Republicans Want Indians to Pay for Fighting for Voting Rights

So much for Indian-White reconciliation.

Earlier this month Judge Karen Schreier dismissed Brooks v. Gant, an Indian voting-rights lawsuit brought by residents of the Pine Ridge reservation. The dismissal came only because the filing of the lawsuit forced Secretary of State Jason Gant to open a satellite voting station in Shannon County, thus fulfilling the demands of the plaintiffs.

The state claimed victory, and Rapid City lawyer Sara Frankenstein (who also happens to be treasurer of the state Republican Party) threatened the state might use that "victory" as grounds for demanding that the "losers" pay the counties' and state's court costs. Representatives of the plaintiffs said the threat to force poverty-stricken Indians to pay rich white folks' lawyers was so morally politically repugnant that it was probably just bluster:

“That’s breathtaking,” said Bret Healy, Four Directions consultant. “They have the insurance public officials typically hold to cover lawsuits. We all met the plaintiffs via their depositions—single parents, one with an epileptic child, others caring for infirm elders, from one of the poorest counties in the nation. The state of South Dakota and the counties are really going to do this? God have pity on their souls.”

“Won’t happen,” said [Four Directions co-director OJ] Semans. “It’s just a way to scare off Natives who might want to ask for equal rights in the future.”

“Granting costs would discourage plaintiffs from bringing suits to enforce the Voting Rights Act and would be contrary to the fundamental purpose of the Act,” agreed Laughlin McDonald, director emeritus of the ACLU Voting Rights Project. He also doubted it would happen.

McDonald, who has litigated Native enfranchisement cases since 1983, explained that a prevailing party in a federal case is ordinarily entitled to recover costs, but not when it comes to voting rights. “Federal courts have denied or severely limited recovery in those cases,” said McDonald.

What about recovering attorney’s fees? “I think such a motion would be filed in bad faith and even subject to sanctions,” said McDonald [Stephanie Woodard, "'They Caved': Tribe Claims Win in SD Voting-Rights Suit," Indian Country Today, 2013.08.13].

But Frankenstein wasn't bluffing. She has filed a motion to take over $6,000 in court costs from 25 Oglala Sioux Tribe members. Frankenstein says golly gee, she's not doing this "to be vindictive or send a message"; it's just what winners do in federal cases.

Four Directions calls that B.S. and has sent a letter of protest to various state officials, including Governor Dennis Daugaard. Here's a chance for the Governor to expand on his newly found reconciliatory spirit, admit that the counties and state "won" Brooks v. Gant only in technical terms, and tell Frankenstein to back off.

Instead, he kicks the Four Directions protest letter to Attorney General Marty Jackley, who flips Indians another finger:

In an emailed statement, Jackley said: “Under federal law, a prevailing party is permitted to request the court for certain allowable costs. The county defendants have made a request, and if there is an objection the federal court will determine whether and to what extent costs may be assessed” [Jonathan Ellis, "Voting Rights Case Settled, But Legal Costs Questions Isn't," that Sioux Falls paper, 2013.08.24].

Translation: Don't bother me. You uppity Injuns will get what's coming to you from the court.

Governor Daugaard seems happy to play the benevolent friend of the tribes when they humble themselves by asking for help and give him a chance to exercise the power of the state. But when they challenge the power of the state, when they have the gall to ask for protection of voting rights that they will likely use to vote for Republicans' opponents, Governor Daugaard lets his friends bully our tribal neighbors.

Governor Daugaard, you have lawyer Frankenstein's number. Give her a call, and tell her to let Brooks v. Gant go.

AG Jackley: No Crime in Rez Chili Feeds, Daugaard Soup Suppers

The latest news from Pierre: there is no news... at least not in the "Food for Votes" scandal the Republicans tried to manufacture last month. Attorney General Marty Jackley has ruled that the chili feeds sponsored by Democrats on three South Dakota Indian reservations in conjunction with get-out-the-vote efforts were not crimes, just as the Democrats said. AG Jackley has said the same about allegations the Dems responded with about similar Republican events that handed out food and encouraged people to vote GOP.

