Indian Vote Suppressors Frankenstein and Gant Can't Agree

Rapid City lawyer Sara Frankenstein and the SDGOP are vindictive bullies for using the courts to shake down Oglala Sioux Tribe members who dare fight for their voting rights. Secretary of State Jason Gant uses specious obfuscation to further suppress the Indian vote.

But Frankenstein undermines Gant's contention that he can't use HAVA funds to help tribal members vote with satellite voting stations:

Frankenstein said that in negotiations on her side, she persuaded the secretary of state to change what she termed “internal policies” and release South Dakota’s HAVA money for the satellite office in Shannon County, which overlaps much of Pine Ridge. He could do this, she said, because in May 2008, South Dakota had completed HAVA’s initial requirement to modernize elections with up-to-date voting machines and the like.

From then on, Frankenstein said, the state was free to spend its federal HAVA appropriation on additional ways to improve elections, including satellite offices. Brooks v. Gant testimony and court documents confirm this. In Judge Schreier’s opinion, she noted that Shannon County residents had “minimal” early-voting access until Brooks v. Gant was filed [Stephanie Woodard, "'They Caved': Tribe Claims Win in SD Voting-Rights Suit," Indian Country Today, 2013.08.13].

Internal policies—that's code for "Jason didn't want to."

Republicans Frankenstein and Gant are both enemies of Indian voting rights. But even Frankenstein can't run with Gant's resistance to using federal money to carry out federal law to help Indians vote.

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.

Madison Central Charges Admission to Vote?

Madison Central School District held the first of its scheduled early-voting sessions this week. One local basketball fan reports that, contrary to the spirit of the 24th Amendment, to vote at Tuesday night's boys' basketball game, one had to buy a five-dollar ticket for admission to the game.

According to my correspondent, the polling station was located in the concession area in the middle school lunchroom. During games, the only way to access that area is through the northwest entrance to the middle school, where the ticket table for the game was located. There was no sign at the ticket table announcing that voting was being conducted on the premises, and my correspondent received no advice at the ticket table that one could enter to vote without buying a ticket. The only public notice of the active polling came at halftime, when the PA announcer, Mike Materese, told the crowd that they could go vote for the MHS renovation project in the lunchroom.

The polling station was managed by Monica Campbell, executive director of the Madison Central Education Foundation, which stands to gain new office space in the renovated high school if the bond issue passes.

Now I'm having trouble pinning this down in statute, since our district seems to be winging it on election law on this early-voting scheme. But if election day rules apply to early-voting sessions, publishing a schedule of early-voting sites online and in the newspaper isn't enough. Let us turn to SDCL 12-14-14:

On election day a sign, with a minimum size of eleven inches by seventeen inches, shall be conspicuously displayed outside of the entrance to any building in which a polling place is located to clearly identify the building as a polling place.

If election law allows early voting, election law should hold early voting places to the same standards to protect voter rights as regular election day voting. Individuals should not have to purchase tickets to access a polling place. The polling place should be conspicuously announced by a sign at the entrance of the building.

By the way, as we consider spending millions of dollars to build a 2500-seat gym, my correspondent reports there were plenty of open seats in the current 1200-seat gym.

MHS Publishes Early Voting Schedule: No Tickets Required

I see the Madison Central School District has posted a list of absentee voting opportunities. Permit me to post the schedule hear in clean and simple text to spare you the trouble of clicking on the school's needlessly bandwidthy PDF:

Date	Event	Location	Time
12/20	Middle School band/choir concert	High School Auditorium	7:00 p.m.
12/21	Boys basketball	Cafeteria	4:45 p.m.
1/7	Girls basketball	Cafeteria	4:45 p.m.
1/10	Boys basketball	DSU Fieldhouse	4:45 p.m.
1/12	Open voting	Elementary Commons	12:45 p.m.
1/13	Girls basketball	DSU Fieldhouse	5:00 p.m.
1/15	Gymnastics	Cafeteria	Noon
1/17	Forum	Cafeteria	7:00 p.m. after Forum
1/18	Open voting	Elementary Commons	3:00 p.m.-6:00 p.m.
1/20	Boys basketball	DSU Fieldhouse	5:00 p.m.
1/21	Wrestling (Madison Square Garden)	Cafeteria	6:00 p.m.
1/25	Forum	Cafeteria	7:00 p.m. after Forum

Dang—I already missed a couple!

