At the South Dakota Board of Elections July 31 meeting, secretary of state and top elections official Jason Gant declared that he would write to the U.S. Election Assistance Commission (EAC) to ask whether Help America Vote Act funds can be used to pay for early-voting stations on Indian reservations. If approved, the stations would be open during South Dakota's early-voting period leading up to primary and general elections.
“Does he really have to ask the federal government if it’s okay for Indians to be equal?” OJ Semans, Rosebud Sioux, exclaimed after the meeting.
Semans, co-director of voting-rights group Four Directions, had presented the early-voting request on behalf of three South Dakota Sioux tribes—Crow Creek, for the Buffalo County portion of its reservation; Cheyenne River, for its Dewey County residents; and Oglala, for the portion of Pine Ridge that overlaps Jackson County. Currently, tribal members travel long distances to access this voting opportunity in border-town county courthouses. Communications with the secretary of state about the three polling places began in May 2012. Statewide, Four Directions has been working for on-reservation early voting since 2004.
Whether or not Gant truly needs to consult the EAC, when he does contact it, he’ll likely find that it is not currently making HAVA-related decisions. “Questions that require advisory opinions regarding HAVA funds are decided by a vote of the commissioners. At this point, EAC is without commissioners,” the group’s spokesperson Bryan Whitener wrote in an e-mail. The EAC website shows a several-year backlog of requests for advisories on elections issues from around the country.
It appears Gant may have known this when he told the elections board he would consult the EAC. The National Association of Secretaries of State, of which Gant is treasurer, reports on its website that it voted in 2011 to support disbanding the commission. The EAC no longer has commissioners, a director, a general counsel or other top officials.
“This is troubling,” said Four Directions consultant Bret Healy. “Secretary Gant has been in the thick of the EAC’s demise. He had to have been aware of its status when he said he would ask it for input. Any letter he writes to the EAC about early voting would be a dead letter. It’s obvious he was bluffing in the meeting, and Four Directions is calling his bluff.”
At press time, Gant had not responded to a request for a comment.
“I’m very disappointed,” said prominent humanitarian and voting-rights advocate Julie Garreau, Cheyenne River Sioux Tribe. “South Dakota and its counties support access for voters on farms and ranches, but apparently not voters on Indian reservations. HAVA is federal money, and there’s no logical reason it can’t be spent for the purpose Congress intended—improving elections.”
Meanwhile, the Congressional Research Service has opined that some of the $8 million in South Dakota’s HAVA coffers could seemingly be used for early voting—information Four Directions provided Gant and the state elections board. South Dakota’s attorney general and chief legal official, Marty Jackley, is another source for a judgment on this issue.
However, Jackley’s spokesperson, Sara Rabern, wrote in an e-mail: “We have not received an official opinion request from [the secretary of state].” She added that the secretary of state “has asked” the EAC for guidance.
South Dakota senior elections administrator Brandon Johnson (not to be confused with U.S. Attorney Brendon Johnson) said the reverse—that Jackley’s office was already working on an opinion, and that an EAC request had not yet been made.
Also muddying the waters, Gant repeatedly asserted during the July 31 elections board meeting that South Dakota had never spent HAVA monies on reservation early-voting stations. At other points, he said the funds had been expended for such polling places in Todd and Shannon counties—but only because they lack their own courthouses. Their residents, who are largely Rosebud and Oglala Sioux tribal members, outsource certain county functions (voting, license plate renewal and more) on a freelance basis to officials in neighboring counties’ courthouses.
Elections board member Linda Lea Viken, a Rapid City attorney, questioned the secretary of state’s emphasis on courthouses, asking, “Is the significant thing whether a county has a courthouse or whether early voting is accessible to constituents?”
Patty McGee, head elections official for Sully County and a 12-year veteran of the elections board, had opinions about Native voting. She told fellow board members, “We’ve given them several opportunities to vote.” She noted that “their people” go to courthouses to get drivers’ licenses and WIC payments, so could go to vote as well.
“WIC is not part of the fabric of our democracy. Voting is,” Semans responded to her. Healy pointed out that access to some—but not all—voting opportunities did not constitute equality.
In a later interview, McGee told Indian Country Today Media Network, “I feel all opportunities are there for them to vote. A person has to make an effort.” She also said she didn’t know what a “protected class” of voters was—a concept defined in the Voting Rights Act of 1965 and introduced in the meeting by Healy. “I have no clue,” McGee said. “I’m not knowledgeable about Native Americans, all that stuff. We don’t have a reservation in our county. I don’t know how they register. Maybe you just have to be a member of a tribe to vote in a tribal election.”
In a separate interview, elections board member Christopher Madson, a Sioux Falls attorney, said, “I spend a lot of time trying to get rid of the notion of ‘us and them.’ Native and non-Native—we’re all South Dakotans, and we all have equal rights. Voting should be easy and accessible. We will get through this.”
Madsen said that Four Directions’ early-voting proposal was “well reasoned and compelling,” but questioned the Elections Board’s role in deciding the question. He said the board ordinarily deals about twice a year with minutiae—correcting wording on forms, ensuring compliance with changing regulations and other election-related details—but not large policy issues. “The secretary of state is probably the one to make this decision with whatever guidance he requires,” said Madsen.
Eventually, a motion was made for the board to go on record as supporting the concept of on-reservation early voting, also known as in-person absentee voting—should the EAC give a go-ahead. Gant broke the 3–3 tie to defeat the motion.
“I want my people to be part of the political process,” said Garreau. “It’s a fight for equality. There’s no doubt about it. We will win, and South Dakota will be a better place for it.”
This article was written with support from the George Polk Center for Investigative Reporting.