Why isn’t it a crime for a state government to suppress the Indian vote?

It’s a story as old as the colonial frontier, where state and local governments did everything they could to cheat Native Nations. They only honored treaties or federal laws if and when they were sued in court and lost.

These systemic problems keep happening because states face no consequences for bad-faith actions.

There are many examples, but today we look at a recent voter suppression case in South Dakota. The law is clear, yet the state chooses to be willfully ignorant of legitimate grievances.

An investigation in South Dakota “uncovered rampant noncompliance” with the National Voter Registration Act across the state, “particularly in Native communities,” the Native American Rights Fund (NARF) wrote.

The federal law aims to increase voter participation. This includes linking voter registration updates to other places where people interact with the government, such as when people apply for a driver’s license or public assistance.

The Rosebud and Oglala Sioux tribes and NARF sued the South Dakota Secretary of State, the Department of Public Safety and other state entities for failing to meet federal voting law.

On Thursday, The U.S. District Court for the State of South Dakota, Western Division, ruled in the tribes’ favor on multiple claims.

NARF Staff Attorney Samantha Kelt called it “a huge win for all of South Dakota.”

The decision “is one victory amongst a long history of denying and suppressing Natives’ right to vote in South Dakota and beyond,” she said. “This is a first step in eliminating years of South Dakota’s willful neglect in complying with the [National Voting Rights Act]. We hope that this increases the number of eligible citizens who are able to register to vote in South Dakota. It is crucial that we continue to fight to eliminate all obstacles to the Native vote.”

The National Voting Rights Act requires that when someone applies to change their drivers license address, that change of address also should be forwarded to the appropriate agency to update the individual’s voter registration.

Plaintiffs alleged the South Dakota Department of Public Safety (DPS) hasn’t complied with federal law, citing numerous errors in transmitting the address changes to update voter rolls.

Further, while federal law allows people to opt out of having their voter registration address updated in such cases, South Dakota DPS did the opposite: It required people to opt-in to update their voter registration information. That violated federal law, the court said.

There were particular problems with voter registration in Indian Country, Plaintiffs said. In areas where DPS doesn’t have a drivers license office, it contracts with another government agency to provide the service. (One example is in the city of Dupree, within the Cheyenne River Sioux Reservation.)

Plaintiffs said that employees at these contracted sites had inadequate training and oversight in what federal law requires. Those staff could end up referring prospective voters to the County Treasurer or County Auditor instead of providing on-site help.

Based on the record, the court agreed.

Similar problems occurred at the South Dakota Department of Social Services. Federal law says when people go to update their address for various public assistance programs, it should trigger an update to their voter registration information.

The court agreed with Plaintiffs that the Department of Social Services had failed to follow the law.

Plaintiffs alleged that the South Dakota Secretary of State — the state’s chief elections officer — is obligated to comply with the National Voting Rights Act and hasn’t. For instance, it’s failed to provide adequate training and oversight of state agencies such as the Department of Public Safety and the Department of Social Services regarding federal law requirements.

Again, the court agreed.

Voter suppression takes many forms. It can be blatant, such as voter intimidation or providing an inadequate number of polling places in areas with disproportionate numbers of poor and BIPOC residents.

Voter suppression can be subtle, such as South Dakota’s action to ignore federal laws meant to improve voter participation.

In South Dakota’s case, it isn’t a failure of a single state agency; it’s system wide.

Native American Rights Fund attorneys and others wrote South Dakota Secretary of State Steve Barnett May 20, 2020 relaying complaints from the Rosebud and Oglala Sioux tribes and others regarding the state’s failure to comply with federal voting rights law.

Receiving an unsatisfactory response, they filed a complaint in court on Sept. 16, 2020.

Instead of responding to legitimate problems, the state of South Dakota sought to have the case dismissed. (South Dakota’s admitting its actions were intentional.)

It’s been two years since the state was put on notice about these problems. Now it has lost in court. Perhaps it will appeal.

The state is able to drag its feet because it faces no consequences for blatant failures to meet federal law.

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