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Mark Wandering Medicine v. McCulloch

United States District Court, D. Montana, Billings Division

November 6, 2012

MARK WANDERING MEDICINE, High Club Foot, Lenard Elk Shoulder, Charles Bear Comes Out, Winfield Russel, James Day Child, Woodrow Brien, Sarah Stray Calf, Marty Other Bull, Newlyn Little Owl, Donovan Archambault, Ed Moore, Patty Quisno, Michael D. Fox, and Phyllis Pond Culbertson, Plaintiffs,
Linda McCULLOCH, Geraldine Custer, Robert E. Lee, Douglas D. Martens, Daniel M. Sioux, Sandra L. Boardman, Charlie Kulbeck, M. Dolores Plumage, Frank Depriest, Dulce Bear Don't Walk, Sidney Fitzpatrick, Jr., Chad Fenner, John Pretty On Top, and Kimberly Yarlott, Defendants.

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Terryl T. Matt. Attorney at Law, Cut Bank, MT, for Plaintiffs.


RICHARD F. CEBULL, District Judge.


Plaintiffs are Native Americans from Montana's Fort Belknap, Crow, and

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Northern 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.



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.


Plaintiffs assert claims based upon Section 2 of the Voting Rights Act of 1965

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(" 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 ...

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