A federal judge has shredded claim after claim by a South Dakota county that overlaps the Pine Ridge Indian Reservation but will not guarantee tribal members on-reservation voter registration and in-person absentee voting (sometimes dubbed “early voting”). In future, Jackson County wants all residents to continue traveling to the courthouse in the county seat, Kadoka, to access the full range of voting services.
Tribal members, including Oglala Sioux Nation vice president and lead plaintiff Tom Poor Bear, sued. They say the county’s stance violates the Voting Rights Act and the Fourteenth Amendment, guaranteeing equal rights. The county defendants came back with a motion that the suit, Poor Bear v. The County of Jackson, be dismissed.
Judge Karen Schreier turned the county down, repeatedly opining that the plaintiffs had offered sufficient grounds to move the suit forward, while the county had not shown it should be shot down.
Jackson County tried to claim, among other things, that it can’t afford an additional polling place. However, wrote Judge Schreier in a powerfully documented opinion, the county knew it had the necessary Help America Vote Act funds for the facility two months before it turned down tribal voters’ request.
“It is reasonable to infer [the county knew] the funding justification was not true,” wrote the judge. This, in turn, supports the possibility of proving “intentional discrimination,” she said.
Judge Schreier swept more county arguments off the table, noted plaintiffs’ attorney Matt Rappold, of Rapid City. She evoked a Supreme Court decision when she rejected the notion that in-person absentee voting is a mere convenience and not protected under the law. The plaintiffs aren’t claiming it would simply be easier to vote absentee, she wrote; instead, the “crux” of their argument is that poverty, lack of transportation and the distance from the reservation to the courthouse deprive them “of an equal opportunity to vote.”
The judge called another county argument “unpersuasive” and said yet another relied on a legal precedent it had entirely misread. When contacted for a response to the opinion, the county’s attorney for this matter, Sara Frankenstein, thanked ICTMN for reaching out but said she had no comment.
The dispute occurs in the context of South Dakota’s long history of voting discrimination, according to Rappold. In Jackson County, Native people could not vote until the 1970s and could not hold county office until 1980. The state and jurisdictions within it have fought, and mostly lost, more than 20 voting-rights lawsuits. It is one of the most unrelenting states in the nation in opposing Native enfranchisement.
Among the official opinions on the state attorney general’s website is William Janklow’s 1977 denunciation of the extension of the Voting Rights Act to Native Americans. It was an “absurdity,” wrote Janklow, who in addition to serving as the state’s governor, congressman and top legal official, was convicted of manslaughter in 2003. Drag your feet on implementation, he advised South Dakota’s then-secretary of state.
Meanwhile, Kakoka’s mainly white population can register and cast a ballot at the local courthouse starting 46 days before federal elections. “As OJ Semans, head of Four Directions voting rights group, often tells us, you can’t give one group 46 days to vote and another just one day and call it equal,” said plaintiffs’ attorney Eileen O’Connor, of Lawyers’ Committee for Civil Rights Under Law, a nonpartisan group formed to fight discrimination at the request of President John F. Kennedy. The organization was instrumental in crafting Poor Bear v. The County of Jackson, which also received support from the law firm Dechert, in Chicago. The U.S. Department of Justice backed the suit with a Statement of Interest in January of this year.
Judge Schreier’s ruling clears the way for Poor Bear to move toward discovery, depositions and a trial, where these matters will be “determined on the merits,” as she put it in her opinion.
Rappold and O’Connor were confident. “It’s too bad we have to continually sue for voting rights,” said Rappold, “but with this decision, we have the opportunity to prove our case and gain equal rights for Native Americans.”