Here is the complaint in United States v. Chamberlain School District (D.S.D.):
A Montana court has issued a temporary restraining order blocking a state law that severely restricts Native Americans’ right to vote. The Montana Ballot Interference Prevention ACT (BIPA) imposed severe restrictions on ballot collection efforts that are critical to Native American voters, particularly those living on rural reservations. The TRO means the law is blocked pending the outcome of a hearing scheduled for May 29. The primary is June 2.
Read more about the lawsuit, Western Native Voice v. Stapleton.
On May 20, 2020, the Rosebud Sioux Tribe, the Oglala Sioux Tribe, and Four Directions, a non-profit group that works to encourage civic participation in Indian Country, notified South Dakota officials of serious and ongoing violations of federal requirements for providing voter registration opportunities through public assistance agencies and departments of motor vehicles. The notice letter, directed to the Secretary of State as the state’s chief elections official, asks state officials to respond within 20 days to avoid the need for federal court litigation. In this matter, the Tribes are represented by the Native American Rights Fund (NARF) and Four Directions is represented by Demos.
Under the National Voter Registration Act (NVRA), state public assistance agencies and motor vehicle offices are required to provide voter registration services when people are applying for services, renewing their eligibility, and providing change-of-address information. The notice letter documents a steep drop in voter registration applications from public assistance agencies in recent years, and other clear evidence of non-compliance with the NVRA.
“When you go to a state office, such as to get your driver’s license or to apply for public assistance, you are supposed to be able to register to vote at the same time. The state is supposed to facilitate voter registration, but that is not what is happening in South Dakota. Reservation residents in particular are not being given this opportunity, and it is driving down voter participation,” said NARF Staff Attorney Natalie Landreth.
Brenda Wright, Senior Advisor for Legal Strategies at Demos, representing Four Directions, stated: “Access to voter registration through government agencies is more important now than ever, given the difficulties of conducting traditional door-to-door registration drives. Demos has worked in many states to improve agency-based voter registration, and we hope that South Dakota officials will also work with us to ensure that South Dakotans can participate fully in the upcoming elections.”
O.J. Semans, Jr., speaking on behalf of Four Directions, stated, “My wife Barb and I are deeply concerned that Native Americans are losing the opportunity to register through South Dakota’s public assistance agencies and when getting a driver’s license. We’ve worked with the former Secretary of State, the Help America Vote Act task force and the election board in the past on developing formulas to create satellite offices on Indian Reservations. It is our hope that the state of South Dakota will once again work with us to ensure full participation in the 2020 Elections and beyond.”
The violations described in the letter include:
- Failure to provide voter registration applications to persons during all public benefits transactions required by the NVRA
- Failure to update applicants’ voter registration address when they report a change of address to public benefits agencies
- Failure to provide voter registration services to persons who lack either a social security number or driver’s license
Under the NVRA, the Native American groups named in the notice letter may initiate litigation in federal court as soon as 20 days after the notice letter, if state officials do not remedy the violations during that time frame. The notice letter urges the state officials to indicate whether they are willing to engage in compliance discussions before the 20-day period expires.
In the wake of the district court’s denial of the State’s motion to dismiss, the Secretary of State has agreed to settle two federal voting rights lawsuits brought by two Native American Tribes and several individual voters over North Dakota’s voter ID law.
The law requires voters to present identification listing their residential street address – a substantial hurdle for many Native Americans living on reservations, because the state has failed to assign residential street addresses to homes on tribal reservations.
In January 2016, eight Native Americans, represented by the Native American Rights Fund (NARF), Tom Dickson and Rich de Bodo filed suit to block the North Dakota voter ID law, which disenfranchised Native American voters and violated both state and federal constitutions as well as the Voting Rights Act.
On October 30, 2018, NARF, Campaign Legal Center (CLC), Robins Kaplan LLP, and Cohen Milstein Sellers and Toll PLLC filed a separate lawsuit on behalf of the Spirit Lake Tribe and six individual plaintiffs to ensure that eligible Native American voters residing on reservations in North Dakota would be able to cast a ballot in the 2018 midterm elections and in all future elections. The Standing Rock Sioux Tribe, with approximately 5,868 residents of voting-age that could be affected by the law, joined the Spirit Lake case in early 2019.
“This fight has been ongoing for over four years, and we are delighted to come to an agreement that protects native voters,” said Matthew Campbell, attorney for the Native American Rights Fund. “It has always been our goal to ensure that every native person in North Dakota has an equal opportunity to vote, and we have achieved that today. We thank the Spirit Lake Nation, Standing Rock Sioux Tribe, and the individual native voters that stood up for the right to vote.”
“We are pleased with the result of the settlement. It was a breakthrough for the state to recognize its responsibility to ensure that Native Americans have access to the identification needed to exercise their voting rights,” said Paul Smith, vice president at CLC. “In order to have a successful 2020 election, the state must follow through with a robust voter and poll worker education campaign to ensure that proper protocols are followed so people aren’t rejected because of the state’s failed addressing system.”
Facing a trial date in the Spirit Lake case in May of this year, the Secretary of State announced an emergency rulemaking last week in an attempt to address some of the issues raised by the lawsuit. At an in-person mediation at the North Dakota capitol on February 6, 2020 with representatives from the Spirit Lake Nation and attorneys from CLC and NARF, the Secretary agreed to take additional steps to ensure that eligible Native American voters are not disenfranchised due to the restrictive voter ID law.
Because of the state’s broken addressing system, many Native Americans living on reservations do not have or do not know their residential addresses, and are therefore unable to comply with the North Dakota voter ID law. During the 2018 election, the Spirit Lake Nation and the Standing Rock Sioux tribe expended substantial resources to ensure that their tribal members would have the identification necessary to vote, including by shouldering the burden of identifying and providing residential street addresses for their members.
The unique burdens faced by Native Americans in North Dakota – including a severe housing shortage – mean that tribal members are much more likely to have moved in the intervening time, or to be homeless or precariously housed. As a result, determining members’ residential addresses – and providing them with the documentation necessary to vote – is an ongoing effort that requires substantial resources.
Details of the agreement
In addition to the previously announced rulemaking, which requires the state to recognize tribal IDs and supplemental documentation issued to tribal members, the Secretary has agreed to enter into a binding consent decree, enforced by a federal court order, which will ensure that Native American voters who do not have or do not know their residential street address are able to vote.
The Secretary of State also agreed to work with the Department of Transportation to develop and implement a program with tribal governments to distribute free non-driver photo IDs on every reservation statewide within 30 days of future statewide elections.
In the 2020 election, Native American voters will have the opportunity to mark their residence on a map, a process that is commonly used by voters in other states. The burden will then shift to the state to verify the residential street addresses for these voters, to provide that information to the voter and the tribe, and to ensure those voters’ ballots are counted.
The court-ordered consent decree will include details about what the state must do to educate the public and train poll workers on the new procedures, as well as measures designed to enable the Tribes to ensure the state is complying with its obligations under the agreement.
Here is the opinion in Democratic National Committee v. Hobbs. A powerful history of the State’s suppression of Native voting begins on page 54 of Judge Fletcher’s majority opinion. The work of Patty Ferguson-Bohnee is cited repeatedly on this point.