Mark Wandering Medicine lives in the village of Birney, located just south of Montana’s sprawling Northern Cheyenne Indian Reservation. His hometown of 108 souls is surrounded by working cattle ranches, sagebrush-covered hillsides and the occasional marker commemorating battles in America’s Indian Wars.
It’s a 20-mile drive from Wandering Medicine’s home to Lame Deer, the nearest town, and a 92-mile drive from his front door to Forsyth, the seat of government in Rosebud County, which covers an area the size of Connecticut.
Those distances are at the heart of a federal lawsuit filed by Wandering Medicine and others who want officials in Rosebud and two other Montana counties to create satellite-voting offices on several of the state’s large and remote rural reservations.
They say that would allow tribal members to take advantage of state law that allows Montanans to register late and vote before Election Day.
“There’s inequitable access to voting for tribal members in Montana,” says Bret Healy, a consultant with Four Directions, a South Dakota-based group that helped pay for the lawsuit. “One of the real inequities is for late registration. You have to do that in person at the county courthouse.”
The suit was filed in October by members of the Northern Cheyenne, Crow and Gros Ventre and Assiniboine tribes. They say the state’s failure to create satellite-voting offices in Blaine, Big Horn and Rosebud counties amounts to discrimination.
Making a case
The U.S. Department of Justice backed the suit, saying the state’s inaction violates the federal Voting Rights Act of 1973.
Further support came from Gerald Webster, a professor of geography at the University of Wyoming, who said Native Americans in the three counties faced serious obstacles to participating in the political process. Compared to non-Indian voters, they are likely to be poorer, have less access to transportation, and live at least twice as far from their county courthouses.
But so far the courts aren’t buying the argument that reservation voters are being treated unfairly.
On Nov. 1, just five days before the election, U.S. District Judge Richard Cebull of Billings rejected the suit, saying it didn’t give the counties enough time to solve the problem before the election. Nor did he see any evidence of discriminatory intent.
He said sparsely populated counties haven’t established satellite-voting offices because they don’t have the money or qualified people to staff them.
Cebull also said the situation has not prevented Native Americans from electing the representatives of their choice, a standard set by the Voting Rights Act to help determine whether a group of voters is being disenfranchised.
That was central to the counties’ arguments. Their attorney, Sara Frankenstein, also noted that reservation voters may cast ballots at local polling places on Election Day, just as any voter can.
As for the difficulty some tribal members face if they want to vote early or register late – which voters can only do independently by visiting the courthouse – well, it’s not the counties’ obligation to remedy that, says Frankenstein.
She argues that satellite voting offices are a form of convenience voting, and previous cases have established that states cannot be required to offer equal access to convenience voting.
“Every time you create a new convenient option it doesn’t mean you create a new right,” she says.
A right or a convenience?
Reservation voters have other convenience options, including absentee voting, Frankenstein says, adding that far-away voters can sign up once and the county will mail them an absentee ballot for every subsequent election.
Frankenstein also notes that help is available from the advocacy group Western Native Voice, which helps voters register late, drives them to the polls and to the early voting location and delivers applications for absentee ballots.
But Healy says, “It’s not enough to say that it’s just a matter of convenience.”
He points to lower voter turnout in reservation counties. In November’s voting, Montana’s reservation counties lagged an average of eight percentage points behind the statewide turnout rate of 72 percent. The turnout in Big Horn County, one of the counties sued, was 56 percent – the lowest in the state.
“You have a long history in the West of disenfranchisement of Native Americans,” Healy says. “The history of discrimination and past practices continues to influence things. It’s only within the last 20 years that Native Americans have started to work to turn that around.”
Cebull’s November ruling hasn’t ended the dispute.
Wandering Medicine and the other plaintiffs are asking Cebull to revisit the subject and order the counties to establish satellite offices for future elections. His prior decision pertained to the 2012 election alone.
They’re also appealing Cebull’s Nov. 1 ruling to the 9th U.S. Circuit Court of Appeals in San Francisco and asking Cebull to not hear the case for permanent offices until after the appellate court has ruled.
Frankenstein hopes the appeal will be dismissed quickly because the election is over.
It’s up to Cebull if he wants to wait or proceed with the case for permanent satellite voting offices at his convenience.
“There’s no timeline for judges to decide things,” Frankenstein says. “It could be tomorrow or it could be six months from now.”
If the appellate court hears the case, it could take up to two years to get a decision, she adds.
“If they know we really need to get this decided before the next election, maybe they’ll hurry it up,” she says.
– By KETTI WILHELM | UM School of Journalism
Rep. Ted Washburn, R-Bozeman, says he plans to propose bills in the 2013 Legislature that would eliminate same-day voter registration, stiffen voter identification laws, and require a longer period of residency before a citizen can vote.
Those ideas are part of a national trend. Lawmakers have introduced such bills in 34 states and passed them in Minnesota, New Hampshire, Pennsylvania and Virginia.
Washburn introduced a bill in 2011 to require a state–issued photo ID for registration and identification at the polls. The bill passed the Legislature, but Gov. Brian Schweitzer vetoed it. Washburn plans to resurrect that bill next year.
Conservative lawmakers have promoted voter ID laws for more than a decade. Since 2001, almost 1,000 voter ID bills have been introduced in 46 states. Some of those laws drew national attention this year for their possible effect on voter turnout in close races. Much of this legislation is based on “model bills” provided to lawmakers by the conservative American Legislative Exchange Council, which argues that such laws prevent voter fraud. Liberal-leaning groups say these laws are designed to suppress voting among minorities, young people and the poor – voters who tend to vote Democratic.
