Back to the future: How the holding of Shelby County v. Holder has been a reality for South Dakota Native Americans since 1975.

• Author: Reed, Kristopher A.

In Shelby County v. Holder the United States Supreme Court held that Section 4(b) of the Voting Rights Act was unconstitutional. The Court's holding rendered Section 5 of the Voting Rights Act toothless, causing some to fear voting rights would regress to the days of Jim Crow. This fear of a future without Section 5 is nothing new for South Dakota Native Americans since the state government refused to comply with Section 5 of the Voting Rights Act. While other states begin to experience the consequences of Shelby, South Dakota Native Americans remain all too familiar with its effects. This comment seeks to raise awareness of the continued denial of Native American voting rights in South Dakota and to emphasize the need for Section 5 preclearance. First, this comment explores the development of the Voting Rights Act and its impact on South Dakota Native Americans. Second, this comment discusses the intricacies of Shelby that changed the strength and purpose of the Voting Rights Act. Third, this comment reviews how "new" issues for some states are "old" issues for South Dakota Native Americans. Finally, this comment examines attempted legislation and possible solutions to restore the protections granted by Section 5.

1. INTRODUCTION

   In Shelby County v. Holder, (1) Chief Justice John Roberts wrote, "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions." (2) The Supreme Court then resolved to remove the best protection against discriminatory voting laws in jurisdictions with the worst history of denying voting rights to minority groups--Section 5 of the Voting Rights Act of 1965 ("VRA") which required congressional preclearance of any changes to a jurisdiction's voting laws. (3) The Court based its reasoning on the idea that overt discrimination and voter denial present during the passage of the VRA--so called "first-generation" discrimination--was no longer an issue. (4) Thus, the method of selection for preclearance required an update. (5) The Court's majority must have been unaware of the conditions South Dakota Native Americans presently experience, a situation where conditions have not improved to the point that preclearance is no longer needed. (6)

   Native Americans' lack of representation and participation in voting comes from years of cultural suppression. (7) Native Americans faced cultural genocide efforts and far worse since the country's founding. (8) Generations of Native Americans experienced complete cultural exclusion through placement on reservations, negative effects of ignored and altered treaties, and constant struggles for the fundamental right to vote, which is still denied or restricted to this day. (9) Much of this animosity stems from the co-sovereign relationship between tribes and the Federal Government and the struggle to define that relationship for both parties. (10) While tribes are recognized as sovereign nations, their sovereignty is often pre-empted by federal interests. (11) The states fared no better in respecting the sovereignty of the tribes. (12) This disregard of Native Law and lack of respect for Native Americans serves to create feelings of social rejection and diminishes the tribe's view of federal and state elections. (13)

   Feelings of rejection are compounded by South Dakota's attempt to shut out the Native American vote. (14) In 2002, Bennett County held an election for county commissioners where the Democratic candidate was a Native American and the State Democratic Party recruited three Caucasian candidates to run as Independents against the Democratic nominee. (15) Also in 2002, South Dakota Senator Tim Johnson won reelection by 524 votes. (16) The election witnessed record Native American voter turnout and was credited as the reason Senator Johnson won reelection. (17) The State almost immediately assumed voter fraud was responsible for Johnson's victory. (18) No evidence of voter fraud was ever found. (19) Nevertheless, the South Dakota Legislature passed a voter identification law ("voter ID law") in response to the uncorroborated concerns of voter fraud. (20) The voter ID law created new barriers for Native Americans to vote. (21)

   A bill was proposed to assist Native Americans who attempted to vote. (22) The proposed law encountered strong opposition as one representative commented, "The way I feel is if you don't have enough drive to get up and drive to the county auditor... maybe you shouldn't really be voting in the first place." (23) This sentiment was mirrored by another representative who alluded to Native American voters when he stated,

