson reviewed the testimony from the plaintiffs -- James E. Large, Gary Collins, Emma Lucille McAdams, Patricia Bergie and Pete Calhoun -- and others who were represented by Andrew Baldwin and Berthenia Crocker of Lander and four attorneys with the Atlanta office of the American Civil Liberties Union Foundation Inc.

They filed their lawsuit in October 2005, stating voting in Fremont County is racially polarized, which has discouraged American Indians from running for the board of county commissioners. "The at-large method of elections for the Board of County Commissioners denies or abridges the right of plaintiffs and Native Americans to vote on the basis of race or color, or membership in a language minority," the complaint stated.

Johnson also reviewed Fremont County's defense, which asserted the dispute centered not on race as required by the Voting Rights Act, but on myriad issues related to the history of American Indians.

The at-large system of electing commissioners provides a greater diversity of candidates, more choices for voters, and encourages candidates to consider the needs of the entire county instead of their narrow constituencies, according to the county, which was represented by the Mountain States Legal Foundation and Fremont County Attorney Brian Varn.

The Mountain States Legal Foundation also used the case as a platform to assail the Voting Rights Act as unconstitutional, which Johnson denied based on the scrutiny of other courts.

Johnson considered multiple demographic, historical, cultural, statistical, economic, social and other factors about background of the tribes, the reservation, and the history of the American Indian.

For example, the federal government did not recognize Indians as citizens until 1924. While that gave them the right to vote, local governments blocked their use of the franchise through literacy tests.

"The long history of discrimination against Indians in the United States, Wyoming, and Fremont County is undeniable," he wrote in his order. "The Court rejects any attempt to characterize this discrimination as being politically, rather than racially, motivated."

Johnson then discussed whether the plaintiffs' lawsuit met three preconditions based on the framework of a 1986 case -- Thornburg v. Gingles -- decided by the U.S. Supreme Court.

He cited that case in finding the plaintiffs were able to prove their group is "'sufficiently large and geographically compact to constitute a majority in a single-member district'"; that their minority group is "politically cohesive"; and "'the white majority votes sufficiently as a bloc to enable it -- in the absence of special circumstances , such as the minority candidate running unopposed -- usually to defeat the minority's preferred candidate.'"

Expert witnesses for the plaintiffs and the defendants offered testimony that Indians are politically cohesive, overriding historical and cultural differences between the tribes on the reservation, Johnson wrote.

With the plaintiffs meeting these preconditions, he then had to look at the totality of the circumstances outlined in a U.S. Senate report accompanying the 1982 revision of the Voting Rights Act.

Those circumstances include the extent of any history of official discrimination, the extent of racially polarized voting, the size of election districts, whether political campaigns have been characterized by overt or subtle racial appeals, whether members of the minority group have been elected to public office, a significant lack of responsiveness on the part of elected officials to the needs of the minority group, and effects of discrimination on education, employment and health care.

Fremont County claimed the 2006 election of Commissioner Keja Whiteman -- an enrolled member of the Turtle Mountain Band of Chippewa -- showed that voters did not discriminate, even though she testified that the issue of district elections is racially charged.

Johnson found that election of the commission's first Indian -- a year after the lawsuit was filed -- demonstrated the history of discrimination in light of the other Indian candidates who have run and lost.

"The defendants have also argued that Indians simply do not care to participate in county and state elections and if there is any dilution of Indian voting strength, it is the result of Indian apathy," he wrote. "This argument overlooks the fact that Indians were historically denied the right to vote, that literacy tests had been imposed, and that Indians had suffered other forms of discrimination in the past, all of which have been responsible for denying Indians the opportunity to participate in the political process."

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