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Unsettling effort: Groups lack justification to enter voting lawsuit

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Posted: Sunday, November 11, 2012 12:00 am | Updated: 4:16 pm, Fri Jan 25, 2013.

Fairbanks Daily News-Miner editorial

In 2010, the state entered a settlement agreement with voters in the Bethel area — and their attorneys — who had sued to make governments in Alaska provide better election information in the Yup’ik language. Under the settlement, the list of actions the state must take is comprehensive; the agreement comprises a major commitment to ensuring that every Yup’ik-speaking voter in the Bethel census area has the resources available to understand items on election ballots.

Yet last week, some of the same individuals and organizations who settled with the state in 2010 traveled to Washington, D.C., to enter the fray again. That’s unfortunate.

The four Alaska Native individuals and four Alaska Native tribes filed court papers to oppose a state lawsuit against the federal government’s implementation of one facet of the Voting Rights Act in Alaska. In that suit, Gov. Sean Parnell’s administration seeks to end the federal requirement that Alaska “pre-clear” any changes in its election system with the U.S. Department of Justice.

The entry into the lawsuit by the tribes and individuals is unfortunate because the state, by trying to remove itself from the pre-clearance requirement, is not trying to undermine the 2010 settlement agreement or eliminate the language assistance it provides to people who primarily speak Yup’ik or some other language. It’s simply trying to end a bureaucratic burden on elections in Alaska.

The state rightfully argues that the history of elections in Alaska cannot justify the federal government’s heavy-handed role here.

The folks who traveled to D.C. obviously disagree. In fact, they cite an early ruling in the case that they eventually settled in 2010 as the primary evidence. In a July 31, 2008, order, U.S. District Court Judge Timothy Burgess, who was appointed by President George W. Bush, said the Bethel-area voters were likely to win their case under the Voting Rights Act because the state hadn’t been diligent enough in making sure that translators and election material in spoken Yup’ik were available.

The state had ramped up its efforts in 2006 and 2007, Burgess acknowledged. But “the state’s efforts to overhaul the language assistance program did not begin in earnest until after this litigation began,” he said.

The potential violations of the Voting Rights Act highlighted by Burgess show that “discrimination is not a thing of the past” in Alaska, according to Natalie Landreth, attorney for the Native American Rights Fund, quote in a news release last week.

Not so.

First, one cannot equate potential violations of the act with discrimination.

The state was taking numerous steps to serve Yup’ik-speaking people even prior to the lawsuit. These measures were hardly evidence of discrimination; rather, they were the opposite — clear evidence of a concerted effort to avoid discrimination. Whether the measures were enough to meet the terms of the act is an entirely different question for which we don’t have an answer because the case was settled, with the state denying any wrongdoing.

Second, the state’s efforts have grown even greater under the 2010 settlement. Those efforts are truly extraordinary, offering so many services and staff that it’s hard to see how a reasonable person could describe the program as discriminatory.

But if the state’s latest lawsuit succeeds, this progress “will quickly be undone without the full protections of the Voting Rights Act,” alleged Jeffrey Mittman of the American Civil Liberties Union of Alaska.

Hardly. The state lawsuit does not attack the language assistance portion of the federal law and therefore does not endanger the state’s obligations to provide the ramped up assistance under the settlement agreement. The state is only challenging application of the pre-clearance portion of the law to Alaska.

As Attorney General Michael Geraghty said in August when the state filed suit against the federal government, “The state is not challenging the Voting Rights Act’s prohibition against discrimination in voting, nor is it challenging the state’s obligation under the Voting Rights Act to provide language assistance to voters. We are challenging only the portion of the law that forces Alaska to get federal permission before making any changes to its electoral process.”

That challenge is long overdue.

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