Supreme Court Decision Rolls Back Voting Rights for S.D. Indians

A story about South Dakota Indian tribes' voting rights.

When the U.S. Supreme Court used Shelby County v. Holder to kick Section 4 of the Voting Rights Act (VRA) back to Congress for a new look at who is still struggling to get to the ballot box, certain things did not change for South Dakota Indians. If they want equal access to voting in any given election cycle, they must request it, pay for it and/or go to court to litigate for it.

The Supreme Court decision immediately cut loose two South Dakota counties, Shannon and Todd, which overlap the Pine Ridge and Rosebud reservations, respectively. Officials there no longer have to “preclear” changes in voting laws and procedures with the Department of Justice and prove they’re not discriminatory.

Reaction around the state to the decision was swift. Attorney General Marty Jackley called it a “victory for state’s rights” and proclaimed “the Court found that conditions that originally justified placing jurisdictions under preclearance requirements no longer existed.”

State senator Jim Bradford (D-District 27/Pine Ridge), who is Oglala, expressed regret over the decision. South Dakota has a long history of disenfranchising and discriminating against Native people; the state and jurisdictions within it have fought and either lost or settled some 20 voting-rights cases. “Preclearance kept them on their toes,” Bradford said.

Here’s what’s going on in several South Dakota counties:

Crow Creek Sioux Tribe—Buffalo County

Buffalo County has been cooling its heels since May, when the Crow Creek Sioux Tribe requested that it provide a satellite early-voting office in 2014 in the tribe’s capital, Fort Thompson. Almost all the town’s residents are tribal members, and they make up about 80 percent of county’s population of 2,000. For the 2012 national election, a nonprofit voting-rights group, Four Directions, paid for such an office, which gave Fort Thompson residents access to about half of South Dakota’s 40-some days of early voting. The group isn’t expected to pay again going forward.

Four Directions co-director O.J. Semans, second from right, goes over the Oglala Sioux Tribe satellite office request with Jackson County (South Dakota) commissioners, in Kadoka, South Dakota.

Over the past decade, access to early voting, also called in-person absentee voting, has emerged as a major issue in South Dakota, thanks in large part to the efforts of Four Directions, which typically provided funding for it. Without on-reservation satellite offices, impoverished tribal members without transportation have one day to vote—Election Day, notes the group’s co-director, O.J. Semans, Sicangu Lakota. At that point, reservation residents do have local precincts, but may rely on get-out-the-vote transport to go to the polls.

The Buffalo County auditor and local elections official, Elaine Wulff, wrote to Jason Gant, South Dakota secretary of state and head elections official on May 10. She asked him whether the county could use Help America Vote Act funds to pay for such an office. Congress passed HAVA in 2002 to improve the elections process and ease voting access nationwide.

“I’ve gotten a verbal ‘no’ back from the secretary of state, but nothing in writing,” said Wulff. She explained that Buffalo County is very poor and needs the money if it is to provide a satellite office in Fort Thompson, population 1,600. Otherwise, voters there and elsewhere in the county must travel to early-vote in the courthouse in Gann Valley, population 13.

“We’re waiting to hear from our attorneys,” said state senior elections coordinator Brandon Johnson (not to be confused with U.S. Attorney Brendon Johnson), when asked whether Help America Vote Act funds can be spent on reservation early-voting offices.

“It’s been two months,” said Four Directions consultant Bret Healy. “What are they trying to determine?”

Cheyenne River Sioux Tribe—Dewey County

In Dewey County, auditor and elections official Kyrie Lemburg is also on hold. In 2012, the county, which has its seat in reservation border town Timber Lake, provided a full schedule of early voting for the Cheyenne River Sioux Tribe. However, that process was eased because the tribe provided space in its capital, Eagle Butte, and a salaried official who was deputized to oversee the process, according to Lemburg.

“This year the county might have to pay,” said Lemburg. “I haven’t yet heard about HAVA funds from the secretary of state. As soon as I do, I’ll go to the commissioners.”

