Indian voters and their advocates have won a favorable settlement of an important voting rights lawsuit in Montana.
The Wandering Medicine v. McCulloch Indian voting rights lawsuit in Montana has many parallels to the Brooks v. Gant case in South Dakota. The Wandering Medicine lawsuit, like Brooks v. Gant, sought satellite voting stations to give Indian voters on remote reservations equal access to early voting. Wandering Medicine, like Brooks v. Gant, pitted Sioux Falls lawyer Steven Sandven and Indian voting advocacy group Four Directions against Rapid City lawyer and SDGOP secretary Sara Frankenstein. And in Wandering Medicine, as in Brooks v. Gant, the state and counties have surrendered and given the Indian plaintiffs most of what they asked for rather than face a precedent-setting thumping in federal court.
Under the settlement (attached here with a press release from Four Directions), Rosebud, Blaine, and Big Horn counties will establish satellite voting centers on the Crow, Northern Cheyenne, and Fort Belknap reservations respectively during the month before the general election. Again paralleling Brooks v. Gant, both sides are claiming victory. And again, Sara Frankenstein's attempt to portray a loss as a win is silly. The Wandering Medicine plaintiffs got the state and counties to remedy, if imperfectly, unequal voting access. They got the defendants to acknowledge fault (the settlement bears the standard language that no one acknowledges fault, but come on!) by agreeing to pay the plaintiffs $100,000 for their lawyer bills. Evidently Frankenstein learned her lesson in Brooks v. Gant and didn't try to force the Indian plaintiffs to pay for her defense of the state's discrimination.
However, Four Directions can't claim total victory. Those satellite voting centers will only be open on Wednesdays and Thursdays, and county election officials will move operations lock, stock, and ballot box to the reservations no those days, shuttering their courthouse offices. Montana state law requires that early/absentee ballots bear sequential numbers, and county and state officials say they can't figure out how to make the system number ballots at multiple sites within counties. Therefore, the plaintiffs have settled for an inelegant and still unequal fix that reduces the ability of white voters to vote at the courthouse but still gives them more opportunity to vote than Indian voters have.
In her press release on the settlement, attorney Frankenstein says the plaintiffs were asking for "technical impossibilities" in issuing properly numbered ballots from multiple sites in compliance with Montana law. I'm sure Frankenstein is just doing her job and doesn't really lack the technical and moral vision to see that technicalities should not stand in the way of justice.
Four Directions understands that this settlement is only a step toward full voting equality:
Four Directions will continue to work with Montana Tribes to establish voting equality and we call on Montana Secretary of State McCulloch to find a solution to the technology glitch that has forced Counties to only be able to have one voting office open on any given day. We believe a much better solution is for both the county courthouse and the Reservation satellite office to be open 5 days per week. In order to do so, she should request the Montana Votes vendor (Hewlett Packard) help solve this issue [Four Directions, press release, 2014.06.12].
Frankenstein says multi-site early voting is impossible; Four Directions says it's a matter of calling tech support. Who do you think sounds more reasonable? We should be able to guess how the Constitution and Martin Luther King would answer:
As a matter of recognized constitutional law, “technicalities” don’t override equal rights, says civil rights attorney Laughlin McDonald, director emeritus of the ACLU’s Voting Rights Project and author of American Indians and the Fight for Equal Voting Rights. “Administrative inconvenience cannot justify practices that burden the fundamental right to vote,” he says.
What would Martin Luther King do? “About Native voting? He sure as hell wouldn’t dither about technicalities,” says Four Directions consultant Healy, a former head of the South Dakota Democratic Party. “Read Dr. King’s ‘Letter from Birmingham Jail’ on the subject of waiting for rights.” In the 1963 letter, King decries the man “who paternalistically believes he can set the timetable for another man’s freedom” [Stephanie Woodard, "The Missing Native Vote," In These Times, 2014.06.10].
Frankenstein and her clients must find all that practical sensibility and justice talk from Four Directions really annoying. They managed to work into the settlement this prohibitive clause:
In working with the Tribes to set up the altemative election administration office, Four Directions, Inc. will not be involved, and will not serve as a designee of the Tribes or otherwise contact the counties [Wandering Medicine vs. McCulloch, Private Settlement Agreement and Release, 2014.06.10].
Four Directions can live with that restriction, because they aren't fighting for themselves. They are fighting for Indian voting rights across the Great Plains. And they are winning.