“May it please the court, Erin Flynn on behalf of the United States.” So began the Justice Department’s presentation in a landmark Native voting-rights lawsuit. The Ninth Circuit Court of Appeals, sitting in Portland, Oregon, heard oral arguments in the suit,Wandering Medicine v. McCulloch,on October 10. The appeals court’s decision, upcoming in the next few months, will turn on whether a Montana district judge misread Section 2 of the Voting Rights Act when he denied requests for satellite registration and early-voting offices on isolated Montana reservations. The local magistrate reasoned that Indians have been elected to office in the state, so Indian voters’ lack of equal rights—which he readily acknowledged—was immaterial. “The district judge held that as long as Indians get to vote at all, what’s the problem,” said plaintiffs’ attorney Steven Sandven, of Sioux Falls. “The law needs to be clarified.”
The Department of Justice agreed, submitting a statement of interest and an amicus brief and even joining the appeal’s oral arguments—a rare and significant event, said plaintiffs’ attorney David Bradley Olsen, of Henson & Efron, in Minneapolis.
Commanding and concise, DOJ attorney Flynn made her point and drove it home. The district court erred in requiring Native plaintiffs to show they had no opportunity whatsoever to elect representatives of their choice: “The plain text of the Voting Rights Act’s Section 2 requires only that the plaintiffs showlessopportunity.”
The district judge’s reading of the VRA? “Completely incorrect,” said Flynn. Judge William Fletcher, one of three hearing the case, said he was inclined to agree.