South Dakota Indians sue for early voting

A version of this article appeared on the investigative news site 100Reporters.com in January 2012.

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.