Jackley takes pains to encourage concerned parties to seek redress from the Legislature or even from civil courts. But the plain fact is this: there's no crime to prosecute, contrary to a whole month of distracting non-policy sturm und drang from the GOP.

I'm just relieved that I can still get some free soup from Dennis in 2014.

Jackley Tops Volesky in Madville Times Poll

Ron Volesky can't even catch a break on the blog that loves him best. The Madville Times asked you, eager readers, "Who gets your vote for South Dakota Attorney General?" You said...

Marty Jackley	88 (56%)
Ron Volesky	69 (44%)

Votes: 157

Even Madville Times readers are willing to concede that, short of Mr. Volesky hiring Mr. Dahle for an eight-day blitzkrieg campaign, Governor Rounds's appointee Mr. Jackley will likely get a full term to stick around and have fun filing more futile political lawsuits.

But as Mr. Mercer points out, Ron Volesky is the only Democratic lawyer in the last decade who's stepped forward to carry the Democratic banner in the AG's race. Ron may need some magic to pull closer to 50%+1, but he still has my respect for being willing to serve the party and the state.

Jackley vs. Volesky: Vote Now in New Madville Times Poll!

Hey! Let's poll the AG's race! Who's your pick for South Dakota's top cop: Republican incumbent and Rounds appointee Marty Jackley or Democratic challenger and Huron lawyer Ron Volesky?

Poll is open through breakfast Sunday: we'll talk about the results after that. Tell your friends, and vote now!

Further reading:

• Volesky gets a write-up on DailyKos from an author with deep concerns about GOP suppression of the Native American vote.
• Jackley has a campaign website; Volesky, alas, does not. But there's a good Volesky story on The Buffalo Post.
• Dakota War College writes off the challenger, while Badlands Blue says Volesky is not good at politics. Hmm... wouldn't the latter quality appeal to the Tea Party?
• Bob Mercer pairs the political trajectories of Volesky and Dem-gub candidate Scott Heidepriem.
  

VA on Medical Marijuana: Groovy, Man!

The U.S. Department of Veterans Affairs may be knocking the legs out from under South Dakota Attorney General Marty Jackley's position on medical marijuana. In his official ballot explanation for Initiated Measure 13, AG Jackley notes that the pot-related activities IM 13 would authorize remain illegal under federal law.

Enter the VA hospitals:

Patients treated at Veterans Affairs hospitals and clinics will be able to use medical marijuana in the 14 states where it's legal, according to new federal guidelines....

"If a veteran obtains and uses medical marijuana in a manner consistent with state law, testing positive for marijuana would not preclude the veteran from receiving opioids for pain management" in a VA facility, [V.A. Undersecretary for Health Dr. Robert A.] Petzel wrote. "The discretion to prescribe, or not prescribe, opioids in conjunction with medical marijuana, should be determined on clinical grounds" [Hope Yen, "Medical Marijuana to Be OK in Some VA Clinics," AP via Yahoo News, 2010.07.25].

This isn't the first time the Obama Administration has signaled a willingness to defer to states on medical marijuana. (Read that again, conservative friends: President Obama defers to states rights.) Of course, if President Obama believes marijuana laws aren't worth enforcing, he would do better for the rule of law by cowboying up and advocating outright abolition of those laws.

Jackley's ballot explanation may remain rechnically true, but if someone violates a federal law in the forest and the feds don't send agents to enforce it, does violation really make any noise?

Besides, why should Jackley make any noise about federal laws? He's all about states' rights—he should be defending South Dakotans' rights to challenge unjust federal laws, just as he's doing with his health care lawsuit... right?

Jackley Touts More States Making Wrong Call on Health Care Lawsuit

You're right, Pat: they are radical secessionsists....

