SPECIAL REPORT: The Fremont Accord

By on October 17, 2010

Voters across Wyoming cast their ballots for government officials in the general election two weeks ago. Primary elections – held way back when winter’s snows were a distant concern – are even older news.

And yet, voters in Fremont County waited until yesterday to vote in primary elections for three county commission seats up for grabs this year, giving local government officials time to adopt new districting regulations.

This election cycle, the county is switching from an at-large district format – meaning every voter in the county would cast three votes in the race for county commission – to a single-member district format where voters can pick only one commissioner who must reside in the same district as them.

That change is the result of a lawsuit brought on behalf of Fremont County’s Native American Indian population – primarily Arapahos and Shoshones living on the Wind River Reservation – which alleged that the county’s at-large method violated the Voting Rights Act by diluting the Indian vote.

Proponents of the switch argue that single-member districts help put Arapahos and Shoshones on equal franchise footing with Fremont County’s white residents, while its detractors worry that it will polarize the county and sow division on the commission.

A county divided
Five years ago, representatives of the American Civil Liberties Union’s Voting Rights Project helped Eastern Shoshone and Northern Arapaho Indians in Fremont County bring suit against the county. The plaintiffs in the case of local government alleged that the county’s at-large method of electing county commissioners denied American Indian voters equal access to the electoral process in violation of Section 2 of the Voting Rights Act.

Under the Voting Rights Act, Native Americans, black Southerners and other minority groups subject to historic and systematic discrimination were given special voting protections. The plaintiffs argued that with a majority of white voters countywide voting as a bloc, Native Americans stood little or no chance of electing a single commissioner of their choice.

“Even if every eligible Indian voter registered, turned out to vote and voted for the candidate of their choice, if the majority white voters didn’t vote for that candidate, he or she wouldn’t get elected,” explained Laughlin McDonald, the director of the Voting Rights Project and the plaintiffs’ main trial lawyer.

Indeed, no Native American was ever elected to the commission until Keja Whiteman won her campaign in 2006. But as Northern Arapaho tribal liaison Gary Collins point out, Whiteman is neither Arapaho nor Shoshone, nor is she a native Wyomingite. She grew up on the Flathead Reservation in Montana and is a member of the Turtle Mountain Band of Chippewas.

After five years of trial and close to a million dollars in combined legal fees, U.S. District Court Judge Alan Johnson ruled in April that Fremont County’s at-large system is a violation of Section 2 of the Voting Rights Act. In his thorough written opinion, Johnson said, “The long history of discrimination against Indians in the United States, Wyoming, and Fremont County is undeniable.” He said that evidence brought before him “reveals that discrimination is ongoing” and “palpable” and that “the record is replete with expressions of anti-Indian sentiment, both historical and current.”

Fremont County chose not to appeal Johnson’s ruling. Commission Chairman Doug Thompson said that the “previous [at-large] system was not discriminatory,” and Commissioner Pat Hickerson said he thinks the county’s electoral system was “pretty fair.” Fremont County Clerk Julie Freese said the county chose not to appeal because “voting rights cases are hard to win on appeal,” and because newly appointed County Attorney Brian Varn “would have had to do a lot of catch up.”
Johnson’s opinion of the case includes testimony from witnesses – both Indian and white – detailing decades of racist acts in Fremont County, including a racist statement by former County Commissioner Crosby Allen. Indeed, every person interviewed for this story, whether they represented the plaintiffs’ side or the defendants’, avowed that racism is widespread in Fremont County. Johnson also highlighted historic efforts to disenfranchise Wyoming’s Indian population, including the requirement, enacted time and again, that voters be able to read the state constitution.

The court ordered Fremont County in April to design a redistricting solution to their Section 2 violations. In response, the County came up with a “hybrid district” plan, composed of one single-member super-majority American Indian district and one at-large district that would elect four of the five county commissioners.

Hybrid hoopla
Johnson was unimpressed by the hybrid district solutions submitted by Fremont County and ruled that they did not resolve the county’s Section 2 violations. He stated in his ruling that that hybrid at-large/single member districts are not legal under Wyoming state law, and said that Section 2 violations must be corrected in a way “that ensures minorities have an equal opportunity to participate in the political processes and elect candidates of their choice.”

McDonald’s issue with the hybrid system is that, by allowing the majority of Native Americans to vote for just one commissioner while the county’s majority white population votes at-large for four commissioners, white voters still possess disproportionate electoral power.

Likewise, Collins is concerned that a hybrid district in Fremont County could neutralize Native American opinion even if an Arapaho or Shoshone were on the county commission. “If it were just a Native American district and the rest at-large, there could be four versus one on the commission. There could be some alienation,” he said.

Thompson argues that under the hybrid plan Native Americans get the super-majority district they asked for. Hickerson said that the election of Whiteman in 2006 proves Native Americans can get their preferred officials elected, an argument that McDonald dismisses.

“Just because one Native American was elected in the entire of history of the at-large system doesn’t mean minorities have equal access to the electoral system,” McDonald said. “Tokenism doesn’t solve the problem.”