A couple things occurred to me last night about the school district's early-voting scheme. First, the school can't conduct early voting at a basketball game... or at least not on the other side of the ticket table. Suppose concerned citizens want to observe the voting, as they are entitled by state law to do. Suppose they're on a tight budget and can't afford a ticket to the basketball game. If school business manager and election officer Cindy Callies sets up a voting table on paid side of the ticket booth, she creates a barrier to poll watchers, not to mention potential voters.

There can be no price of admission to access any polling place. That's why, in the above schedule, the polling during high school games is listed at the cafeteria or the auditorium. But there still had better not be any electioneering near that voting table!

Note also that it's a bit tough to make to observe the polls when the school district doesn't include a closing time for its early polls. Keeping democracy honest is hard work, but on January 20th, for instance, it would be nice to know if voting will run for just an hour or if I should pack a snadwich and expect to be there for four hours.

Absent from the school's new gym/renovation information site is a list of workplaces that have requested early voting sessions. If any such sessions are scheduled, we should expect similar public notification.

Note, business owners, that if you invite Mrs. Callies to hold early voting at your business, you'll need to open your doors to any person who wants to come in and watch or even vote. That's our right. You can't call Mrs. Callies and say, "I have five employees who want to vote; please bring five ballots down." If folks on the street hear that you're conducting an early vote at your office, and they want to drop in and vote at that time as well, you have to let them in, and Mrs. Callies has to bring enough ballots for such a contingency.

The school district has already lost one supporter with its gaming of the vote. I hope the school will compensate for its questionable vote-stacking by keeping the process as transparent as possible.

Madison School Early-Vote Stacking Fine by Secretary of State

Vote now in the latest Madville Times poll:
How will you vote on Madison's $16.98 million new gym/high school renovation bond issue?
See right sidebar—poll closes Wed 8 a.m.!

Apparently my concerns about Madison Central School District's early-voting scheme are unfounded. Various Madville Times readers have contacted the Secretary of State's office to get the straight poop on whether our school district can...

1. deputize advocates of the school bond issue to hand out and collect absentee ballots,
2. conduct voting at basketball games and other school events, and
   
3. arrange early voting sites in workplaces at the request of employers.

According to Secretary of State Chris Nelson, all of the above are legit. One of my correspondents gets some more straight dope from Secretary Nelson's assistant, Kea Warne, whose responses to some specific questions about Madison's early-voting plans I summarize below:

1. Should Madison Central publish a list of early voting places and times? There is no statutory requirement for them to publish this document.
   
2. Will there be a voting booth to insure voter privacy? All voters (either voting in-person absentee or at the polling place on election day) must be provided a private area to vote (either voting booth or a table top voting booth).
   
3. What about folks wearing pro or con stickers/t-shirts at these school events? There cannot be any political material within 100 feet of any entrance to the location where absentee voting is being conducted.
   
4. How will poll watchers be arranged? Poll watchers have to be allowed to be present. A person who is wanting to be a poll watcher must identify themselves as such to the election board (on election day) or the business manager/staff conducting the absentee voting.

I still see problems here. Without a published list of early polling places, poll watchers can't find out where to go to observe the polling for irregularities. Whoever school business manager Cindy Callies deputizes to carry absentee ballots around town will need to carry a complete voter registration list and keep it synchronized with every other election deputy's roving list to ensure no one gets more than one ballot. We will also have a lot of ballots moving back and forth to different places in different pouches. The more moving parts to any system, the more chance there is for things to go wrong.

Workplace voting still strikes me as fertile ground for improper influence. When the boss waves a fistful of absentee ballots at employees on company time and says, "Hey! Who wants to vote for the school bond election right now?" there is bound to be some sense of pressure to vote.

And seriously: does anyone think it's fair to conduct a vote on a new gym in a gym while a basketball game is going on, while voters are surrounded by cheering fans clad in school colors? Madison High School is staging early voting at exactly those venues where they can implicitly say, "Look at the wonderful educational opportunities we provide for students. Can you really deny them a new gym and renovated classrooms?"

