South Dakota's Last Stand—Ballot Boxes, Red Herrings and Custer Envy

This story first appeared on Indian Country Today Media Network in May 2015. For an article on the filing of the suit in 2014, see Oglala VP: 'Our Civil Rights Are Being Violated.'



Jackson County, South Dakota, has dug in for a fight against Oglala Sioux plaintiffs who sued for a full-service satellite voting office on the portion of Pine Ridge Indian Reservation that overlaps the county. On May 11, Jackson County filed an answer to the Oglalas’ complaint.

The document mostly reiterated legal arguments that had been rebuffed by U.S. District Court Judge Karen Schreier 10 days earlier, when she refused to dismiss the lawsuit, Poor Bear v. The County of Jackson. In her opinion, the judge wrote that the plaintiffs might be able to prove “intentional discrimination,” a Fourteenth Amendment violation. Judge Schreier presided over another Oglala voting-rights suit, Brooks v. Gant, which in 2012 resulted in satellite voting for another part of Pine Ridge.

(Map caption: The main Jackson County elections office is in the mostly white-inhabited county seat Kadoka (blue circle). Residents of Pine Ridge Indian Reservation (below orange line) have sued for full-service satellite voting in Wanblee (orange circle). Whites make up 43.1 percent of the county’s population, say 2013 Census estimates; they hold four of five commission seats and run elections. Map courtesy Jackson County; town and reservation indications in larger map at top courtesy ICTMN.)
A prominent voting-rights attorney was skeptical about Jackson County’s chance of prevailing. “In an answer to a complaint, defendants almost always state all the possible defenses they may have, and it looks like the county has done that here,” said Laughlin McDonald, special counsel and director emeritus of the American Civil Liberties Union Voting Rights Project. “However, in light of Judge Schreier’s opinion and the facts of the case, it doesn’t look as though the defenses have any merit.
OJ Semans, Rosebud Sioux co-head of Four Directions voting-rights group, described his take on Jackson County’s long game. “The county defendants know they’ve lost this round, but they want to be modern-day Indian fighters and appeal this lawsuit all the way to the Supreme Court,” Semans said. “They’d rather spend hundreds of thousands of taxpayer dollars fighting equality than one thousand implementing it. They, like Custer, are on the wrong side of history.”
Brought by Oglala Nation vice president Tom Poor Bear (left) and others, the suit asks for a reservation federal-elections office that’s open for the same amount of time and offers the same services as polling places in other South Dakota communities. According to the plaintiffs, lack of personal and public transportation means reservation residents can’t get to the main elections office in the predominantly white county seat, Kadoka. This cuts them off from South Dakota’s in-person-absentee-voting and late-registration period, which starts 46 days before national elections; and that, the plaintiffs allege, means unequal access and violations of the Voting Rights Act and the Constitution.
Jackson County initially shot down the reservation satellite office for, among other reasons, an alleged lack of money. However, in the May 11 statement, the county admitted it now knows it has federal Help America Vote Act funding: “At the time this admission is made…Defendants are aware of the availability of HAVA funding to establish a satellite office in Jackson County.”
But the county still has money woes, the statement continued; its officials aren’t sure whether all satellite-office expenses would be reimbursed nor what would happen if its HAVA allocation ran out. The county made these claims despite being preapproved for HAVA funding, with the authorization and allowable expenses detailed in the 2014 South Dakota HAVA Plan, on the secretary of state’s website.
So, what if the county uses up its allocation? “It can write a grant for more money from funds the state holds,” said South Dakota HAVA coordinator Brandon Johnson. What happens when local governments wonder which expenses are legitimate? According to Johnson, they call him, and if he can’t answer, he calls the federal Election Assistance Commission and/or checks its past rulings. The county’s lawyer for this lawsuit, Sara Frankenstein, declined to comment for this article.
Some observers called the funding issue a red herring that distracted from the important VRA issues. “The Voting Rights Act doesn’t allow a jurisdiction to grant voting rights to one group and deny or burden the voting rights of another group,” said McDonald. “People must be treated equally.”
Bottom line, the judge now sets a scheduling order and the case moves forward, said one of the Oglala plaintiffs’ attorneys, Eileen O’Connor of Lawyers’ Committee for Civil Rights Under Law.

c. Stephanie Woodard; photograph by Joseph Zummo, c. Joseph Zummo.