McDonald added that in his experience trying similar voting rights cases, he has seen, in a given case, municipalities scurry to get a Native American elected to the office in question. “They do that so they can maintain an at-large system. The courts have systematically rejected that kind of thing,” he said.

Single-member solution
In his August ruling, Johnson recognized that redistricting is a legislative task, not a judicial one. But the county’s lackluster proposals had forced his hand. He ordered Fremont County to adopt the single-member district proposal put forth by the plaintiffs. In support of his ruling, Johnson observed that voting by district is the norm in the majority of Fremont County elections.

“By way of example, municipal governments are elected from wards or districts; school district board members are elected from districts; boards of the fire districts are elected by district, as is the board of the LeClair Irrigation District,” said Johnson in court documents.

“The courts have consistently held that single-member districts are the remedy for Section 2 violations,” said McDonald.

Fremont County’s new single-member district system splits the county into five voting areas. The districts’ boundaries were drawn principally along existing precinct lines and major roads, and they divide the county’s population more or less equally by district. In order to rectify the County’s Section 2 violation, a super-majority Native American district was created that includes the six largest Native American communities in the county. District 1 incorporates 75 percent of Fremont County’s Native American population, and 75 percent of the district identifies as “single race Indian.”

As might be expected, sentiment on the single-member district change goes both ways. Collins says he’s heard concerns from Native Americans that if the tribes go to Fremont County government for services or assistance they’ll be subjecting their tribal sovereignty to question. As Whiteman puts it, “There are certainly people who are in favor of single-member districts. Some people are against it and then some people don’t care.”

Thompson contends that the single-member district system will “polarize the representation of our county.” He also accused the plaintiffs of playing the race card to get rid of Fremont County’s at-large system. “Race trumps equality at the voting box, according to [Johnson],” said Thompson.

Hickerson worries that the single-member district system “diminishes the opportunity for voters to vote for all five commissioners.” He is also concerned that commissioners elected by district will advocate only for their districts, without the overall benefit of the county in mind.

Johnson’s ruling does not affect any of Wyoming’s 22 other county’s because Fremont is home to the overwhelming majority of the state’s Native American population.

On with the vote
Fremont County is appealing Johnson’s ruling, but in the meantime, the show must go on.

Fremont County residents were only eligible to rock the vote in yesterday’s primary election if they lived in the three districts wherein standing commissioners reside. That’s a big change from every eligible voter casting ballots for two or three commissioners at a time. County officials weren’t optimistic about voter turnout in advance of the election: with the general elections in the books, people have understandably turned their attention away from the democratic process.

County Clerk Julie Freese has been vocal about her opposition to the new single-member district method. She is named as a defendant in the case, and she thinks county commission races are better decided by at-large voting. Nonetheless, Freese has had to put her reservations aside to get the county’s ducks in a row for the special election and make sure voters in Districts 1, 3 and 4 know there’s an election.

According to Freese, Fremont County voters rejected a proposal in 1994 to switch the county to single-member districts. That proposal was advanced not by the Arapahos or Shoshones, but by a woman in Lander running for county commissioner.

Under current state law, county elections can only be voted on by at-large or single-member districts. However, a bill currently moving through the state legislature – with Fremont County’s endorsement – could change that by legalizing hybrid districting in Wyoming.

Speaking of the hybrid district bill that was approved last week by a legislative committee, Freese said, “It may not help us at all, but it will help other counties. If, say, somebody wants to petition to redistrict, and they say, ‘We’d like a residential component with single members,’ or they say ‘We’d like two or three single-member districts and an at-large.’”

In McDonald’s opinion, the bill, if enacted, “would definitely be subject to a challenge.”

Collins says the hybrid district bill is Fremont County’s attempt to circumvent Johnson’s ruling and maintain a prejudiced electoral system. “[Fremont County] is trying to protect the status quo in defiance of a court order,” said Collins.
Whether or not state legislators approve the hybrid district bill next year is, however, a moot point for Fremont County, a fact acknowledged by both Freese and Thompson. Unless Johnson’s ruling is overturned by the U.S. 10th Federal Court of Appeals in Denver, the county commissioners will be elected from single-member districts for the foreseeable future.

Keep the county running
So Fremont County voters headed to the polls yesterday to select three candidates for county commission. In District 1, the super-majority Native American district, there were six candidates for county commissioner: four Republicans and two Democrats: three Shoshones, an Arapaho, a Chippewa and a Caucasian.
Regardless of who wins the special election, Fremont County government will be dealing with a pretty hairy predicament come January 2011. The delay caused by Johnson’s August ruling requiring single-member districts has turned the county’s electoral clock back even as the real world’s clock continues ticking inexorably forward.

Voters won’t even cast ballots for the three available county commission spots until January 8, and the elected commissioners won’t be seated until 20 days later. That means the commission will be without quorum for much of the month, rendering it powerless for all intents and purposes.

And yet, the electricity bills have to get paid and the county must continue to function. The five current commissioners will meet in late December to make sure all accounts are settled and that the lights don’t go out on Fremont County.

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