PIERRE, S.D. - A panel of three federal judges ruled that South Dakota
again was in violation of the Voting Rights Act and the decision will
almost ensure that American Indian voters on the Yankton Reservation will
have a say in drawing new voter district boundaries.
A unanimous decision by the judges issued an injunction against the state
of South Dakota, saying it must comply with the federal Voting Rights Act
and submit the new law for review by the Department of Justice.
The judges stated that there was an appearance of a rushed attempt to
circumvent federal law.
American Indian voters filed a complaint in federal court asking that
district lines be dissolved and new boundaries with nondiscriminatory
districts be created. The complaint also called for a special election. A
ruling has not been issued on that case.
The plaintiffs argued that past redistricting by the county has prevented
American Indian-preferred candidates from gaining a seat on the county
commission or other elected offices. American Indians make up one-third of
the population of the county.
In response to the federal lawsuit, Charles Mix County asked the state
Legislature to change the redistricting procedures and allow the county to
redraw the lines in time periods other than two years after a national
Against objections from members of the Yankton Sioux Tribe, where Charles
Mix County is located, the law was passed and signed by the governor. A few
days later the county submitted a redistricting plan. That plan was never
sent to the Justice Department for review, as is required by a consent
agreement between the state and the federal government.
The state argued that the agreement did not include Charles Mix County,
only Shannon and Todd counties, and that therefore no review was necessary.
The judges stated that the new law affected all counties in the state,
including the counties of Shannon and Todd, which were included in a 2002
consent decree that requires pre-clearance for any legislation affecting
The South Dakota must now submit the new law to the Department of Justice
The state has not yet decided if it should appeal the ruling. It may go
directly to the Supreme Court, according to Larry Long, state attorney
general. Bryan Sells, attorney for the American Civil Liberties Union, said
it is highly unlikely the high court would take the case; it has refused
such requests in the past.
If the law is allowed to stand as written, American Indians will not have a
say in how redistricting will take place, Sells said. "This ruling
demonstrates the essential role played by the Voting Rights Act and the
federal courts in protecting the right to vote for Native Americans in
"While we are pleased at the relief granted in this case, we also are
saddened that it has once again taken the intervention of the federal
courts to ensure that state officials follow the law," Sells said.
According to Article 5 of the 1965 Voting Rights Act, Shannon and Todd
counties contain a minority population and, therefore, all changes in
voting regulations that affect those two counties must be submitted to the
Department of Justice for approval.
The new law, H.R. 1265, affects both counties and changes the practice or
standard for redistricting county commission districts.
The opinion, written by Judge Karen Schreier, said the state avoided
pre-clearing more than 700 voting changes for decades. "The citizens of
Shannon and Todd counties were subjected to continuing violations of the
VRA," the opinion stated.
The state also violated the pre-clearance requirement in 2001 with its
redistricting plan. The state was found in violation of the Voting Rights
Act in Boneshirt v. Nelson.
The defendant, the Charles Mix County Commission, argued that residents of
the county are harmed because they would be unable to redistrict in
response to the pending federal litigation. In that litigation, the
defendants assert that the boundaries were drawn based on a rational policy
to respect township and city boundaries.
Evelyn Blackmoon, lead plaintiff, claims there has never been an American
Indian that has served in an elected office in Charles Mix County.
Redistricting according to the ACLU guidelines would benefit American
Indian voters, plaintiffs claim.
"We have been without a voice on the commission for too long. This is an
effort to change that," Blackmoon said.
IN A RELATED CASE
The state of South Dakota was found in violation of the Voting Rights Act
of 1965 because of redistricting violations. Legislative District 27, on
the Pine Ridge Reservation, was declared a packed district. That would
allow for only a potential of three American Indian legislators in the
The ACLU filed litigation on behalf of a group of American Indian voters in
an attempt to redraw lines for two districts so that a majority of American
Indians could have the potential of electing preferred candidates.
The state, by federal court order, was required to submit a plan to the
court or be subjected to redrawn district lines by the court.
Attorney General Larry Long said the state would not submit the plan and
would await the court decision, then file for an appeal. Long said that the
legislators do not consider their actions racist and that the lines created
a district that would have a large majority of American Indian voters; a
violation of the Voting Rights Act, according to the federal court.
Long also said that based on a history of voter turnout, two new districts
with a slight majority of American Indian voters could mean there would be
no representation from American Indians in the Legislature or in county
In the past two election cycles, a major Get Out The Vote campaign in
Indian country has met with positive results.