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Case Document

SI- Wandering Medicine v. McCullough 2014

Document Type
Statement of Interest

You may view the statement of interest in pdf format.



Acting Assistant Attorney General

Civil Rights Division






Voting Section, Civil Rights Division

U.S. Department of Justice

Room 7264 NWB

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Telephone:  (202) 353-0792

Facsimile:   (202) 307-3961

Attorneys for the United States



United States Attorney


Assistant U.S. Attorney

U.S. Courthouse

2601 Second Avenue North

Box 3200

Billings, MT 59101

Telephone:  (406) 247-4633

Facsimile:   (406) 657-6989









LINDA McCULLOCH, in her official capacity as Montana Secretary of State, et al.,



CASE NO. 1:12-CV-135-DWM



The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General to attend to the interests of the United States in any pending suit. The United States has a strong interest in the resolution of this matter, which implicates the interpretation and application of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. In addition to providing a private right of action, Congress gave the Attorney General broad authority to enforce Section 2 of the Act. See 42 U.S.C. § 1973j(d). Accordingly, the United States has a substantial interest in ensuring that Section 2 is properly interpreted and that it is vigorously and uniformly enforced.  Indeed, the United States previously filed a Statement of Interest in this case at the preliminary injunction stage and also participated as amicus curiae on appeal before the Ninth Circuit in this case in order to address the interpretation and application of Section 2 in this context.

The plaintiffs in this case alleged, among other things, that the location of the site for in-person late registration and early voting in Big Horn, Blaine, and Rosebud counties discriminates against Native Americans in violation of Section 2. Compl. ¶¶ 161-63, ECF No. 1. On April 4, 2014, following the Ninth Circuit’s dismissal of plaintiffs’ appeal from the denial of a preliminary injunction and further discovery in this Court, the plaintiffs and the defendant counties and county officials (“county defendants”) filed cross-motions for summary judgment




pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Pls.’ Mot. Summ. J. , ECF No. 159; County Defs.’ Mot. Summ. J., ECF No. 163.


In their brief in support of summary judgment, Mem. Supp. County Defs.’ Mot. Summ. J., ECF No. 166 (“Defs.’ Mem.”), the county defendants argue that plaintiffs’ claims are not cognizable under Section 2 of the Voting Rights Act and thus argue they are entitled to judgment as a matter of law. The limited purpose of this Statement is to explain why the county defendants’ interpretation of Section 2 lacks merit and therefore cannot support a grant of summary judgment in their favor. This Statement does not address any other issue pending before this Court.



This case involves two provisions of Montana election law that make it easier for Montanans to exercise their electoral franchise. The first is known as “late registration,” and the second is known as “early voting.” Together, the two provisions offer a convenient one-stop approach to registration and voting that allows a voter to register and vote with a single visit to a local office any time within a 30-day window preceding an election.

Late registration is an option for Montanans who miss the regular mail-in registration deadline 30 days before an election. See Mont. Code. Ann. § 13-2-301. Starting the day after the regular registration deadline and continuing until the close of the polls on Election Day, an eligible voter may register to vote or




update the voter’s existing registration information by appearing in person at the county election office or other location designated by the county election administrator. See Mont. Code Ann. § 13-2-304.

Early voting, which is also known as in-person absentee voting, allows any registered voter to receive, mark, and submit an absentee ballot in person at the county election office or other location designated by the county election administrator. See Mont. Code. § 13-13-222. The early-voting period begins as soon as absentee ballots become available—which is typically about 30 days before the election—and continues until noon on the day before the election. See Mont. Code Ann. §§ 13-13-205, -211.

Late registration and early voting most often take place at the county election office, which usually is located in the county clerk’s office in the county seat. However, as this Court has recognized, Montana law permits a county to create satellite election offices so that late registration and early voting can take place in more than one location. See Order at 9-10 (recognizing that the Secretary of State “had, and has, the ability to issue a directive telling the counties that they must establish satellite voting offices for in-person absentee voting and late voter registration”), ECF No. 153; Pls.’ Mem. Supp. Mot. Prelim. Inj. Ex. 9 (Election Advisory #A01-12), ECF No. 4-2.





Big Horn, Blaine, and Rosebud counties currently offer late registration and early voting only in their respective county seats. Each of these counties is geographically large and sparsely populated. Each county also has a substantial Native American population, most of which lives on or near Indian reservations located within those counties at a great distance from the county seat. Thus, the issue in this case is whether the location of the existing late registration and early voting sites results in Native Americans having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” 42 U.S.C. § 1973(b), in violation of Section 2.



Under Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In deciding whether there is a genuine issue of material fact, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A “genuine issue” is one




whose resolution could establish an element of a claim or defense and, therefore, could affect the outcome of the action. Id.



A.      Section 2 applies to the location of late registration and early voting sites.


The county defendants assert that the plaintiffs’ claim is not cognizable under Section 2 because it concerns early and absentee voting. They claim that early and absentee voting is “convenience voting,” and therefore lacks protection under Section 2 of the Voting Rights Act. Defs.’ Mem. 9-15. Not so.

Any determination of what Section 2 means “must begin: with the language of the statute itself.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670, 1680 (2012). Section 2 is categorical: states can use “[n]o” voting “standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or [membership in a language minority group].” 42 U.S.C. § 1973(a). The Act contains a broad definition of the right to vote that encompasses, “all action necessary to make a vote effective,” including, among other things, “registration . . . casting a ballot, and having such ballot counted properly.”  42 U.S.C. § 1973l(c)(1) (emphasis added); accord Allen v. State Bd. of Elections, 393 U.S. 544, 565-66 (1969). If Congress had meant to exempt a category of voting procedures from scrutiny




under the Voting Rights Act, it could have done so. But as the Supreme Court explained in Chisom v. Roemer, 501 U.S. 380 (1991), it is “difficult to believe”  that Congress “withdrew, without comment, an important category of elections” from the Act’s protection. Id. at 404. To the contrary, the legislative history of the Act, and of Section 2, in particular, is “indicative of an intent to give the Act the broadest possible scope. Chisom , 501 U.S. at 403 (quoting Allen, 393 U.S. at 567). That broad scope plainly includes the voting procedures at issue here.

