Mark Wandering Medicine v. McCulloch

906 F. Supp. 2d 1083, 2012 WL 5414022, 2012 U.S. Dist. LEXIS 159272
CourtDistrict Court, D. Montana
DecidedNovember 6, 2012
DocketCase No. CV-12-135-BLG-RFC
StatusPublished

This text of 906 F. Supp. 2d 1083 (Mark Wandering Medicine v. McCulloch) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mark Wandering Medicine v. McCulloch, 906 F. Supp. 2d 1083, 2012 WL 5414022, 2012 U.S. Dist. LEXIS 159272 (D. Mont. 2012).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

RICHARD F. CEBULL, District Judge.

I. Introduction

Plaintiffs are Native Americans from Montana’s Fort Belknap, Crow, and [1086]*1086Northern Cheyenne Indian Reservations. They ask this Court to Order Defendants to open satellite county offices with in-person absentee voting and late voter registration in Fort Belknap, Crow Agency, and Lame Deer, Montana. Their October 10, 2012 Complaint alleges claims under Section 2 of the Voting Rights Act and the Equal Protection Clauses of the United States and Montana Constitutions. Named as Defendants are Montana’s Secretary of State and County officials from the three Montana counties involved.

Twenty-seven days before the 2012 general election, Plaintiffs moved the Court for a mandatory preliminary injunction directing Defendants to immediately open the satellite offices. Plaintiffs did not move for expedited briefing, so a hearing was set on a date convenient for Plaintiffs a few days after Defendants filed their response briefs. On October 30, 2012, after a day and a half of testimony, the motion was denied. This Order explains why.

It is undisputed that it Native Americans living on the three Indian Reservations face greater hardships to in-person absentee voting than residents of the three counties who do not live on the reservations. But because the evidence also established that Montana law provides several other ways of voting and that Native Americans living on the three reservations are able to elect representatives of their choice, the Court concluded Plaintiffs were not very likely to succeed on the merits their § 2 Voting Rights Act claim. The Equal Protection claims are unlikely to succeed because there is insufficient evidence of discriminatory intent in the decision not to open satellite election offices. When the unlikelihood of success was considered alongside the significant hardship that would be imposed on the County elections administrators to implement new procedures on short notice during what is likely to be a close election in many statewide races, the only reasonable conclusion was that the motion for mandatory preliminary injunction be denied.

II. Analysis

A. Standard Of Review

A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). This is especially true of the mandatory preliminary injunction sought by Plaintiffs. Mandatory preliminary injunctions are particularly disfavored and should not be granted “unless extreme or very serious damage will result.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009).

Plaintiffs seeking a preliminary injunction must establish they are likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20, 129 S.Ct. 365. Although all four factors must be met, they operate on a sliding scale. “Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). For example, “a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” Id. at 1135.

B. Plaintiffs Are Not Likely To Succeed On The Merits On Any Of Their Claims

Plaintiffs assert claims based upon Section 2 of the Voting Rights Act of 1965 [1087]*1087(“VRA”), 42 U.S.C. § 1973, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, as well as claims under the Equal Protection Clause found of the Montana Constitution, Art. II, Sec. 4, and the provision of the Montana Constitution guaranteeing free exercise of the right of suffrage, Art. II, Sec. 13. The essence of these claims is that Defendants discriminate against Plaintiffs by failing to open satellite voting offices so that Plaintiffs can more conveniently register late and cast in-person absentee ballots.

Unlike § 2 of the VRA, discriminatory intent is an essential element of Equal Protection claims alleging discrimination against voters. Rogers v. Lodge, 458 U.S. 613, 620-21, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Although a discriminatory purpose can sometimes be inferred from the totality of the relevant facts, id. at 618, 102 S.Ct. 3272, the direct evidence established that Plaintiffs request was denied because of the significant hardship that would be imposed on election administrators if they had to implement these procedures on short notice in the heat of a presidential election. Plaintiffs argued discriminatory intent could be inferred from the fact that Indians on the reservation have to drive so far to visit the voting office, but the location of the voting office at the county seat was chosen long before there was in-person absentee voting. And the location of the election office at the county seat undoubtedly makes in-person absentee voting harder for many Montanans living in remote sections of Montana’s large counties. Accordingly, any circumstantial evidence of discriminatory intent paled in comparison to the direct evidence that satellite locations were denied for logistical reasons. Id. Plaintiffs are therefore very unlikely to succeed on their constitutional claims.1

Section 2 of the VRA, 42 U.S.C. § 1973, provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of .circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

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Related

Rogers v. Lodge
458 U.S. 613 (Supreme Court, 1982)
Thornburg v. Gingles
478 U.S. 30 (Supreme Court, 1986)
Chisom v. Roemer
501 U.S. 380 (Supreme Court, 1991)
Jesus Gonzalez v. State of Arizona
677 F.3d 383 (Ninth Circuit, 2012)
Snetsinger v. Montana University System
2004 MT 390 (Montana Supreme Court, 2004)
Mississippi State Chapter, Operation Push v. Allain
674 F. Supp. 1245 (N.D. Mississippi, 1987)
Windy Boy v. County of Big Horn
647 F. Supp. 1002 (D. Montana, 1986)
Alliance for Wild Rockies v. Cottrell
632 F.3d 1127 (Ninth Circuit, 2011)

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Bluebook (online)
906 F. Supp. 2d 1083, 2012 WL 5414022, 2012 U.S. Dist. LEXIS 159272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-wandering-medicine-v-mcculloch-mtd-2012.