Expert in Native voting rights trial says Alaska has long history of discrimination

By RICHARD MAUER Anchorage Daily News

rmauer@adn.com June 30, 2014

 

An expert testifying in the federal voting rights trial in Anchorage said Monday it’s possible to trace Alaska’s current failure to provide full language assistance to Native language speakers to territorial days when Alaska Natives were denied citizenship unless they renounced their own culture.

“This represents the continuing organizational culture, looking at the law as something they’re forced to do, instead of looking at the policy goal of being sure that everyone has the opportunity to participate,” said University of Utah political science professor Daniel McCool. “It’s part of a pattern I see over a long period of time, a consistent culture — they’re going to fight this. When forced to do something, they’re going to do it, but only when they’ve been ordered to.”

McCool testified as an expert on behalf of four tribal villages in Southwest Alaska and the Interior and two village elders with limited English skills. They’re suing Lt. Gov. Mead Treadwell and three officials in the Alaska Division of Elections which he oversees, saying the officials are not providing a full suite of election materials in their Native languages. They say amendments to the Voting Rights Act in 1975 require language assistance.

The state says it’s doing what the law requires, providing sample ballots and oral translations for some Native languages. The state has gone out of its way to consult with tribal councils, its witnesses have said.

Treadwell and the other officials are being defended by the Alaska Attorney General’s office. Before the trial began, the state lawyers attempted to prevent McCool from testifying, saying he wasn’t really an expert. They said he wasn’t familiar with Alaska and only spent four weeks or so researching how the state has treated Native voters over the years.

McCool said he may not be an expert on Alaska, but he knows how to study the issues. He said he reviewed tens of thousands of pages of documents, books, legal decisions, state and federal data and other material.

U.S. District Judge Sharon Gleason, a former state judge who’s hearing the case without a jury, disagreed with the state’s attorneys. She allowed McCool to take the stand and admitted the report he prepared for the Native plaintiffs.

McCool’s testimony came at the close of the Natives’ case, the sixth day of trial. The trial is expected to conclude this week.

McCool said that with some exceptions pushed by a few political leaders, Alaska’s history is rife with discrimination against Native voters. In 1915, the Territorial Legislature passed a law that said that for Alaska Natives to become citizens, “they had to give up their culture, their language, and live like white people,” McCool said. “They’re the only group in American history told to give up their identity in order to vote.”

In 1924, Congress passed the Indian Citizenship Act, granting Native Americans full rights as citizens. The response in Juneau? The following year, the Territorial Legislature passed a literacy test that kept most Natives from voting, McCool said.

“There was a fear that if they all became citizens, they would all start voting in dramatic numbers,” McCool said. One local newspaper ran an ad warning, “We don’t want these ignorant savages to take over,” he said.

McCool said one effective opponent of racism against Alaska Natives was the territorial governor Ernest Gruening, sent to Alaska in 1939 by President Franklin Roosevelt.

Assistant Attorney General Margaret Paton-Walsh was poised to object to McCool’s testimony if he strayed beyond what he was allowed to say. She took to her feet while McCool was testifying about Gruening’s autobiography, when two pages of a book were projected on a screen in the courtroom.

“Objection,” Paton-Walsh said. Reading from the folio on the book’s pages, Paton-Walsh said McCool was actually reading from the book “At War” by author Mary Bettles.

After a moment of confusion, McCool clarified: The folio didn’t say Mary Bettles, it said “Many Battles,” the name of Gruening’s book. The chapter heading in the other folio was “At War.”

A moment later, Gleason declared a break. When she returned from chambers and trial resumed, she said of herself and her clerk, “We both enjoyed ‘Mary Bettles.’ ”

McCool noted that Gleason herself played a role in Native rights issues when she was a state Superior Court judge and ruled in the case Moore v. State. She held that the state had failed to live up to its duty in the Alaska Constitution to provide public education in rural Alaska in 2007. Two years later, when the state Department of Education asked her to declare it was in compliance with the law and end her supervision of its remedial action, she refused, using language similar to that in McCool’s description of the Division of Elections. She said the state was applying an “incremental, minimalist initial approach” that didn’t pass constitutional muster.

Education matters, McCool said, and poor schools in the Bush are closely connected to limited English proficiency among Alaska Natives.

McCool said Alaska didn’t abandon its literacy test until the U.S. Voting Rights Act required it to.

Under cross examination by Paton-Walsh, he acknowledged that the literacy test wasn’t as tough and discriminatory as ones in the South directed against African-Americans, but it had an intimidating effect.

McCool said he understood that the Division of Elections says it doesn’t have the resources to provide full language assistance for all Native speakers, but he said that’s only an excuse.

“These attitudes and behaviors don’t look to me like the behaviors of an agency that’s absolutely devoted to providing equal opportunity to all voters, even if it’s difficult,” McCool said. “The attitude is let’s do what the law requires and absolutely no more.”

Reach Richard Mauer at rmauer@adn.com or (907) 257-4345.

Montana Indian voting lawsuit settled

By John S. Adams, Great Falls Tribune

Photo: TRIBUNE PHOTO/LARRY BECKNER

Photo: TRIBUNE PHOTO/LARRY BECKNER

HELENA – Indian plaintiffs who sued in federal court to force the Montana secretary of state and three rural counties to open satellite voting offices on remote reservations have settled the lawsuit out of court.