Recognizing the Act’s broad scope, courts have interpreted Section 2 to cover all manner of voting procedures.  In particular, courts have repeatedly entertained Section 2 claims that involve access to polling places, to voter registration, and to opportunities for absentee and early voting. See, e.g., Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub nom. Operation Push v. Mabus, 932 F.2d 400 (5th Cir. 1991); Spirit Lake Tribe v. Benson County, No. 2:10-cv-095, 2010 WL 4226614 (D.N.D. Oct. 21, 2010); Brown v. Dean, 555 F. Supp. 502 (D.R.I. 1982); Brown v. Post, 279 F. Supp. 60 (W.D. La. 1968); and Jacksonville Coal. for Voter Prot. v. Hood, 351 F. Supp. 2d 1326 (M.D. Fla. 2004). No court has ever held that any voter registration procedure or ballot-access issue is outside of Section 2’s purview.

Thus, it is hardly unsurprising that the cases on which the county defendants rely do not support their argument. McDonald v. Bd. of Election Comm’rs of





Chicago, 394 U.S. 802, 807 (1969), Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004), and Gustafson v. Illinois State Bd. Elections, 2007 WL 2892667 (N.D. Ill. 2007) —see Defs.’ Mem. 10-14—are simply irrelevant. Those cases did not involve claims under the Voting Rights Act in the first place, and thus say literally nothing about the scope of the Act.   Similarly, Denis v. N.Y. City Bd. of Elections, 1994 WL 613330, *3 (S.D.N.Y. 1994) —see Defs.’ Mem. 10—did not involve polling locations or early voting of any kind, so it sheds no light on the Act’s coverage of those practices.  In any event, contrary to the county defendants’ characterization, the court in Denis simply held that the plaintiffs had failed to meet their burden of showing that, under the totality of the circumstances, black or Latino voters had been prevented from voting in a particular primary election.

The three cases county defendants cite that do involve early or absentee voting also do nothing to support their argument here. In each case, the court assumed that Section 2 covers the practices at issue. Indeed, in Jacksonville Coalition for Voter Protection v. Hood, 351 F. Supp. 2d 1326 (M.D. Fla. 2004), the court expressly declared that “polling places constitute a ‘standard, practice, or procedure with respect to voting’ under Section 2, and that placing voting sites in areas removed from African–American communities can have the effect of abridging the right to vote.”  Id. at 1334 (citing Perkins v. Matthews, 400 U.S. 379, 387 (1971)). Similarly, in Brown v. Detzner, 895 F. Supp. 2d 1236 (M.D. Fla.





2012), the court recognized that Section 2 required it to determine “whether the State of Florida, having decided to allow early voting, has adopted early voting procedures that provide equal access to the polls for all voters in Florida.” Id. at 1254-55. To be sure, the plaintiffs in Jacksonville Coalition, Brown, and Jacob v. Bd. of Directors of Little Rock Sch. Dist., 2006 WL 2792172 (E.D. Ark. 2006), were unsuccessful. But they were unsuccessful not because Section 2 did not apply to their claims, but because they had failed to establish a likelihood that the early-voting practices at issue would have the discriminatory effect that Section 2 requires plaintiffs to establish. See Brown, 895 F. Supp. 2d at 1249-55; Jacob, 2006 WL 2792172 at *2; Jacksonville Coalition, 351 F. Supp. 2d at 1333-36

Accordingly, this Court should reject the county defendants’ argument and rule instead, consistent with the Act’s plain text and well-established precedent, that Section 2’s protections apply to the accessibility and location of any late registration and early voting opportunities that a jurisdiction offers.

B.      Section 2 does not require the plaintiffs to prove an inability to elect their preferred candidates.


The county defendants also argue that Section 2 “requires Plaintiffs to demonstrate that . . . the Counties’ failure to provide satellite locations [for late registration and early voting] . . . prevented them from electing representatives of their choice.” Defs.’ Mem. 20. They further claim that they are entitled to






summary judgment here because undisputed facts show that some Indian-preferred candidates have been successful in Montana.  Because the county defendants’ interpretation of Section 2 conflicts not only with the plain language of the statute but also disregards binding Ninth Circuit precedent, their argument fails as a matter of law.

The plain text of Section 2(b) requires the plaintiffs to show only that the political process is not equally open to Native Americans because the practice at issue results in their having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b). The county defendants, by contrast, would require the plaintiffs to show that they “cannot elect representatives of their choice.”  Defs’ Mem. 15. The county defendants’ formulation fundamentally alters the statutory test.

Section 2 contains a comparative standard: minority voters cannot be given “less” opportunity than other voters to participate and elect their preferred candidates. It does not require proof that minority voters lack all opportunity to elect. The county defendants’ formulation would give jurisdictions a green light to discriminate. Under their formulation, for example, it would not violate Section 2 for a jurisdiction to decide to keep polling places open for twelve hours in majority-white precincts while having them open for only three hours in majority-





Native American precincts: while this might make voting decidedly more difficult for Native American voters than for white voters, they would have no claim as long as enough of them were willing to bear the difficulty. But that simply cannot be the law.

In support of their argument, the county defendants cite Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012), aff’d on other grounds sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013). But nothing in Gonzalez remotely supports the county defendants’ argument, and the court itself recites the statutory language. Id. at 407. Indeed, when the county defendants asserted the same position before the Ninth Circuit on appeal that they now assert before this Court on summary judgment, they were met with open skepticism. See Tr. 10/10/2013 at 27-36 (Ex. 1).

