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ACLU files lawsuit against South Dakota for Indian Voting Rights
By Ruth Steinberger
On Tuesday January 30, 2002, a three judge panel in Federal Court for the District of South Dakota in Pierre, SD, heard arguments on the first part of the two part suit, Bone Shirt, et al vs. Hazeltine, et al. This portion of the suit seeks either a temporary or permanent injunction against the implementation of the recently enacted redistricting plan for the State of South Dakota. The suit, filed on behalf of named plaintiffs Alfred Bone Shirt, Belva Black Lance, Germaine Moves Camp and Bonny High Bull, was filed by the Voting Rights Project of the ACLU, due to the failure by the state to file as required by federal law for prior approval by the Department of Justice.
Failure by the state of South Dakota to file their redistricting plan with the federal government for approval as they are compelled to do, may signal an attack on the 1965 Voting Rights Act. The action is viewed by some as an attempt to ensure a non-Indian majority in state government in the future. Many tribal members and activists are viewing this action as a serious assault on minority voting rights by the Republican legislature.
The purpose of the 1965 Voting Rights Act is to ensure equal access to the election process for all individuals regardless of race or ethnicity. According to provisions of that act, due to a history of racial discrimination regarding voting access, South Dakota is one of 16 states that must file for approval before implementation of a new redistricting plan. Recent actions by the State of South Dakota challenge provisions of that act intended to ensure voting rights for Indians, and represents the first time in at least a decade that a state that is compelled to file for such approval has effectively refused to do so. Refusals to comply with this act were common in the sixties following enactment of the Voting Rights Act. Currently, American Indians are underrepresented in both houses of the state legislature.
A second part of the suit is aimed at the actual plan itself, which fails to create an additional Indian majority voting district causing nearly 6,000 Indians to vote in a white majority district that has never elected any Indian legislators and is unlikely to do so, while placing an excessively large number of Indians in a neighboring voting district. Due to a documented history of racism affecting voting rights, South Dakota is one of 16 states that must file for approval prior to implementation of their redistricting plan for Shannon and Todd counties. A small number of states including South Dakota must file for approval for only a portion of the state, rather than filing for approval for the redistricting plan covering the entire state. The state is compelled to file for approval any time redistricting covers Shannon and Todd counties.
John Guhin, Assistant Attorney General for the state of South Dakota, argued that the state is not obligated to file because the district remained unchanged since the last redistricting a decade ago. He did acknowledge that the district had in fact changed, but he then contended that the change was too minor to be significant. He also disputed figures indicating a rise in Indian population, claiming that the increase in numbers is the result of a change on census forms allowing people to declare themselves mixed race. According to census figures, Indians are the fastest growing portion of the population of the state and are the only increasing population in the western part of South Dakota. Guhin said that the redistricting plan, as approved by the state, was drafted for the good of Indians themselves.
Bryan Sells, attorney for the ACLU argued that that implementation of a new statewide redistricting plan is a change and thereby the state is obligated to file according to federal law. He cited the interesting fact that this was virtually the only district in the state that lawmakers can claim remained unchanged. Redistricting, which is required by federal law, is meant to accommodate population and demographic changes. If the states argument is upheld, simply by leaving district lines geographically unchanged, states that are required to file would have grounds to continuously exempt themselves from adherence to the 1965 Voting Rights Act. Essentially, if the state’s arguments are upheld, it would be the right of the state to judge whether or not it is required to comply with the Department of Justice, and if so under what provisions.
Jennifer Ring Director of ACLU of the Dakotas, said, “The arguments focused on two separate issues. One is whether or not the state was required to file, and second was what should the remedy be if they have in fact violated section 5 of the Voting Rights Act. The argument by the state was that they are not required to file because they made no changes to District 27. However, they acknowledge they did make a change to the district but they allege that it was so minor that they should not have to file. The plaintiffs argued that the enactment of the plan itself is a change in the state, and that any change at all involving the entire requires approval. Additionally, the plaintiffs argued that the Voting Rights Act is intended to accommodate population changes which have been drastic in these districts.”
On Friday, February 8, 2002, the Department of Justice filed a supplemental brief on behalf of the plaintiffs in the suit, stating that South Dakota is compelled to file for approval of their redistricting plan. The state of South Dakota has moved to block the brief from being admitted to the case.
http://www.argusleader.com/news/Sundayarticle3.shtml
Redistricting is challenged
The Associated Press
published: 12/30/01
ACLU says Native American rights being diluted
PIERRE - South Dakota's new plan for realigning legislative districts dilutes
Native American voting rights and never got the required federal clearance,
according to a group that has challenged the plan in court.
The American Civil Liberties Union filed a lawsuit Thursday in U.S. District
Court in Pierre to block the plan that passed the Legislature in October.
Federal law requires jurisdictions that have discriminated in the past to get
federal approval before approving new redistricting plans, said Bryan Sells,
lead counsel for the ACLU's Voting Rights Project in Atlanta. One such area in
South Dakota is Shannon and Todd counties, he said.
