On October 30, a group of Northern Cheyenne voter-plaintiffs obtained a ruling from the Ninth Circuit in Wandering Medicine v McCulloch, 12-35926. Last year election administrators in three Montana counties refused to open satellite voting offices in certain Native American reservations that are remote from county seats. A U.S. District Court Judge last year upheld the election administrators. The Ninth Circuit has now vacated the U.S. District Court decision. The plaintiffs will re-argue the case for future elections. The U.S. District Court had dismissed the case on the grounds that Native Americans have been successful in electing their own members to county office. That U.S. District Court Judge has since retired and now the case will go to another U.S. District Court Judge.
Satellite voting offices make it possible for individuals to register late in the season, and also to participate in early voting.
Montana law only permits early voting and registration at offices where the county regularly has offices, which is typically only in the county seat. Montana permits an absentee ballot to be issued when a voter registers, and to be “returned” immediately.
Registration requires a connection to the state’s online registration database, and early voting requires overnight security (or trucking all the equipment,etc. to and from the county seat each morning and evening). The counties have around 10,000 persons each, and there is essentially no election staff other than the county clerk.
The plaintiffs are members of the Crow, Northern Cheyenne, and Gros Ventres and Assiniboine tribes, who sued three separate counties which contain parts of three reservations. I don’t believe the tribes themselves are parties to the lawsuit.
The lawsuit was not filed until October 10, 2012, 27 days before the election, and because the plaintiffs did not request expedited briefing, the hearing was not until October 29, a week before the election.
No preliminary injunction was granted, in part based on the Section 2 VRA claims, because the Native Americans had been successful in electing candidates of choice. For example, all three counties have commissioners who are Native American, and are named defendants in their role as county commissioner.
Because the preliminary injunction that was sought was only for 2012, and the underlying case is still pending, the 9th circuit simply vacated the order not granting the preliminary injunction.