Moreover, because determining whether a disputed practice violates Section 2 requires a totality-of-the-circumstances analysis, see 42 U.S.C. 1973(b), this Court has already recognized that “the election of a few minority candidates is not dispositive of a plaintiff’s ability to elect representatives.” Order 17, ECF No. 153 (quoting Windy Boy v. Big Horn Co., 647 F. Supp. 1002, 1018-20 (D. Mont. 1986)). The election of a few minority candidates is also not dispositive of a

plaintiff’s opportunity, relative to other members of the electorate, to elect representatives of their choice. See Gingles, 478 U.S. at 75 (“[T]he language of §





2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a § 2 claim.”). The Court should therefore reject the county defendants’ argument.

C.      Section 2 does not require the plaintiffs to prove that they would be unable to vote without a satellite location.


The county defendants also disregard the plain text of the statute when they argue that, in order to establish a Section 2 violation, the plaintiffs must prove they would be or are unable to vote in the absence of the requested satellite offices. See Defs.’ Mem. 21-23. Specifically, the county defendants assert that they are entitled to summary judgment on the ground that “[t]here is no allegation or proof that Plaintiffs could vote if in-person absentee voting was offered at a satellite office in the locations requested, but cannot, or even do not, without it.” Id. at 22. But the county defendants again miss the point. Section 2 ensures that if a jurisdiction provides expanded voter registration and ballot-access opportunities— such as the late registration and early voting provisions at issue here—it cannot extend those opportunities in a way that results in minority voters having less access to them than non-minority voters enjoy.

Here again, the county defendants simply rely on the wrong standard. Section 2(b) requires only that plaintiffs demonstrate that Native Americans have less opportunity than other members of the electorate to use late registration and






early voting, not that the plaintiffs themselves are unable to participate in the political process by using preexisting voting methods. 42 U.S.C. § 1973(b). The touchstone for Section 2 is inequality of opportunity.  In other words, the county defendants cannot effectively require Native Americans to accomplish in one day what they permit other members of the electorate to accomplish in 30 days, particularly in light of the depressed socioeconomic status of Native-Americans relative to white voters, and the totality of the circumstances, in these jurisdictions.

Accordingly, the county defendants are not entitled to summary judgment even if plaintiffs cannot show that they are unable to cast a ballot in all circumstances.

D.      Section 2 does not require independent causation.


The county defendants also assert that Section 2 requires the plaintiffs to show that “travel distance alone causes any prohibited discriminatory result.” Defs.’ Mem. 24. They claim that the plaintiffs may not, as a matter of law, meet their burden under Section 2 by showing that travel distance to late registration and early voting sites produces a discriminatory result when “combined with a number of other factors.” Id. But the county defendants offer no analysis or authority to support their claim. In fact, there is none.

First, the county defendants’ argument is irreconcilable with Section 2’s text, which expressly requires courts to consider “the totality of circumstances”





when determining whether a challenged voting practice results in discrimination. 42 U.S.C. § 1973(b). The Act’s legislative history identifies several factors that Congress considered relevant to certain types of Section 2 claims, and it notes that courts may consider other factors that they find to be relevant in a particular case. S. Rep. No. 97-417 at 29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 207. See generally Thornburg v. Gingles, 478 U.S. 30, 43-46 (1986) (discussing Section 2 and its legislative history). Indeed, as the Supreme Court has explained, the essence of a Section 2 claim under the totality-of-circumstances test is that “a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [voters of different races] to elect their preferred representatives.” Id. at 47 (emphasis added). The text of Section 2 thus requires a court to consider whether a challenged practice produces a discriminatory result when combined with other relevant factors.

Second, the Ninth Circuit has already considered and rejected the county defendants’ argument. In Farrakhan v. Washington, 338 F.3d 1009, 1016-19 (9th Cir. 2003) (Farrakhan I), a Section 2 challenge to the State of Washington’s felon disfranchisement laws, the Ninth Circuit held that independent causation is not required. The district court there had held that a plaintiff must show that a challenged voting practice, “by itself,” caused a discriminatory result—the same





standard now advanced by the county defendants. But the Ninth Circuit reversed, observing that the district court’s standard conflicted with “the plain language of the VRA, its legislative history, and other well-established judicial precedent.” Id. at 1017. Under the totality-of-circumstances test, a plaintiff need not show that a challenged practice alone caused a discriminatory result. Id. at 1018. Rather, a plaintiff may prove causation by pointing to the interaction between the challenged practice and other relevant factors and by showing how that interaction results in the discriminatory impact. Id. at 1019; see id. (“[U]nder Salt River and consistent with both Congressional intent and well-established judicial precedent, a causal connection may be shown where the discriminatory impact of a challenged voting practice is attributable to racial discrimination in the surrounding social and historical circumstances.”). Farrakhan I remains binding authority and thus requires this Court to reject the county defendants’ argument.

Nor does anything in Gonzalez support the county defendants’ narrow interpretation of causation. See 677 F.3d at 405-07. Applying the same causation standard used in Farrakhan I, the Ninth Circuit in Gonzalez merely affirmed a finding that the plaintiffs had offered no proof of causation. The causation standard, already settled in Farrakhan I, was not even an issue in Gonzalez.








For the foregoing reasons, the county defendants’ interpretation of Section 2 lacks merit and cannot support a grant of summary judgment in their favor.

Date: April 25, 2014


Respectfully submitted,


MICHAEL W. COTTER                               JOCELYN SAMUELS

United States Attorney                                   Acting Assistant Attorney General

VICTORIA L. FRANCIS                              Civil Rights Division Assistant U.S. Attorney

District of Montana                                        /s/ Bryan L. Sells

  1.                                                                     T. CHRISTIAN HERREN, JR.
  2.                                                                     BRYAN L. SELLS


Attorneys Voting Section

Civil Rights Division

  1.                                                                    U.S. Department of Justice
  2.                                                                     Room 7264 NWB

950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Telephone:  (202) 353-0792

Facsimile:   (202) 307-3961


Counsel for the United States







The undersigned hereby certifies that the foregoing Statement of Interest of the United States of America was served on all parties by filing through the Court’s CM/ECF system, which automatically sends notice of filing to all attorneys of record. See Local Rule 1.4(c)(2).

