Skip to main content

End-Run on Native Rights—Will It Work?

A South Dakota county fighting the voting-rights lawsuit Poor Bear v. Jackson County has asked the court to dismiss it.

A South Dakota county fighting the voting-rights lawsuitPoor Bear v. Jackson County has asked the court to dismiss it. The November 13 request followed Jackson County striking a deal with South Dakota’s secretary of state and top elections official, Shantel Krebs. The motion to dismiss also followed a missed early-November court deadline, when the county failed to submit an expert report supporting its election procedures.

In the agreement with Secretary Krebs, Jackson County consented to spending long-allotted funding to open a satellite registration and absentee-voting office for the next four federal elections in Wanblee, on the Pine Ridge Indian Reservation. Jackson County handles elections in this portion of Pine Ridge but has refused to access Help America Vote Act (HAVA) money for a full-service polling place.

RELATED: Oglala VP: ‘Our Civil Rights Are Being Violated’

Krebs told ICTMN that the limited duration of the pact was a reflection of the state’s limited share of federal HAVA money and an alert to South Dakota counties that they should be prepared to budget for this sort of expense going forward.

Because of the deal, the county told the court, no “live case” exists, and Poor Bear should be dismissed.

Jesse Short Bull

Rallying for rights: Sioux tribal members and others gathered in South Dakota’s capital to support Native participation in the 2014 election.

Not so fast, said plaintiffs’ attorney Matthew Rappold, of Rapid City. “Defendants’ belated and partial attempt to correct their discriminatory conduct will not allow them to avoid examination in open court and oversight by a federal judge and monitor.”

The county’s attempt is “partial” because Poor Bear asks the court for a permanent federal-elections satellite office, not a temporary one. The plaintiffs also want Jackson County, where Natives couldn’t vote until the 1970s or hold office until the 1980s, to be subject to Justice Department oversight, including federal election monitors and pre-clearance of new voting laws and procedures. Further, plaintiffs want protections for all elections, local and federal.

Pre-eminent civil rights attorney Laughlin McDonald, who is director emeritus of the ACLU Voting Rights Project and author ofAmerican Indians and the Fight for Equal Voting Rights, called the motion to dismiss “another effort to shortchange American Indian voters.”

Election monitors are critical, said OJ Semans, Rosebud Sioux co-director of voting-rights group Four Directions. He recalled that a white county official supervising the 2014 election elsewhere on Pine Ridge quashed Native voting by posting a white county sheriff in the door of the polling place. After the Justice Department banned this, she parked a sheriff’s department vehicle out front.

Scroll to Continue

Read More

The fear caused was obvious. Turnout plummeted, and voters asked this reporter if the sheriff had jurisdiction over them or, failing that, if he could arrest them for something and hold them until another entity, such as the FBI, showed up. The Justice Department soon sent an observer to guarantee access.

“Polling places can be established, yet not be open to Native voters,” Semans said. He called the satellite-office agreement a victory for equality but agreed it wouldn’t end the lawsuit.

RELATED: Who Called the Sheriff? Pine Ridge Voter Turnout Plummets, Then Rebounds

The state’s mainstream and alternative media have weighed in. An influential political blog accused Jackson County of playing legal and financial “dodgeball.” The author wrote that suit’s dismissal would mean that the case couldn’t be decided on the merits, potentially establishing another equal-rights precedent, and that the county would be exempt from paying plaintiffs’ court costs.

“Two other South Dakota counties slipped the noose for court costs in a 2012 voting-rights lawsuit,” explained Four Directions consultant Bret Healy. “Brooks v. Gant was going the Native plaintiffs’ way, so the counties capitulated at the last minute, gave the plaintiffs the satellite polling place they wanted and got a dismissal.”

Healy said the tactic wouldn’t work again. “That dog won’t hunt in Poor Bear, because the complaint includes more than a satellite office for four federal elections.”

RELATED: Why Doesn’t Jackson County Want Natives to Vote?

RELATED: South Dakota’s Last Stand—Ballot Boxes, Red Herrings and Custer Envy

This is Jackson County’s second attempt to get Poor Bear dismissed. In May, a federal judge refused, writing that the Native plaintiffs appeared on track to proving discrimination. Meanwhile, the Justice Department has supported the Native plaintiffs with a Statement of Interest. The county’s attorney did not respond to ICTMN’s requests for a comment.

RELATED: Poor Bear Wins A Round: Oglala Voting Suit Advances

RELATED: Native Voting Plaintiffs Got It Right, Says DOJ