Thursday, March 10, 2011

Dealing with structural racism

Questions about hybrid districts and Wyoming’s new county elections law

Somebody lied on the way to changing Wyoming law governing the creation of election districts for county commissioners.

The story begins last spring, when federal district Judge Alan B. Johnson ruled in favor of five Native American plaintiffs who challenged Fremont County’s system of electing county commissioners at large. The plaintiffs successfully argued that the system violates the Voting Rights Act by diluting the voting power of Native Americans.

Judge Johnson found that Native Americans, specifically members of the tribes of the Wind River Reservation, have been victimized by historic and continuing racial discrimination in Fremont County. The county’s at-large system of voting denied them access to the institutional power through which they could address this racism.

The county’s initial response to losing the lawsuit was to offer a districting plan with a majority Native American district to elect one commissioner, and an at-large district to elect the other four commissioners. These districts were rejected by Judge Johnson because they “perpetuate 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.”

Under federal court order, Fremont County then drew five single-member county commissioner districts and held the first elections in three of them in January (the other two commissioners were carried over and will be up for election in 2012).

Meanwhile, Fremont County also appealed the decision – at taxpayer expense – and the matter is now pending before the 10th Circuit Court of Appeals.

The county also turned to the Joint Interim Corporations, Elections and Political Subdivisions Committee last year. In September, the county asked the committee to approve a new law that would allow the hybrid districting plans.

When the bill, SF 14 - Counties – election districts, was proposed, tribal leaders argued the county would use it to try to influence the appeals court. The ESPC opposed SF 14 due to the potential for using hybrid districting to discriminate not only in Fremont County but in other areas of the state where there are geographical concentrations of minority populations.

But since last fall, the chairmen of the Senate and House Corporations committees repeatedly assured their committee members, witnesses, and the public that SF 14 would have no effect on Fremont County’s appeal. It was clear to observers at the interim meetings that members of the committees also supported the bill only as forward-looking, rather than anything that could or should affect the appeal.

The statements from the chairmen, Sen. Cale Case of Lander and Rep. Pete Illoway of Cheyenne, undercut objections to the bill voiced by the tribes of the Wind River Reservation and the Equality State Policy Center. The bill passed.

The ESPC then explained its concerns to Gov. Matt Mead and met with two of his legal advisors in an effort to secure a veto of the bill. The governor declined, however, and signed the bill Feb. 24.

“We are not messing with the court decision,” Sen. Case said in a WyoFile report on the bill. “This just grants counties more flexibility.”

Imagine their surprise when the chairmen heard the news that the county’s attorney at the Mountain States Legal Foundation has notified the 10th Circuit Court of Appeals about Wyoming’s new law.

The attorney said the new law “may have a bearing on what the state could allow with respect to remedying violations of the federal Voting Rights Act by drafting new county commission districts,” Associated Press reporter Ben Neary reported in a story published in today’s (March 10) Casper Star-Tribune.

Lingering question

So who knew about the county's plan to use the new law in its appeal?
Rep. Illoway said he was surprised to learn of Fremont County’s action. Sen. Case said he “did not know about this either.”

Fremont County Clerk Julie Freese and commission secretary Becky Enos were in Denver Thursday and unavailable for comment on communication between county officials and legislators. The county’s appeal was to be argued before the appeals court today.

No county commissioners were available Thursday, either. The county commission meets again on Tuesday.

Neary noted in his March 10 story that Chairman Illoway opened a committee hearing of SF14 by noting that criticism that the bill was intended to undo Judge Johnson’s decision was “the furthest thing from the truth.”

Rep. Patrick Goggles, pictured above, disagreed. He is the House minority floor leader, lives on the reservation and is a member of the Northern Arapaho tribe.

“If the recent Wyoming legislation is not in response to the Fremont County single district election, then why the legislation?” he asked.

Meanwhile, Sen. Case downplayed the significance of the actions by the county’s attorney.

“I cannot imagine that it would affect the judge’s decision on the appeal, especially given the delayed enacting date of the legislation,” he said in an email message. “And unless there is a successful appeal, FC (Fremont County) must have single member districts.

“Now go way out and assume that FC wins the appeal, I cannot help but note that because single member districts have already been established, the commissioners are unlikely to come up with anything very much different because that is their base.” Sen. Case concluded.

Dismantling racism

Judge Johnson dismantled a classic racist structure when he ordered the end of the at-large voting system in Fremont County’s commission elections. The ESPC consistently argued that the hybrid districting bill erects another structure that easily can be co-opted to impose a replacement racist structure. Counties can use this law to quarantine a minority population in a district of its own while the rest of a county population continues to elect the majority of members of a county commission.

Fremont County officials have made obvious their intention to do as much as they can to maintain a status quo the court found guilty of racism. The county's action in front of the appeals court reaffirms that intent. It's time for Fremont County and the entire state to move beyond the racism that has plagued relations with the tribes.

If this is how the county commissions of Wyoming will use the new districting law, it should be repealed.