Dated: April 25, 2014.


By:    /s/Bryan L. Sells

Bryan L. Sells



The undersigned hereby certifies that the foregoing Statement of Interest of the United States of America complies with the Local Rule 7.1(d)(2) and contains 3,448 words, excluding the caption and certificates of service and compliance. The undersigned has relied upon the word count of Microsoft Word, the word processing system used to prepare this Statement. The original document and all copies of this Statement are in compliance with this rule.

Dated:  April 25, 2014.


By:    /s/Bryan L. Sells

Bryan L. Sells






Exhibit 1





  2.    * * * * * * * * * * * * * * * * * *


  1. Mark Wandering Medicine, et al,   *    Case No.12-35926


  1. Plaintiffs-Appellants,          *          D.C. No. 1:12-cv-00135-RFC


  1. -vs-                             *   District of Montana
  2.                                  *        Billings
  3. Linda McCulloch, et al,           *


  1. Defendants-Appellees.           *      ORAL ARGUMENT


9   * * * * * * * * * * * * * * * * * *


  1. BEFORE:              The Honorable Barry G. Silverman
  2.                      The Honorable William A. Fletcher
  3.                      The Honorable Consuelo M. Callahan



APPEARANCES:     Mr. David Bradley Olsen


13                                                 Henson & Efron

Minneapolis, Minnesota



Attorney for the Plaintiffs/Appellants.


Ms. Sara Frankenstein


  1.                  Gunderson, Palmer, Nelson & Ashmore Rapid City, South Dakota
  2. -and-

Mr. Jorge A. Quintana

  1. Special Assistant Attorney General Helena, Montana



Attorneys for the Defendants/Appellees.


Ms. Erin H. Flynn


21                     Department of Justice Washington, D.C.



Attorney for the United States of America.


PROCEEDINGS:    The above-entitled matter came on for oral


24                   argument on the 10th day of October, 2013, in the Federal Building, Portland, Oregon.







1                              I N D E X


2    Appellants' Argument by Mr. Olsen:                  Page  3



Amicus Argument by Ms.





Appellees' Argument by

Mr. Quintana:




Appellees' Argument by

Ms. Frankenstein:




























































































































































































1             JUDGE SILVERMAN:  Now take up 12-35926, Wandering


  1. Medicine versus United States and McCulloch.  I believe


  1. the appellants have decided that they're going to


  1. divide up their time with an amicus view.  Go ahead


  1. with this, please, before we get going.


  1. MR. OLSEN:  Yes, Your Honor.  We have ceded seven


  1. minutes of our time --


  1. JUDGE SILVERMAN:  (Unintelligible).  We left


  1. something in the robbing room.  Be right back.


  1. (Brief pause.)


  1. UNIDENTIFIED VOICE:  I apologize.


  1. JUDGE SILVERMAN:  No problem.  All righty.  I'm


  1. sorry.  Introduce yourself again.


  1. MR. OLSEN:  Thank you.  David Bradley Olsen, Henson


  1. & Efron, Minneapolis, appearing pro bono on behalf of


  1. the plaintiffs-appellants.


  1. JUDGE SILVERMAN:  How are you dividing the time?


  1. MR. OLSEN:  We would like to cede seven minutes of


  1. our time to the Department of Justice and reserve three


  1. for rebuttal.


  1. JUDGE SILVERMAN:  So you're going to take ten --


  1. MR. OLSEN:  I'll take ten.


  1. JUDGE SILVERMAN:  -- three, they get seven.


  1. MR. OLSEN:  Correct.


  1. JUDGE SILVERMAN:  Gotcha.  Okay.





  1. MR. OLSEN:  May I begin?


  1. JUDGE SILVERMAN:  Please.


  1. MR. OLSEN:  May it please the Court, in 1986 the


  1. United States Supreme Court in Gingles versus Thornburg


  1. said that Congress intended the Voting Rights Act


  1. eradicate inequalities in the political opportunities


  1. that exist due to the vestigial effects of past


  1. purposeful discrimination.  Said Gingles, the ultimate


  1. test under Section 2 is whether a challenged practice


  1. based on the totality of the circumstances interacts


  1. with social and historical conditions to create an


  1. inequality in the opportunities enjoyed by minority and


  1. white voters.


  1. We're here today in 2013 because Montana Indians


  1. living on reservations are still fighting for equal


  1. opportunities to participate in the political process


  1. with respect to late registration to vote and the


  1. ability to vote early by absentee.


  1. JUDGE SILVERMAN:  Let me ask you this procedurally.


  1. I want to make sure I got the story straight.  This is


  1. an appeal of a preliminary injunction, right?


  1. MR. OLSEN:  That is correct.


  1. JUDGE SILVERMAN:  Mandatory injunction still


  1. remains to be seen --


  1. MR. OLSEN:  Correct.






  1. JUDGE SILVERMAN:  -- for permanent relief down the


  1. road.  The way I read the record, it looks like as a


  1. practical matter, what was tried in district court for


  1. this preliminary injunction dealt with the 2012


  1. election, and leaving -- leaving for the permanent


  1. injunction permanent relief down the road.  And if --


  1. if that's true, I don't know what we can do about the


  1. 2012 election.  Looks like that's come and gone.


  1. MR. OLSEN:  The complaint, Your Honor, asks for


  1. relief not only with respect to the 2012 election, but


  1. with all -- with respect to all future elections as


  1. well.


