Native American advocates criticize new election laws as civil rights group drafts recommendations

South Dakota’s Legislature passed 19 election-related bills over the winter, but Native American voting rights advocates say none of the bills addressed their concerns about voter suppression.

Meanwhile, some of those advocates are serving on a federal civil rights committee that’s developing recommendations to improve Native American participation in elections.

Republican leaders described bills they passed during the legislative session as proactive measures to increase trust in elections.

“We promised the voters we’d look under every rock to make it better, and we have a package of legislation to do just that,” House Majority Leader Will Mortenson, R-Pierre, said in a statement announcing the legislative package. Mortenson is an enrolled member of the Cheyenne River Sioux Tribe.

But that message sounded tone-deaf to Natalie Stites Means, the founder of HeSapa Voter Initiative, a Native American voting rights advocacy organization. She said Native American voters in South Dakota have long expressed a range of concerns, including barriers to voter registration and limited access to polling places.

Stites Means said none of the recently adopted bills address those problems, “further breaking down our faith in this election system.”

History of problems

OJ Semans agrees. He’s the co-founder of Four Directions, an organization that advocates for Native American voting rights and works on Native voter engagement. 

“They’re not too concerned about our people’s faith in elections,” Semans said of legislators. “There are plenty of Natives that do not trust the government, think elections are rigged. Some older Natives have to see their ballot enter the box on the day of the election.”

Semans said courts have repeatedly verified Native Americans’ concerns:

• In the “motor-voter” case (2019), tribes filed a lawsuit against the state and won a settlement in which the state agreed to take several steps to improve voter registration services.
• In Poor Bear v. Jackson County (2014), the county was accused of violating the Voting Rights Act and the Constitution’s Equal Protection Clause by failing to provide voter registration services at a location on a Native American reservation, and after the lawsuit was filed, the county agreed to provide services at the location in question.
• In Blackmoon v. Charles Mix County (2007), a federal judge found the county violated the one-person, one-vote principle of the 14th Amendment, and the county was ordered to redraw a district boundary to provide for better representation.
• In Bone Shirt v. Hazeltine (2006), a federal judge ruled the state’s redistricting plan violated the Voting Rights Act and ordered the state to redraw district boundaries to provide for better representation.

“It’s ironic to watch,” Semans said. “The state and counties only defend our voting rights when the courts make them.”

Semans said the simplest thing the state could do to increase tribal trust in the state’s election system is to enforce existing state and federal laws.

Sara Frankenstein is an attorney who has represented South Dakota counties against multiple lawsuits alleging infringement of Native Americans’ voting rights. She said most of her cases could have been settled without going to court, but advocacy groups rush things “so they can claim a win.”

“The real issue is, usually, that counties don’t have the money or know-how to implement the plaintiff’s request,” Frankenstein said. “These are people who are elected. They are not lawyers and we cannot expect them to be.”

Regardless of the intent, the outcome is the same, according to Bret Healy, a Four Directions consultant and former executive director of the South Dakota Democratic Party. He said Republicans are more concerned with preventing fraud than addressing voter access and participation.

“And those problems are not imagined. The problems of fraud are,” Healy said. 

New election laws

Rep. Mortenson said access is a priority for him and other Republican leaders. 

“We protected our early voting window, which is one of the longest in the nation,” Mortenson said. “This means that folks can vote almost two months in advance. Whether you’re in Sisseton or Sioux Falls, you have full access to vote whenever is convenient for you.”

Attempts to shorten the state’s early voting window came from other Republicans.

Bills that passed during the legislative session, which ended in March, include a mandate for public testing of ballot tabulation machines, and a bill that effectively bans ballot drop boxes by requiring them be placed indoors, monitored, and only used during office hours. Additionally, a system for post-election audits has been established, and other new laws will enhance penalties for petition circulation perjury, and ban ranked-choice voting.

Mortenson said the security of the state’s elections “is just as important in Indian Country as it is anywhere. Our bills to strengthen our election system will help voters across South Dakota to know their votes mattered.”

But choosing not to shorten the state’s two-month voting window and adding more security measures means little to those who say their nearest polling place is an unfair distance away, according to Kellen Returns From Scout, a Native American rights advocate.

“This can be particularly problematic for those who do not have access to transportation or who have limited mobility,” Returns From Scout said. 

If anything, Returns From Scout said, the state countered advocates’ efforts. He pointed to a failed effort he participated in to relocate a county seat closer to where the Native American population lives. One of the 19 election bills that passed this year makes it more difficult to relocate a county seat, in part by raising the number of petitions needed to get the matter on the ballot. 

Draft recommendations

In the wake of concerns raised by some Native American voters about barriers to voting in the state, the South Dakota Advisory Committee to the U.S. Commission on Civil Rights decided to take action.

The U.S. Commission on Civil Rights is an independent, bipartisan agency established in 1957. The commission’s mission is to investigate and report on issues related to civil rights, and to make recommendations to ensure all people are afforded equal protection under the law.

The commission’s South Dakota Advisory Committee has held a series of meetings in the past couple of years to gather information on voting rights and voter access, with a focus on Native Americans.

The group is now developing non-binding recommendations for the federal, state and local levels. The draft recommendations include funding voter transportation and mobile polling locations, designating Indian Health Service locations as places people can register to vote, undertaking efforts to ensure an accurate census, educating voters that they do not need identification to register to vote, and encouraging drop boxes on reservations.

Charles Abourezk is an advisory committee member, as well as chief judge of the Oglala Sioux Tribal Court and chief justice of the Rosebud Sioux Tribal Supreme Court. He’s optimistic that the implementation of the recommendations would improve Native American voter participation and trust in the state’s election process.

And in the end, the state would “avoid a lot of litigation, and I would say very expensive litigation,” Abourezk said during the working group’s April 10 meeting. 

The group plans to finalize and submit its recommendations in the coming months.