South Dakota Indians sue for early voting
Published on the investigative news site 100Reporters.com in 2012. For more on topics like this, see my book, American Apartheid: The Native American Struggle....
Native Americans have never
had an easy time getting to the polls in South Dakota. In 1977, its attorney
general called the extension of the Voting Rights Act to cover them an
“absurdity” and told the secretary of state at the time to ignore it. Native
people hadn’t
voted in the state anyway until the 1940s, even though the Indian Citizenship
Act had given them that right in 1924. When South Dakota polling places were finally
opened to Native Americans, they faced barriers for decades,
including harassment. Prior to the 2002
general election, the state sent agents to Indian reservations to question
newly registered voters in an apparent effort to root out voter fraud; no one
was ever charged. On the morning of the 2004 election, a
judge stopped poll watchers from following Native Americans out of voting
places and taking down their license-plate numbers.
Plaintiffs leaving call with attorney Sandven. Photo courtesy subjects. |
Now, members of the Oglala Sioux Tribe are back in
court. On January 13, tribal members filed suit, demanding the same 46 days of
early voting other South Dakotans will have leading up to this year’s June 5 primary
and November 6 general election. So far, the plaintiffs have been allotted just
6 days and call this “a denial of the right to vote” and “discriminatory.”
Jason Gant, secretary of
state and overseer of elections for South Dakota, is among the lawsuit’s defendants,
as are officials of Shannon County, which is roughly contiguous with the
Oglalas’ Pine Ridge Indian Reservation and provides state and national
elections for it. The county is not a tribal entity, but rather a separate
government with different responsibilities. “I understand why the plaintiffs
want what every other citizen gets, but we’re simply out of money,” said the
head of Shannon County’s commission, Lyla Hutchison.
To remedy this, the 25 plaintiffs
demand that Gant advance impoverished Shannon County its share of Help America
Vote Act funds, which are intended to facilitate elections. The complaint cites
the protections of the 14th amendment to the U.S. Constitution, the
Voting Rights Act and other measures.
After the suit was filed, Gant
told a local news outlet that as a matter of policy South Dakota doesn’t
provide HAVA money upfront, but rather reimburses for election expenditures
upon presentation of receipts—something HAVA doesn’t require but rather allows
states to decide, according to spokesperson Bryan Whitener of the U.S. Election
Assistance Commission, which provides guidance on the law.
For years, the state’s HAVA
plan has been filed with the Election Assistance Commission and accepted by it,
said assistant attorney general Richard M. Williams, who represents Gant in the
new lawsuit. The policy of reimbursing for election expenses is “nothing new,”
he added, saying, “It applies to all counties, so it plays equally across the
state.”
Not so, said Greg Lembrich, legal director of Four
Directions and senior associate of the law firm
Pillsbury Winthrop Shaw Pittman. “Reimbursements may sound
reasonable, but the policy is effectively being used to delay and/or prevent
counties with Indian reservations—and very tight budgets—from using HAVA funds.
If you have no money to begin with, you can’t set up early voting and wait to
be reimbursed. It ends up being a
backdoor poll tax.”
In the quest for full
enfranchisement, South Dakota’s Native Americans have fought more than 20 voting
rights lawsuits, charging gerrymandering, demands for forms of ID that are not
required, failure to provide sufficient polling places, and intimidation. In 2010, the state settled
an American Civil Liberties Union suit by agreeing to
restore the voting rights of Native Americans who were improperly removed from voter
rolls. For decades, South Dakota avoided U.S. Department of Justice
“preclearance”—a type of oversight the Voting Rights Act applies to proposed
election-law changes in places with a history of discrimination. A federal
court found in 2005 that when South Dakota finally agreed to DOJ scrutiny, a
backlog of more than 700 laws needed vetting.
The pines and ridges of Pine Ridge. Photo by Stephanie Woodard. |
The current Oglala lawsuit
focuses on early voting, which allows voters to cast ballots at designated
places prior to an election and is particularly popular among Shannon
County/Pine Ridge voters. Just 15 days of early voting in 2004 doubled the election
turnout over 2000, when it was not available, according to O.J. Semans, head of
the voting-rights group Four Directions, headquartered on the Rosebud Indian Reservation.
However, Semans noted, Shannon County had early voting in 2004—and again in
2010—only because Four Directions donated $15,000 and $5,000, respectively, to
pay for it. This year, the group isn’t certain it can come up with another
donation, said Semans, adding that, in any case, voters shouldn’t
have to rely on unpredictable outside funding to get ballot box access.
