A judge has refused to allow defendants in the recently dismissed Brooks v. Gant voting-rights lawsuit to go after the Oglala plaintiffs for court costs. Last month, U.S. District Court Judge Karen Schreier dismissed the suit after the defendants agreed to provide what the plaintiffs requested — a full-time early-voting polling place for the Pine Ridge Indian Reservation. The defendants, who are state and county election officials, promised to do so through 2018, which meant the case was no longer “ripe,” with imminent harm.
Sara Frankenstein, attorney for the county officials, then asked the court to bill the 25 plaintiffs for more than $6,000 in court costs — an idea that Judge Schreier called “unjust.” In a tautly worded September 19 opinion, the judge said it took a lawsuit to get the defendants to cooperate and “provide the relief sought by the plaintiffs.” Had the officials done so from the start, wrote the judge, “they could have avoided the costs they are now seeking.”
Clarice Mesteth, an Oglala single mother, said she and other plaintiffs were “relieved.” She added, “We couldn’t believe they wanted us to pay because we asked for the same access to voting that the rest of South Dakota gets.”
Judge Schreier noted that she dismissed Brooks v. Gant “without prejudice.” This means that if the plaintiffs run into these problems again, they may return to the court for a remedy.
The younger generation wants to get involved, said Mesteth. “My daughter is voting age now. If we have to file suit again after 2018, she wants to be included. My boys will be voting age then, and we can count on them, too. They only want what’s fair.”
In Judge Schreier’s decision, she noted that the plaintiffs, who she acknowledged were “without great means,” did not stand to gain personally from the lawsuit. Instead, they had filed it “to vindicate the voting right of all Native Americans who live on the Pine Ridge Indian Reservation.”
The lawsuit’s public purpose was an important aspect of the decision, said Laughlin McDonald, director emeritus of the American Civil Liberties Union’s Voting Rights Project. “It should serve as a precedent in other cases. Some jurisdictions settle voting-rights cases to avoid paying costs and fees, but others who want to maintain their existing systems fight on. Hopefully, the decision will lead to more settlements in cases bought by American Indians.”
Greg Lembrich, a New York City attorney and legal director of Four Directions, a Native voting-rights organization that supported the lawsuit, saw a measure of impatience in the judge’s opinion. “The request for costs bordered on the legally frivolous. The prevailing party in a federal suit can go after the other side for costs, but this case ended when the defendants saw the handwriting on the wall and gave up. As Judge Schreier wrote, ‘In effect, the plaintiffs received all the relief they requested.’ You can’t both surrender and declare victory.”
Frankenstein disagreed, pointing out that, in the end, the case was dismissed on “ripeness” grounds and judgment entered in favor of her clients; thus they had prevailed, justifying her application for costs. She said she would not appeal the denial, but accused Four Directions of making an issue of the costs to draw attention to its cause.
In any case, the costs won’t come out of the defendants’ pockets. As public officials, they are covered for such lawsuits through the South Dakota Assurance Alliance (SDAA), Judge Schreier wrote in her opinion.
Jeff Barth, a Minnehaha County commissioner who was not a party to the lawsuit, called the situation “an embarrassment to South Dakota.” He felt the officials should have provided the polling places from the start. “We could have walked away from this with a handshake and a road to reconciliation. It’s bad enough we stole Native peoples’ land and murdered them. Now we are trying to prevent them from exercising their right to vote.”
That won’t happen, said plaintiffs’ attorney Steven D. Sandven, of Sioux Falls. “The efforts of South Dakota officials to chill the vote at Pine Ridge Indian Reservation have not been rewarded.”
This article was written with support from the George Polk Center for Investigative Reporting.