Association for Public Policy Analysis & Management

The practice of disenfranchisement of racial and ethnic groups has a long history in the United States. Unfortunately, the practice did not end with the passage of the Voting Rights Act in 1975. In fact, as evidenced by the large number of voting rights cases still being litigated, local officials still finds ways, sometimes overtly and sometimes surreptitiously to disenfranchise populations. Nowhere has it this practice been as blatant as in Indian Country, where the many forms of vote dilution and suppression , as well as violations of the minority language provisions, have been used to deny an equal voice to Native voters. When this occurs, the only remedy is for the voters to seek judicial redress, arguing that election officials with violating rights protected by the Fourteenth Amendment and the voting Rights Act.

Voting rights cases, however, require access to both financial and legal resources; both of which are in short supply in Indian Country. The defendants in these cases, state and local government entities, do not face similar constraints. State and local governments typically belong to large municipal insurance pools, which are used to cover the costs of defending against lawsuits. Even though insurance pools are funded through taxes, citizens in the jurisdiction being sued only bear a small fraction incurred in a particular case. As such, the defendants in voting rights cases have an incentive to “paper up”, or unnecessarily extend litigation through unnecessary motions and depositions designed to raise the cost, which is inequitably borne by Native plaintiffs and their attorneys. Governments often raise the costs through “papering up” in voting rights cases and then, if they think they will lose, to settle at the last minute, which prevents plaintiffs from recovering the costs of litigation. In this paper, we explore the extent to whether states and municipal governments are using these pools to run up the costs in native voting rights cases.

Our data set is comprised of all Native American voting rights cases between 2008 and 2018. For each case, we identify the counsel for each party, whether there was a judicial ruling or a settlement, available records listing costs and sources of funding for each party. We expect to find that in political jurisdiction which belong to municipal insurance pools, their attorneys engage in actions that increase the costs for all parties, but which are disproportionately borne by the Native plaintiffs and their attorneys. In doing so the government entities used taxpayer money to defend against a lawsuit brought by their own citizens seeking to preserve their voting rights. While the immediate negative effects of such actions is obvious, the longer term effect is to discourage other Native voters, whose rights have been infringed, to pursue judicial redress because the cost is just too high.