PIERRE, S.D. -- The U.S. Supreme Court has refused to hear an appeal from
the state of South Dakota on a Voting Rights Act violation.
Subject to Section 5 of the Voting Rights Act which requires pre-clearance
for changes to voting laws, the state asked the high court to accept their
appeal to review that section and possibly limit its scope.
"They tried to do an end run around Section 5," said Bryon Sells, attorney
with the American Civil Liberties Union Voting Rights Project.
The state is required to ask the U.S. Justice Department for pre-clearance
in two counties, Todd and Shannon, which are located on the Rosebud and
Pine Ridge reservations, respectively. The voting rights of American
Indians are in the balance in these two counties. Any change in voting
regulations that would cover all counties in the state is also subject to
"We are extremely pleased that the Supreme Court upheld South Dakota's
obligation to comply with the Voting Rights Act and protect the rights of
"We hope the South Dakota Legislature has finally gotten the message that
it cannot trample on the voting rights of Native Americans with impunity,"
A lawsuit filed by the ACLU against Charles Mix County, home to the Yankton
Sioux Tribe, accused the county of diluting voting districts. No American
Indian has ever served on a county board or city council.
Charles Mix County officials then asked the Legislature for help. The
intent was to circumvent the lawsuit and redistrict in an off year. The
county asked for a bill that could allow emergency redistricting in any
year with the approval of the governor and attorney general.
The Legislature passed House Bill 1265 to honor the Charles Mix County
redistricting request and the governor signed it two days later. The bill
was not submitted for pre-clearance by the Justice Department. The ACLU
filed a lawsuit on behalf of Yankton tribal plaintiffs, and a federal
three-judge panel ruled that South Dakota was in violation of the Voting
Rights Act. The state then appealed.
"We thought that ruling was subject to question. Our view was, you only
have to pre-clear with Shannon and Todd counties," said South Dakota
Attorney General Larry Long. "In effect, [section 5 applies] across the
board [and] a statute can't be implemented in any county until pre-cleared.
We don't agree," Long said.
He said the controversy over Section 5 and South Dakota will arise again.
In the written ruling of July 2005, the three judges argued that the state
had been in violation of some 700 voting or election changes in past
decades without ever seeking pre clearance. Since then, Secretary of State
Chris Nelson said that most of those laws have been submitted and received
H.R. 1265 was submitted to the Justice Department while the state's appeal
was in progress and did finally receive pre-clearance. At the same time,
U.S. District Judge Lawrence Piersol ruled against Charles Mix County,
which meant the county was in violation of the Voting Rights Act and must
redraw its district lines to better accommodate the American Indian voting
At the present time, Charles Mix County is working on redistricting plans
that would comply with plans drawn by the ACLU, Sells said.
As required by the constitution, district lines must be redrawn after each
census, which is taken every 10 years. Charles Mix County did not redraw
the district lines after the 2000 census. District lines must be redrawn if
a district is more than 10 percent out of compliance. In Charles Mix
County, there was a 19 percent deviation in population of the districts.
The original complaint stated that the county had used procedures in the
past that offer the opportunity for discrimination against American Indian
At the time, county officials said that the lines were kept the same in
good faith and not out of any act of racism.
The ACLU's proposal would create a district that has a majority population
of American Indians, which would give them a chance to elect a preferred
candidate. In the last general election, an American Indian candidate ran
for county commission and lost by a little more than 60 votes.
"The actions of the South Dakota Legislature to silence the voice of Native
American voters have been shameful. We are pleased that the Supreme Court
has put this matter to rest, but we are saddened that state officials would
rather file costly appeals than obey the law and protect the rights of all
South Dakota citizens," said Jennifer Ring, executive director of the ACLU
of the Dakotas.