RAPID CITY, S.D. ? Voting discrimination allegations involving American Indians on two reservations have made the state of South Dakota the target of the largest voting rights suit ever filed.
The complaint, filed in federal court on Aug. 5, stated that more than 600 state voting statutes over the past 30 years were implemented without the state's attempt to seek or obtain the necessary federal preclearance approval.
Many of the statutes discriminated against the voters of Shannon County on the Pine Ridge Reservation and Todd County on the Rosebud Reservation, stated a complaint filed by the American Civil Liberties Union (ACLU).
Virtually all of the voting statutes on the books in South Dakota are involved in the lawsuit. Some will pass purview without problem, but others will be discriminatory and require close scrutiny by the federal authorities, said Bryan Sells, a staff attorney with the ACLU's Voting Rights Project and lead counsel in the case.
"All of them, however, regardless of their discriminatory effect, must be submitted for preclearance before they can be lawfully enforced," the complaint stated.
The lawsuit seeks declaratory and injunctive relief to prohibit the state from enforcement of any changes in the voting laws that did not have clearance by the federal courts or U.S. Attorney General's office.
At the heart of the lawsuit is Section 5 of the Voter Rights Act of 1965 as amended in 1975, which prevents discrimination by requiring all changes in voter laws to be submitted to the federal courts or the U.S. Attorney General's office for approval. The state failed to comply with this law deliberately, the complaint stated.
"We are a proud people and all we seek is an opportunity to have a voice," said Elaine Quick Bear Quiver, Lakota elder and plaintiff in the lawsuit. "Many members of the Great Sioux Nation do not vote because they have become so discouraged that they feel their votes won't make a difference. We are hopeful that this lawsuit will lead to state compliance and an improvement in the condition of our people."
In 1977, then state Attorney General William Janklow sent an opinion to Secretary of State Lorna Herseth advising her not to comply with the law. Janklow's opinion was based on the fact that legislation was underway to change the voter laws and that the state was to file a "bail out" lawsuit.
"I would suggest that you await the outcome of the 'bail out' suit and the Bellmon Amendment before submitting the materials subject to preclearance. I see no need to proceed with undue speed to subject our state's laws to a 'one-man veto' by the United States attorney general," Janklow wrote in 1977.
There is no record of any attempt to file the bail-out. The state would have had to file data that exempted it from the language-minorities requirement of the voter act. The Bellman amendment was not passed.
Janklow, now governor, was elected to that office in 1978 and reelected in 1982, 1994 and 1998. He is now a candidate for the U.S. House of Representatives.
The state of South Dakota has asked for preclearance on changes in the voter laws only 10 times in the past 30 years.
The Secretary of State's office filed memorandum on Aug. 2 with the state's voting codes attached, to the U.S. Attorney's office.
"Four pages were submitted in an effort to change more than 30 years of non-compliance and they purport to submit the laws for preclearance now," Sells said. "The state's last-minute submission is so inadequate that we see it as another attempt to avoid actual compliance with federal law. This further emphasizes the need for intervention by the courts."
Changes to the Voting Rights Acts made it illegal to discriminate against voters in counties that had bilingual voter-age residents, such as Shannon and Todd Counties in South Dakota.
The 1965 Act was written to stop discrimination against black voters in the South by prohibiting literacy tests and other biased procedures. In 1975, a language-minorities provision was added to the Act, which involved South Dakota. Section 5 applies to nine states in their entirety and to portions of other states, which includes South Dakota and Shannon and Todd counties.
"Section 5 was enacted so the federal government could ensure that state election laws did not discriminate against populations who have experienced a history of discrimination. But since 1975, South Dakota has adopted a renegade position and openly flouted compliance with this important law," said Jennifer Ring, executive director of the ACLU in North and South Dakota.
"The lawsuit brought by the ACLU on [Aug. 5] was totally unnecessary. The ACLU knew that my office filed 380 pages of election laws last week on [Aug. 1] with the U.S. Department of Justice for review, yet the ACLU proceeded to file the suit anyway, and to top it off issued a news release containing a deliberate falsehood claiming we had filed only a one-page memo," said Joyce Hazeltine, current secretary of state, in a prepared statement.
She added that the state was in compliance with the federal Act and that since she has been in office many preclearance applications have been filed, especially when they were important changes in the laws. She also said that that many of the laws written 30 years ago have been rewritten and are in compliance with federal regulations.
Sells said that the state's quick filing of state laws was a result of its discovery of the pending lawsuit.
Chris Nelson, state election supervisor, told a reporter for National Public Radio that the state had not ignored the Voter Rights Act. He said all changes that affected Shannon and Todd Counties were submitted for review and had always been approved. "We have to prove that the election law won't be regressive so far as the voting rights of the folks in those counties. We've never had any problem getting the approval," Nelson told NPR. Nelson is a candidate for secretary of state.
The ACLU was alerted to problems with the voter laws when the state legislature failed to submit the state redistricting plan to the U.S. attorney general for preclearance. A lawsuit, Bone Shirt v. Hazeltine, was filed and a federal district court found the state in violation of Section 5 by failing to obtain the preclearance before implementing the plan.
"The federal court's decision in the Bone Shirt voting rights case earlier this summer clarified that the state must submit every change, and the state has fulfilled that responsibility to the best of our knowledge with the filing of the 380 pages on [Aug. 1]. Prior to this lawsuit, no one has ever raised this as an issue to our office or made any allegation of discrimination in our state election statutes," Hazeltine added in written comments.
Theresa "Huck" Two Bulls, vice president of the Oglala Sioux Tribe said it was about time the state recognized that American Indians existed in the state. She said, "we've always been here."
Equal treatment is what the American Indian population always wanted and this lawsuit might make the state act according to its own laws, Two Bulls said.