South Dakota ruled noncompliant with federal voter law, interfering with Native American voting rights


RAPID CITY, S.D. – On May 26th, a Federal court ruled that the state of South Dakota was in violation of the National Voter Registration Act (NVRA) on reservations throughout the state.

Federal District Judge Lawrence Piersol found that Steve Barnett, Secretary of State, the Department of Social Services (DSS), and the Department of Public Safety (DPS) failed to uphold the NVRA which requires the state agencies to offer clients the option to register to vote when applying for or renewing a driver’s license and when applying for public economic assistance.

Judge Piersol found that the DSS and the DPS failed to deliver voter registration applications to County Auditor’s Offices in a timely manner. Some forms were not sent in at all due to errors on the forms. He also found that the DSS was not assigning identification numbers to those who wanted to register to vote but did not have a Social Security card or State ID.  Instead, these individuals were referred to the County Auditor’s Office.

Hoksila White Mountain from the Standing Rock Sioux Tribe ran for mayor in McLaughlin during the 2020 election. He was surprised to find that many of his constituents were turned away from the polls because they were not registered to vote.

“I initiated my campaign and a good portion of the people who were voting for me, Native Americans, and coincidentally a lot of them were from low socioeconomic backgrounds and none of them were coming up on the registration. None of them were able to vote when it came down to the mayor election. And even before that when I was having to get signatures for the affidavit, the ones that were in town, none of them were able to be on the register and some of them were on food stamps and assistance,” said White Mountain. “So some of them should have been offered that and been registered based on that.  The other problem was people who signed up for registration and through a program that was supposed to register all of the people on Standing Rock over the age of 18. And somehow there was a lapse to where not all of them was able to, I guess, get registered.”

“So there was probably about ten voters that I seen while I was waiting in line to actually vote for myself that got turned around, like friendly people, that I knew were there because this would have been the first time that someone as a Native American would have been actually really running for the mayor election. So Native Americans were actually kind of gung-ho for it and were showing up to try to vote for me. And here none of them were registered. We did realize how it kind of really drastically affected the election just in that specific spot,” he said.

He then contacted the Lakota People’s Law Project and the Native American Rights Fund which filed the lawsuit along with members of the Oglala and Rosebud Sioux Tribes and tribal members Hoksila White Mountain and Kimberly Dillon. The plaintiffs were represented by the Native American Rights Fund, Demos, and the civil rights law firm Wardenski P.C., and Terry Pechota of Rapid City.

The investigation by the law firms started in 2019 and found NVRA violations throughout the state, not just on the two reservations named in the lawsuit.

“We uncovered a lot of problems throughout reservations, and just across the state and found that in fact those violations and those problems were agency wide, from forms, to service, to training, and there were failures to comply with the NVRA,” said Samantha Kelty, Native American Rights Fund Staff Attorney.

The Rosebud Sioux Tribe reports a decline in voter registration over a 12 year period with voter registration declining 84 percent between 2004-2016, yet there was an 80 percent increase in those receiving food stamps.

“Our research had shown that the number of people that South Dakota has reported registering through its public assistance agencies has declined sharply in recent years, from 7,000
in the 2004 election cycle to just 1,100 in the 2016 cycle, despite monthly food stamp participation increasing from 53,459 in 2004 to 95,983 in 2016. In 2004, up to 13% of SNAP clients submitted a voter registration application through DSS, whereas in 2016 a maximum of 1.1% of clients did so. The voter registration rate was 11.8 times lower in 2016 than in 2004,” stated Scott Herman, President of the Rosebud Sioux Tribe.

Kely said that there are obstacles for Native voters from beginning to end in the voting process from registration, to ballot access, polling places and having votes counted.

“Reservations present structural issues that then the government takes advantage of. For example, there are vast distances on many reservations, and counties will take advantage of this by placing the polling place so far away that it’s too far for a voter to get to who doesn’t have a reliable vehicle or money for gas,” she said. “Another thing they’ll do is make sure that the polling places only open limited hours or during the day when Native voters are working and can’t make it to the polling place. But we found that when there is equal access to representation, the results are just profound. Token representation is replaced with meaningful representation and native issues, like sovereignty and land and water are protected and people listen and native voices are heard.”

“Like all disenfranchised communities, Native voters must continually fight for our right to vote. This important win will set precedent that other tribal governments, other Native voters, and other voters of color can use to defend the guarantees of the National Voter Registration Act,” said Chase Iron Eyes, Lakota People’s Law Project Lead Counsel and Co-Director.

“I’m hoping that this does start to really affect the I guess, how our our voices are heard. That’s what I really want to be. Make sure that the Native Americans can be heard. I’m sitting here hoping that a lot more Native Americans will be automatically enrolled voters. I think that could have a really big impact on not only just these local governments of McLaughlin, but also as the state government as a whole,” said White Mountain.

White Mountain believes that the judgement in this case will not help American Indians but everyone in a lower socioeconomic status who’s voices are also not being heard.

“I think that they need to start recognizing not just to get the what we could say the Native American vote, but also like the poor non-Native vote, and make sure that we start getting them people registered, too, because their voices need to be heard,” he said. “Next, we need to make sure that we’re listening to them because that might cause things to be turned up all the way around to. Too many times I believe that it’s the government and different other entities are dividing this country based on race. But in reality, it isn’t a divide on race. It’s a divide on money. It’s the rich against the poor.”

“It was a big win for all of South Dakota, really, not just Native voters and not just reservation voters. As you know that the voter registration process is a gateway to full participation in democracy. And we’re so excited that now South Dakota will start taking the federal law seriously. And we hope that that results in more eligible voters being registered to vote throughout South Dakota,” said Kelty. “We hope that South Dakota pays more attention to this law and ensures that it’s implemented to its fullest extent and results in more eligible voters across South Dakota. We’re working on ensuring that Judge Piersol order is implemented and South Dakota really implements an VRA. So that’s true empowerment when if you can show up vote for representatives who will echo your concerns, address your concerns. And that’s what we’re trying to make happen.”

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