"There is no question the Legislature did not submit it (the plan)," Sells
said. "Their obligation to do so is crystal clear."
State Rep. Mike Derby, R-Rapid City, co-chairman of the redistricting
committee, said the U.S. Justice Department would not look at the plan until
the Legislature passed it.
"It was kind of a chicken-and-egg thing. So in our minds, we said, 'What good
is pre-clearance?' " Derby said.
He said he doesn't know if the state has submitted the plan since the October
special session.
Larry Long, chief deputy attorney general, said state officials had not been
served with summonses as of Friday. He said he was frustrated he could not see
the lawsuit before the ACLU publicized it.
After the Legislature adopted the plan, Long said his office could defend it
because it complied with the Voting Rights Act.
The lawsuit asks a judge to stop the plan as it applies to Shannon and Todd
counties in District 27 and any other district that would be affected.
The suit also claims the reapportionment dilutes voting rights for Indians in
District 26, where Indians make up about one-third of the population. The
boundaries should have been drawn to give Indians the majority in both
districts, the ACLU said.
"If they had done redistricting a little bit more equitably, the Native
Americans in District 26 would be able to elect at least one House member and
possibly more," Sells said.
District 26 includes the northern half of Bennett plus Jackson, Haakon, Jones,
Mellette, Lyman and Tripp counties. District 27 includes Shannon and Todd
counties and the southern half of Bennett County.
http://www.yankton.net/stories/101001/new_1010010016.shtml
S.D. Legislative Panel Settles On Redistricting Plan
By CHET BROKAW
Associated Press Writer
PIERRE -- After a series of mostly party-line votes, a legislative committee
finished work Tuesday on a plan for redrawing the boundaries of South Dakota's
35 legislative districts.
The Democratic minority objected to Republican plans for drawing new districts
in the Sioux Falls and Rapid City regions and in more rural areas throughout
the state.
However, lawmakers from both parties agreed to preserve a special district
aimed at giving American Indians in north-central South Dakota a better chance
of electing their own House member.
Republicans have a 10-5 edge over Democrats on the Redistricting Committee.
The panel's proposal redraws the boundaries of legislative districts to reflect
population changes recorded by the 2000 U.S. Census. The redistricting plan
will be submitted to the full Legislature for consideration in a special
session Oct. 23-25.
Rep. Jay Duenwald, R-Hoven, said the Republican plan creates new districts that
are compact, link areas of common interest, and split as few counties as
possible. The proposed new districts are also similar to existing districts, he
said.
''Frankly, I look at it as an improvement over what we have now,'' said House
Republican Leader Bill Peterson of Sioux Falls.
But Democrats said the GOP plan splits some counties unnecessarily. They
particularly objected to splitting Beadle County, a traditional Democratic
stronghold.
Democrats also opposed a plan to put eastern McPherson County, all of Spink
County, a strip of western Brown County and part of Aberdeen into a district. A
second district in the area would include much of Brown County and a part of
Aberdeen.
House Democratic Leader Mel Olson of Mitchell said the GOP plan does not do
enough to avoid splitting counties or to follow existing district boundaries.
Olson said the Republican plan would help him personally, but it has many
flaws.
Olson noted that Meade County residents testified several times about their
wish to have most of the county in one district, but the county will be split
among three districts. ''We've basically said 'You don't matter,' and I have a
difficult time with that.''
Duenwald said some counties must be split because there is no other way to make
each district roughly equal in population.
''It may not be perfect, but it's awfully close,'' Duenwald said of the
Republican plan approved by the committee.
The panel approved Senate Republican Leader Barb Everist's plan for dividing
the Sioux Falls area into seven districts, one more than the area currently
has. Everist said the new plan keeps essentially the current configuration for
districts.
But Sen. Gil Koetzle, D-Sioux Falls, tried unsuccessfully to get the committee
to accept his proposal for the Sioux Falls area. He said Everist's plan makes
too many changes, particularly in the district he represents.
''This is nowhere even close in your wildest dreams to what it currently is,''
Koetzle said.
The committee also voted along party lines to draw four districts in the Rapid
City area. One district north and west of Rapid City would include both the
Black Hawk and Ellsworth Air Force Base portions of Meade County.
Much of the rest of Meade County and a small part of southern Butte County
would be another district. The northern and eastern parts of Meade County would
be in a huge district that covers the rest of northwestern South Dakota.
All legislative districts elect one senator and two representatives at large,
except District 28, which is split into two House districts that each elects
its own House member.
Rep. Tom Van Norman, D-Eagle Butte, now represents the single-member House
district that covers Dewey, Ziebach and part of Corson counties, which includes
the Cheyenne River and Standing Rock Sioux Indian reservations. The other
single-member House district includes Harding and Perkins counties and parts of
Butte and Corson counties.
Van Norman asked the Redistricting Committee to preserve as much as possible
the current single-member districts so Indians in the area can continue to have
a chance of electing their own House member.
