Past and future national elections cast shadows over a Native American voting-rights lawsuit argued in Rapid City, South Dakota, on March 8. At the end of the all-day hearing, Chief U.S. District Court Judge Karen Schreier noted that the state and county officials who were defendants in the suit had already voluntarily promised to do everything the Oglala Lakota plaintiffs had requested for this year’s national election.
For the first time, the plaintiffs will be able to early-vote in their own county during a 46-day period leading up to the June primary and November general election, just like other South Dakotans. The plaintiffs originally had just 6 days, which their suit called “a denial of the right to vote” and “discriminatory.” But with their early voting access now assured for 2012, the request for a preliminary injunction ordering exactly that was moot, Judge Scheier declared.
However, the judge noted, the defendants had merely made “representations and promises” to provide equal rights in 2012. If they do not carry out these plans, she announced, “bring that to my attention, and I would grant the preliminary injunction.”
The judge also found that the plaintiffs’ other request—for a permanent injunction against future inequalities—remains a “live claim.” In her March 14 opinion, she wrote that because of as-yet-unsolved financial issues, “There is a reasonable expectation that plaintiffs will be subject to the same conduct in the next election cycle, or that the conduct will recur.”
Judge Schreier ended the hearing by saying that registering to vote and casting ballots—both during the early-voting period and on election day—were fundamental rights: “All of our citizens in South Dakota should have equal access.” She commended the counties for “taking steps” to ensure this for 2012, adding, “I wish they had been taken in earlier elections, but at least you’re taking those steps now.”
Clarice Mesteth was one of several Oglala Lakota plaintiffs who attended the hearing. She was pleased at its outcome, she said: “The defendants are not off the hook. They’re accountable for their actions not just this year, but forever.”
Nevertheless, Mesteth was disturbed at Oglalas’ continual, election-after-election struggle for equal enfranchisement, saying, “It seems like everyone wants to make us squirm before they let us vote.”
“The judge has given all parties time to find a lasting, sustainable fix for the funding problems in Shannon County,” said Greg Lembrich, legal director of Four Directions, a voting-rights nonprofit, and senior associate at Pillsbury Winthrop Shaw Pittman. “There has to be some way the state can ensure that all South Dakota’s citizens are guaranteed their constitutional right to vote.”
Shannon and Fall River counties’ attorney, Sara Frankenstein, said she is doing just that—working with her clients to find long-term funding for Shannon County elections. “The next thing I need is information from South Dakota’s secretary of state about the state’s Help America Vote Act funds—how much there are, how they’re transferred, how we satisfy the federal accounting rules governing them.” She added that Shannon County officials are also trying to discover whether it might be eligible for PILT funds (Payment in Lieu of Taxes, which the Department of the Interior disburses to local entities to make up for financial losses due to non-taxable federally-owned land, such as national parks, within their borders).
Genesis of a lawsuit
The Oglala Lakota lawsuit arose after Shannon County decided in January 2012 that leading up to this year’s primary and general elections, it could afford to give its residents only six days of in-county early voting for each—as opposed to requiring them to drive as many as 200 miles round trip to another county. (Shannon County is roughly contiguous with the Oglala Sioux Tribe’s Pine Ridge Indian Reservation and responsible for national elections there; it is not a tribal entity, but rather a subdivision of the state of South Dakota.) According to Shannon County commissioner Lyla Hutchison, the county was “simply out of money.”
South Dakota’s head election official, Secretary of State Jason Gant, refused to advance cash-poor Shannon County Help America Vote Act funds, saying reimbursement after the elections, backed up by receipts, was state policy. The reimbursement requirement is not federal policy, according to Bryan Whitener of the U.S. Election Assistance Commission, which administers the federal law, but rather something states may decide to do. A stalemate ensued: Shannon County couldn’t front the money for full elections, so its voters had to make do with less ballot-box access.
Early voting has not been consistently available in Native American areas since South Dakota first began offering this convenient way to cast ballots in 2004. Typically, Shannon County residents have had a fraction of the days offered other South Dakotans, or none at all. When early voting has been provided within Native communities, as many as 46 percent of voters have used it, driving up election participation, according to O.J. Semans, Sicangu Lakota director of Four Directions. Just 15 days of early voting in 2004 doubled the election turnout over 2000, when it was not available, Semans said.
When it became clear in early 2012 that Shannon County/Pine Ridge would yet again have less early voting than other parts of the state, 25 tribal members called on attorney Steven D. Sandven, of Sioux Falls, to sue Gant, along with officials of both Shannon County and adjacent Fall River County, which handles elections on a freelance basis for Shannon County’s barebones government.
The lawsuit cited the protections of the U.S. and South Dakota constitutions, the Voting Rights Act and other measures. As a voting-rights case, the issue was stark, Sandven said: “Six days versus 46.”