The Shannon County/Pine
Ridge plaintiffs filed their complaint early in 2012 so they could get voting
issues settled well before the primary, according to their lawyer, Steven D.
Sandven, of Sioux Falls. “My clients don’t want a last-minute scramble for the
crumbs,” he said. The lawsuit has garnered national attention. The Justice Department is
reviewing it, according to spokesperson Xochitl Hinojosa, and the
American Civil Liberties Union is monitoring its progress, said attorney Robert
Doody, head of the organization’s South Dakota office.
In an interview on January
26, Gant expanded on his position, saying Shannon County is a special case
because it has “funding difficulties” and that he would “try to work something
out.” He identified two sets of difficulties: Short-term, he’ll see if he can
somehow help the county access HAVA money for its immediate election expenses,
while ensuring he continues to meet federal accounting requirements—something
he has done so far via the reimbursement procedure.
However, Gant said, the
existing HAVA funding will last for just a few more election cycles; then it’s
gone, and long-term the county has to figure out how it will pay for elections in
addition to its citizens’ other needs. Said Gant: “We have to figure out what
we can do to assist in making sure everyone has access to the ballot box.”
Gant’s official website shows
he is not just secretary of state but treasurer of Committed to Victory, a PAC
whose purpose is “to elect Republican candidates,” according to documents Gant
(as treasurer) submitted to Gant (as secretary of state) in 2011. The website also
shows Shannon County with 10 times as many Democrats as Republicans. Of 7,683
registered voters, 5,890 are Democrats; another 588 are Republicans. The rest
are mostly Independents. Has the strict reimbursement requirement been an
effort to limit early voting by those who are both unlikely to vote Republican
and likely to cast their ballots early? “That is absolutely and utterly false,”
said Gant.
Meanwhile, back in Shannon
County, to pay for just 6 days, its commissioners have slashed expenditures to
the bone, cutting back law enforcement and eliminating their own salaries and
aid to the poor, among other items, said Hutchison. Their funds are so low because
South Dakota counties tax land to finance their budgets, but most of Shannon
County’s land is nontaxable, because it’s either tribally owned or held in
trust for the Oglala Sioux Tribe by the federal government, she explained.
Shannon County has other pressing
economic and social issues; its per-capita income of less than $8,000 makes it
one of the poorest places in the nation, according to the 2010 Census. By most
measures, unemployment tops 85%, and life expectancy for its almost entirely
Native American population is comparable to Haiti’s. “For years, we were the
poorest,” said Hutchison. “Now we’re second-poorest, because another mostly-Sioux
county in South Dakota took our place.”
Poverty is, in fact, a
major reason why area residents prize early voting. “A lot of us on Pine Ridge don’t
have vehicles,” explained plaintiff and tribal member Clarice Mesteth. “During
elections, those who have them drive long distances to give other people rides
to the polls. Each round-trip can be a couple of hours, so having all the early-voting
days we should, in addition to the general-election day, is important to us.”
Why not take advantage of
early voting at the courthouse in Hot Springs, in adjacent Fall River County, which
is an option for Shannon County residents? “One problem is that the round trip
to Hot Springs is 4½ hours from some points in Shannon County,” said Mesteth. “Another
problem is that if you live on the [Pine Ridge Indian] reservation, your
license plates start with a ‘65.’ That makes us easily identifiable. The Fall
River cops stop us for all kinds of things when we go there. They’ll say we
were going one mile over the speed limit, or we’ve got snow on our license
plates.” As a result, Mesteth said, tribal members rarely go to Hot Springs,
and when they do, they try to car-pool to cut down on the number of traffic tickets
they might receive, creating another hassle that interferes with ballot-box
access.
What about mail-in absentee ballots?
“Given the hostility tribal members face when they leave the reservation, they don’t
believe mail-in ballots will be counted,” said plaintiffs’ attorney Sandven. “Most—especially
elders—feel more secure about casting votes in person.”
“Bottom line, ballot box
access in South Dakota currently depends on wealth,” said Lembrich. “You have
less opportunity to vote there if you don’t have a car, or don’t have gas
money, or live on an isolated Indian reservation in a poor county. That’s not
right. It’s time to establish a permanent means of
providing regular early voting in Shannon County.”
c. Stephanie Woodard.
c. Stephanie Woodard.