Washburn, who is running unopposed for re-election in House District 69, says his bills are homespun. “I’m one who believes that Montana should deal with Montana issues,” he says.
Regardless of where they come from, the ideas are controversial. Two of Washburn’s voter registration bills would require that potential voters prove they pay taxes, an idea critics say is unconstitutional.
Washburn says he worries that college students and others who live transient lifestyles are voting in Montana without being official residents. Montana voters should be people “who actually live here, who pay taxes here,” he adds.
While Montanans who are official residents of other states do pay local taxes indirectly through their rents and by shopping at businesses that pay property taxes, that’s not enough for Washburn.
Another of Washburn’s bills would require that a potential voter obtain a Montana driver’s license, or other state-issued ID, either 60 days or 6 months prior to registering to vote. He hasn’t yet nailed down the exact timeframe.
For voters who own cars, their vehicles would have to be registered in Montana, Washburn says, “because your payment (of the registration fee) is a tax.” Vehicle registration can cost well over $200 for a car or truck that is newer than five years old. Washburn acknowledges that it wouldn’t always be feasible to track down unregistered vehicles and force owners to pay up. “We probably wouldn’t check” to see if people have cars registered in other states, he adds.
Although none of his proposals explicitly require that voters be taxpayers, critics such as Rep. Bryce Bennett, D-Missoula, argue that implication is clear, which means they’re sure to be challenged in court.
The U.S. Constitution’s 24th Amendment abolished poll taxes or the payment of any form of tax as requirement to vote. Taxes were infamously used to keep poor black citizens from voting in the post-Civil-War South.
“Asking somebody to go out and purchase an ID that they wouldn’t need for their day-to-day lives is fundamentally a poll tax,” Bennett says.
Pennsylvania initially sidestepped this issue by offering free ID cards that can only be used for voting.
Voter fraud is rare
Constitutional questions aside, Bennett and others contend that bills like Washburn’s are targeting a problem – voter fraud – that doesn’t exist in Montana. All such efforts really do is discourage people from voting, he says.
“We should be trying to make voting more accessible rather than less,” says Bennett, who is considering proposing online voter registration next session.
Secretary of State Linda McCulloch, a Democrat whose office oversees elections, confirms that there have been no documented cases of voter fraud in Montana. But that doesn’t quiet Washburn’s concerns.
“There’s no way for a state to check if you’re registered in another state,” he says. “So theoretically, you could vote in at least two states in a presidential election.”
Washburn concedes that even his bills wouldn’t fix that. “They will never stop people from voting in two states,” he says. “But at least they’ll have to show (photo) ID here in Montana.”
Despite the offer of free ID for voters, Pennsylvania’s Supreme Court delayed enforcement of that state’s new ID law until next year because justices worried the law could exclude up to 1 million legitimate voters, or 18 percent, who do not have an acceptable form of ID.
Forward Montana, a progressive group that focuses on voting rights issues and getting young voters registered, says Washburn’s bills could have the same effect.
“When you have no basis for changing a law except excluding people from voting, in our books that’s pretty anti-democratic,” says Andrea Marcoccio, Forward Montana’s CEO. Washburn says that photo IDs are needed for so many other activities that it can’t be considered burdensome to require them for voting.
But his argument has not passed muster in other states, including Wisconsin and Texas, where the courts have recently struck down voter ID laws.
Montana’s ID law
“Montana has a voter ID law,” Marcoccio says, “You have to bring some form of ID to vote. The question is, should you limit it to one form and why?”
Montana has what is called a “non-strict, non-photo” ID requirement.
“Non-photo” means that in addition to a driver’s license, state-issued photo ID and tribal ID – the only forms that Washburn’s bill would allow – current Montana voters can show a school district or college photo ID, a current utility bill with their address, a paycheck, a bank statement or another government document showing their name and current address. As long as the address on the document matches the name in the voter registration log, the person is allowed to vote.
“Non-strict” means that voters who do not show sufficient ID can sign the voting precinct’s register and vote a provisional ballot. Provisional ballots are checked later to ensure that the voters were indeed registered.
Washburn says that the process of checking provisional ballots causes too much of a delay for election officials.
To ease the Election Day stress in county election offices, Washburn also is proposing a bill to eliminate same-day registration. Montana’s law that allows voters to register to vote up to and on Election Day was enacted in 2005.
“Yes, it would make election day smoother,” says Missoula Clerk and Recorder and Treasurer Vickie Zeier, a Democrat. “But I think if you’re prepared for it it’s not that big of a deal.”
Zeier says the only difficulty in dealing with same-day registrants is predicting how many people will show up. “The bonus,” Zeier adds, “is you never have to turn someone away who wants to vote.”
Presidential election years bring high numbers of new registrants on Election Day. In 2008, Missoula County registered about 1,300 voters on Election Day, the highest number of any county in Montana, according to Zeier.
That year, Missoula County employed seven clerks to deal with those registrations. This year, she says, there will be 12.
“We’re prepared for high numbers,” Zeier says.
Marcoccio says same-day registration is an important option for people who move around a lot and sometimes don’t have an opportunity to register in advance at their current address.
“Just because folks are transient in their lifestyles doesn’t mean they shouldn’t have the right to vote,” she says.
– By KETTI WILHELM | UM School of Journalism