On February 20, the Ninth Circuit agreed to decide whether a U.S. District Court in Montana last year should have ordered three Montana counties to open offices, other than in the county seat, where voters could cast early votes. The lawsuit is Wandering Medicine v McCulloch, 12-35926.
On October 30, 2012, the U.S. District Court had denied the request, even though its opinion (issued November 6) said, “It is undisputed that Native Americans living on the three Indian Reservations face greater hardships to in-person absentee voting than residents of the three counties who do not live on the reservations.” Montana permits early voting, but it must be done at the county seat. The plaintiffs wanted another place in which to vote early that would not be so far from the county seat. The lead plaintiff lives so far from the county seat that a round trip to the county seat for him would have been 182 miles. The plaintiffs are all residents of three Indian reservations. The U.S. District Court had denied injunctive relief partly because it said the case had been filed too late, and partly because there were administrative difficulties to opening satellite offices, and partly because residents of the three particular reservations had already had electoral success in electing Native Americans to county elected office and to the state legislature. When plaintiffs appealed to the Ninth Circuit after the election for a reversal, the defendants filed a brief arguing the Ninth Circuit should dismiss the appeal without further briefing, but the Ninth Circuit denied that motion.
You omitted the following sentence:
“But because the evidence also established that Montana law provides several other ways of voting and that Native Americans living on the three reservations are able to elect representatives of their choice, the Court concluded Plaintiffs were not very likely to succeed on the merits their ยง 2 Voting Rights Act claim.”
Last spring there had been some informal inquiries about opening satellite offices in another part of the state. After a more formal effort had been made, the Secretary of State ruled that it would violate state law to operate satellite offices for early voting. The Attorney General later overruled her, saying that the Montana Constitution gave counties considerable home rule authority in administering their offices.
It is dubious to what extent that this authority applies to federal elections, where manner authority is vested solely in the state legislature (and Congress). Creating a voting procedure that is contrary to an express provision of state law is greatly more significant than closing the office door at 5 p.m., like you do every other day, except where the legislature has expressly ordered the office to be open.
After the Attorney General’s ruling, the Secretary of State then issued the requirements that must be met for satellite election laws, in her role as ensuring the uniform administration of elections in the State.
It is not the case of Montana counties generally providing extra early voting locations, and refusing to locate any on reservations. They basically don’t have satellite offices.
In Montana, “early voting” is really absentee voting, except that in addition to making a request for a ballot by mail, phone, or internet, a voter may pick one in person at the county clerk’s office. A voter may return an absentee ballot by mail, to a regular polling location on election day, or to the county clerk.
So a voter could get an absentee ballot at the county clerk’s office, take it home, fill it out and mail it in. Or they could get an absentee ballot, fill it out and hand it back in.
Curiously, the Secretary of State is now a defendant because she did not order the counties to open satellite election offices, when the attorney general had offered the advice that the counties could interpret the law broadly.
The formal requests to establish satellite offices were not made until mid-September, and the law requires that they be open 30 days before the election. The lawsuit was not filed until after the 30-day starting period, and the plaintiffs did not seek expedited handling. The defendants filed their response 14 days later, and the hearing was on October 30, 3 weeks after the election centers would had to have been opened. The lame-o USDOJ said that the temporary injunction should be issued because there was so little time left before the election that it really wouldn’t matter.
The counties are all small. In one case, the Clerk and Recorders office had 3 employees, which had not only to handle the election, but other matters such as the county payroll. The satellite office would have required at least 2 trained election officials. They would need a secure wired internet connection, and either have a safe for keeping ballots in, or drive them to and from the county seat every day. All ballot styles used in the county would have to be available, and there are certain procedures required to be followed in sequencing ballots.
Voters may mail their absentee ballot in, or they may return it to a regular polling place on election day. Voters did not have to go to the county clerk’s office to get an absentee ballot. It was suggested that the plaintiffs, who claimed that they were willing to fund the satellite office, could provide transportation to the county seat; or provide an office that would facilitate request for ballots, that would only need ordinary internet service and a telephone line.
Named defendants in all three counties are Native Americans, including county commissioners. Most of the elected officials are Democrats (the party generally preferred by Democrats). Any “harm” was not in the form of not being able to vote effectively.
Some pretty interesting names involved in the case:
One of the defendant county clerks is named Custer; one of the defendant county commissioners is named Robert E. Lee; and one of the defense attorneys is named Frankenstein.
I’m not sure where you get the 182 miles to the county seat and back from. It’s about 120 miles (the original complaint got confused about where the county seat of Rosebud County is. It is in Forsyth, not Hardin.