South Dakota Attorney General Marty Jackley is all excited that there are more kids on the bus to go throw spitballs at federal health care law. Apparently we're up to 20 states and the National Federation of Independent Businesses signing on to the lawsuit against Uncle Sam and the best health care reform passed in 40 years... speaking of which, I still haven't heard AG Jackley or any of his co-litigants explain why they aren't suing to overturn Medicare, or Medicaid, or the 1996 welfare reform....

My argument stands: Jackley's lawsuit will lose. This is political theater that has a fair chance of hurting Republicans as they needlessly drag out an issue of which Americans have had enough for now. Jackley's hypocrisy is also laughable, as he simultaneously takes advantage of federal Medicaid law to sue Wyeth to get money for South Dakota. (Colorado, Nebraska, South Carolina, Utah, and Washington also missed the hypocrisy memo and have signed on to both lawsuits.)

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Bonus reading: Jackley will likely be reviewing the Obama Administration's response to a separate health care reform lawsuit for pointers on how he's going to get creamed when his argument comes to court.

SD Joins Lawsuit to Protect Gov't Health Care from Corporate Fraud

Now here's a health care lawsuit AG Jackley is right to pursue: South Dakota is joining sixteen other states to sue pharma-giant Wyeth for cheating Medicaid out of hundreds of millions of dollars. The suit alleges Wyeth gave hospitals big rebates on certain drugs but did not report or pass on those discounts to the state Medicaid programs.

See, when the states stand to get money, Marty Jackley is all about government health care. Now if he AG Jackley would just look up the Frontier States Amendment, he might drop that other silly health care lawsuit he filed in March.

And a note for folks girding for the battle over cost-control in health care: you can grumble about a granny here taking advantage of Medicare or an unemployed mom there abusing Medicaid to get some fancy medical treatment, but when one business can cheat taxpayers out of several hundred million dollars... well, maybe we should be concentrating on the big fish, not the small fry. Go get 'em, Marty!

Health Care Notes: Fair, But Not Enough

Before Attorney General Marty Jackley wastes any more of South Dakota's money making policy arguments to support his foolish lawsuit against health care reform, he should read this Christian Science Monitor essay on the health insurance mandate:

Conservatives like to argue that health care is not a right. But, in fact, it is. For years, federal law has required most hospitals to accept patients into their emergency rooms whether or not the sick and injured have the means to pay. If you run your car off the road and break your leg, the EMTs don’t demand to see your insurance card or ask, “credit or debit?” They trundle you off to the nearest hospital--which must fix you up.

This care is, of course, not free. Those of us who are insured pay for it. Indeed, the medical business survives on the black art of cost-shifting—that is to say, spreading the costs of those who can’t (or won’t) pay to those who can [Howard Gleckman, "Health care reform forces you to buy health insurance. That's fair. Here's why," Christian Science Monitor: Tax Vox, 2010.03.25].

Gleckman argues that, to be consistent, AG Jackley and fellow nullificationists ought to fight to overturn the E.R. mandate as well. It's unconstitutional to make hospitals care for anyone who doesn't have money, right?

That assumption—that we should only help people if we can get paid—underlies Jackley's lawsuit and much of the other defeated opposition to health care reform. That assumption, says Michael Moore, is the fundamental evil that health care reform has yet to challenge:

And the healthcare bill that was passed ultimately will be seen as a victory for capitalism, because it protected the capitalist model of providing healthcare for people. In other words, we’re not to help people unless there’s money to be made from it. That is so patently disgusting and immoral, but that’s the system. That’s where we live [Michael Moore, interview with Sharif Abdel Kouddous, "Michael Moore: Healthcare Bill 'A Victory for Capitalism'," Democracy Now, 2010.02.23].

We still have an inefficient and immoral health care system. We still need to work for an efficient and just single-payer system, like what we give our soldiers, veterans, and old folks.

