||U.S. Department of Justice
Civil Rights Division
||Voting Section - NWB|
||950 Pennsylvania Avenue, W.W.
||Washington, D.C. 20530
| ||February 11, 2008|
Ms. Sara Frankenstein
Gunderson, Palmer, Goodsell & Nelson
P.O. Box 8045
Rapid City, South Dakota 57709-8045
Dear Ms. Frankenstein:
This refers to the increase in the number of county
commissioners from three to five, and the 2007 redistricting plan for Charles Mix
County, South Dakota, submitted to the Attorney General pursuant to Section 5 of
the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on December
12, 2007; supplemental information was received through January 28, 2008.
According to the 2000 Census, the County has 9,350
residents, of whom 2,644 (28.3%) are Native American, 177 (1.9%) are Hispanic,
9 (0.1%) are Asian, and 12 (0.1%) are African-American. The County currently
elects its commission from three single-member districts. Under the proposed plan,
the number of commissioners would increase to five and be elected from single-member
districts. An increase in the number of commissioners on the board is a
voting change under Section 5. See City of Lockhart v. United States,
460 U.S. 125, 131 (1983) (change in system where county commission increased from a three-member
commission to a five-member commission is a voting change). The county also has
adopted a redistricting plan for the five single-member districts.
We have carefully considered the information you
have provided, as well as information and materials from other interested parties.
Under Section 5 of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006, Public Law 109-246, 120 Stat. 577 (2006)
("Voting Rights Act"), the Attorney General must determine whether the submitting
authority has met its burden of showing that the proposed change "neither has the
purpose nor will have the effect" of denying or abridging the right to vote on
account of race. As discussed further below, I cannot conclude that the County has sustained
its burden of showing that the proposed change does not have a discriminatory purpose.
Therefore, based on the information available to us, I object to the voting changes on behalf of
the Attorney General.
Under Section 5 of the Voting Rights Act, the
submitting authority has the burden of showing that a submitted change has neither
a discriminatory purpose nor a discriminatory effect. Georgia v. United States,
411 U.S. 526 (1973). See also Procedures for the Administration of Section 5 of
the Voting Rights Act (28 C.F.R. 51.52). In satisfying its burden, the submitting
authority must demonstrate that the proposed changes are not tainted, even in part, by an
invidious racial purpose; it is insufficient simply to establish that there are
some legitimate, nondiscriminatory reasons for the voting changes. See City
of Rome v. United States, 422 U.S. 156, 172 (1980); Busbee v. Smith,
549 F. Supp. 494, 516-17 (D.D.C. 1982), aff'd 459 U.S. 1166 (1983).
The Supreme Court identified a non-exhaustive list
of factors that may serve as indicia of a discriminatory purpose in Village
of Arlington Heights v. Metropolitan Housing Authority, 429 U.S. 252, 256-57 (1977).
Those factors include the following: (1) the impact of the official action and
whether it bears more heavily on one race than another; (2) the historical background
of the action; (3) the sequence of events leading up to the action; (4) whether
the challenged decision departs, either procedurally or substantively, from the
normal practice; and (5) contemporary statements and viewpoints held by the decision-makers.
Here, an analysis of these factors confirms that the
County has not sustained its burden of showing that the proposed change does not
have a discriminatory purpose. In the first place, the voting changes appear to
have a greater impact on Native Americans because, under the proposed plan, Native
American voters can elect their candidate of choice in only one of five districts, as
opposed to one in three districts under the current plan. Our election analysis
demonstrates that there is no reasonable probability that Native American voters
could elect their candidate of choice in District 2 of the proposed plan.
In addition, Charles Mix County and the State of
South Dakota have a history of voting discrimination against Native Americans.
Native Americans could not vote in the county until 1951. Even when Native Americans
received the right to vote, they were discriminated against in registration and
other parts of the voting process.
Moreover, the historical background and the sequence
of events leading to these voting changes also support an inference of intentional
retrogression of Native American voting strength by the county. In January 2005,
the county was sued for violations of the Fourteenth Amendment and Section 2 of
the Voting Rights Act in Blackmoon v. Charles Mix County. At the time
Blackmoon was filed, no Native American had ever been elected to the
County Commission in Charles Mix County, despite the significant Yankton Sioux
population in the County. Depositions in the case revealed that after the
2000 Census, the County Commissioners decided not to redistrict despite the
fact that commissioners knew that the districts did not provide Native
Americans the voting strength to elect a candidate of choice.
On March 24, 2005, the court in Blackmoon
found that there had been violations of the Fourteenth Amendment because
Charles Mix County failed to redistrict after the 2000 Census. Despite the
court's finding, the first remedial plan suggested by the county again failed to
provide Native Americans with an opportunity to elect a candidate of their choice.
Finally, in 2006, the County agreed to a redistricting plan that included a
majority Native American district which could elect a candidate of choice, and
this plan was implemented for the 2006 county elections. Under this new plan,
the voters elected the first Native American to the county commission in Charles Mix County.
The timing of the adoption of the proposed change
to a five member commission raises concerns of a discriminatory purpose. The
first petitioner signed the referendum petition to increase the size of the
commission on April 3, 2006. Only 46 people signed the initial circulation
prior to June 2006. At the June 2006 Democratic Primary election, Ms. Drapeau
won, and she would become the first Native American County Commissioner in Charles Mix
County because there was no opponent in the general election. Immediately after the primary
election, an article about changing the number of county commissioners appeared in The Lake
Andes Wave. Momentum for the petition then built, and one thousand signatures were obtained
to put the referendum on the ballot. The referendum was held in November 2006, and the
Elected officials supported the increase in the
number of county commissioners. In particular, the Sheriff and his deputies,
actively circulated the petition. According to our contacts in the county, the
Sheriff and deputies collected signatures in uniform.
Depositions in Blackmoon reveal that one
commissioner admitted that the commissioners decided not to redistrict in 2000
despite the fact that they knew that the districts did not provide Native
Americans the voting strength to elect a candidate of choice. Various community
members, including Native Americans and non-Native Americans, also have
informed the Section that county commissioners have made comments that evidence
a racially discriminatory intent.
We note that under Section 5 you have the right
to seek a declaratory judgment from the United States District Court for the
District of Columbia that the proposed changes neither have the purpose nor
will have the effect of denying or abridging the right to vote on account of race,
color, or membership in a language minority group. See 28 C.F.R. 51.44. In
addition, you may request that the Attorney General reconsider the objection.
See 28 C.F.R. 51.45. However, until the objection is withdrawn or a judgment
from the District Court for the District of Columbia is obtained, the increase
in the number of county commissioners and the redistricting plan will continue
to be legally unenforceable. Clark v. Roemer
, 500 U.S. 646 (1991);
28 C.F.R. 51.10.
To enable us to meet our responsibility to
enforce the Voting Rights Act, please inform us of the action Charles Mix
County plans to take concerning this matter. If you have any questions, you
should call Tim Mellett (202-307-6262), Acting Deputy Chief of the Voting Section.
Grace Chung Becker
Acting Assistant Attorney General
Civil Rights Division