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S.D. Sued Over Voting Regulations
Web posted Tuesday, August 6, 2002
http://www.yankton.net/stories/080602/new_20020806019.shtml
By JOE KAFKA
Associated Press Writer
PIERRE -- State and county officials have ignored a federal law that
protects minorities, such as American Indians, from voting discrimination,
a lawsuit by the American Civil Liberties Union alleges.
The ACLU filed the lawsuit Monday in U.S. District Court in Rapid City on
behalf of officials and members of the Oglala and Rosebud Sioux tribes.
Proposed laws and regulations that have affected voters in Shannon and Todd
counties since Nov. 1, 1972, must be approved by federal officials or
judges, the U.S. attorney general determined in 1976.
The ACLU says South Dakota officials have sought approval of election
changes fewer than 10 times since then. The group's lawsuit challenges some
600 laws and regulations passed since Nov. 1, 1972.
"The sheer volume of election-related laws at issue in this case makes this
the largest voting rights lawsuit ever filed,'' said Bryan Sells, an ACLU
attorney.
South Dakota's secretary of state was told by then-Attorney General Bill
Janklow, who is now governor, not to comply with the Section 5 of the
Voting Rights Act, which requires approval of election law changes in
Shannon and Todd counties either by the Justice Department or U.S. District
Court in Washington, D.C., the ACLU says.
In the 1977 attorney general's opinion, which was requested by
then-Secretary of State Lorna Herseth, Janklow recommended that she not
submit any proposed changes in voting laws and regulations for federal
approval until a state lawsuit over the Voting Rights Act was settled. He
also said it would be premature to submit proposed changes because Congress
was then considering changes in the act.
"Section 5 was enacted so the federal government could ensure that states'
election laws did not discriminate against populations who have experienced
a history of discrimination,'' said Jennifer Ring, executive director of
ACLU of the Dakotas. "But since 1975, South Dakota has adopted a renegade
position and openly flouted compliance with this important law.''
Chris Nelson, state election supervisor, said Monday he was aware of the
lawsuit but would not comment because he had not yet reviewed the
allegations raised by the ACLU.
Nelson, a Republican running against Democrat Kate Looby of Sioux Falls for
secretary of state, had earlier told a reporter for National Public Radio
that South Dakota has not ignored the Voting Rights Act. He said any
proposed changes in voting regulations in Shannon and Todd counties are
sent to the Justice Department for review.
"Essentially ... we have to prove that the election law won't be regressive
so far as the voting rights of the folks in those two counties,'' Nelson
told NPR. ŒŒWe've never had any problem getting the approval.''
The U.S. Supreme Court ruled in 1992 that any changes in election laws or
regulations that must be approved under the Voting Rights Act must have a
direct connection to voting. It listed such things as changes in the manner
of voting, in candidacy requirements and qualifications, in the composition
of those who may vote for candidates for certain offices and changes
affecting the creation or abolition of elective offices.
ACLU wants the judge to bar the state from enforcing any of the 600 or so
election laws and regulations until they have been reviewed by the Justice
Department or the federal court in Washington.
Indians in the two counties have been deprived of their voting rights
because of failure to get the changes approved, the lawsuit alleges.
The case was filed on behalf of Shannon County tribal elder Elaine Quick
Bear Quiver, Todd County tribal member Alfred Bone Shirt, Oglala Sioux
Tribe Vice President Teresa Two Bulls and Rosebud Sioux Tribe Vice
President Vernon Schmidt.
"We are a proud people, and all we seek is an opportunity to have a
voice,'' said Quick Bear Quiver. ŒŒMany members of the Great Sioux Nation
do not vote because they have become so discouraged that they feel their
votes won't make a difference.''
SOUTH DAKOTA: INDIANS SUE OVER VOTING
August 6, 2002
National Briefing: Plains
Members of the Lakota and Sioux tribes filed what their lawyers called the largest voting rights lawsuit ever. The lawsuit accuses South Dakota state and county officials of violating federal election laws more than 600 times in three decades. It says state officials have ignored a legal obligation to submit changes in election laws to the United States attorney general for approval. The state's secretary of state, Joyce Hazeltine, said the suit was unnecessary in light of a state submission to the attorney general last week. Adam Liptak (NYT)
Groups Sue S.D. Over Election Laws
The Associated Press
Washington Post
Tuesday, August 6, 2002; 4:22 AM
PIERRE, S.D. Members of American Indian tribes said in a lawsuit that
state and county officials have failed to seek approval from federal judges
or the Justice Department for changes to South Dakota election laws.
The suit filed Monday said state officials have ignored legal requirements
that they submit for approval all changes to election laws in Shannon and
Todd counties since November 1972. It said officials have made roughly 600
changes but sought approval only 10 times.
State election supervisor Chris Nelson told National Public Radio that any
proposed changes in voting regulations are sent to the Justice Department
for review. He later told The Associated Press he could not comment on the
suit because he had not reviewed the allegations.
