Voting rights violated in South Dakota

PIERRE, S.D. -- A county in South Dakota has been found in violation of the
Voting Rights Act because of redistricting that keeps American Indian
voters in the minority in three districts, in a violation of the
"one-person/one-vote" rule.

U.S. District Judge Lawrence Piersol wants to see a redistricting plan that
will pass legal muster by Nov. 14 from the Charles Mix County Commission,
the defendant in Blackmoon v. Charles Mix County. If the county decides not
to write its own plan, the court will.

Even though Charles Mix County is the home to the Yankton Sioux Tribe,
there has never been an American Indian county commissioner or a city
council member in the county seat of Lake Andes, according to the Yankton
tribal members who are plaintiffs in the suit.

Piersol noted that the total population deviation of 19.02 percent between
the largest and smallest district was in violation of established U.S.
Supreme Court findings, and that the county commissioners justified that
deviation because of a county policy to not split townships, towns or
cities in creating voting districts. If a deviation exceeds 10 percent in
apportionment between the largest and smallest districts it creates the
impression of discrimination, the U.S. Supreme Court ruled.

The plaintiffs admitted that the total deviation of the existing
apportionment plan is greater than necessary to keep townships, towns and
cities intact in the districting process and that a deviation of below 0.29
percent was possible.

Counties in South Dakota are required to meet for redistricting at their
February meeting in years that end in 2.

That law normally would prevent the county from redistricting at this time;
however, Piersol cited a state Supreme Court decision that allows for just
such a situation.

In another case against the state, Bone Shirt v. Hazeltine, the state
Supreme Court ruled that "if the legislature apportions and that
apportionment is judicially deemed invalid, the legislature continues to
have the duty to enact a valid apportionment plan."

The complaint against Charles Mix County was filed by the American Civil
Liberties Union on behalf of Yankton tribal members in early 2005. The
state Legislature subsequently drafted a law, Senate Bill 1265, that would
allow counties to redistrict with approval from the governor, secretary of
state and attorney general when any violation was found.

Plaintiffs argued that that law was intended to prevent expensive
litigation. The law was enacted and immediately challenged by the
plaintiffs and the ACLU. A federal three-judge panel found that by enacting
a statewide change in voting procedures, the state Legislature was in
violation of Section 5 of the Voting Rights Act which requires
pre-clearance from the U.S. Justice Department for any changes in voting

Two counties in South Dakota, Shannon and Todd, are subject to Section 5 of
the Voting Rights Act. The counties are located on the Pine Ridge and
Rosebud reservations, respectively. The state argued in court that the
change in the redistricting rules would not have been used in either

The law, however, is considered "general application." "Even under South
Dakota law it may be illegal," said Jennifer Ring, of ACLU of the Dakotas.

"Without addressing the rights of minority voters, they [Charles Mix
County] wanted to redraw the districts and we believe they didn't take care
of discrimination against Native Americans in voting practices," Ring said.

Since 1999, the ACLU has filed seven complaints against the state in
violation of the Voting Rights Act.

"We are pleased that the federal courts have acted once again to protect
the equal voting rights of all South Dakotans," said Bryan Sells, ACLU
Voting Rights Project attorney.


A federal complaint was filed on behalf of five members of the Shoshone and
Arapaho Tribes of Wyoming, contesting the practice of at-large voting in
Fremont County. Part of Fremont County is the home of the Wind River

Twenty percent of the county is American Indian. All the commissioners in
the county are non-Indian.

As in the case of the allegations of voting violations in South Dakota, the
ACLU filed the lawsuit for the plaintiffs.

Mountain States Legal Foundation attorney Scott Detamore told The
Associated Press that the ACLU targets small counties, which then claim
that defending against the case will break the treasury and so agree to
change the system.

As with the case in Charles Mix County, the lawsuit wants the federal court
to stop Fremont County from holding any future at-large elections.

Similar cases in Montana and South Dakota have been ruled in favor of the
plaintiffs, said Scott Crichton, executive director of the ACLU of Montana.

Lawsuits are cropping up in more areas where there are larger American
Indian populations.

"I think it is undeniable that Native Americans are really becoming more
interested and energized about their rights to vote," said Sells.