As closing arguments were delivered in the Native voting rights lawsuit in federal court, the Alaska Federation of Natives announced Thursday it was leading an effort to bring in-person absentee voting to nearly every village in the state.
The double-barreled effort by Native rights advocates comes a year after the U.S. Supreme Court weakened U.S. Voting Rights Act protections for minorities, including those in Alaska, in a case brought by Shelby County, Ala. The state of Alaska filed a brief in support of Shelby County while AFN filed in opposition.
The 5-4 decision in the Shelby case ended Justice Department oversight of Alaska elections and those of eight other states, mainly in the South. But most of the Voting Rights Act remained intact and four Alaska Native tribal groups and two elders sued the state, alleging it failed to provide election material in the Yup'ik and Gwich'in languages, as the law requires.
The lawsuit was taken under advisement in Anchorage on Thursday by U.S. District Judge Sharon Gleason. She will have to decide whether the state Elections Division broke the law in three Yup'ik- and Gwich'in-speaking regions of Alaska and, if so, what remedial action it should be compelled to take.
Gleason didn't set a deadline for herself, but with 2014 shaping up as a big election year in Alaska, she'll have to work fast if she wants her decision to have impact, especially if she directs the state to change the way it runs elections in the Bush.
"It's my intent to work diligently and do my best to issue a decision in the near term," she said from the bench.
In her closing argument, plaintiff attorney Natalie Landreth from the nonprofit Native American Rights Fund said the Elections Division failed its duty to Native speakers with limited skills in English. During the two-week trial, those voters were described mainly as elders who grew up before Alaska was compelled in another lawsuit to establish secondary schools throughout the Bush.
"These problems should have been solved in the 1970s -- it should have been handled in the Ford administration," Landreth said.
Before the villagers filed the lawsuit last year, she said, the only material available to limited English speakers in the Dillingham and Wade Hampton census areas in Southwest Alaska were "a Yup'ik 'I have voted' sticker, a glossary of election terms, and a sample ballot in a different dialect of Yup'ik" from what the villagers spoke.
Then, looking around the courtroom where about 30 spectators, some from Native corporations, had come to hear the closings, Landreth added: "There can no argument that this is equivalent to what the English speakers in this room receive."
Landreth said state surveys of the need for language assistance, and the state's reliance on bilingual poll and outreach workers with limited training in language assistance, didn't at all match the wealth of material provided to voters in English and, to a lesser extent, in Spanish and Tagalog, spoken by Filipinos.
"No other communities are surveyed in this way," she said, describing the state's effort as a minimalist "opt-in" language program rather than one that reaches out to Natives.
"It's as if your civil rights spring into being when you make a specific request for them," she said.
In the state's closing argument, assistant attorney general Margaret Paton-Walsh said the Elections Division didn't have to provide a perfect language program, just an effective one. The court shouldn't allow any plaintiff with an idea about how to implement language access to "micro-manage" a state program that is legal, reasonable and working, she said.
Gleason interrupted Paton-Walsh to ask what weight to give in her decision to the state's practices from 2008 to 2013 -- the period from an earlier language lawsuit that the state settled in favor of Natives through the U.S. Supreme Court decision.
"I think your honor should give increasing importance" to the more recent elections, and the most to its 2014 plan, Paton-Walsh replied. She said the division has continuously improved its Yup'ik and Gwich'in language programs since 2008.
"The most importance has to be given to the division's plans post-Shelby County," she said. The decision freed the state from spending time seeking Justice Department approval for even minor changes to its election procedures, she said.
The Elections Division reserves the most difficult translation jobs, such as ballot measures, for its Yup'ik Translation Panel, a group of experts that includes university staff. Poll workers can adequately deal with translating candidate and judicial statements published in English in the official election pamphlet, she said. She characterized those statements as "I was born in Alaska and I like to hunt and fish."
"Anyone who is bilingual can manage this kind of language," Paton-Walsh said.
As for Yup'ik dialects, there's no need to provide translations in each one, because one dialect, Central Yup'ik, is understood in other regions.
"It's like the difference between Birmingham, England, and Birmingham, Ala.," said Paton-Walsh, who was born in Surrey in the United Kingdom.
After Elections Division director Gail Fenumiai testified Wednesday that she could recall no serious complaints from the Alaska Federation of Natives, the organization filed a statement in the case saying it has long believed the state's language efforts to be inadequate.
In the statement, AFN President Julie Kitka said that as recently as June 19, she urged Lt. Gov. Mead Treadwell, the state's top elections official, and Fenumiai to settle the lawsuit "and stop fighting their own voters." She added that after reviewing the deposition of elections officials in the case, she and other AFN staff found their approach "disturbing."
"It is unclear what purpose it serves to oppose elderly, limited-English-proficient voters who merely want access to election materials they can understand," Kitka said.
For three years, Kitka said, the Elections Division had been unresponsive to her request that it provide early, in-person absentee voting in villages as it does in urban areas.
"Desperate to have these early voting locations in place by 2014, AFN staff and the CEOs (of Alaska's regional Native corporations) offered to gather all necessary information and we have succeeded in adding new early voting locations in rural Alaska," Kitka wrote. "The (Division of Elections) did not do this -- we did."
In a separate announcement, AFN said it expects that 176 villages will have absentee in-person voting sites for the 2014 primary and general elections. The AFN was joined in the effort by the ANCSA Regional Association and Get Out the Native Vote.
In an interview, Kitka said the AFN and the regional association contacted individuals in villages who agreed to be responsible for ballot security and other procedures demanded by the state.
"It would be really good state policy to do everything they can to ensure everyone can vote," she said. But the state isn't doing that, which is why it has faced lawsuits and other challenges, Kitka said.
Reach Richard Mauer at firstname.lastname@example.org or 257-4345.
By RICHARD MAUER