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Voting rights case is 'done and done,' says Varn
Mar 7, 2012 - By Martin Reed, Staff Writer
Fremont County Attorney Brian Varn on Tuesday said the opportunity for appealing a recent ruling in the lawsuit that radically changed the area's commission elections has passed. The county did not appeal.
Telling commissioners he spent three days contemplating the Feb. 22 ruling by the U.S. 10th Circuit Court of Appeals in Denver, Varn said, "Number one, this case is done and done."
Even if the county could still pursue an appeal, "I see nothing on its face that would have given us any grounds to do so," Varn said. "Given the case is done, it is my belief the statute is back in play."
The statute in question is the change approved by the Wyoming Legislature in 2011 that allows commissions to impose an election plan involving a combination of single- or multi-member districts.
Due to the lawsuit by five Wind River Indian Reservation tribal members concerning the obstacles to electing a "candidate of choice" to the commission, a federal judge split the county into five districts for the county board members.
As Fremont County Clerk Julie Freese considers adjustments to district boundaries in light of state legislative changes happening with 2010 Census figures, discussion is growing in the county about a significant change to the commission election.
Freese has proposed three plans that involve adjustments to current district boundaries, but a fourth plan proposed by commissioner Dennis Christensen would reduce the districts to three from five total.
The Wind River Indian Reservation would continue to have a district to elect one commissioner, while the remainder of the county would be split into two sections roughly following the Wind River.
The two remaining districts would each have two commissioners with staggered terms, meaning voters in those districts would vote every election.
The plan "took a lot of discussion" at a recent meeting on commission districts in Lander, commissioner Travis Becker said.
Varn warned commissioners that pursuing an election plan that significantly changes the voting structure for the county board's members would carry consequences from court.
"I think that any attempt to change the voting scheme in this election will land you with a sanction by the judge," Varn said, noting the action will be "probably contempt, civil contempt."
His prediction: Impose a multi-member commission district plan and "you'll be slapped with an injunction and a suit."
Varn cited U.S. District Judge Alan B. Johnson's ruling in the case that rejected the idea of multi-member districts such as those
proposed under Christensen's plan.
With the appeals court supporting Johnson's ruling, implementing a plan that has been rejected would have backlash, Varn said. He wants to figure out "what Judge Johnson's blanket prohibition against multi-member districts really means."
Even the appeals court noted the county's ability to pursue what is known as a hybrid voting plan in the commission election remains on the table.
"Our ruling here today does not foreclose the possibility that the County may ultimately implement its desired plan through the normal processes established by Wyoming law," according to the appeals court ruling.
Whether such a plan would constitute a violation of law or the Voting Rights Act remains in question. "We do not opine on whether such a plan would satisfy the strictures of the Constitution or Section 2" of the Voting Rights Act, the ruling states.
Commission chairman Doug Thompson said a hybrid plan should be able to abide by the Voting Rights Act. "It looks like at least ... you could craft something that addresses concerns of the case," he said.
Commissioner Keja Whiteman said she is opposed to the hybrid plan as part of discussions about commission district adjustments because it "is in my opinion confusing."
"I don't want to take on multi-member districts right now" or ever, Whiteman said. "Putting that out there blurs (plans) A, B or C. ... I think when you add more to the mix you're confusing" the public.
Varn said he has about 19 cases to review where multi-member districts received court approval.
"It would be premature at this point because I can't give you good parameters to put out a multi-member plan," he said.
Freese questioned the effect of a voter-driven effort to get a multi-district plan on the ballot that then receives approval at the polls. Even if approved by voters, the plan "ultimately could be a Section 2 violation" of the Voting Rights Act, she said.
She pointed to Christensen's plan that would allow the reservation district to vote once every four years for a single commissioner while others in the county would vote every election for one commissioner.
"I don't see how that's going to fly," Freese said. "That's my concern with the whole thing."
Varn said any plan would require scrutiny.
"If electors were to put together a plan ... I think it would be incumbent upon us to show why it would not survive judicial review," he said.