Cause lawyering for American Indian voting rights: comparing public and private attorneys

• Pages: 137-162
• DOI: https://doi.org/10.1108/S1059-4337(2010)0000053009
• Published date: 31 December 2010
• Date: 31 December 2010
• Author: Susan M. Olson

CAUSE LAWYERING FOR

AMERICAN INDIAN VOTING

RIGHTS: COMPARING PUBLIC

AND PRIVATE ATTORNEYS

Susan M. Olson

ABSTRACT

The study of cause lawyers has focused heavily on the private sector, but

both public and private attorneys bring voting rights litigation. This

chapter first situates voting rights litigation within cause lawyering, as

described by Scheingold and Sarat. It then suggests criteria for analyzing

cause lawyering across public and private sectors and applies them to the

attorneys who have done the majority of voting rights litigation for

American Indians: The Voting Section of the U.S. Department of

Justice’s Civil Rights Division and the Voting Rights Project of the

American Civil Liberties Union. The chapter suggests that the public and

private attorneys are more similar than one might expect in their

motivation, relationship to clients, and range of political strategies used.

Their organizational practice sites differ greatly, but the dynamics of the

public practice site confirm that Voting Section attorneys are cause

lawyers.

Studies in Law, Politics, and Society, Volume 53, 137–162

Copyright r2010 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2010)0000053009

137

After school desegregation, voting rights is probably the most famous cause

of the African-American Civil Rights Movement. The voting rights

demonstrators’ confrontation with police on the Edmund Pettus Bridge in

Selma, Alabama, in March 1965, is one of the most iconic images from the

period. Five months later, on August 6, President Lyndon Johnson signed

into law the Voting Rights Act of 1965.

Obtaining passage of the Voting Rights Act was a product of large-scale

social movement mobilization, and using the right to vote continues to be

the focus of countless voter mobilization campaigns. Litigation over

interpretation and enforcement of the Voting Rights Act also continues

and is the domain of a relatively small group of cause lawyers. These lawyers

are engaged in one of the activities Richard Abel describes as ‘‘speaking law

to power’’: structuring the competition for political power (1998, p. 74).

Litigation under the Voting Rights Act has challenged discriminatory

enforcement of election procedures, annexations or at-large election systems

that dilute minority votes, jurisdictional boundaries that either unduly

concentrate or split up communities of minority voters, the lack of bilingual

ballots in jurisdictions with qualifying language minorities, and many other

electoral practices.

This chapter looks at one of the less-known beneficiaries of the Voting

Rights Act – American Indians – and the attorneys who have done the

majority of voting rights litigation on their behalf, principally the Voting

Rights Project of the American Civil Liberties Union (ACLU) and the

Voting Section of the Civil Rights Division of the U.S. Department of

Justice (DOJ). The data come from my collaborative, book-length study of

Indian voting rights: Native Vote: American Indians, the Voting Rights Act,

and the Right to Vote (McCool, Olson, & Robinson, 2007). For this project,

the author conducted interviews with personnel of the ACLU in July 2003

and the DOJ in May 2004.

1

The Voting Section employees were not able to

speak for attribution and so are not individually identified. The two

organizations also made available their files of pleadings and other court

documents in numerous Indian voting rights cases.

The book assessed the political and policy significance of 74 voting rights

cases brought on federal legal grounds by or on behalf of American Indians

from the passage of the Voting Rights Act of 1965 to 2006, but did not

analyze the attorneys’ role. In contrast, this chapter examines their work

through the framework of cause lawyering, argues that government

attorneys have been underrepresented in the cause lawyering literature, and

begins to fill this gap. The chapter first discusses the role of these two groups

of attorneys and others in voting rights litigation for American Indians.

SUSAN M. OLSON138