10th Circuit Upholds Ruling in Voting Rights Case Fremont County Officials Face Difficult Decision

Area of Expertise: Civil Rights

Originally published by Rone Tempest | FEBRUARY 24, 2012
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LANDER — A federal appeals court on Wednesday, February 22, affirmed a 2010 U.S. district court decision that found discrimination against Native American voters in Fremont County and ordered the county to conduct single-member district elections for county commissioners.

Fremont county officials must now decide whether to appeal to the U.S. Supreme Court, attempt to use a constitutionally untested new state law permitting “hybrid” districts, or let the appeals court decision stand.

Meanwhile, Fremont County clerk Julie Freese, said the county is prepared to implement the federal court ruling and convert from an at-large election system  to single-member districts by the November elections. Two members of the Fremont County Board of Commissioners, Doug Thompson and Dennis Christensen, both opponents of the single district scheme ordered by the Court, are up for reelection in that vote.

Although Wyoming law permits election of commissioners in single districts, Fremont County would be the first in the state to do so. In his 2010 decision, U.S. District Judge Alan B. Johnson ruled that the at-large system effectively diluted the votes of the county’s large Native American population, who constitute about 20 percent of the county’s population.

Already facing more than $1 million in legal fees in the voting rights case charged to the Wyoming Local Government Liability Pool, a decision by Fremont County to continue the legal fight could open up another potentially costly front.

“My guess is that this thing is over,” said state Sen. Cale Case (R-Lander), whose district includes much of the Wind River Indian Reservation. “The ball is in the county’s court. But I think they’ll go forward with the district election plan.”

J. Scott Detamore, an attorney with the Colorado-based Mountain States’ Legal Foundation that represented Fremont County in the action, told WyoFile that he had not yet discussed the latest developments in the case with county officials.

In its decision, the three judge panel of the 10th Circuit Court of Appeals in Denver denied Fremont County’s appeal of Judge Johnson’s rejection of an alternative “hybrid plan” proposed by the county. That proposed plan would have created a single majority Indian district to elect one member of the county board of commissioners and a separate majority white, at-large district to elect the other four members.

“The Court finds that the hybrid plans proposed by the defendants [Fremont County] do not withstand scrutiny as they are not consistent with principles governing state law,” Johnson wrote. “The two districts proposed in the defendants’ plans here are crafted in such a manner that they preserve the separation, isolation, and racial polarization in the county, guaranteeing that the non-Indian majority continues to cancel out the voting strength of the minority. The plans appear to be devised solely for the purpose of segregating citizens into separate voting districts on the basis of race without sufficient justification…”

In an attempt to address the first part of Johnson’s decision regarding state law, the legislature on Feb. 18, 2011, hastily passed a bill (SF 14) allowing counties to create hybrid election districts of the type proposed by Fremont County.

This new state law, however, did not factor in the federal appeals court decision.

“Our ruling here today,” federal circuit Judge Jerome A. Holmes wrote in the 33 page appeals court decision, “does not foreclose the possibility that the County may ultimately implement its desired plan through the normal processes established by Wyoming law. We do not opine on whether such a plan would satisfy the strictures of the Constitution…”

Theoretically, therefore, Fremont County could attempt to hold elections based on the state law. However, that decision most likely would be challenged immediately on constitutional grounds by attorneys representing the Arapaho and Shoshone tribal members and take the county right back into court.

“They’d probably be biting off a whole new lawsuit,” said Mountain States’ attorney Detamore.

Attorney Berthenia Crocker of the Lander law firm Baldwin, Crocker & Rudd, which represented Indian tribal members in the case along with the American Civil Liberties Union, said the firm hoped the appeals court decision marked the end of years of litigation in the case, which was first filed in 2005.

“We are gratified that the appeals court upheld Judge Johnson’s carefully reasoned decision that the county does not have unlimited discretion to disregard state or federal law,” said Crocker.

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