  1. JUDGE SILVERMAN:  I understand that.  That's why I


  1. asked you, that's where the permanent injunction down


  1. the road comes in.  Looks like what was actually tried


  1. was 2012 election, right?


  1. MR. OLSEN:  From a theoretical standpoint, should


  1. this Court find that the Voting Rights Act has been


  1. violated, conceivably it could remand, the district


  1. court could void the election because it was an


  1. unlawful election.  That's unlikely to happen, but


  1. conceivably it could.  And because the Court could


  1. order that relief, the case is not moot, and because


  1. it's necessary for this Court to define the correct


  1. test and correct the fundamental error of law committed






  1. by the district court, it's necessary for this Court to


  1. rule.


  1. JUDGE SILVERMAN:  Even if it's not moot -- let's


  1. assume for the sake of discussion it's not moot, even


  1. though there is very little we can probably do about


  1. the 2012 election.  There was evidence, wasn't there,


  1. presented by the counties that they can't do, in the --


  1. in the couple of weeks before the election, what


  1. they -- what you wanted them to do.  There was evidence


  1. to the contrary, too, but there was some evidence they


  1. just couldn't do what you wanted.  You filed the


  1. lawsuit less than a month before the election.


  1. Even if it's not moot, why would the district court


  1. have abused his discretion saying, look, it's just --


  1. it's too -- too short a time to accomplish what you


  1. want?


  1. MR. OLSEN:  Because voting, Your Honor, is a


  1. fundamental right.  The irreparable harm is established


  1. by an abridgment of that right.  The counties argued as


  1. a matter of administrative convenience that it might be


  1. difficult for them to establish satellite voting within


  1. the few days remaining before the 2000 -- 2012


  1. election.


  1. JUDGE SILVERMAN:  They -- they can't do it.


  1. MR. OLSEN:  They -- they said they can't.





  1. JUDGE SILVERMAN:  Okay.  And you said they can.


  1. And the judge heard evidence back and forth, and


  1. they -- you know, within his discretion said I agree


  1. with them.  How can we find that's an abuse of


  1. discretion if there was some evidence to support


  1. what he -- what he did?


  1. MR. OLSEN:  We don't think there was any evidence


  1. to support what he did, and as a matter of fact and


  1. law, the district court got that wrong.


  1. JUDGE FLETCHER:  Well, let me go to the


  1. (unintelligible) not the question of (unintelligible)


  1. convenience because I think actually, you know, that


  1. could have gone either way.  I mean, it was a pretty


  1. short time.  What if the district judge made a flat out


  1. mistake of law?  Then -- then how -- then how are we


  1. supposed to look at this case?


  1. MR. OLSEN:  We're asking here that you remand with


  1. specific instructions to apply the correct test under


  1. the Voting Rights Act.


  1. JUDGE FLETCHER:  And are you arguing that the


  1. district judge made a flat out mistake of law?


  1. MR. OLSEN:  Absolutely we are.


  1. JUDGE FLETCHER:  And this mistake of law, as I'm


  1. just trying to understand what you've said in your


  1. brief and what the government has said in its amicus





  1. brief, the mistake of law is that the district judge


  1. concluded that because the Indians on the reservation


  1. were able to elect representatives of their choice,


  1. that was the end of the matter with respect even as to


  1. the opportunity claim.  And that's wrong?


  1. MR. OLSEN:  We believe that's absolutely wrong,


  1. Your Honor.


  1. JUDGE SILVERMAN:  Therefore, we should void the


  1. election?


  1. MR. OLSEN:  I'm saying that conceivably that is one


  1. remedy that could be applied.  We're not asking the


  1. Court to do that.  We're asking --


  1. JUDGE SILVERMAN:  If you're not asking to do that,


  1. then what are you -- what remedy do you want?


  1. MR. OLSEN:  The remedy we want is for the Court to


  1. declare the correct test under the Voting Rights Act


  1. because it's necessary to proceed in this litigation


  1. and all future litigation.


  1. JUDGE CALLAHAN:  That isn't really a typical


  1. remedy.  That's just asking the Court to -- that --


  1. that sometimes we look at it -- you know, I'm not sure


  1. that takes you out of mootness.  If you're not asking


  1. to void the election -- you know, I don't know, is


  1. it -- are you -- if you -- are you asking the Court to


  1. vacate entirely what was said on the preliminary





1         injunction so that the -- because I -- what I


  1. understand to some extent that the counties are saying


  1. that they -- they weren't -- you know, the timing did


  1. not also allow them to develop a complete record, and


  1. so you still have the permanent injunction out there.


  1. So, you know, I guess why not just say it's moot


  1. and let everyone go back and start on a clean slate?


  1. It's not even going to be the same judge, right?  That


  1. judge retired, is my understanding.


  1. MR. OLSEN:  Although if we were to do that, we're


  1. now approximately a year out from the 2014 elections.


  1. When this suit was filed, it was approximately a year


  1. out from the 2012 elections.  We're going to be in the


  1. same position in 2014 that we were in in 2012 unless an


  1. appellate court clarifies the correct standard to be


  1. applied in this voting rights litigation.


  1. JUDGE CALLAHAN:  Well, okay.  So let's talk about


  1. the standard that you're asking.  My understanding is


  1. that Subsection (b) of 42 U.S.C. 1973 says that in


  1. making a claim that the political processes are not


  1. equally open to the -- the litigant must show two


  1. things; one, that members of the protected class have


  1. less opportunity than other members of the elective to


  1. participate, and, two, that they have less opportunity


  1. to elect representatives of their choice.





1             So which -- you're -- you're asking -- you don't


  1. want "and" to be interpreted as "and."  You don't want


  1. to -- you want this Court to say that they don't have


  1. to put on any evidence of number two, right?


  1. MR. OLSEN:  In a vote denial case, that is our


  1. position.