The plaintiffs, represented by the American Civil Liberties Union, want a
judge to bar the state from enforcing any of the roughly 600 changes until
they have been reviewed by the Justice Department or federal judges in
Washington.
© 2002 The Associated Press
Lawsuit: State snubs voting act
Lee Williams
Argus Leader
published: 8/6/2002
http://www.argusleader.com/news/Tuesdayarticle1.shtml
In '77 opinion, Janklow advised against complying with law
For years, state and local officials in South Dakota have ignored a federal
law designed to protect Native Americans from voter discrimination, a
lawsuit filed Monday claims.
Representatives of the American Civil Liberties Union, which filed the
lawsuit in Rapid City, say it is the largest voting-rights challenge ever
brought.
The lawsuit accuses state and local officials of failing to obtain U.S.
Justice Department approval, known as preclearance, for more than 600 laws
and regulations passed since 1972 that affect Native American voters in
Shannon and Todd counties.
The ACLU says South Dakota officials should have sought approval of all
proposed voting laws and regulations affecting those counties in that time.
Instead, the state has sought federal approval fewer than 10 times.
"The sheer volume of election-related laws at issue in this case makes this
the largest voting-rights lawsuit ever filed," said Bryan Sells, an ACLU
attorney.
The ACLU filed the lawsuit on behalf of two Lakota elders and two tribal
officials from Todd and Shannon counties.
At issue is Section 5 of the Voting Rights Act of 1965, which requires
certain states or counties with minority populations to obtain Justice
Department preclearance for new voting laws or regulations before they are
implemented. The act is designed to protect minorities, such as Native
Americans, from voting discrimination. The U.S. Attorney General determined
in 1976 that the measure applied to all voting laws approved since Nov. 1,
1972.
Punishment for violating the federal law includes up to five years in a
federal prison and a $5,000 fine.
The ACLU says South Dakota officials ignored the federal requirements after
receiving a 1977 opinion by then-Attorney General Bill Janklow advising
against compliance.
In the opinion, Janklow said the secretary of state should wait to comply
with the law while the state attempted a "bailout" of the federal
requirements, through a court challenge.
No such legal challenge was ever filed.
The ACLU lawsuit seeks a court order barring South Dakota from implementing
any election statutes until it has complied with federal law.
That brings into question the validity of the hundreds of statutes and
regulations passed by the South Dakota Legislature since the Voting Rights
Act became law. The U.S. Supreme Court has ruled the act covers election
laws or regulations that have a direct connection to voting. It lists such
things as changes in the manner of voting, in candidacy requirements and
qualifications, and in the composition of those who may vote for candidates
for certain offices and changes affecting the creation or abolition of
elective offices.
"The only comparison I can draw is to the years following passage of the
Voting Rights Act," Sells said. "In the late '60s, some Southern states
ignored Section 5, and lawsuits were filed to bring them into compliance,
but they had only been out of compliance for a few years."
On Friday, Secretary of State Joyce Hazeltine, who is listed as a defendant
in the lawsuit along with two county auditors, sent a memo to the
Department of Justice. "Please consider this letter the application of the
State of South Dakota for preclearance of its election code and
regulations, including all 2002 changes as applied to Todd and Shannon
counties," Hazeltine wrote.
The ACLU alleges the memo was an attempt by the state to stave off the
impending legal action.
In an interview Monday, Hazeltine said she wasn't sure if the state was in
compliance with federal regulations.
"We think so, but we don't know what they're going to do," she said.
But in a written statement issued Monday afternoon, Hazeltine accused the
ACLU of attempting to grab attorneys' fees and headlines by contacting
national media such as Time magazine in advance of filing the lawsuit.
"The lawsuit brought by the ACLU on Monday was totally unnecessary,"
Hazeltine said in the statement. "The ACLU knew that my office filed 380
pages of election laws last week on Thursday with the U.S. Department of
Justice for review, yet the ACLU proceeded to file the suit anyway and to
top it off issued a news release containing a deliberate falsehood claiming
we had filed only a one-page memo."
Sells said many of Hazeltine's submissions to the Justice Department do not
address the statutes listed in the lawsuit.
"The state's last-minute submission is so inadequate that we see it as
another attempt to avoid actual compliance with federal law," Sells said.
"This further emphasizes the need for intervention by the courts."
Comparison to South
Sells said many of the South Dakota voting laws in question are not
objectionable, but some raise concerns.
"The bottom line is that we spotted a couple mechanisms that were used in
the South that we think are discriminatory," Sells said.
Court documents show that in 1976, the attorney general determined that
Shannon and Todd counties were covered by the Voting Rights Act because of
the Native American populations there.
Although the state of South Dakota as a whole is not covered by the act,
any change to state law that affects those two reservation counties needs
federal preclearance.
In 1977, then-Secretary of State Lorna Herseth asked Janklow for a written
opinion on the federal act. She wanted to know whether all state statutes
needed to be precleared by the Justice Department.
