Civil rights attorneys from the U.S. Justice Department contend a federal judge wrongly denied a request to establish satellite election offices for American Indians on three Montana reservations.
At issue in the case before the 9th U.S. Circuit Court of Appeals are the long distances some Indians in rural areas of the state must travel to reach county courthouses for early voting and late registration.
While not as blatant as past discriminatory practices against Indians — who were once denied the vote outright — the difficulties some tribal members face reaching election offices puts them at a disadvantage to white voters, the government and plaintiffs said.
In the run-up to last fall's election, U.S. District Judge Richard Cebull sided with state and county election officials who fought the lawsuit seeking new election offices on the Crow, Northern Cheyenne and Fort Belknap Reservations.
Cebull said there was no evidence that Indians were being prevented from voting for the candidates of their choice, regardless of whether the elections system historically discriminated against them.
Justice Department attorneys say Cebull's decision was flawed.
In a friend-of-the-court brief filed this week, they said the judge overlooked the discrimination suffered by Indians who lack the resources to travel long distances. Just because some Indians are able to vote and elect their fellow Indians to office, the attorneys wrote, other Indians still could face travel difficulties that deny them equal access in the weeks before Election Day.
Montanans can vote by mail with early absentee ballots or by delivering ballots in person to county offices. Late registration begins at county offices a month before Election Day.
"Effectively, this gives folks living near the county seat almost 30 days more to vote. Indian tribal members living on the reservation effectively have only one day," said Derrick Beetso with the National Congress of American Indians, which also filed a brief in support of the plaintiffs.
No problems have been alleged with voting on Election Day, when polling stations are set up on the reservations.
Defendants in the case include officials from Big Horn, Blaine and Rosebud Counties and Montana Secretary of State Linda McCulloch.
Commissioners from the counties have said they were working with tribes to resolve voting access problems, but did not have enough time or resources prior to the last election to set up satellite election offices.
McCulloch's office has sought to have her dismissed as a defendant. Attorneys for the state say she does not have the authority to force counties to establish satellite election offices.
The state's attempt to exit the case is on hold while Cebull's October order denying the plaintiff a preliminary injunction is under appeal.
The defendants last month tried to get the appeal dismissed because the election is over. They were denied by a 9th Circuit panel that said the issue still could be raised at a later date.
Beetso said it was too early to say whether the Justice Department's decision to weigh in would sway the outcome.
But he said the assistance was welcome, as his group and others continue to wage what Beetso called an "uphill battle" to overcome a long history of Indian voter discrimination in the United states.
In some parts of the country, he said, Indians were once denied the right to vote unless they moved off the reservation and renounced their tribal ties. Elsewhere, he said, denials came on the grounds that tribal members were wards of the state on par with the convicted felons and the mentally insane.
The 1965 Voting Rights Act prohibited state-sanctioned discrimination against minorities.