Poor Bear et al v. The County of Jackson et al
Filing
34
ORDER denying as moot 13 Motion for Preliminary Injunction; denying as moot 14 Motion for judicial notice; denying as moot 15 Motion to consolidate; denying 22 Motion to Dismiss. Answer due 5/11/2015. Signed by U.S. District Judge Karen E. Schreier on 5/1/2015. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
THOMAS POOR BEAR,
DON DOYLE,
CHERYL D. BETTELYOUN, and
JAMES RED WILLOW,
5:14-CV-5059-KES
Plaintiffs,
ORDER DENYING
MOTION TO DISMISS
vs.
THE COUNTY OF JACKSON, a political
subdivision and public corporation
organized under the laws of the state
of South Dakota;
THE BOARD OF COMMISSIONERS
FOR THE COUNTY OF JACKSON, a
political subdivision and public
corporation organized under the laws
of the state of South Dakota;
VICKI WILSON, in her official capacity
as the Jackson County Auditor;
GLEN BENNETT, in his official
capacity as Jackson County
Commissioner;
LARRY DENKE, in his official capacity
as Jackson County Commissioner;
LARRY JOHNSTON, in his official
capacity as Jackson County
Commissioner;
JIM STILLWELL, in his official capacity
as Jackson County Commissioner; and
RON TWISS, in his official capacity as
Jackson County Commissioner;
Defendants.
In this action, plaintiffs seek injunctive and declaratory relief that would
require defendants to establish a satellite office for voter registration and in-
person absentee voting in the town of Wanblee on the Pine Ridge Indian
Reservation. Docket 1. Defendants move to dismiss the complaint in lieu of
filing an answer. Docket 22. For the following reasons, the motion is denied.
BACKGROUND
The facts, according to the complaint, are as follows:
Plaintiffs are enrolled members of the Oglala Sioux Tribe who reside on
the Pine Ridge Reservation in Jackson County, South Dakota. All plaintiffs live
in the town of Wanblee except Cheryl Bettelyoun, who lives in the nearby town
of Long Valley. Defendants are the entities or individuals responsible for
conducting voting in Jackson County. All individual defendants are named as
defendants in their official capacities only.
In South Dakota, the voter registration deadline is 15 days before an
election. SDCL 12-4-5. Each county auditor and municipal finance officer is
responsible for conducting voter registration and maintaining voter registration
records. SDCL 12-4-2. Any person qualified to vote may register at the
secretary of state’s office and at locations that provide driver licenses, food
stamps, and certain other forms of public assistance. Id.
Any registered voter may vote by absentee ballot beginning 46 days prior
to an election. SDCL 12-19-1; 12-19-1.2. Registered voters seeking to vote
absentee may apply by mail or in person for an absentee ballot. At any time up
until the day before the election, registered voters may apply in person to the
person in charge of the election for an absentee ballot. SDCL 12-19-2.1.
2
Jackson County has a total population of 3,031 people and a voting
population of 2,034. According to the 2010 census, American Indians and
Alaska Natives comprise 52 percent of the overall population and 44 percent of
the voting population of Jackson County. Whites comprise 42.7 percent of the
overall population and 51 percent of the voting population. Kadoka is the
county seat of Jackson County and is located outside the Pine Ridge
Reservation. Kadoka’s population is 94.5 percent white and 5.2 percent
American Indian/Alaska Native, and the voting population is 84 percent white
and 12 percent American Indian/Alaska Native.
The Pine Ridge Reservation, located in southwestern South Dakota,
encompasses the southern half of Jackson County. The total population of the
Pine Ridge Reservation is 18,834 people, approximately 88 percent of whom are
Native American. Wanblee is the most populous city in that portion of Jackson
County that is located on the Pine Ridge Reservation. Wanblee’s population is
95.5 percent Native American and 1.6 percent white. Ninety-two percent of
Wanblee’s voting population is Native American and 3.5 percent is white.
Wanblee is located roughly 27 miles from Kadoka.