Under the agreement, the three counties agree to open satellite voting locations on three reservations and pay plaintiffs’ attorney fees in the amount of $75,000. In a separate agreement, the state agrees to pay an additional $25,000 in attorney fees, according to Secretary of State Linda McCulloch.

“I pledged to help assist the tribes and the counties to make this all work,” McCulloch said.

Both sides hailed the agreement as a win.

Northern Cheyenne tribal member Mark Wandering Medicine, along with 11 other Indian plaintiffs, in February 2013 sued McCulloch and county elections officials in Blaine, Rosebud and Big Horn counties, alleging the defendants violated portions of the federal Voting Rights Act, which “prohibit voting practices or procedures that discriminate on the basis of race, color or membership in one of the language minority groups.”

The plaintiffs argued their rights to equal access to voting were violated when McCulloch and county elections officials refused to set up satellite voting offices on remote Indian reservations in advance of the November 2012 presidential election.

The U.S. Department of Justice’s Civil Rights Division, the ACLU of Montana and the national ACLU Voting Rights Project filed court documents supporting the plaintiffs’ claims that tribal members living on the Crow, Northern Cheyenne and Fort Belknap Reservations are at a voting disadvantage compared to white voters in Rosebud, Blaine and Big Horn counties.

The plaintiffs argued that the only late-registration and early voting options available to them between the close of regular voting registration and Election Day is at county courthouses in the white population centers. In some cases those courthouses are more than 100 miles round-trip from where most tribal members live, making it difficult for many impoverished Indians to register late and vote after the regular registration deadline.

The case was set to go to trial June 30.

In a settlement agreement reached Tuesday, the counties agreed to open satellite county election offices beginning Oct. 7. Those offices will be open on the reservations two days a week for tribal members to register late and cast absentee ballots in person.

During those days the voting offices will not be open at their normal locations in the county seats.

Alex Rate, attorney for the Wandering Medicine plaintiffs, said the settlement agreement is a bit step toward the goal of achieving voting equality on the reservations.

“Given the history of discrimination against Montana’s first peoples, we believe that everyone should have equal access to the ballot box, and this agreement is a giant step towards reaching that goal,” Rate said. “Further, this agreement validates the central pillar of Section 2 of the Voting Rights Act: that Indian voters must have an equal opportunity to participate in the political process.”

Bret Healy, a South Dakota-based Indian voting rights consultant with Four Directions, called the settlement a big victory for Indian voting rights but said the underlying technical issues that are preventing the state and counties from opening full-fledged satellite voting offices still need to be addressed.

“The final solution that we think is the appropriate one is to wrestle the technology obstacle to the ground so a satellite office is open five days a week as well as the county voting office,” Healy said.

The defendants argued that the plaintiffs’ demands for satellite voting offices were not allowed under Montana law, which requires each absentee ballot to be issued in sequential order using paper ballots that are prenumbered. The ballot number an absentee voter receives is determined by a complex, statewide computerized system that is not programmed to issue ballots from more than one location, the defendants said. Due to Montana law, as well as technical impossibilities with the statewide computer system, satellite offices were not an option, they argued.

“Because what the plaintiffs sued for was not something they could obtain, Blaine, Big Horn and Rosebud counties offered the plaintiffs an alternative,” said Sara Frankenstein, the attorney representing the counties in the litigation. “The three counties have offered to move their election offices for two days a week from its normal location in the county courthouse to a tribal facility on Indian reservations during the 30-day early voting period. The three counties are looking forward to working with their respective tribes on that issue, and are happy to address plaintiffs’ concerns with an alternative method that is actually legal and possible, and at the same time will cost the county very little to provide.”

Healy said the Secretary of State’s Office needs to work to address the technology hurdles in order to give tribal members on the reservations full equal voting opportunities.

“The bottom line is Native American voters on these reservations are going to go from zero days of equality and late registration and absentee balloting opportunities to at least a strong step forward,” Healy said.

McCulloch said counties will not be able to have two voting offices open simultaneously under current state law.

“The law would have to be changed and the Montana Votes system would have to be changed,” McCulloch said.

Healy said with this “inelegant fix” in place, Four Directions will work with other tribes across the state to request similar arrangements in their counties while at the same time continue to advocate for full satellite voting offices on the reservations.

“It simply defies belief that in this day and age we can’t have main voting office and satellite offices open and running five days a week,” Healy said. “The only reason that hasn’t happened is because nobody has rolled up their sleeves and tried to fix this.”

Walsh to hold hearing on the challenges to voting

Montana Sen. John Walsh on June 25 will chair a Senate Rules Committee hearing examining the hurdles voters in rural areas face due to long distances to polls, lack of easy access to mail voting and the lack of infrastructure. The committee will also hear about ways states have tried to make voting easier for people.

Walsh’s office said he organized the hearing in response to the concerns he heard from people across Montana, particularly in Indian Country.

The hearing title is “Election Administration: Examining How Early and Absentee Voting Can Benefit Citizens and Administrators.”

Witnesses at the hearing include:

• Rhonda Whiting, board chair for Western Native Voice, a Montana nonprofit that seeks to increase Native American voting and voting access, headquartered in Billings.

• Oregon Secretary of State Kate Brown.

• Larry Lomax, of Nevada, a former member of the Presidential Commission on Election Administration.