   Having made many efforts to register people... I realize that those people we want to vote will be given adequate opportunity. I, in my heart, feel that this bill... will encourage those who we don't particularly want to have in the system... I'm not sure we want that sort of person in the polling place. (24) Despite the poverty and continued discrimination, Native Americans are resilient and continue to pursue the right to vote, suggesting an intense desire to participate in the political process. (25) This comment will begin with a brief review of the VRA and focus on the sections of the Act that directly pertain to Shelby and preclearance: Section 2, addressing laws with discriminatory effect; Section 3, establishing the judicial method for preclearance; Section 5, requiring congressional preclearance of changes to voting laws in districts meeting a statutory formula; and Section 203(c), concerning language minority groups. (26) The focus will then shift to the history of the VRA in South Dakota. (27) Next, Shelby and its holding are reviewed. (28) Then, this article will show how the dispute between the majority opinion and dissent in Shelby are personified by the conditions in South Dakota Indian Country, which never benefitted from Section 5 protection despite being qualified. (29) Lastly, this comment will explore legislative efforts and other possible methods to restore Section 5 preclearance. (30)

2. HISTORY

   1. THE VOTING RIGHTS ACT OF 1965

      Article one grants the States the right to determine the "[t]ime, [p]laces and [m]anner" of elections while also granting Congress the power to alter state voting regulations through law. (31) Expanding on this, the Fifteenth Amendment of the United States Constitution orders that no citizen shall be denied the right to vote by the federal government or any state on account of an individual's "race, color, or previous condition of servitude." (32) The Tenth Amendment further provides all non-exclusive powers to the states, including the conduction of elections. (33) When the 1960s saw widespread discrimination against minority populations, President Lyndon B. Johnson faced public pressure to address the events in the South. (34) The southern states implemented measures restricting voting rights of minorities, particularly African Americans. (35) As a result, Johnson asked for the "god-damnedest, toughest voting rights act you can devise." (36) Congress answered by passing the VRA with the approval of both Republicans and Democrats. (37) President Johnson signed the VRA into law on August 6, 1965. (38)

      Fueled by the Civil Rights Movement, the VRA included several provisions that were designed to restrict state and local governments from depriving minority groups of voting rights. (39) The VRA banned testing requirements to vote, such as literacy tests. (40) VRA provisions included methods for handling restrictions based on discrimination, a "coverage formula" to determine which districts were subject to preclearance, a provision that grants the Federal Government authority to assign federal examiners to register voters, and federal observers to monitor elections in historically discriminatory jurisdictions. (41) To safeguard against certain sections of the VRA that would be unnecessary in the future, Congress established temporal limitations requiring the Act to be reviewed and renewed after twenty-five years. (42) This was later amended to fifteen years. (43) Since then the Act has been renewed four times. (44)

      Section 5 preclearance was not intended as a permanent fixture. (45) Thus, Congress amended the Act in 1975 to extend preclearance to cover additional districts where English was not the common language. (46) These amendments extended protection to American Indians, Asian Americans, Alaskan Natives, and people of Spanish heritage. (47)

      1. Section 2: Discriminatory Effect

      Section 2 of the VRA states that "[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color...." (48) Section 2 challenges two instances of discrimination: (1) when a person is deprived of the chance to vote or have his vote counted, known as "vote denial;" and (2) when the strength and effectiveness of an individual's vote is reduced, known as "vote dilution." (49)

      The first Section 2 cases focused on the intent of discriminatory laws and acts rather than their effect. (50) Majority-minority districts (51) are often at the center of Section 2 VRA challenges. (52) Shaw v. Reno (53) and Miller v. Johnson (54) are the two primary cases concerning majority-minority districts under the VRA. (55) Shaw and Miller established that a plaintiff is not required to provide evidence of discrimination or personal injury as a result of redistricting. (56) The majority of Section 2 challenges are based on claims of vote dilution. (57) An entire district voting in an at-large election to fill one position is an example of vote dilution. (58) The Supreme Court held that single member county commission elections were not subject to Section 2 because a reasonable and workable...