  1. JUDGE CALLAHAN:  How do we, if -- if that --


  1. JUDGE FLETCHER:  That can't be right.  What you


  1. mean is less opportunity, and the fact that you can


  1. elect some doesn't mean you had an equal opportunity.


  1. MR. OLSEN:  Our position, Your Honor, is that the


  1. "and to elect representatives of their choice" is not


  1. dispositive in a voting rights (unintelligible) case.


  1. JUDGE CALLAHAN:  But I think you're asking for


  1. more; that it still would be some evidence, wouldn't


  1. it?


  1. MR. OLSEN:  It's one factor that can be considered


  1. (unintelligible).


  1. JUDGE CALLAHAN:  My understanding is that you're


  1. asking to say that "and" doesn't really mean "and," and


  1. so there's no requirement of any showing on the second


  1. part of it.


  1. MR. OLSEN:  What we're asking this Court to say is


  1. that in a vote denial case, where the right to vote has


  1. been denied or abridged, based on account of race, that






  1. the fact that certain minorities have had ability to


  1. elect representatives and representatives have been


  1. elected becomes virtually irrelevant.  The statute says


  1. what it says.


  1. JUDGE CALLAHAN:  You're writing out the "and"


  1. really in terms of -- and -- and that's where I'm


  1. trying to -- if -- if "and" -- you would have to find


  1. it to be ambiguous to look at the -- if you do


  1. statutory construction, if you say the language is


  1. clear, then before you look at the legislative intent


  1. of Congress, you would say that it was ambiguous, and


  1. so that you would look to it, even though everyone


  1. always peeks under the covers anyway.


  1. But that being said, I -- what I'm understanding


  1. you to say is that the "and" doesn't mean "and"; that


  1. that's what you're asking this Court to declare.


  1. MR. OLSEN:  We are asking the Court to say that in


  1. a vote denial case.  Absolutely, we are.


  1. JUDGE SILVERMAN:  Do I understand correctly, in --


  1. in Montana you can vote by -- by mail, is that right?


  1. MR. OLSEN:  Correct.


  1. JUDGE SILVERMAN:  And on the voting day they could


  1. go to the offices where you wanted the absentee voting


  1. to take place, is that right, on election day?


  1. MR. OLSEN:  On election day you can go to a polling







  1. place.  They do have polling places on the reservation


  1. on election day.  But 30 days prior to election,


  1. there's no ability to register to vote at those places,


  1. and there's no ability to vote absentee at those


  1. places.  They've got to drive tremendous distances to


  1. the county seats.


  1. JUDGE SILVERMAN:  Unless they go on election day


  1. and they take their ballot to the -- to the polling


  1. place.


  1. MR. OLSEN:  That would have to be before 8:00 a.m.


  1. on election day if it's an absentee ballot.


  1. JUDGE SILVERMAN:  Did you identify anybody who was


  1. not able to vote, actual name?  Come up with a single


  1. human being who couldn't -- who couldn't vote?


  1. MR. OLSEN:  No, we did not, nor do we think that's


  1. the correct issue in this case.  The question is not


  1. whether the plaintiffs had any ability whatsoever to


  1. vote despite any hurdles that may have been thrown in


  1. front of them.  The --


  1. JUDGE SILVERMAN:  Is there anybody who couldn't


  1. jump over the hurdles?


  1. MR. OLSEN:  Not to my understanding, no.  Not --


  1. not this group of plaintiffs.


  1. JUDGE FLETCHER:  Now, let's go back to the mootness


  1. question.  When you were asking for the preliminary





  1. injunction in front of the district court, was your


  1. argument directed solely at a preliminary injunction


  1. with respect to the immediately upcoming election or


  1. was it also asking for a preliminary injunction that


  1. would require preparation for the future elections?


  1. What was -- how -- how was your argument --


  1. MR. OLSEN:  It was phrased in terms of 2012 and all


  1. future elections.  The remedy in 2012 alone would be no


  1. remedy at all.


  1. JUDGE FLETCHER:  Well, but I'm asking you what you


  1. were asking out of the district judge.  I understand


  1. that if -- if you don't get anything ever, you don't


  1. get anything ever.  But I'm asking what was -- what was


  1. the question that the district judge thought was being


  1. presented to him and what was the question that he


  1. thought he was answering?  Was it only as to the 2012


  1. election or was it for more than that?


  1. MR. OLSEN:  It was for 2012 and all future


  1. elections.  And that's even in our complaint.


  1. JUDGE FLETCHER:  Even as to the -- even as to the


  1. preliminary --


  1. MR. OLSEN:  Even as to the preliminary, correct.


  1. JUDGE SILVERMAN:  What would have been left for the


  1. permanent injunction?


  1. MR. OLSEN:  The district court had the opportunity






  1. to consolidate the two into one hearing, and didn't do


  1. that.  The -- from my standpoint, the preliminary


  1. injunction would have been mere cleanup after the


  1. correct test was applied and relief granted at the


  1. preliminary stage.


  1. JUDGE CALLAHAN:  Isn't there an argument that the


  1. preliminary injunction was really only as to the 2012,


  1. and the permanent was going to address the 2014 and


  1. future elections?  I mean, everyone was just up


  1. against -- I mean, we're talking days before the


  1. election when these hearings were happening.


  1. MR. OLSEN:  Certainly that was part of the defense,


  1. that it was difficult to do in the limited time


  1. provided.  But our complaint was we wanted relief not


  1. only for 2012, but for all future elections.


  1. JUDGE CALLAHAN:  But what was Judge -- if Judge


  1. Cebull -- what -- what did he think he was going to do


  1. on the permanent injunction?  Didn't he think he was


  1. going to address future elections on that?


  1. MR. OLSEN:  Obviously the future -- that would make


  1. the injunction permanent.  We're already asking for


  1. relief into the future.  It's temporary relief.  It has


  1. to be made permanent with rules.


