Judge rejects Native Americans' lawsuit over access to polling places

A federal judge in Montana has shot down an attempt by Native American tribes to get better voting access.

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In an election where the Native American vote could make or break Sen. Jon Tester's (D-Mont.) return to Capitol Hill, as well as the fate of the Democratic majority in the Senate, U.S. District Judge Richard Cebull has rejected a legal push by Montana tribes to set up satellite offices on three reservations where thousands of eligible voters could go to complete their late registration or early voting forms.

“I'm not arguing that the opportunity is equal for Indian persons as it is to non-Indians," Cebull said, according to The Associated Press. "Because of poverty, because of the lack of vehicles and that sort of thing, it's probably not equal. However, you have to prove ... that they can't elect candidates of their choice."

The 15 Native American plaintiffs and the Department of Justice say the state is violating the Voters Rights Act and discriminating against Indian voters by not giving them the same access as white Montanans.

The Native tribes were upset by the judge’s denial of their lawsuit, which was filed against Montana Secretary of State Linda McCulloch (D). But they pledged to persevere until they received the equal voting treatment they deserve under the law.

“The judge was wrong on the law and the defendants are on the wrong side of history,” said Tom Rodgers, a member of Montana’s Blackfeet Indian tribe and a lobbyist with the Carlyle Consulting group, in a phone interview with The Hill Wednesday night. Rodgers is not a plaintiff in the suit, but is backing the tribes.

There are an estimated 30,000 eligible Native American voters in Montana, according to Rodgers. But most of those potential voters live on reservations, which means they have to drive as many as 113 miles to complete their late registration or early voting forms.

With less than a week to go before Election Day, Tester will almost certainly need the Native American vote — which generally leans Democratic — if he hopes to beat Republican challenger Rep. Denny Rehberg and help block GOP efforts to take control of the upper chamber.

Tester’s seat is one of a handful that Republicans hope to win in their efforts to gain the additional four Senate seats they need, while retaining all of their vulnerable seats, to take the majority in the chamber. 

Senate Republicans would need only three seats to take the majority if Mitt Romney is elected president.

Native Americans in 2006 are largely credited with giving Tester the boost at the polls he needed to narrowly beat out Republican Sen. Conrad Burns by just 3,500 votes out of more than 400,000 cast.

With recent polls showing Tester and Rehberg tied at 48 percent, the Native American vote could be the determining factor in who goes to Washington, D.C., come January.

The lawsuit, which was filed earlier this month and has cost the plaintiffs about $140,000, argues that Native tribes are facing discrimination by being forced to drive such great distances. Poverty and unemployment levels are much higher on reservations than in the rest of the state, and so many Native Americans might not have access to transportation or, if they have a job, they can’t take so much time away from work.

Last week, the DOJ came out in favor of the Native American lawsuit and in support of opening the three additional satellite offices on, or closer to, the reservations.

“Without an injunction, Native Americans in Big Horn, Blaine, and Rosebud counties will not have the same electoral opportunities as their white counterparts,” the DOJ said in its statement of interest filed with the U.S. District Court in Billings, Mont.

The judge has not officially issued his ruling on the case, but clearly indicated that he was not planning to uphold the Native American complaint. Earlier this week, a spokeswoman for McCulloch declined to comment, citing the ongoing litigation. But in past comments to the press, McCulloch has argued that the tribes did not bring their request to the state early enough for them to take action. State officials have also said that they don’t have the money or manpower to staff and run additional satellite offices.

The Native American plaintiffs say they will happily pay for the operational costs of running the additional offices from money they have raised. They point to a May 2 letter to McCulloch from Blackfeet Tribal Business Council Chairman Terry Show as evidence that they gave the state enough time to take action.

Rodgers argues that the state, despite it being in the Democratic Party’s interest, is aiming to disenfranchise the voice and influence of Native Americans by making it more difficult for them to vote.

“They have a fear of Native Americans’ political power and a fear of their own budgets coming under stress,” said Rodgers, who blew the whistle on former lobbyist Jack Abramoff for charging Native American tribes exorbitant fees on lobbying.

“But we offered to pay for these facilities. They thought we would go away. Well, we’re not going to go away,” Rodgers said, adding that the tribes would pursue the matter until they prevailed.

The state estimates each additional office would cost about $30,000 to operate, according to Rodgers, who says the tribes have estimated their cost at closer to $10,000 each.

The lawsuit contends: “The failure to establish satellite office locations will result in Indian citizens having less opportunity than non-Indian citizens to participate in the political process and elect candidates of their choice for federal, state, and county offices.”

The lawsuit has put the state’s Democratic Party in a tricky position, because it pits potential Democratic voters against the state’s Democratic secretary of State. But Democratic officials in the state point to voter drive efforts they’ve undertaken, such as the creation of the Montana Indian Democrats Council, that are specifically geared towards increasing the Native American turnout next Tuesday.

—This report was originally posted at 4:51 p.m. and last updated at 11:00 p.m.

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