2012: Wandering Medicine v. McCulloch, Custer, et al.

The Problem

Native voters in Montana had to travel more than 100 miles round trip to cast an absentee ballot in person. With success opening satellite voting offices on South Dakota reservations, Tribes wanted equal access to in-person early voting in Montana, too.

The Solution

Four Directions tried to persuade county and state officials to open satellite voting offices, then worked with Tribes and Tribal members to pursue litigation compelling Montana election officials to open satellite voting offices on Indian reservations across Montana when county and officials refused.

The Four Directions Approach

Leveraging trusted relationships with Tribal leaders, Four Directions identified dozens of Native voters, including Native veterans, who lacked equal access to in-person early voting to be plaintiffs in this important case.

In 2012, an attorney who had previously worked with Four Directions filed suit in Montana federal court asking that the State be ordered to open satellite voting offices at Tribal headquarters in Fort Belknap, Lame Deer and Crow Agency. The suit alleged that, without the access to early, in-person absentee voting and late registration that a satellite office could provide, Tribal members were being denied equal voting opportunities as required by the United States Constitution and the Voting Rights Act.

Blackfeet Nation was the first to request a satellite voting office at their headquarters. In response to that request, the Montana Attorney General issued a Letter of Advice to the Secretary of State stating his opinion that satellite offices were allowed under Montana law. Secretary of State Linda McCulloch followed up with an Election Advisory to local election officials, telling them that they had the ability to open satellite locations and providing them with the procedures to be followed when doing so. Soon after, the Crow Nation, the Northern Cheyenne Tribe, and the Fort Belknap Indian Community joined in with their requests for satellite offices.

Although Montana’s Attorney General and Secretary of State had initially found no legal barrier to satellite voting, local election officials were neither receptive to the idea nor were they cooperative. The county officials either voted to deny the requests outright or delayed taking a vote or any other action on the requests, which had the effect of a denial. It quickly became apparent that a lawsuit was the only option to secure equal voting rights for Tribal members in Montana.

The National Congress of American Indians, the American Civil Liberties Union Voting Rights Project, and the U.S. Department of Justice filed amicus briefs in support of our argument for equal access to in-person early voting. But following a hearing in October 2012, the racially compromised Chief Federal District Judge Richard Cebull ruled that the State was not required to establish or permit satellite voting offices on the Indian reservations for in-person absentee balloting and late registration, because despite the hardships and the long- distance travel required for Tribal members to register and vote at county courthouse locations, they had in the past had some success in electing Tribal members to office and, therefore, could not prove that they were denied the right to vote and elect representatives of their choice.

Because the legal standard applied by the district court judge was wrong, the attorney appealed to the United States Court of Appeals for the Ninth Circuit. The United States Department of Justice quickly filed an amicus brief agreeing with our assessment of Judge Cebull’s legal standard.

The Result

The Ninth Circuit heard oral arguments on October 10, 2013, and on October 27, 2013, issued its order: dismissing the appeal as moot, vacating Judge Cebull’s orders, and stating its understanding that the district court would act expeditiously in dealing with plaintiffs’ request for a permanent injunction. The case was eventually settled, opening satellite voting offices on Montana Indian reservations for the first time.

The Opportunity

We have an opportunity to develop the legal test for in-person early voting rights based on extreme geographic and economic disparities between Native voters and the average Anglo voter. Such a legal test could expand access in-person early voting for all protected classes of voters across the country.