Oglala Sioux Tribe—Jackson County

The Pine Ridge Indian Reservation overlaps several counties. One of them, Jackson County, is another jurisdiction waiting to hear from the secretary of state about guidelines and funding for satellite early-voting offices, according to auditor Vicki Wilson. “I haven’t heard back—not an email or a call,” said Wilson.

Wilson said she requested the information after a May 13 county commission meeting during which Semans, speaking on behalf of the Oglala Sioux Tribe, presented a request for satellite early voting in the 750-member Oglala community in Wanblee. The office would allow voters there to cast ballots for the same number of days as other South Dakotans and to do so close to home, rather than in the mostly white county seat Kadoka, a 50-plus-mile round trip from Wanblee.

During the meeting, the commissioners discussed the cost of the office and the possibility of HAVA funds paying for it. “The state imposes limits on county levies,” explained Wilson. “It’s very hard for us to add services.”

Later, Wilson expressed additional concerns about the satellite office: “Six o’clock on a winter evening, coming back from Wanblee, you could have a flat tire. It’s not like 20 years ago. You don’t know who’s traveling the roads these days. The person who stops to help could be someone who wants to disrupt the election by stealing the ballot box.”

What about deputizing an official in Wanblee to oversee the process, as was done in Dewey County? “I’d have to know the person,” she said.

Oglala Sioux Tribe—Shannon County/Fall River County

South Dakota has some $9 million in its HAVA account, banked there to gather interest during prior secretary of state Chris Nelson’s term, according to Nelson’s court testimony in the voting rights lawsuit Brooks v. Gant. Twenty-five Oglalas brought the federal lawsuit under Section 2 of the Voting Rights Act in order to ensure they will have a permanent satellite voting station in Shannon County, which overlaps much of Pine Ridge Indian Reservation. Section 2 is permanent and was not affected by the Supreme Court’s Section 4 decision. Satellite voting costs about $12,000 per election, according to court documents.

The suit, which is still before the courts, followed months of controversy in 2010, when election officials hired from adjacent Fall River County on a freelance basis quit just ahead of the national election, jeopardizing not just early voting in Shannon County, but seemingly the likelihood the reservation would vote at all. HAVA funds were a sticking point then, too.

At a September 2010 Shannon County commission meeting, one commissioner questioned the advisability of spending the money, which would then, inevitably, be spent. “What if they get used to voting?” she asked. After much stormy debate and delay, Four Directions paid for the few days of early voting that could be squeezed in.

Now that the Supreme Court has suspended Section 4 of the VRA, Shannon County officials no longer need ask the Department of Justice for preclearance of new local elections-related laws and procedures. This will streamline the electoral process, according to Sara Frankenstein, defense attorney for Shannon County.

The county isn’t entirely home alone. In a preliminary order recognizing the defendants’ promise to use HAVA funds to provide a full menu of voting to Shannon County, federal judge Karen Schreier told the plaintiffs to let her know if this doesn’t happen, so “the court can take appropriate action.” Schreier has yet to set a trial date.

Yankton Sioux Tribe—Charles Mix County

Charles Mix County is subject to a negotiated settlement in a Section 2 lawsuit, Blackmoon v. Charles Mix County, in which tribal plaintiffs charged that county districts were gerrymandered to dilute the Native vote. The county will continue to ask for preclearance of election-related changes that it initiates until 2024, said Frankenstein, who negotiated the 2007 agreement with the American Civil Liberties Union, which represented the Native plaintiffs.

Rosebud Sioux Tribe—Todd County/Tripp County

Over the years, Tripp County, which provides election administration on a freelance basis for Todd County, which overlaps the Rosebud Sioux Reservation, has provided early voting when it was paid for—either by Four Directions or HAVA. The number of days has varied from zero to a full schedule, depending on funding.

In 2012, in response to a Four Directions request, the commission made the full schedule permanent, irrespective of funding sources. Which raises the question: Are American Indian voting rights inconsistent throughout South Dakota—more dependent on circumstances and local decision-making than on the law?

Said Jana Kooren, acting director of South Dakota’s branch of the American Civil Liberties Union: “We support voting that’s free, fair and accessible. In cases where voters in different counties have different access to voting, we would worry about suppression.”

This article was written with support from the George Polk Center for Investigative Reporting.