What's next? Should we allow Mike McDowell to invite the county auditor to ring absentee ballots to work for all of the Heartland employees the next time Senator Russell Olson runs for office? Should Scott Heidepriem get to arrange an early-voting site at his law office the next time he's on the ballot?

If that's just how the game is played, then so be it. But this early voting scheme is not about enfranchisement. It's about stacking the vote in the school's favor.

If incoming Secretary of State Jason Gant is worried about voter fraud, he should come to Madison to observe the most loosely conducted vote I've seen in this state.

Madison Central Violating State Election Law?

The more I think about Madison Central School District's proposed early voting scheme, the more uneasy I get. Beyond creating the awkwardness of voting on a new gym while surrounded by maroon-clad Bulldog basketball fans, the school district may be arranging early-voting that violated state election law.

The school district is offering four means of early voting in the upcoming bond election (I quote verbatim from their PDF):

• By mail
• At the business manager’s office in the high school at 800 NE 9th St.
• At many events and community locations prior to the election.
• Anyone who wishes to have early voting conducted at their business for their employees can contact the business office at 256-7710 for more information.

Vote by mail? No problem.

Vote at the school business office? Probably not a problem.

Voting at a school event? Problem.

Voting arranged by bosses for employees at workplaces? Big problem.

First, the school offers no reliable list of early-voting polling places. When and where exactly are the school events where voting will be possible? Will Cindy Callies have ballots on hand at every public event at the school? Or will the school district only break out the ballots at sporting events when they see lots of backers of the 2007 new gym project? Will the school avoid setting up a voting booth at, say, the public one-act performance in January, where they might encounter a number of arts supporters who feel the current $16.98 million plan still puts too much emphasis on athletics over academics?

Same with community events: when and where? Given South Dakota's overwhelming concern with protecting the secret ballot, perhaps a concerned citizen would want to observe the balloting to ensure voters' rights are protected. How can a poll watcher keep track of the voting if the school is doing it in undisclosed locations?

Arranging voting sessions at employers' requests at workplaces smells bad, if not worse. State law entitles employees to two hours off work to vote. Letting bosses arrange in-house voting skirts that requirement (mark your circles, then back to work, slaves!). Worse, it opens the door for all sorts of workplace intimidation: Imagine the boss walking in, saying, "O.K., who wants a ballot to vote on the school bond issue?" and then conspicuously noting with a scowl those who don't take a ballot, presuming to exercise their right to vote in private.

And imagine, just imagine, that employer were Madison Central School District. Principal calls a staff meeting, says, "Hey everyone! Cindy's here so you can all vote!" and hands out ballots.

I don't think principals Knowlton, Koch, or Walsh would do such a foolish thing. I hope every boss in town is that prudent. If employees want to vote, employees can request their absentee ballots individually or come to the polls on their own, on official leave as permitted by state law. Their bosses should have no involvement in their voting.

I support early voting and absentee voting. I support government efforts to get more people to vote.

But I also support following the spirit and letter of election law to protect voter rights and ensure complete fairness. The Madison Central School District needs to clarify and likely scale back its early voting plan to ensure its compliance with election law.

And remember, fellow voters: no Bulldog jackets at the polls.

Statute relevant to early voting in the school bond election:

• SDCL 12-18-1 requires that "All voting at the polling place shall be in private voting booths or compartments and, except as provided in § 12-18-25, shall be screened from observation."
• SDCL 12-18-3 says that, at a polling place, no one may "display campaign posters, signs, or other campaign materials or by any like means solicit any votes for or against any person or political party or position on a question submitted or which may be submitted."
• SDCL 12-18-9.2 authorizes and requires election officials and the cops to remove any materials violating SDCL 12-18-3 and arrest anyone committing such violations.
  
• SDCL 12-18-9 dictates that "Any person, except a candidate who is on the ballot being voted on at that polling place, may be present at any polling place for the purpose of observing the voting process." Rather difficult to do unless the school publishes a complete list of places, dates, and times where the voting process is taking place.
  