  1. JUDGE FLETCHER:  What happens if we find that this


  1. appeal is moot because the only thing being appealed is






  1. a preliminary injunction, and the thrust of the request


  1. for the preliminary injunction was as to the 2012,


  1. that's the only thing that Judge Cebull thought he was


  1. deciding at the preliminary injunction, so we say it's


  1. moot?  What happens with respect to the law of the


  1. case?


  1. Now, it's going to go back to a different judge,


  1. and you're going to argue to that different judge that


  1. Judge Cebull made a mistake as to law in interpreting


  1. the word "opportunity."  Is this new district judge


  1. going to say, well, listen, that's the law of the case,


  1. that's already been done?  What happens?


  1. MR. OLSEN:  I can only speculate on that, Your


  1. Honor, but in my experience, when I go to a district


  1. judge, when another has already decided the case before


  1. him or decided the law, they generally tend to follow


  1. their predecessors.


  1. JUDGE SILVERMAN:  What if we said we think it's


  1. moot because you were really arguing about 2012 and


  1. that -- that train has left, but we don't -- we don't


  1. endorse the reasoning of the district judge?  District


  1. judge should -- new district judge should rethink it


  1. when it goes back for the permanent injunction.  Does


  1. that satisfy what you're -- what you're after?


  1. MR. OLSEN:  If we had the correct test declared,





1         that's what we're asking for today.


  1. JUDGE CALLAHAN:  Well, no, sir, it wouldn't satisfy


  1. (unintelligible).


  1. MR. OLSEN:  If I could finish, please.  But if you


  1. declared the case moot, I don't know that you would


  1. have the power to do that.


  1. And I'm just -- I'm just about out of time.  I


  1. would like to refer you to Babbitt versus UFW National


  1. Union, U.S. Supreme Court '79, where they said the


  1. policy implications for adjudication of election


  1. procedure disputes assures the construction of the


  1. statute will have the effect of simplifying future


  1. challenges, thus increasing the likelihood that timely


  1. filed cases can be adjudicated before an election is


  1. held.


  1. Unless this court pronounces the test, we could be


  1. in the 2014 elections before we even get a preliminary


  1. decision.  And we can be in the same position again


  1. because the Court has applied the wrong test and is


  1. likely to apply the wrong test absent guidance from


  1. this Court.


  1. JUDGE SILVERMAN:  Thank you.  We'll hear from the


  1. government's amicus.  Morning.


  1. MS. FLYNN:  Morning.


  1. JUDGE CALLAHAN:  Morning.






  1. MS. FLYNN:  May it please the Court, Erin Flynn on


  1. behalf of the United States.  Your Honors, we just want


  1. to be clear that we're participating solely as to the


  1. legal standard under Section 2 of the VRA in this


  1. appeal.  Judge Callahan, you raised earlier the plain


  1. text of Section 2(b) as a starting point in the


  1. analysis for the district court's analysis of this


  1. case.


  1. JUDGE CALLAHAN:  I mean, it seems me that the


  1. Department of Justice wasn't terribly happy with the


  1. voting rights case that was decided before the Supreme


  1. Court this year, and -- but this is a different


  1. section, so the Department of Justice is teeing up with


  1. cases on this particular section.


  1. MS. FLYNN:  Right.  Well, Shelby County, Your


  1. Honor, addressed only Section 4(b) really.  The Court's


  1. holding in Shelby County only addressed Section 4(b) of


  1. the VRA and whether or not --


  1. JUDGE CALLAHAN:  But it's sort of an indication


  1. that the Supreme Court is pulling back a little.


  1. MS. FLYNN:  I wouldn't agree with that, Your Honor,


  1. at all.  The Supreme Court looked at Section 5 in the


  1. context of Section 2 being an available remedy to


  1. protected groups under the statute.  And if anything,


  1. the importance of Section 2 is enhanced, given that





  1. Section 5 right now, until Congress -- and unless


  1. Congress amends Section 4(b) --


  1. JUDGE CALLAHAN:  Right.  So get me back past the


  1. plain language here because it seems to me you're


  1. asking to write out an "and."


  1. MS. FLYNN:  No, Your Honor.  And -- and that's


  1. where I want to start, is with the plain language,


  1. because the plain text of Section 2(b) requires the


  1. plaintiffs to show, based on the totality of the


  1. circumstances, only that the political process isn't


  1. equally open to them because they have less opportunity


  1. than other members of the electorate to participate in


  1. the political process, and to elect the representatives


  1. of their choice.


  1. And what the district court did here, Your Honors,


  1. is err because he required the plaintiffs to show


  1. unequal access and an inability to elect


  1. representatives of their choice in order to state a


  1. Section 2 violation.  And requiring the plaintiffs to


  1. show an inability to elect the representatives of their


  1. choice under Section 2(b) is not the same as the


  1. statutory showing that they're required to show less of


  1. an opportunity to elect candidates of their choice.


  1. And so what the district court did here was say


  1. that plaintiffs have to show they had no opportunity to






  1. elect representatives of their choice in order to


  1. prevail under Section 2.  And the plain text of


  1. Section 2(b) requires them only to show less of an


  1. opportunity.  And so we say that that's where the


  1. district court erred in looking at the


  1. (unintelligible).


  1. JUDGE CALLAHAN:  But you're not saying -- I -- I


  1. heard Mr. Olsen to say that they don't think they need


  1. to show anything under Number 2.


  1. MS. FLYNN:  No.  We're saying that in this context,


  1. what the district court does is what district courts do


  1. in all Section 2 cases, is look at the totality of the


  1. circumstances to determine is there less of an


  1. opportunity to -- to participate in the political


  1. process and less of an opportunity to elect candidates


  1. of choice.


