A TALE OF TWO COUNTIES

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Remember our short discussion about gerrymandering?

A TALE OF TWO COUNTIES AND THE FEDERAL VOTING RIGHTS ACT

by William Perry Pendley

May 1, 2005

In mid-1999, lawyers from Clinton’s Justice Department arrived in tiny Chinook, the county seat of sparsely populated, rural Blaine County, Montana, to deliver an ultimatum. Either Blaine County racially gerrymander its commissioner election districts or government lawyers would sue charging Blaine County with violating the federal Voting Rights Act (VRA).

Montana, like many other western states, elects its commissioners at large, by election district. Unlike at-large election systems adopted by states with a history of violating the voting rights of minority citizens, the western at-large system has been in place since the states’ territorial days. Because county government is “where the rubber hits the road,” there is no room for commissioners, concluded early state lawmakers, who do not feel a sense of obligation to all county voters wherever they reside.

American Indians comprise 43 percent of the residents and 39 percent of the voters of Blaine County; however, because 83 percent of them reside on the Fort Belknap Indian Reservation, which through tribal government and the Bureau of Indian Affairs receives services usually provided by county government, American Indians are sensibly uninterested in commissioner elections. As to other elections, American Indian voters involve themselves to the degree that they often determine the outcome of primary and general elections. For example, Blaine County voters elected Charles Hay, an American Indian, as Sheriff and Justice of the Peace.

But it was the commissioner races that interested federal lawyers; that no American Indian had been elected commissioner was proof of a VRA violation! That no American Indian could identify a reason to run for county commissioner or what he could do to serve his constituents if elected was irrelevant. As to Charlie Hay’s election victories, federal lawyers said they proved nothing because, “he did not run for office as an Indian.”

The United States sued Blaine County in November 1999; however, discovery and other preliminary matters consumed the next 15 months. Although Bush officials were given the opportunity, in January 2001, to abandon the lawsuit, they declined. After a week-long trial in October 2001, a Montana federal district court ruled against Blaine County in March 2002. Later, a panel of the U.S. Court of Appeals for the Ninth Circuit upheld the ruling, opining, in conflict with other appellate circuits and the U.S. Supreme Court, that minorities could invalidate at-large voting without proof of, for example, racial animus or specific issues as to which racial minorities sought, but were denied, election. Last month, the Supreme Court, notwithstanding these clear conflicts, declined to hear, and thus ended, the case.

Meanwhile, federal lawyers fashioned a VRA lawsuit against yet another rural western county. Although the Clinton Administration ended before the suit could be filed, Bush lawyers kindly filed it for them, suing Alamosa County, Colorado, in late 2001. This time the allegation was that at-large voting had deprived Hispanics of their ability to elect their “candidates of choice,” that is, averred Bush Administration lawyers, “Hispanic Democrats.”

Alamosa County, arguing the law the Ninth Circuit refused to apply in Blaine County’s case, prevailed when a Colorado federal district court ruled that it had not violated the VRA. The Justice Department, fearing that the Tenth Circuit would rule in favor of Alamosa County and set a six-state precedent barring further VRA lawsuits, did not appeal.

So where does this tale leave other western jurisdictions, such as Wyoming’s Fremont County, home to the Wind River Indian Reservation? It leaves them in what aviators call “the zone of confusion.” For notwithstanding Mark Levin’s scholarly views in his best selling, Men in Black, not all problems are the result of opinions by Supreme Court justices. Some are the result of: those named to the Civil Rights Division; the arbitrary rulings issued by federal appellate judges, such as those on the Ninth Circuit; and finally, the cases that the Supreme Court, for whatever reason, refuses to hear and to reverse.

http://www.mountainstateslegal.org/summary_judgment_home.cfm