With control of the U.S. Senate in the balance, a Native American voting rights hearing in U.S. District Court in Billings, Montana, later this week is shaping up to be a riveting spectacle. A surprising array of Democrats and Republicans are ranged against the 16 tribal members who have sued for early-voting offices on their reservations.
“It’s the poorest of the poor versus the billionaires,” said Tom Rodgers, a member the Blackfeet, a Montana tribe.
In late August, Republican powerbroker Karl Rove told a meeting of the country’s super-rich that Montana Democrat Jon Tester’s Senate seat was one of the Republican Party’s best shots at Senate control, according to Bloomberg Businessweek. The neck-and-neck race between Tester and Republican challenger U.S. Representative Denny Rehberg was important then. It’s even more so today, now that Missouri appears to be off the Republican list, following remarks about “legitimate rape” by the party’s candidate, Todd Akin.
“Millions are flowing into Montana to influence the Senate race,” said Rodgers, who was the whistleblower in the Jack Abramoff scandal. “And now we have Indians suing for voting rights.”
In the federal suit, filed October 10, Northern Cheyenne, Crow, Gros Ventre and Assiniboine tribal members say that without satellite early-voting offices on their reservations, they must drive long distances to early-vote or late-register in their county seat. This is a burden for destitute tribal members who may not have vehicles or gas money for the trip, and the unequal access is illegal and unconstitutional, they say.
South Dakota tribes have also faced similar early-voting issues; a recent federal-court win by the Oglalas of Pine Ridge Indian Reservation means that this year, for the first time, they have on their reservation as many days of early voting as other South Dakotans do.
Improved ballot-box access would have real and immediate results, said a local Native American official in Montana.
“With satellite stations in our communities, we could exercise our right to vote, but also important, we could register voters,” said Rosebud County commissioner Danny Sioux, a Northern Cheyenne. “We could explain voters’ rights. On the Northern Cheyenne reservation alone, our current 400 ‘active’ voters could become 3,000 and impact elections all the way up to the federal level.”
Presiding over the hearing later this week will be Chief U.S. District Court Judge Richard Cebull, a Republican who achieved national prominence earlier this year by forwarding a crude email about President Obama’s mother. After the message became public, Cebull denied accusations of racism, and promised local newspapers that he would no longer send non-work-related emails from his office computer.
The lead defendant is a Democrat: Montana’s top election official, Secretary of State Linda McCulloch, who is running for re-election. McCulloch recently told the Associated Press that the Native voters’ claim “has merit,” but they should have started talking to her about it a year ago. As it was, the talks were moving into their sixth month when tribal members filed suit.
On the county level, election officials from both parties failed to set up satellite early-voting offices, and the suit names them as well. “I don’t care if they’re white, black or Chinese,” Rosebud County elections official Geraldine Custer, a Republican, told Indian Country Today, the national Native-owned newsmagazine. “I just don’t have the staff. It’s not about race. I’m just swamped.” (And, yes, she says her husband is a distant relative of that Custer, whom Indians helped into history in Montana in 1876.)
The negotiations for reservation early-voting offices began May 2 with a request from the Blackfeet Nation. Documents filed with the lawsuit indicate that in July, the secretary of state’s legal counsel, Jorge Quintana, wrote to tribal advisors that such offices were prohibited in Montana.
Then McCulloch consulted with the state’s attorney general and head lawman, Steve Bullock, a Democrat running for governor. Bullock advised her on August 17 that the state already has forms of satellite voting. On August 28, McCulloch changed course, issuing an advisory saying the facilities were legal and doable, but discretionary.
McCulloh told the counties. She didn’t tell the tribes.
Terri L. McCoy, the secretary of state’s communications director, defended the failure to inform the tribes in an email.“This is a local county issue,” she wrote.
Most counties with Indian reservations apparently shelved the secretary of state’s advisory without informing the tribes within their borders, said O.J. Semans, the Lakota director of Four Directions, a voting-rights group advising the tribes. Leaders of the suing tribes said they didn’t learn until mid-September that satellite early voting was even a possibility for their people. In the end, only Glacier County provided satellite early voting and registration, for the Blackfeet.
The Montana Democratic Party appears to be in an awkward spot. Spokesman Chris Saeger described efforts to improve ballot-box access in all forms: on and off reservations, in person and by mail, during the early voting period and on Election Day. “We’re working hard to ensure all Montanans have greater access to polling locations,” Saeger said.
The Montana Republican Party did not respond to requests for a comment.
Historically, the Democratic Party has been hospitable to Indians, said Glacier County Commission chair Michael DesRosier, a Blackfeet tribal member. “Our Democratic governor, Brian Schweitzer, and Senator Tester have opened many doors and shown they truly recognize us.”
What does voting mean to Native people? “When we come out to vote, more people will have to start to deal with us—about health care for our veterans, access to public transportation and more,” said DesRosier. “Otherwise, all they recognize is our ‘plight.’”
Danny Sioux noted that native people have the highest rate of military enlistment of any group in the country, according to the Defense Department.
“When we went to war, whose freedom were we fighting for?” asked Sioux. “Ours? Or just yours?”
On October 30, U.S. District Court Chief Judge Richard Cebull denied the Montana tribal members’ emergency request for early-voting polling places on three reservations— Northern Cheyenne, Crow and Fort Belknap. Cebull’s decision postponed resolution of this long-contested question until after the 2012 national election. The judge’s order was formally filed on Election Day, November 6.
On a fourth reservation, Blackfeet tribal members experienced an Election Day that included voter intimidation by a representative of the now-failed Senate campaign of Dennis Rehberg. Neither Rehberg’s campaign headquarters nor his press representative responded to requests for a comment on the operative’s actions, which a Blackfeet official and two election observers described as improperly asking voters for identification and otherwise frightening and angering them. Toward evening, ballots ran out in precincts around the reservation, and some Blackfeet waited as much as two hours for additional ballots to be delivered. Faced with the delays and scare tactics, other tribal members left polling stations without having cast ballots at all.
In his denial of the tribal request for early voting stations, Cebull acknowledged that Native American voters were given unequal access, but said the inequality was not sufficient to warrant satellite early voting. “I’m not arguing,” Cebull said, “that the opportunity is as equal to [sic] Indian persons as it is to non-Indians.” However, the judge said, he wanted proof that Native Americans couldn’t elect “representatives of their choice.”
“When I read the Equal Protection Clause of the U.S. Constitution, I don’t see an asterisk on the word ‘equal’ and a note that it has degrees,” said Greg Lembrich, a senior associate with the law firm Pillsbury Winthrop Shaw Pittman and legal director of Four Directions, a voting-rights group advising the Montana tribes and tribal members. “Equal means equal.”
Four Directions is appealing Cebull’s order to the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, according to the group’s attorney, Steven D. Sandven. Sara Frankenstein, attorney for most of the Montana officials named as defendants in the suit, called the appeal “frivolous” and likely to be dismissed since the election was already over.
Lembrich disagreed, saying that when behavior is likely to be repeated, as it is in this case, judges will hear a complaint.