  1. In these types of claims where you have ballot


  1. access and registration issues, it's normally going to


  1. follow from less of an opportunity to elect -- I mean


  1. to participate in the political process that plaintiffs


  1. have less of an opportunity to elect candidates of


  1. their choice.  So the standard isn't that plaintiffs


  1. can't vote or that they can't elect candidates of their


  1. choice.  It's that they have less of an opportunity


  1. relative to other members of the electorate.





  1. So when we're looking here, the plaintiffs are


  1. basically, you know, your --


  1. JUDGE CALLAHAN:  So is any evidence that they have


  1. elected candidates of their choice, is that irrelevant


  1. then?


  1. MS. FLYNN:  The -- the minority electoral success


  1. is one factor in a number of factors that the Supreme


  1. Court has said courts look to under Section 2.  The


  1. relevance of minority electoral success is going to


  1. vary with the nature of the claim and all the universe


  1. of cases looking at (unintelligible).


  1. JUDGE CALLAHAN:  So it's not irrelevant, though?


  1. MS. FLYNN:  It's not completely irrelevant, but


  1. there are other factors that, in this sort of ballot


  1. access and registration case, become more important to


  1. the totality of the circumstances analysis.  And what


  1. the district court did here was not only misinterpret


  1. the statutory language to require the plaintiffs to


  1. show an inability to elect candidates of their choice


  1. to prevail, which was wrong because they only need to


  1. show less of an opportunity to participate in the


  1. process and elect candidates of their choice, but then


  1. on top of it, even if the Court had recited the right


  1. standard, which it didn't, it would look only to


  1. minority electoral successes, one factor in a number of






  1. factors that could be relevant.  And courts don't treat


  1. ability to elect when they're treating it as one factor


  1. as dispositive in any case.


  1. And so there's kind of two levels of error here.


  1. The district court got the statutory text wrong, and


  1. then even if the district court had gotten the


  1. statutory text correct, which he didn't, he


  1. wouldn't normally --


  1. JUDGE CALLAHAN:  The argument that he sort of


  1. misspoke because it does look like that he did look to


  1. some totality of the factors.  It doesn't look like


  1. that's the only thing he looked to.


  1. MS. FLYNN:  Your Honor, on the basis of what the


  1. district court said, I think it's difficult to say that


  1. he misspoke because on Page 7 he said the issue is


  1. whether the -- there's less access to in-person


  1. absentee voting and late registration, and that


  1. plaintiffs are unable to elect representatives of their


  1. choice.  And he goes on to say the plain text and the


  1. cases applying Section 2(b) require plaintiffs to show


  1. both unequal access and an inability to elect.  And


  1. that's not the statutory showing.  It's not what the


  1. plain text requires.


  1. Again, on Page 12, he says that there is an


  1. explicit requirement that Section 2 plaintiffs show






  1. that the challenged practice results in their inability


  1. to elect candidates of choice.  Again, that's not the


  1. statutory showing.  And on 14, he says since the


  1. plaintiffs are able to elect their candidates of choice


  1. without the satellite offices, their Section 2 claim is


  1. likely to fail.


  1. And even if, you know, there was some doubt as to


  1. what the district court meant, on appeal the county


  1. defendants repeatedly say in their brief that the


  1. statutory standard is that plaintiffs have to show they


  1. can't vote, and that they can't elect candidates of


  1. their choice.  And that's on Pages 8, 15, 58, and 59 of


  1. the county defendant's brief.  They say repeatedly that


  1. the plaintiffs have to show actual vote denial, which


  1. isn't the standard under Section 2 of the VRA.


  1. And so I don't think that, you know, we can just


  1. take for granted that the district court misspoke in


  1. this case, Your Honor.


  1. JUDGE FLETCHER:  Well, as I read the district


  1. judge, and now reading the first sentence of that last


  1. paragraph on Page 12 to which you alluded but you


  1. didn't read the full text, I'll just read the first


  1. sentence.  Finally -- this is now the district judge.


  1. "Finally, and most importantly, because of the explicit


  1. requirement that Section 2 plaintiffs prove that the





  1. challenged procedure or lack thereof results in the


  1. inability to elect representatives of their choice,"


  1. da, da, da.  I mean that's the statement of the law.


  1. It is saying --


  1. MS. FLYNN:  Right.  And that is correct.


  1. JUDGE FLETCHER:  -- that the plaintiff under


  1. Section 2 has to prove that they cannot -- that's


  1. essential to a Section 2 claim in his view.


9             MS. FLYNN:  And that's what we're saying, is that


  1. that's a completely incorrect statement of the law.


  1. JUDGE SILVERMAN:  Okay.  Thank you very much.


  1. MS. FLYNN:  Thank you.


  1. JUDGE SILVERMAN:  We will hear from the appellees.


  1. Before we start I guess, are you going to be taking all


  1. the time?


  1. MR. QUINTANA:  I certainly hope not, Your Honor.


  1. I -- my name is Jorge Quintana.  I represent the state


  1. defendant, the Secretary of State.  I expect to use


  1. maybe three minutes.


  1. JUDGE SILVERMAN:  What I meant was are you going to


  1. split it with --


  1. MR. QUINTANA:  We are going to split it, Your


  1. Honor.


  1. May it please the Court, as I stated, my name is


  1. Jorge Quintana.  I represent -- I'm a Special Assistant





1         Attorney General and chief legal for Secretary of


  1. State, and I'm here representing the state defendant.


  1. The plaintiffs-appellants have failed to show that


  1. the Secretary of State is a necessary party.  They did


  1. not and they cannot show that the Secretary of State


  1. violated any duty or any law.  The plaintiffs have


  1. requested the specific relief of opening up late


  1. registration and in-person absentee offices.  The


  1. Secretary of State does not issue absentee ballots, we


  1. do not open satellite --


  1. JUDGE CALLAHAN:  (Unintelligible) there isn't any


  1. case out there from the Supreme -- your state Supreme