On February 5, in a case that may reach the U.S. Supreme Court, a three- to four-week trial begins in Casper, Wyoming. The American Civil Liberties Union, on behalf of five American Indians in rural, sparsely populated Fremont County, claims the County violated Section 2 of the federal Voting Rights Act (VRA) because of the alleged inability of American Indians to be elected Commissioner. The ACLU demands that the five commissioners—heretofore elected at-large, pursuant to state law—be elected from single-member districts and that one district be gerrymandered racially to guarantee election of an American Indian.

Understanding the ACLU lawsuit requires some history. In 1965, with Section 2 of the VRA, Congress codified the Fifteenth Amendment’s guarantee that citizens could not, “on account of race, color, or previous condition of servitude,” be denied the vote; meanwhile, in Section 5, Congress required Justice Department “preclearance” of voting changes—in states and counties with a history of racially discriminatory conduct that denied citizens the right to vote—to determine if the change would have an adverse impact on voting equality. In 1966, the Supreme Court upheld the constitutionality of Section 5; however, in 1980, the Court refused to apply Section 5’s reasoning to Section 2, holding that Section 2 incorporated the Fifteenth Amendment and therefore required proof of racially discriminatory intent. Hence, unless a mechanism, such as at-large voting, is adopted or maintained to deny citizens the right to vote—on the basis of race or color, it is constitutional.

Congress responded angrily and, in 1982, amended Section 2 to overturn the Court’s ruling. Congress made clear that its “principle immediate target” was “the at-large system of election” and that it objected to the Supreme Court’s “intent test” because intent in a Section 2 violation is “[ir]relev[ant]…divisive [and] difficult [to prove].” Constitutional scholars believe Congress exceeded its constitutional authority by enacting legislation that prohibits facially constitutional conduct in the absence of a history of widespread, egregious, racial discrimination in voting. Moreover, Congress relieved those filing Section 2 lawsuits of the obligation to do what litigants must ordinarily do—carry the burden of proving intent. Thus, lawyers in the Justice Department and in the ACLU were given the ammunition to file lawsuits, not just in the South, but across the country, including Wyoming, the Equality State.

The ACLU maintains that, to prevail against Fremont County, it need prove only that non-Indians vote as a bloc to prevent American Indians from electing, in the language of Section 2, the “representatives of their choice.” Fremont County responds that the ACLU must prove that, again in the words of Section 2, non-Indians vote “on account of race or color” and that Indians have been denied the ability “to participate…and to elect representatives of their choice,” which may not be American Indian candidates.

Hundreds of pages of evidence have been prepared; scores of witnesses, including several experts, will testify, including ACLU witnesses who say the United States and Fremont County committed cultural genocide against American Indians. Plus, in response to Fremont County’s argument that Section 2 is unconstitutional, federal lawyers entered the case.

All this may be for naught; the case may turn upon the one fact that gives lie to the ACLU’s claim: in November 2006, an American Indian was elected as a Commissioner. Ms. Keja Whiteman of Arapahoe, member of the Turtle Mountain Band of the Chippewa, social worker, mental health advocate, policy consultant, and former school board member active in 4H and barrel racing, says she won because she campaigned in Dubois, Lander, Riverton, and Shoshoni, not just on the Wind River Reservation. Thus, consistent with Fremont County’s argument and appellate court rulings, she did what it takes to be successful in politics.

The ACLU responds that Commissioner Whiteman was elected because non-Indians got the word that, to defeat the ACLU’s lawsuit, they should vote for her. Commissioner Whiteman says that is nonsense.