In his written response, Janklow didn't hide his resentment of the Voting
Rights Act, but he found that the two counties were covered under the
federal law.
"The federal law (perhaps unconstitutionally) purports to suspend the
effectiveness of such state laws and regulations in Shannon and Todd
counties until they have been precleared," Janklow wrote. "... I cannot in
good faith recommend that your office and the State Board of Elections be
unnecessarily subjected to the bureaucratic agony of obtaining immediate
preclearance. ... I see no need to subject our State's laws to a Ôone-man
veto' by the United States Attorney General."
In the opinion, Janklow advised the secretary of state to await an attempt
by the state to "bail out" of coverage of the act by filing a lawsuit or a
constitutional challenge.
But no bailout attempt ever occurred.
Janklow was elected governor in 1978 and re-elected in 1982, 1994 and 1998.
On Monday, Janklow's press secretary, Bob Mercer, said he asked if such a
bailout was attempted.
"I went to the attorney general's office and asked, but to their knowledge,
no. I don't know why," Mercer said.
Janklow did not return a call seeking comment, but Mercer said he also
asked the governor about the bailout.
"He (Janklow) can't remember why they did not pursue the bailout action,"
Mercer said.
Sells said Janklow erred in telling the secretary of state to wait and in
advising her not to comply immediately with the law.
"I don't understand where he was coming from," Sells said. "I'll give the
man the benefit of the doubt. His intent was to save the secretary of state
some work, but that doesn't explain 30 years of noncompliance."
Jennifer Ring, executive director of the ACLU of the Dakotas, agreed.
"I was surprised by the almost unbelievable arrogance," Ring said. "The
idea that the state has submitted almost nothing for preclearance in close
to 30 years is disturbing."
Theresa Two Bulls, vice president of the Oglala Sioux Tribe, is one of the
lawsuit's four plaintiffs.
"It's about time the state government realized Native Americans are here.
We've always been here," Two Bulls said. "They need to start treating us
equally and start adhering to their own laws. We're a nation with their
nation, and we need to be treated fairly and justly."
Vernon Schmidt, vice chair of the Rosebud Sioux Tribe and another
plaintiff, said when he heard of the action, he immediately chose to get
involved.
"With that many violations, there's going to have to be some action now,"
he said. "I just hope it won't be too drawn out."
Two Bulls said she was not surprised when she first heard allegations that
state officials have been ignoring the federal laws.
"They've been treating us like that since the 1800s," Two Bulls said. "Now
is the time to change that."
The Associated Press contributed to this report. Reach special projects
reporter Lee Williams at lwilliams@ argusleader.com or 331-2318.
August 5, 2002
Secretary of State Joyce Hazeltine has issued the following statement in response to the lawsuit the American Civil Liberties Union brought against her today.
"The lawsuit brought by the ACLU on Monday was totally unnecessary. The ACLU knew that my office filed 380 pages of election laws last week on Thursday with the U.S. Department of Justice for review, yet the ACLU proceeded to file the suit anyway and to top it off issued a news release containing a deliberate falsehood claiming we had filed only a one-page memo. The ACLU suit appears in reality to be an attempt to grab attorney fees and headlines, as shown by the ACLU's advance contacts to national media organizations last week such as Time magazine and National Public Radio days before they filed the suit. In fact, NPR ran its story Monday morning, before the ACLU filed the suit. The State of South Dakota has worked with the U.S. Department of Justice in the past to comply with the Voting Rights Act on major changes. The federal court's decision in the Bone Shirt voting rights case earlier this summer clarified that the state must submit every change, and the state has fulfilled that responsibility to the best of our knowledge with the filing of the 380 pages on Thursday. Prior to the filing of this lawsuit, no one has ever raised this as an issue to our office or made any allegation of discrimination in our state election statutes."
Largest voting rights lawsuit in US history
http://timesofindia.indiatimes.com/articleshow.asp?art_id=18142358
The Times of India
August 5, 2002
NEW YORK: The largest voting-rights lawsuit in US
history that could have an impact on a closely watched
Senate race this fall is expected to be filed in South
Dakota state.
Four Lakota Indians are challenging more than 600 poll
statutes that they say may have helped stymie the
political power of the state's large native American
population.
The suit, likely to be filed this week, would contest
voting regulations in two overwhelmingly American
Indian counties on the grounds that the state failed
to clear them with the Justice Department as required
by the Voting Rights Act of 1965, Time reported.
In a state where Indians make up 8 per cent of the
population, the suit could help galvanize Indian
voters to turn out for a Senate race that both parties
are making a priority as majority leader Tom Daschle
is fighting hard for Democratic incumbent Tim Johnson.
The suit could even force South Dakota to delay its
fall elections if the US District Court requires the
state to wait while the US Attorney General reviews
the disputed statutes.
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Photograph--Alfred Bone Shirt Sr. wearing a peace medal.