By Tim Leeds
Blaine County's special primary election is still on for now.
U.S. District Judge Philip Pro of Las Vegas Thursday denied the county's request to stop the election until a review of his decision banning at-large voting in county commission elections is complete.
Scott Detamore of the Mountain States Legal Foundation in Lakewood, Colo., the attorney representing Blaine County, said today it probably isn't surprising that a judge wouldn't reverse his own decision.
"Now we'll file with the 9th Circuit Court of Appeals and ask for the same thing," he said.
The issue arises from Pro's March ruling in a lawsuit filed by the U.S. Justice Department in 1999. Pro ruled that Blaine County's at-large voting system, in which all of the county's electorate votes in each commission race regardless of the commissioner's district, violates the voting rights of the county's Native American population.
A Native American commissioner has never been elected in the county, even though Indians comprise about 45 percent of its population.
The County Commission prepared an election plan that includes a new Indian-majority district, which was accepted by Pro. The special primary for the district, which includes most of the Fort Belknap Indian Reservation, is set for Sept. 19.
The problem with holding a special election is that it would be overturned if Blaine County wins its appeal on Pro's decision about the at-large system, Blaine County Commissioner Art Kleinjan said. It would be a problem to let someone pay the filing fee, campaign, win the election and then not be able to serve, he said.
"More harm would be done by letting someone run, whether they're American Indian or white," he said.
Detamore said the problem could go even deeper. If a commissioner is elected and subsequently removed from office, the legitimacy of any of that commissioner's votes could be questioned, he said.
Beth Brenneman, attorney with the American Civil Liberties Union of Montana, said the election should continue. The ACLU is representing the reservation in the case.
"There is no reason to believe that it would not be appropriate to follow the decision of the court that the at-large system is unlawful," she said.
Ben Speakthunder, president of the Fort Belknap Indian Community, said the commissioners' actions are confusing.
"The county commissioners have had their own way. They have submitted their own redistricting plan, which Pro accepted, and now they're appealing it," he said.
Kleinjan said the county is not appealing the new districts but only the judge's decision to eliminate at-large voting. The new districts would remain the same.
The appeal of Pro's decision on the special election will have to move quickly, Detamore said. Once the election is held, the point will be moot. There's no way to know if the appeal can be heard in time, he said.
"It depends on the court and how fast it can put it together," he said. "It needs to be as soon as possible from our point of view. We'll probably ask the court to hear it as an emergency motion."
One problem with the decision to eliminate at-large elections is that the federal government is forcing the county to break away and hold its elections differently than most counties in the state, Kleinjan said.
Another problem is the chance that commissioners would only represent the people in their districts, he said.
"I do not like the idea of not representing all the people in the county. I have to provide for all of the services," he said. "That bothers me."
Detamore said the appeal on the decision about at-large elections will be on a constitutional basis. Constitutional amendments requiring equal voting rights do not allow preventative measures, only enforcement, he said.