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American Indians appeal Wyoming voting case

By Ben Neary
Cheyenne, Wyoming (AP) April 2010

Three years after presiding over a trial on an American Indian voting rights case, a federal judge in Wyoming has yet to rule on it. Now, the American Civil Liberties Union is taking the extraordinary step of asking a federal appeals court to force him to decide.

The ACLU represents five members of the Eastern Shoshone and Northern Arapaho tribes. They claim at-large elections for county commissioners in Fremont County violate federal law by diluting the Native American vote.

U.S. District Judge Alan B. Johnson of Cheyenne presided over the trial in the case in February 2007. Despite repeated letters from the ACLU since then asking him to rule in the case, he has yet to do so.

The ACLU late last month asked the 10th U.S. Circuit Court of Appeals in Denver to order Johnson to rule. The appeals court on Wednesday gave Fremont County 30 days to file a response and “invited” Johnson himself to address the ACLU’s request.

Johnson’s office said he has no comment.

Atlanta lawyer Laughlin McDonald, who heads the ACLU’s Voting Rights Project and is lead lawyer in the Fremont County case, said Thursday he has never filed such a request in any other case he’s had.

“I think you’re very reluctant to file something like this because you want to avoid antagonizing the court,” McDonald said. However, he said he believes he has an obligation to his clients to get a ruling in the case before this fall’s election.

McDonald said he faced a nearly identical situation in a voting rights case from South Carolina. He said the judge there took about three years to rule on the case, allowing two elections to take place between the trial and the decision.

Although the South Carolina judge ultimately ruled in favor of his clients, McDonald said, the defendants appealed. He said an appellate court agreed that the judge should have considered the results of the intervening elections and said he’s now essentially forced to try the case over again.

In his request to the Denver appeals court, McDonald said that failing to resolve the Fremont County case before this fall’s elections might also require a new trial to consider the election results.

“This process could take months, if not years, only to be possibly repeated every two years following each election for the Board of Commissioners,” McDonald wrote. “As a consequence, this litigation might never be resolved.”

The Mountain States Legal Foundation, a Denver-based conservative legal group, represents Fremont County in the lawsuit.

J. Scott Detamore, lawyer with the foundation, said Thursday he hadn’t spoken with Fremont County officials yet about how they will respond to the ACLU’s petition.

“This is primarily an issue between the plaintiffs and the court,” Detamore said. “I don’t think anyone objects to a court entering an order. And I can tell you that we’re not going to enter this and say, ‘Oh no, Judge, we don’t ever want to see an order entered.’ That would be silly.”

Detamore said dragging out the case creates uncertainty for everyone involved.

“It’s been three years, it’s a long time,” Detamore said. “And the only issue is whether they’re going to compel him to do something or not. In the meantime, we prepare for yet another election which is under a cloud.”