The suit joined the 20-plus that Native Americans and their advocates have brought in South Dakota since the 1980s, winning cases that charged gerrymandering, demands for forms of ID that are not required, failure to provide sufficient polling places, purging of qualified voters from the rolls and intimidation, according to American Civil Liberties Union reports. On the morning of the 2004 general election, for example, a judge stopped poll watchers from following American Indian voters out of voting precincts and taking down their license-plate numbers.
For decades, South Dakota has flamboyantly asserted its position on enfranchisement. Native people didn’t vote there until the 1940s, even though the Indian Citizenship Act gave them that right in 1924. During the 1970s, a state attorney general called the Voting Rights Act an “absurdity” and advised the secretary of state at the time to ignore it. Prior to the 2002 election, the state sent agents to Indian reservations to question newly registered voters and root out alleged voter fraud; no one was ever charged.
This history of discrimination makes two South Dakota counties—Shannon and nearby Todd, which is contiguous with the Rosebud Indian Reservation—subject to special Department of Justice oversight, including “preclearance” of any voting laws it passes. In 2005, a federal court found that the state had managed to avoid preclearance of more than 700 laws.
Money, money, money!
In an 11th-hour reversal just ahead of the March 8, 2012 hearing, state and county officials announced they’d found money to pay for early voting in Shannon County.
Both Shannon and Fall River counties, as well as the state of South Dakota, have long stressed that early-voting inequities were all about money, not an attempt to constrain Native American voters, who are typically heavily Democratic in a Republican-controlled state. However, during the March 8 hearing, startling testimony from Semans revealed that during a Shannon County commissioners’ meeting prior to the 2010 election, his organization offered to donate $11,000 to pay for the upcoming early-voting period in Shannon County.
Consideration of the offer was interrupted by a dramatic announcement by Fall River officials, as they returned to the meeting from a break and tendered 30-day notices of resignation from their Shannon County freelance gigs (though not their Fall River jobs). In the succeeding brouhaha, no one ever contacted Four Directions for the $11,000, Semans testified.
The looming exit of the Fall River officials jeopardized Shannon County’s 2010 election, including registration and early voting, and other essential government services—possibilities the Rapid City Journal covered repeatedly and colorfully in succeeding weeks. Headlines included “Shannon County officials resigning in 30 days,” “Shannon County residents have a lot to lose,” “Limbo continues for Shannon County” and “Shannon County running amok.”
On the stand before Judge Schreier in 2012, Fall River State’s Attorney Jim Sword testified that the 2010 resignations—including his and the election official’s notices—had nothing to do with early voting but were in fact the fault of the “malicious” Department of Justice, which had been scrutinizing Fall River’s conduct of Shannon County elections.
Months before, Sword had written to the Justice Department threatening to resign if another voting-rights suit were filed, he testified. “[Giving notice] had nothing to do with early voting. Had everything to do with their malicious actions,” Sword responded to a question from Frankenstein. “It’s always been a response to threats to sue us.”
What about 2012?, Frankenstein asked. “There’s nothing to indicate that this won’t be anything but a great election,” Sword replied.
Secretary of State Gant offered some surprises—for example, testifying that for several months he’d sat on information about Shannon County’s struggle to put together a 2012 election. The next was when he confirmed under questioning from the judge that the state has millions in its HAVA-fund coffers. Meanwhile, an election in Shannon County appears to cost somewhere between $10,000 and $15,000.
Yet another was when Gant testified that South Dakota law allows the state to step in and run elections when necessary. Back in 2010, Fall River officials created such turmoil when they headed for the door because then-Secretary of State Chris Nelson refused to involve the state, telling the Rapid City Journal, “the state will not step in and run the election” and “no one but a county auditor can manage an election.” At press time, neither Secretary Gant nor his lawyer had responded to requests for comments.
Tribal members in Shannon County deserve a permanent solution to the early-voting problem, said Laughlin McDonald, director of the American Civil Liberties Union’s Voting Rights Project and author of an amicus brief supporting the Oglala plaintiffs: “They should be treated like voters in other counties in South Dakota. The long and continuing history of disparate treatment of American Indian voters in South Dakota should come to an end.”
McDonald described the hoped-for result of all this—increased American Indian political participation in the state—as “helping break down the barriers that continue to separate Indians and non-Indians” and conferring “undeniable benefits.”
Lembrich has provided practical examples of the benefits of Native enfranchisement in South Dakota, despite its limitations so far: “Water projects have been expanded to bring running water to many rural Indian communities, and attempts to cut funding for tribal colleges were defeated.” He also noted that the simple fact of bringing the suit means “everyone now knows the threat of a federal lawsuit is real and not just a bluff.”
What made Semans especially happy, he said, was the judge noting Native Americans’ long-term fight for equal voting rights in South Dakota. “That effort gave us a foothold that led to this success today,” Semans said. “We got kicked to the curb a few times along the way, and it took eight years, and it was worth it.”