THE WASHINGTON POST ASSAILS THE WEST AND ITS LAWYERS
by William Perry Pendley, Esq.
January 1, 2011
Phineas Taylor (P.T.) Barnum’s famous adage, "I don't care what the newspapers say about me as long as they spell my name right," was put to the test regarding Mountain States Legal Foundation (MSLF) recently.
In early December 2010, The Washington Post ran an article headlined, “Indians question Colo. firm’s motives in vote case,” in which the writer not only attacked MSLF but also questioned its ethics and asserted that MSLF’s pro bono representation of rural Fremont County, Wyoming was motivated by racism. The Post’s article quickly went “viral.” An internet search reveals the article was run by newspapers and web-sites across the country. Nonetheless, the Post refused to print a Letter to the Editor submitted by MSLF that included statements of fact and law the Post failed to report!
Indeed, the Post appeared disinterested in the details of the case, which began in October 2005, when the ACLU filed a Voting Rights Act (VRA) lawsuit against Fremont County and its elected officials in Wyoming federal district court on behalf of five Eastern Shoshone and Northern Arapahoe tribal members. The ACLU demanded that the court order single-member commissioner districts, including at least one district with a majority of American Indian voters, to guarantee the perpetual election of an American Indian commissioner.
Fremont County, whose voters are 75 percent non-Hispanic Whites and 20 percent American Indians, elects its commissioners at large in partisan races pursuant to state law. Until recently, all five commissioners were Republicans given that 60 percent of voters are registered Republicans. That changed in 2006, a bad year for Republicans, when Fremont County elected an American Indian Commissioner, Keja Whiteman, well-known for her active involvement in the community, who campaigned aggressively throughout the County.
In November 2006, Fremont County filed a motion for summary judgment arguing that Section 2 of the VRA is unconstitutional; in December 2006, the ACLU responded. In 2007, after the filing of pretrial briefs in January, a two-week trial was held in February. In May 2007, Fremont County and the ACLU filed post-trial briefs and the case was ready for a ruling; however, for nearly three years, none was issued. Finally, in early April 2010, the ACLU petitioned the U.S. Court of Appeals for the Tenth Circuit to compel the district court to decide the case. Later that month, the district court issued a 102-page document holding that Fremont County had violated the VRA and barred it from using its at-large system. In August 2010, the district court nixed the County’s redistricting plan; it adopted the ACLU plan instead.
Obviously, there is much interest here for the thoughtful reader. Why did the court take three years to decide; and why only after a threat from a court of appeals? Why did the court not find that the election of an American Indian commissioner proved that the county’s non-Indian voters are not racially biased? Why did the court rule that the century-old history of the relationship between the United States government and American Indians tainted the modern-day voters of Fremont County? Why did the court not rule as to the constitutionality of Section 2 of the VRA, which allows courts to racially gerrymander districts to ensure election of minority candidates, given that one federal court of appeals calls it “political apartheid” and Justice Thomas decried its results as “racial balkanization”?
None of this interested the Post; instead, it attacked MSLF—which it claimed, based on its review of “[f]ederal tax records,” is “bankrolled” by “some of the most powerful families in the West”—as “Indian fighters” motivated “by deeply conservative political philosophy” who seek a return to “the way things were in the 1950s.” Westerners saw the article for what it was, an attempt to besmirch, not only MSLF’s reputation, but also that of its supporters, allies, and clients. In other words, the Post at its worst! At least it spelled MSLF’s name right.
Large v. Fremont County, 10-8071 (10th Cir)
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Mountain States Legal Foundation (MSLF) is a nonprofit,
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