Native American tribes’ lawsuit could decide who controls Senate in 2015

A high-profile lawsuit on the voting rights of Native Americans could help determine control of the Senate in the next Congress.

A group of 16 Native Americans, nine of whom are military veterans, is waging a protracted legal battle against Montana’s Democratic secretary of State and county administrators, arguing for improved access to voter registration sites. 

The case will be significant for Democrats in 2014 as they vie to keep control of the upper chamber by holding retiring Sen. Max Baucus’s (D-Mont.) seat. Republicans need to pick up six seats to win back control of the Senate. 

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The litigation is moving forward at the same time as a recent Supreme Court decision that no longer requires a number of jurisdictions to get advance federal permission in order to make changes to their election laws.

The three Montana counties now being sued have historically lost Section 2 Voting Rights Act cases. However, for the state’s overwhelmingly poor and geographically isolated Native Americans — who vote predominantly for Democrats — the Montana fight is deeply personal. Tribal leaders say it is an issue of fundamental fairness. 

An estimated 50,000 Native Americans are eligible to vote in Montana. Many of them live on reservations throughout the sprawling 550-mile-wide state, which means driving more than 100 miles for some to reach polling sites established long before Native Americans got the right to vote.

It’s the distance equivalent of voters in Washington, D.C., having to drive to Gettysburg, Pa. and back to complete their late registration forms or cast early in-person absentee ballots.

If the state allowed more voting stations, known as satellite offices, on reservations, more Native Americans would have the ability to vote by a factor of 250 percent, a group supporting the lawsuit argues.

This group, which is providing strategic and financial support to the plaintiffs, includes Four Directions, a nationally known voting rights organization, and Tom Rodgers, the Native American lobbyist who blew the whistle on former lobbyist Jack Abramoff for charging Native American tribes exorbitant fees on lobbying.

Together, they have spent about $335,000 waging the legal battle, which began in the months leading up to the 2012 election. They have also offered to pay the cost of establishing the satellite offices, which could run up to $8,000 apiece for each location. 

The Department of Justice, Montana tribal leaders, the ACLU and the National Congress of American Indians have all backed the plaintiffs in the legal dispute.

The origin of the lawsuit began when Rodgers, a member of Montana’s Blackfeet tribe, received a phone call that U.S. Army Spc. Antonio Burnside, a fellow Blackfeet member whose tribal name was Many Hides, was killed last year in combat on Good Friday in Afghanistan.

In late April 2012, after raising the money to help celebrate the soldier’s life, Rodgers said a feeling of rage overcame him.

He noted that Native Americans have the highest percentage of military enlistees of any ethnic group.

“Some of the poorest of the poor can fight a war and die for you on a hellish moonscaped mountainside and then when they return home in a flag-draped coffin, you seek to diminish their native brothers’ and sisters’ ability to vote. Young dead soldiers do not speak. They leave us their deaths. It is us who must give them meaning by remembering them,” Rodgers said. “We got tired of the dark lies in rooms of white marble. Now the plaintiff warriors will take their faith in justice by acting with justice to other rooms of white marble: the 9th Circuit Court of Appeals and Congress.”

Sen. Jon Tester (D-Mont.), who won reelection last year, said that poverty and unemployment levels on reservations are higher than in the rest of the state, and that many Native Americans don’t have access to transportation or can’t take time off from work.  

“Native Americans are about 6 percent of the population, so it’s absolutely significant,” said Tester.

“Everybody who’s entitled to vote, we ought to give them every opportunity to vote,” Tester said. “We shouldn’t be limiting participation, we should be encouraging it.”

The suit might have an impact beyond Montana as well. If it goes as far as the Supreme Court, major Native American populations in Arizona, New Mexico, North Dakota, South Dakota, Nevada, California, Minnesota, Washington, Oregon and Alaska could see their voting rights greatly expanded or restricted.

Democrats are facing challenging elections in four of those states next year. 

Native Americans have played a crucial role in electing Democratic senators, including Tester and Sens. Tim Johnson (S.D.), Maria Cantwell (Wash.), Al Franken (Minn.), Heidi Heitkamp (N.D.) and Mark Begich (Alaska.). All have won elections by fewer than 4,000 votes.

But for now, Montana — where Democrats are scrambling to find a candidate following ex-Gov. Brian Schweitzer’s surprise decision not to run — is the central battleground.

Montana Secretary of State Linda McCulloch (D) says she supports the Native Americans’ demands, but that the lawsuit is misdirected.

At a video-recorded meeting with the tribes earlier this year, tensions between the two sides were palpable as they failed to negotiate a compromise after a nearly hour-long discussion.

“I care that the people at this table have equal access, and what is in my power as secretary of State to do, I can do,” said McCulloch. “What I do not have the authority over is establishing county clerk offices. That authority belongs to the county governing body, the county commissioners.

“We will support and assist any county whose governing body has made a decision to open a second county clerk election office that can offer services such as registering voters and issuing absentee ballots. You have my unwavering commitment to that.”

A spokeswoman for McCulloch, citing the ongoing litigation, declined to comment for this article.

The plaintiffs and tribal leaders rejected McCulloch’s remarks. They said Montana’s secretary of State should join the tribes by officially standing with the plaintiffs and leading the county commissioners to create the satellite offices.

J. Gerry Hebert, who worked on voting rights issues for more than 20 years in the Department of Justice’s Civil Rights Division, doesn’t agree with McCulloch’s assessment either, saying that this type of case falls directly within her office’s jurisdiction.

“The secretary of State is the chief election officer and as such has the overall responsibility to ensure that all the state laws are complied with,” said Hebert, now the executive director of the Campaign Legal Center. “And in this case, which is typically the case, a plaintiff will file a lawsuit and bring it against both local and state election officials, because it is both of their responsibilities.”

Although the issue has been in the local press for nearly a year, the Montana Democratic Party has not weighed in on the lawsuit, saying only that it supports greater access to polling sites and will continue aggressive “get out the vote” efforts.

“Increasing access to the ballot box on reservations and throughout Montana has always been a priority,” said Chris Saeger, a spokesman for the state’s party. “We would welcome any improvements that make it easier for Montanans to have their say in elections.”

“The Democratic Party of Montana has said we have done what we could,” Rodgers said. “But hope has two beautiful daughters. Their names are anger, for the way things are, and courage, to make a difference.”

Carole Goldberg, a professor and vice chancellor at UCLA’s School of Law who has dealt extensively with Native American legal rights, said discrimination is widespread in many states with Native populations.   

“There are persistent patterns where states have criminal jurisdiction on reservations and the counties that exercise this jurisdiction locate their facilities and services in a place convenient for the non-Native population and not the Native populations,” said Goldberg, who has donated to multiple Democratic candidates.

Barring a settlement, oral arguments are expected to begin this fall.