Early-Voting Advances in South Dakota—Montana Up Next

This article appeared in Indian Country Today in 2012. For more on topics like this, see my book, American Apartheid: The Native American Struggle....

For the first time, Cheyenne River Sioux Reservation voters will be able to early-vote in a national election in Eagle Butte, their capital and population center. This year, those wishing to cast a ballot ahead of Election Day will drop by the office of chairman Kevin Keckler. Previously, they had to travel long distances to a primarily white-populated town.

“We sat down with the county auditor [the official who supervises voting in South Dakota counties], figured out how it would work, and now early voting and registration are available in the tribal hall, with a tribal member deputized to supervise the process,” said Wayne Ducheaneaux, tribal administrative officer. “We were able to come to an agreement quickly.”

“Dewey County is the gold standard in South Dakota tribal-county relations,” said O.J. Semans, Rosebud Sioux director of the voting-rights nonprofit Four Directions, which has supported, negotiated or litigated all the recent advances in South Dakota Native suffrage. “The county has been not just cooperative but cost-effective, because they don’t require their staff to travel to the reservation every day.”

On the Rosebud Sioux Reservation, early voters are casting ballots in a now-permanent satellite early-voting office in a government building in Mission, said Rosebud Sioux business manager and tribal member Rose Cordier. (For more on Rosebud’s path to early voting, see “Ballot Box Breakthrough in the Badlands,” Indian Country Today Media Network, March 15, 2012.)

For the Crow Creek Sioux Tribe, this year’s early voting is in the tribal-council chambers, in the reservation’s population center in Fort Thompson. This is a step up from some voting locations tribal members have had to use in the past, including a dirt-floored structure that appeared to be a disused chicken coop, said Buffalo County Commissioner Donita Loudner, a Crow Creek tribal member.

“The tribe and Chairman Brandon Sazue bent over backward to provide a safe, secure, convenient location,” said Semans. His group, Four Directions, paid for Crow Creek’s satellite-office expenses because the state refused to provide HAVA funds.

Crow Creek’s path to voting rights has not been easy, said Loudner. Until 2004, Buffalo County, where most tribal members lived, packed almost all of its Native population into one district and divided the remainder among two more districts such that Native people did not form a majority in either. This impacted their ability to elect officials of their choosing. An ACLU lawsuit resulted in a settlement that redistricted the county and placed elections under federal supervision.

“This is the first year we won’t have federal monitors,” said Loudner. “I will have an attorney here to answer questions, though. This person will be able to help registered voters exercise their rights.”

On the Pine Ridge Indian Reservation (right) a string of federal-court decisions from March to October increased early-voting access for Oglala Sioux Tribe members. This comes after years of enfranchisement struggles. Since early voting has been available in the state, Oglalas have had less access to it than other voters, or none at all.

Now, several opinions issued by U.S. District Court Chief Judge Karen Schreier indicate that Pine Ridge will likely have early voting until 2018. In early October, for example, the judge denied a motion to dismiss the case by the defendants—South Dakota Secretary of State Jason Gant and county elections officials.

This was despite Gant releasing Help America Vote Act money to pay for elections on Pine Ridge. Before the suit was filed, he had required impoverished Shannon County, a non-tribal entity within Pine Ridge that is responsible for national elections there, to pay upfront then request a reimbursement. Shannon County didn’t have the funds, so an impasse ensued.

Gant’s action solves the financial crisis for now. However, in 2018 HAVA funds run out, and again there will be no clear way to pay for Pine Ridge elections. “The harm may recur,” wrote the judge.

The judge also kept the case alive, despite promises of full Oglala enfranchisement by Fall River County officials, whom barebones Shannon County hires to handle Pine Ridge elections on a freelance contract basis.

Mostly white Fall River County’s supervision of Pine Ridge elections has made them subject to special Justice Department scrutiny. On Pine Ridge, voter intimidation, requests for forms of ID that were not required, dropping of qualified voters from the rolls and the like were common for years. In 2010, Fall River officials quit their freelance posts on the eve of the election, jeopardizing it.

A recent agreement with the Justice Department says, among other things, that election workers must provide legally required language assistance and may not insult voters. During the March 2012 hearing before Judge Shreier, the Fall River state’s attorney characterized the Justice Department and its oversight as “malicious.”

The Oglala plaintiffs are represented by Sioux Falls attorney Steven D. Sandven, a former Oglala Sioux Tribe Attorney General and Special Assistant to the U.S. Attorney for prosecution of non-Native offenders in Indian country. He calls enfranchisement “the most fundamental right.”

Sandven noted that the Oglala lawsuit concerns vote denial—when the totality of a situation means certain groups have a more difficult time getting to the polls than others—as opposed to vote dilution, as might occur in a gerrymandering case. He added that a recent federal-court decision established precedents that pertain to vote denial. “The judge in the 11th Circuit applied a practical, common-sense test that asks, ‘Is it harder for some folks to vote than others?’”

A trial date has not yet been set.

“Voting rights have been fought in the South since the 1960s,” said Semans. “The process is only now gathering momentum in Indian country.”

In the Northern Plains, changing demographics may drive white fear of Native voting, as white populations decline, white towns empty out and Native populations grow and develop. Said Sandven: “It’s math. Very soon, we won’t be a swing vote, we’ll be the vote, and that’s scary to some.”
Montana Rematch

Voting-rights group Four Directions has efforts underway in several Western states, most recently in Montana, where a Native early-voting lawsuit will be heard October 29 at 11 a.m. in U.S. District Court in Billings. Four Directions has been advising the plaintiffs, who are tribal members from the Northern Cheyenne, Crow and Fort Belknap reservations.

They filed suit after protracted and unproductive negotiations for early voting with Montana’s top elections official, Secretary of State Linda McCulloch, and the relevant counties. Not being able to early-vote and late-register on their reservations is unconstitutional and illegal, the plaintiffs say. (For more, see “Montana Tribes Demand Equal Access to Early Voting,” Indian Country Today Media Network, October 10, 2012.)

On the 29th, some of the attorneys will be fresh from the Oglalas’ early-voting litigation in South Dakota. Sandven is on the Native plaintiffs’ legal team, which is headed by Montana lawyer Terryl Matt. Meanwhile, the county officials named as defendants have retained Sara Frankenstein, who is representing the defendants in South Dakota.

Text c. Stephanie Woodard; photographs c. Joseph Zummo.

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