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South Dakota reprieve in voting rights violation

PIERRE, S.D. - American Indian voters in South Dakota may have to wait to
elect their candidate of choice in redesigned districts until the state
Supreme Court decides whether redistricting now would violate the state's

In September 2004 the state was found to be in violation of the 1965 Voting
Rights Act. The state asked the U.S. District Court to ask the state
Supreme Court to certify a question that would allow them to redesign
district boundaries. The state asserts that it can't redraw the boundaries
until the decennial census data is available.

Bryan Sells of the ACLU said the state high court had ruled in an earlier
decision that the state can redistrict before the 10-year requirement.
State law requires that redistricting can only be held every 10 years
following the tabulations of a national census.

The original ruling, issued by Judge Karen Schreier that found the state in
violation, gave the state time to devise a plan to resolve the issue. But,
the state asked to have the state's top court come up with a ruling that
would answer the question of whether the legislature or state could

Sells said the best solution would be for Schreier to impose a
redistricting plan because time is essential.

"We think a special election is required at least in the relevant districts
and we asked the court to make slight amendments (in the recent order) to
ensure a special election goes forward," Sells said.

The state was accused of packing a district in 2001 that now has a
supermajority of American Indians that prevents Indian residents of an
adjoining district from electing a preferred candidate. At present the
state legislature has only four Indian legislators. South Dakota has an
American Indian population of 10 percent.

District 27 contains the Rosebud and Pine Ridge reservations and has three
American Indian legislators. District 26, that adjoins and contains
portions of the two reservations, has a moderate American Indian population
but they cannot elect a candidate of their choice, according to testimony
before the district court.

Judge Schreier, in her original ruling, said the state had violated Section
II of the Voting Rights Act by packing District 27 with a 90 percent
American Indian population. The court said it would defer to the state to
propose a plan, but if it does not completely remedy the violation the
court would draw new district lines.

One issue is that the federal court gave the state 30 days after the
Supreme Court makes its decision to respond but the Supreme Court is not
under any timeline.

Sells said that creates the possibility that a new election after
redistricting could not take place this year. The ACLU asked for an
amendment to the court's certification order that could speed the process
up. The plaintiffs asked for a firm deadline.

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"I don't think the court's intention is to delay, there is no evidence of
that," Sells said.

This is a constitutional question. The federal constitution imposes statues
that require swift remedial action in cases of voting rights violations;
the state is in violation of the act, but state officials claim they are
not sure whether the legislature has the power to reapportion.

The state court previously authorized apportionment by the legislature
after a census year. The court has not ruled on a case to reapportion after
a federal court ruling found there was a violation of federal law.

The previous court ruling was issued after District 28 was separated into
two regions to allow an American Indian population to elect preferred
candidates was abolished by the legislature. The court ruled the
legislature acted in violation of the law and ordered the district returned
to two separate regions that allowed for a representative from each area.
The result was that an American Indian legislator was elected from that

The ACLU claims that order is still in effect; therefore a state Supreme
Court rule is not needed.

Since Judge Schreier awarded the state more time to formulate a plan, she
also warned the state not to squander that time.

"The court will expect quick action after the South Dakota Supreme Court
acts," Schreier said.

She added that should the state decide to conduct public hearings it should
do so while the high court is considering the question.

The end result will be to either submit a new plan or provide remedial
plans to the federal court.

Legislative leaders said after the original court ruling that they did not
intend to pack the district and therefore didn't agree with the court's

Even though the plaintiffs assert that it would be better for the federal
court to draw the lines, they added that it didn't matter, they just want
the issued settled so that a special election can be held this year.