• SDCL 12-19-2.1 has a couple of goodies on absentee ballots:
• To get an absentee ballot, you "may apply in person to the person in charge of the election." That means one person, Cindy Callies, can legally hand you an absentee ballot. KJAM is reporting Monica Campbell will have ballots; I'm still looking for the statute that authorizes an "election assistant" to distribute absentee ballots.
• A third party can deliver an absentee ballot is if the voter (a) is confined "because of sickness or disability," (b) applies in writing, and (c) designates an authorized messenger to carry the ballot.
  
• SDCL 12-19-7.2 makes it a Class 2 misdemeanor for any authorized messenger to, "in the presence of the voter at or before the time of voting, display campaign posters, signs, or other campaign materials or by any like means solicit any votes for or against any person, political party, or position on a question submitted."
• SDCL 12-1-2 says that all of these Title 12 provisions "apply to township, municipal, school, and other subdivision elections unless otherwise provided by the statutes specifically governing their elections or this title." I haven't found any exceptions for school bond elections in Title 13.
  
• SDCL 13-7-14 says "Absentee voting shall be permitted in school district elections, including school district bond elections. The school board, with the approval of the county auditor and board of county commissioners, may permit absentee ballots to be voted at the county auditor's office in the county of jurisdiction."

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.

Voting Rights Call for Action: Pierre Should Guarantee Shannon County Balloting

I take voting for granted. I assume that I can walk into the Lake County Courthouse during business hours any time between now and Election Day and and fill in my ballot.

I guess I'm lucky I'm not living in Shannon County... and part of a key Democratic-leaning constituency that the state's Republicans would love to see miss the vote:

Native Americans have long faced police harassment, illegal voter challenges, and election-day chaos on the way to the polls in South Dakota. Those problems may soon be over on the Oglala Sioux Tribe's Pine Ridge Indian Reservation. That's because South Dakota has no clear plan to provide any voting at all in this fall's election.

The imminent disenfranchisement of thousands of voters follows resignations of officials in the off-reservation county that handled outsourced, non-tribal government services, including elections, for Pine Ridge's Shannon County. However, the crisis may also have arisen because Oglalas, members of the nation's most marginalized ethnic group, have emerged as deciders in South Dakota elections -- as have tribes in other areas since 2000, when Native support helped send Washington state's Maria Cantwell to the U.S. Senate. With Shannon County voters turning in the nation's highest Democratic performance in recent presidential elections, sidelining them is a game-changer in close contests, including this year's race for the state's sole Congressional seat, held by Democrat Stephanie Herseth Sandlin.

South Dakota's head election official, Secretary of State Chris Nelson, has taken a hands-off approach to the problem, saying the counties involved should solve it. If they don't, said Attorney General Marty Jackley, who's up for re-election, "the state will weigh the need to take action" [Stephanie Woodard, "South Dakota Election Scandal: Are Oglala Sioux Voting Rights Doomed?" Huffington Post, 2010.09.20].

I might be able to appreciate Secretary Nelson's fatherly, "you kids settle your own differences" approach, if we weren't talking about a fundamental Constitutional (federal and state) right. Shannon and Fall River counties may need to untwist their own knickers, but the state has an obligation to ensure every eligible South Dakotan has the same opportunity to vote. Our right to vote should not hinge on a bureaucratic spat or any other vagary of local government.

I can vote every business day at my courthouse. Every citizen of Shannon County and every other jurisdiction in South Dakota should have the same opportunity. Secretary Nelson should deputize a couple folks in his office, give them a van loaded with ballots and a couple strong metal boxes, and send them with a Highway Patrol escort to set up an absentee polling place in Pine Ridge.
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Bonus: Chat with Secretary Nelson live online this morning at 9 a.m. Mountain (that's 40 minutes from the time of this posting!) on the Rapid City Journal's live web chat, hosted by Kevin Woster.

ACLU Fighting Voting Rights Violations... Should Felons Vote?

Boy, and I'm grumbling about the state legislature potentially interfering with my Constitutional rights.

The ACLU is waging a class action lawsuit to fight disenfranchisement of American Indian voters in South Dakota:

The lawsuit was filed in the U.S. District Court for the Western District of South Dakota on behalf of Kim Colhoff, Eileen Janis and others, who attempted to vote in the election but were improperly removed from the voter rolls due to felony convictions. Because state law only disfranchises individuals sentenced to prison and both women were just sentenced to probation, election officials unlawfully took away their voting rights.

