Plaintiffs and defendants both claimed victory on August 6, when U.S. District Court Judge Karen Schreier dismissed the Native voting-rights lawsuit Brooks v. Gant. Oglala Sioux Tribe members had sued South Dakota state and county officials, seeking a satellite early-voting and registration office that would give them elections in their own county and equal to those other South Dakotans enjoy.
Once the lawsuit got underway, the state and county defendants promised to use federal Help America Vote Act (HAVA) money to give the 25 plaintiffs what they wanted through 2018. According to Judge Schreier, this meant the plaintiffs could no longer show the required “immediate injury,” so she dismissed their claim. However, she noted, her decision was “without prejudice,” meaning that, if necessary, the plaintiffs can sue again.
“They caved,” said OJ Semans, Rosebud Sioux civil rights leader and co-director of voting-advocacy group Four Directions. “The court established what the plaintiffs stood up for and what Four Directions has been fighting for since 2004. Right now, there’s full equality for most of Pine Ridge Indian Reservation, the largest group of Indian voters in the state.”
The other side was happy, too. “We’re feeling extremely pleased, even though the case wasn’t decided on its merits,” said the counties’ attorney, Sara Frankenstein, of the Rapid City firm Gunderson Palmer. “Shannon County [which overlaps much of the Oglalas’ Pine Ridge Indian Reservation] gets a satellite office, and the Help America Vote Act foots the bill.
At press time, the lead plaintiff, South Dakota’s secretary of state and head elections official Jason Gant, had not replied to a request for a comment.
Frankenstein also said that because the case was dismissed, the defendants get to recover costs and perhaps fees from the losing parties. “It is a huge financial burden lifted,” she said.
“That’s breathtaking,” said Bret Healy, Four Directions consultant. “They have the insurance public officials typically hold to cover lawsuits. We all met the plaintiffs via their affidavits—single parents, one with an epileptic child, others caring for infirm elders, from one of the poorest counties in the nation. The state of South Dakota and the counties are really going to do this? God have pity on their souls.”
“Won’t happen,” said Semans. “It’s just a way to scare off Natives who might want to ask for equal rights in the future.”
“Granting costs would discourage plaintiffs from bringing suits to enforce the Voting Rights Act and would be contrary to the fundamental purpose of the Act,” agreed Laughlin McDonald, director emeritus of the ACLU Voting Rights Project. He also doubted it would happen.
McDonald, who has litigated Native enfranchisement cases since 1983, explained that a prevailing party in a federal case is ordinarily entitled to recover costs, but not when it comes to voting rights. “Federal courts have denied or severely limited recovery in those cases,” said McDonald.
What about recovering attorney’s fees? “I think such a motion would be filed in bad faith and even subject to sanctions,” said McDonald.
Shaking loose HAVA
Frankenstein said that in negotiations on her side, she persuaded the secretary of state to change what she termed “internal policies” and release South Dakota’s HAVA money for the satellite office in Shannon County, which overlaps much of Pine Ridge. He could do this, she said, because in May 2008, South Dakota had completed HAVA’s initial requirement to modernize elections with up-to-date voting machines and the like.
From then on, Frankenstein said, the state was free to spend its federal HAVA appropriation on additional ways to improve elections, including satellite offices. Brooks v. Gant testimony and court documents confirm this. In Judge Schreier’s opinion, she noted that Shannon County residents had “minimal” early-voting access until Brooks v. Gant was filed.
This all stands in startling contradiction to statements by state and county officials over the past several years. They maintained in many public meetings and national and local press reports that Shannon County simply couldn’t afford the scope of elections found in other parts of South Dakota.
“So, as of 2008, money was no longer an issue—but they kept that quiet,” said Healy.
“This is far from over,” said Semans. “Until Native Americans are able to participate equally in the political process, our social and economic challenges will not change.”
At this moment, though, Native voters should be pleased, said McLaughlin. “They got what they wanted through the next several elections. It’s a victory.”
This article was written with support from the George Polk Center for Investigative Reporting.