The committee wound up keeping District 28 mostly the same as now. Dewey,
Ziebach and part of southeastern Corson County would form a single-member House
district with a large majority of Indian voters. Western Corson County, Perkins
and Harding counties and most of Butte County would form the other
single-member House district.
Rep. Matthew Michels, R-Yankton, said the Cheyenne River and Standing Rock
reservation areas should be kept in a single-member district. ''It does give
the Lakota people a reasonable opportunity to elect a representative,'' he
said.
Sen. Eric Bogue, R-Dupree, tried unsuccessfully to get the committee to approve
single-member House districts throughout the state. If each District 28 voter
is represented by only one House member, voters in other districts should not
be represented by two House members, he said.
The committee earlier voted to keep unchanged a legislative district that
includes the Pine Ridge and Rosebud reservations. District 27, which includes
Shannon and Todd counties along with a connecting strip across southern Bennett
County, has consistently elected Lakota people to the Legislature.
The area is the only one in South Dakota covered under the federal Voting
Rights Act. Jim Fry, director of the Legislative Research Council, said the
U.S. Justice Department will not decide whether to approve District 27 until
after the Legislature's special session.
http://www.yankton.net/stories/100101/new_1001010021.shtml
Monday, October 1, 2001
Indian Rights Key To Redistricting
By CHET BROKAW
Associated Press Writer
PIERRE -- As a committee nears the end of its work to redraw the boundaries of
South Dakota's 35 legislative districts, questions remain on how the voting
rights of American Indians will be protected.
The Legislature's Redistricting Committee has not yet received the U.S. Justice
Department's opinion on a planned district covering the Pine Ridge and Rosebud
Sioux reservations.
The committee also has not decided whether to preserve, in at least some form,
a special district that was set up a decade ago to give Indian voters on the
Cheyenne River and Standing Rock Sioux reservations a better chance of electing
their own member of the state House of Representatives.
The Redistricting Committee plans to meet Oct. 9 to make final recommendations.
The full Legislature will consider the redistricting plan in a special session
Oct. 23-25.
One of the committee's first decisions was to keep unchanged the legislative
district that includes the Pine Ridge and Rosebud reservations. District 27,
which includes Shannon and Todd counties along with a connecting strip across
southern Bennett County, has consistently elected Lakota people to the
Legislature.
That area is the only one in South Dakota specifically covered under the
federal Voting Rights Act, and lawmakers sought early federal approval for the
proposal to keep District 27 unchanged. U.S. Justice Department officials
supposedly could give ''pre-clearance'' to the plan before lawmakers approve it
in the special legislative session.
But Jim Fry, director of the Legislative Research Council, told the
Redistricting Committee last week that the Justice Department has said a
regulation forbids it from approving a state plan until a legislature has made
a final decision.
However, some Justice Department officials have indicated they may be able to
give guidance or approval for the Pine Ridge and Rosebud area before the
special legislative session begins Oct. 23, Fry said.
Lawmakers and residents of the area have argued that the district should not
change.
But the American Civil Liberties Union has suggested that two districts should
be drawn in the area to give Indians a chance to elect more people to the
Legislature. The ACLU's suggested two-district area would cover not only the
Pine Ridge and Rosebud reservations, but also would stretch up to include the
Lower Brule reservation on the Missouri River.
The existing District 27 packs Indians into a district with a high
concentration of Indian voters. Jennifer Ring, executive director of the ACLU
of the Dakotas, said Indians would have more political clout in the area with
two districts containing less concentrated Indian populations.
Members of the Redistricting Committee said they hope the Justice Department
will give an opinion on District 27 before the Legislature's special session.
If federal officials reject the district after the Legislature has approved it,
South Dakota would have to spend $30,000 for a second special legislative
session to change the district, said House Democratic Leader Mel Olson of
Mitchell.
The committee also heard last week from one lawmaker and two area residents who
want to preserve the single-member House district in the north-central part of
South Dakota.
All legislative districts elect one senator and two representatives at large,
except District 28, which is split into two House districts that each elects
its own House member.
Rep. Tom Van Norman, D-Eagle Butte, now represents the single-member House
district that covers Dewey, Ziebach and part of Corson counties, which includes
the Cheyenne River and Standing Rock Sioux Indian reservations. The other
single-member House district includes Harding and Perkins counties and parts of
Butte and Corson counties.
Boundaries in the area must be adjusted because of population changes the past
decade, but Van Norman said the single-member House district should be
preserved as close to its current shape as possible.
Van Norman, a member of the Cheyenne River Sioux Tribe, is the first Indian to
be elected to the Legislature to serve the Cheyenne River and Standing Rock
reservations.
Swift Bird resident Madonna Thunder Hawk, a member of the Cheyenne River Sioux
Tribe, said she has worked a long time to get tribal members interested in
registering and voting in state elections.
''This district needs to stand, if nothing else for equal opportunity, which I
believe is part of the language of the government of this country,'' she said.
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