"Felony disfranchisement laws in South Dakota have a disproportionate impact on American Indians, who represent the majority of those convicted of felonies at the federal level," said Robert Doody, Executive Director of the ACLU, South Dakota Chapter. "Worse still, it's clear that confusion regarding the South Dakota felony disfranchisement laws has resulted in legitimate voters, even those who haven't been incarcerated for felony convictions, being purged from the rolls or denied the ability to register to vote or cast their ballots" ["ACLU Challenges Illegal Disfranchisement Of American Indian Voters In South Dakota," ACLU press release, 2010.02.08].

Taking the vote away from any legal voter is unacceptable. I've heard some good arguments that even our disenfranchisement of incarcerated felons may go too far. Certainly, criminals surrender certain rights when they violate the social contract... but can we justify sentencing, say, an embezzler or a drunk driver to permanent exclusion from participation in affairs of state? One of the best ways to help a felon rehabilitate is to make that felon feel more connection to the community. The right to vote on community issues forges a pretty significant connection.

Early Voting: Bane of Democracy?

Early voting is fine for those who can't make the polls on Election Day. In a year of intense voter interest, early voting may also avert the meltdown that some worry could happen if darn near everybody did show up to vote on Election Day.

Nonetheless, my wife and I prefer to vote on Election Day itself. There is something important in going to the polls with our neighbors, being part of a special event on a special day. The ceremony and public spectacle set it apart, and rightly so, from going to the courthouse to renew one's drivers license. When we vote together, on a single day dedicated to that purpose, we get a better sense of voting as something we do together as a community. (To understand the psychology here, see the great Northern Exposure episode "Democracy in America" from February 24, 1992.)

Dr. Blanchard is even less of a fan of early voting. His critique, as you might expect, is more rigorous and hardnosed than ours. The good professor worries that early voting is an abdication of one's duty, bailing out before having heard all of the arguments that the candidates have to make.

I'm tempted to say my conservative friend is wishing everyone would hold off voting until Election Day just to give McCain time to cry socialism! a few more times or find some other magic argument that could save the GOP from total defeat. But Blanchard gives the issue fair treatment, even pointing out that Obama supporters and McCain supporters are equally likely to vote early. The poll numbers showing Obama ahead in early ballots simply reflect the fact that there are more Obama supporters than McCain supporters throughout the electorate.

I have some sympathy for Blanchard's argument. There may well be people who voted two or three weeks ago who, based on new information they've learned since then, already wish they had voted the other way. Of course, there are lots of people now who wish they'd voted differently for President in 2000.

I wonder: is there a substantive difference between the person who chooses to vote on October 15, without the benefit of the last three weeks of arguments, attack ads, and stock market dipsy-doodles and the person who votes on Election Day but "decided" back in January that he would vote Republican or Democrat just like Grampaw always did and thus ignores all of the campaign news and analysis? Just something to ponder over your raisin bran....

Sad Electoral Note: Florence Steen Loses Vote

Kevin Woster reports that the ballot of Florence Steen, the 88-year-old woman who cast a deathbed vote for Hillary Clinton, is being thrown out. Mrs. Steen got to fulfill a dream and mark her absentee ballot for a female presidential candidate on April 29. She succumbed to congestive heart failure on Mother's Day, and was laid to rest yesterday. Given this due proof of the absentee voter's death prior to the opening of the polls on June 3, Pennington County Auditor Julie Pearson is required by South Dakota law (SDCL 12-19-9.2, 12-19-49) to pull the ballot and return it to sender unopened.

One of my readers had asked if that ballot would count. As we thought about it, we figured similar absentee ballots that outlived those who cast them must have slipped through the system before. And there's no fraud here, just an honest woman who cast an honest vote. I agree with Senator Clinton on this one: such a vote ought to count.

I wonder: would counting such absentee ballots create any problems? Unless someone can show some potential for chicanery, it seems changing the law to honor "dying wish" votes would be a perfectly decent thing to do. We can't change the law for this year's primary or the general election, but maybe our legislators can put a sticky note in their planners for the 2009 session: change the death rules on absentee ballots.