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Update 2010.03.29 08:25 CDT: Aberdeen American News agrees with me that AG Jackley should "cool his jets." Down, Mainstream Media, down! Keep agreeing with this blog, and you'll make me look bad. ;-)

Fun with Marty: SD AG Jackley Joins Doomed Health Care Lawsuit

Our global warming resolution was embarrassing enough. Now South Dakota Attorney General is trying to get South Dakota on Rachel Maddow again, signing our good name, along with twelve other state AGs, to a really weak lawsuit against Uncle Sam to block health care reform.

I eagerly downloaded the document (eagerly hyperlinked by our state website [sorry! link since removed by state!]), hoping to find some profound legal arguments. Instead, I found pretty thin gruel, a bad mix of shaky Constitutional references and policy arguments more suited to the well of Congress or the campaign trail than a court of law. Here are some tidbits a judge will be throwing out shortly:

Paragraph 2: "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage." Nor does the Constitution authorize construction of a federal spaceport in Florida, but I haven't heard Florida AG Bill McCollum, lead plaintiff on this suit, ask the courts to nullify NASA.

Also not authorized by the Constitution: minimum wage legislation, development of the Internet, or federal definitions of marriage.

Paragraph 4 questions the federal government's power to establish eligibility guidelines and operating rules for Medicaid. The suit calls health care reform "an unprecedented encroachment on the sovereignty of the states." But it is precedented: welfare reform in 1996 imposed lots of new restrictions on how states administered social assistance programs. Republicans didn't see anything unconstitutional about that. Federal program, federal rules.

Paragraph 4 also undercuts the policy argument AG Jackley made on SDPB Dakota Midday Tuesday that the states can solve health care needs better. The lawsuit says state budgets are in dire straits and they can't afford to withdraw from Medicaid. The lawsuit states Medicaid has become "customary and necessary."

States can solve better, but only the federal government can solve. Which is it, Mr. Jackley?

Of course, whichever it is doesn't matter: Mr. Jackley's moaning about tight state budgets and (later) unfunded mandates is purely a policy argument that has no weight in the courtroom. Health care reform may be an ill-conceived, expensive, ineffective law (compared to Canadian single-payer, it definitely is!). But the judge won't care. Jackley needs to show the law is unconstitutional. The Constitution does not forbid expensive or ineffective laws. Unless we get an activist judge (and we wouldn't want that), Paragraph 4 wastes the court's time.

Paragraphs 6, 7, and 8 gripe about unfunded mandates. Nowhere does the lawsuit cite the case law that finds unfunded mandates unconstitutional. (Hit those law journals, kids!) If AG Jackley does find such case law, though, the court will have to nuke another unfunded mandate: elections. (Darn: midterm elections are unconstitutional: Dems hold Congress while courts figure that out.)

Paragraphs 32 through 37 make an argument akin to breach of contract, saying the plaintiffs agreed to participate in Medicaid under certain conditions and that Uncle Sam is now changing the conditions. There could be a little legal ground there... but the AGs make themselves look like dupes. All but one of the AGs are Republicans, and Republicans always tell us to beware the federal government. Yet these paragraphs tell us the plaintiffs never expected that the federal government might try to expand Medicaid or federal power therethrough. Good grief.

If Marty Jackley wanted to legislate, he should have run for Congress. Our AG should respect the Constitution enough to avoid wasting our time and the court's with his policy preferences.

Republican A.G. Proposes Government Takeover of Health Care

U.S. House GOP candidate Thad Wasson frets over a health care bill that would give the feds "control over the entire health care system." In the next breath, he says we must maintain Medicare.

I have yet to see any bill in Congress that creates complete government-run health care. However, I do see South Dakota Attorney General and good Republican Marty Jackley wants control over your prescription drugs. Evidently prescription drug abuse investigations have almost tripled since 2007. Plus, we're looking like a bunch of rubes to out-of-town pharmacists. So AG Jackley would like to create a big database of prescriptions, apparently so the nice folks in Pierre will know you're taking your medicine and not Rush Limbaugh's.

So, conservative friends, will you accept this clear bit of government control of health care for the sake of the war on drugs?