By David Lias
The nation is recognizing the great strides made in the civil rights movement 50 years ago this week when Martin Luther King Jr. addressed a peaceful throng of people with his infamous “I have a dream” speech.
It’s certainly a moment worth celebrating, at a time in South Dakota in which race relations appear to be becoming more and more strained.
A recent turmoil that’s arisen in West River South Dakota involves voting rights for Native Americans in Fall River and Shannon counties.
Twenty-five plaintiffs sued those two counties and the state last year, arguing they didn’t have equal opportunity to vote because Shannon County lacked early voting and early registration satellite offices, unlike other counties. Instead, residents in the mostly Native American county had an abbreviated satellite office or they had to drive to Fall River County, which administers elections for Shannon County. That can be a problem, because many Native Americans don’t have a car.
The lawsuit was dismissed earlier this month by a federal judge after the state agreed to provide money for early voting satellite offices in both Shannon and Todd counties through 2018 for the full 46 days prescribed by state law. In dismissing the lawsuit, Judge Karen Schreier said that because of the agreement, the plaintiffs did not face imminent harm.
The prevailing outcome of the lawsuit – an agreement by the state to provide early voting satellite offices in those two counties through 2018 – certainly indicates that the suit had merit.
But here’s where things get, well, a bit ugly.
Officials of both of those counties and the state are claiming that since the suit was dismissed, they are the “prevailing parties.” Under federal rules, a prevailing party can be awarded costs associated with some aspects of the litigation.
Last week, Sara Frankenstein, a Rapid City lawyer representing the counties, filed for costs amounting to more than $6,000. The Indian voting rights group Four Directions, which paid for the lawsuit, replied with a letter from Executive Director O.J. Semans that went to many of the state’s top elected officials, asking them to denounce the effort to collect costs against 25 impoverished Indians.
Shannon and Todd counties are not only two of the poorest counties in South Dakota – they rate among the most poverty-stricken areas of the United States. The Shannon and Todd county commissions, along with the state of South Dakota have decided to add to the misery of people living in those counties – people who dared to take a stand and defend their right to vote.
South Dakota Attorney General Marty Jackley, in a statement emailed to the Sioux Falls Argus Leader last week, noted that “Under federal law, a prevailing party is permitted to request the court for certain allowable costs. The county defendants have made a request, and if there is an objection the federal court will determine whether and to what extent costs may be assessed.”
Bret Healy, a spokesman for Four Directions, said the efforts to impose costs on the plaintiffs is a move to deter future lawsuits regarding equal voting in Indian Country. He notes that if impoverished Indians have to pay costs to force equal voting rights, they won’t be inclined to bring litigation in the future.
“This is intimidation, sanctioned by the state, pure and simple,” Healy said.
It’s certainly easy to come to that conclusion. Especially when one takes into consideration that Four Directions became involved in the court action against the state and the two counties because they weren’t properly doing their jobs when it comes to voter access.
Fall River and Shannon counties aren’t the only areas in the state suffering from voter rights issues.
In early August, Four Directions filed a complaint with the civil rights division of the Justice Department. That action came almost a week after Secretary of State Jason Gant and the Board of Elections declined to establish early voting offices in Fort Thompson (located in Buffalo County), Eagle Butte (located in Dewey County) and Wanblee (located in Jackson County). The group contends that residents in the predominantly Native American communities don’t have an equal opportunity to vote or register to vote before an election when compared to residents in other parts of the state.
The group asked Gant to approve federal money from the Help America Vote Act to pay for the three satellite offices. The state has about $9 million in HAVA money, and Four Directions estimated the three satellite offices would cost less than $50,000 per election cycle.
The Argus Leader reported earlier this month that Gant said he doesn’t have the authority to use HAVA money for the satellite offices, and he requested an opinion from a federal entity that is incapable of rendering an opinion because its board has no commissioners.
Gant acknowledged that the U.S. Election Assistance Commission, which was created in part to help decide how states can spend HAVA funds, has no commissioners to make a decision, but he said he has no choice.
“I’m trying to get more clarification as to whether this has been allowed in the past,” he said.
Healy and at least two members of the Board of Elections are convinced Gant already has discretion to spend HAVA funds for early-vote satellite office on the reservations.
It’s difficult to understand what the fuss is all about. We long for the good old days when we had competent people like Alice Kundert, Joyce Hazeltine and Chris Nelson serving as secretary of state. You really didn’t hear much about them. They quietly and efficiently performed the tasks they elected to carry out.
Gant is proving to be incredibly incompetent. He would be wise to not seek re-election. If he does, South Dakotans would be wise to not vote for him.
In the meantime, the residents of Indian Country must wait for more court rulings all centered around something we South Dakotans claim to cherish – the right to vote. The latest court action by Frankenstein –action that likely wouldn’t be needed if Gant would do his job and properly authorize HAVA funds – serves as a glaring act of discrimination by the state against some of our Native American population.
Fifty years ago, Martin Luther King Jr. noted, in his speech at the Lincoln Memorial that “Now is the time to make justice a reality for all of God’s children.”
We certainly hope for that outcome in Indian Country.