Poverty and unemployment are both significantly higher for Native
American residents of Jackson County than for white residents of Jackson
County. Nearly 53 percent of Native Americans in Jackson County live below
the poverty level, 44.2 percent are unemployed, and 75.1 percent received food
stamps in the past year. Of white residents of Jackson County, 11.5 percent
live below the poverty level, 1.4 percent are unemployed, and 1.5 percent
3
received food stamps in the past year. The Native American population of
Jackson County also has less access to transportation than members of the
white population. Every white household in Jackson County has a vehicle
available but 22.3 percent of households with a Native American member have
no vehicle. There is no reliable public transportation system in Jackson
County.
The only location in Jackson County that offers both in-person voter
registration and in-person absentee voting is the county auditor’s office in
Kadoka. As a result, Native American residents of Jackson County must travel,
on average, twice as far as white residents to take advantage of the voter
registration and in-person absentee voting services available in Kadoka. Native
Americans have faced a history of voting discrimination in South Dakota and
Jackson County.
On May 6, 2013, plaintiff Thomas Poor Bear, who is the Vice President of
the Oglala Sioux Tribe, asked the Board of Jackson County Commissioners to
establish a satellite office for voter registration and in-person absentee voting in
Wanblee for the primary and general elections in 2014 and for all future
elections. Between November 2013 and February 2014, South Dakota’s Help
America Vote Act (HAVA) task force revised the state’s HAVA plan. In February
2014, the task force approved a plan that included a provision allowing
Jackson County to use HAVA funds to establish a satellite office.1 The Board of
The United States Election Assistance Commission published the
revised HAVA plan on July 2, 2014. 79 Fed. Reg. 37732-01 (notice of online
1
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Jackson County Commissioners was informed of the available HAVA funds in
April 2014. On June 20, 2014, the Board of Jackson County Commissioners
voted not to approve a satellite office in Jackson County because it believed
funding was not available and the satellite office would be an additional
expense to the county.
On September 18, 2014, plaintiffs filed the complaint in this action
seeking injunctive and declaratory relief. Docket 1. Plaintiffs allege:
As a result of Defendants’ refusal to establish the proposed
satellite office in Wanblee, Plaintiffs and other Native American
citizens residing in Jackson County face significantly greater
burdens and have substantially less opportunity than the white
population to avail themselves of the convenience and benefits of
casting in-person absentee ballots and using in-person
registration. The Defendants’ decision to reject a satellite location
provides a convenience and advantage for white residents that is
not equally available to Native American residents. As a
consequence, Native Americans will not have an equal opportunity
to participate in federal and state elections . . . .
Docket 1 at 12-13. On that basis, plaintiffs claim that (1) the defendants
violated § 2 of the Voting Rights Act (VRA)2 because the lack of a satellite office
resulted in the denial of equal opportunity to participate in the electoral
process and elect representatives; and (2) the defendants acted with a
discriminatory purpose, in violation of § 2 of the VRA and the Fourteenth
Amendment. Docket 1 at 13-14.
On October 10, 2014, plaintiffs moved for a preliminary injunction
ordering defendants to establish a satellite office for in-person registration and
publication). The revised HAVA plan became effective August 1, 2014.
2
52 U.S.C. § 10301 (formerly 42 U.S.C. § 1973).
5
in-person absentee voting in Wanblee in advance of the November 4, 2014,
general election. Docket 13. The parties participated in a settlement conference
on October 15, 2014, before United States Magistrate Judge Veronica Duffy
and succeeded in resolving the issues relating to the preliminary injunction.3
Docket 21. Subsequently, defendants moved to dismiss the complaint in lieu of
filing an answer, which motion is pending. Docket 22.
LEGAL STANDARD
Defendants’ motion to dismiss is brought under Federal Rule of Civil
Procedure 12(b)(1), for lack of subject-matter jurisdiction, Rule 12(b)(6), for
failure to state a claim upon which relief can be granted, and Rule 12(c), for
judgment on the pleadings. A party challenging subject-matter jurisdiction
under Rule 12(b)(1) must attack either the facial or factual basis for
jurisdiction. See Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir.
1990). The court considers matters outside the pleadings without giving the
nonmoving party the benefit of the Rule 12(b)(6) safeguards. Id. at 729-30. The
plaintiff carries the burden of showing that jurisdiction exists. V S Ltd. P’ship v.
Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citation
omitted).
Because the parties resolved the preliminary injunction without action
by the court, the motion for preliminary injunction (Docket 13) is denied as
moot. The motion for judicial notice (Docket 14) was connected to the motion
for preliminary injunction and therefore is denied as moot based on the
resolution of the preliminary injunction. For the same reason, plaintiffs’ motion
not to consolidate the motions for permanent and preliminary injunctions
(Docket 15) is also denied as moot.
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6
When reviewing a motion to dismiss under Rule 12(b)(6), the court
accepts as true all factual allegations in the complaint and draws all
reasonable inferences in favor of the nonmoving party. Freitas v. Wells Fargo
Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter v.
Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012)). The court may
consider the complaint, some materials that are part of the public record, and
materials embraced by the complaint. Porous Media Corp. v. Pall Corp., 186
F.3d 1077, 1079 (8th Cir. 1999). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. When reviewing a motion for judgment on the pleadings pursuant
to Rule 12(c), the court applies the same standard as that on a motion to
dismiss under Rule 12(b)(6).4 See Westcott v. City of Omaha, 901 F.2d 1486,
1488 (8th Cir. 1990).
Judgment on the pleadings is appropriate only after the pleadings are
closed. 5C Charles Alan Wright, et al., Federal Practice & Procedure Civil § 1367
(3d ed.). Because no answer has been filed, judgment on the pleadings is not
appropriate at this time. In this case, the distinction between a Rule 12(c)
motion and a Rule 12(b)(6) motion does not change the outcome of the court’s
decision because the court would apply the same standard to either motion. Id.
§ 1368 (“Because of the similarity between the Rule 12(c) and Rule 12(b)
standards, courts typically will construe a premature Rule 12(c) motions [sic]
as if it were brought under Rule 12(b)[.]”).
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DISCUSSION
I.
Standing
Because federal courts are courts of limited jurisdiction, they only have
the ability to hear cases that are “ ‘authorized by Article III of the Constitution
and the statutes enacted by Congress pursuant thereto.’ ” Gray v. City of Valley
Park, Mo., 567 F.3d 976, 982-83 (8th Cir. 2009) (quoting Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986)). Under Article III there must be a
case or controversy at every stage of the litigation, which requires “ ‘a definite
and concrete controversy involving adverse legal interests[.]’ ” Id. at 983
(quoting McFarlin v. Newport Spec. Sch. Dist., 980 F.2d 1208, 1210 (8th Cir.
1992)). “ ‘Federal courts must always satisfy themselves that this requirement
has been met before reaching the merits of a case.’ ” Id. (quoting Schanou v.
Lancaster Cnty. Sch. Dist. No. 160, 62 F.3d 1040, 1042 (8th Cir. 1995)). This
requirement, also known as a matter’s justiciability, is typically tested by three
doctrines: ripeness, mootness, and standing. Id. Thus, a suit brought by a
plaintiff without standing is not a case or controversy, and an Article III federal
court lacks subject-matter jurisdiction over the suit. Young Am. Corp. v.
Affiliated Computer Servs., Inc., 424 F.3d 840, 843 (8th Cir. 2005) (quoting
Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (“ ‘[I]f a plaintiff
lacks standing, the district court has no subject matter jurisdiction.’ ”).
To show standing, a plaintiff must establish a concrete injury-in-fact, a
causal connection between the injury and the defendant’s conduct, and a
likelihood that the injury will be redressed by a favorable decision. Lujan v.
8
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “An injury in fact is a ‘direct
injury’ resulting from the challenged conduct.” McClain v. Am. Econ. Ins. Co.,
424 F.3d 728, 730 (8th Cir. 2005). A plaintiff must establish “ ‘an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical.’ ” Young Am. Corp., 424 F.3d at
843 (quoting Lujan, 504 U.S. at 560). “[A] generalized grievance against
allegedly illegal governmental conduct” is insufficient to establish standing.
United States v. Hays, 515 U.S. 737, 743 (1995). Discrimination based on race
“accords a basis for standing only to those persons who are personally denied
equal treatment by the challenged discriminatory conduct[.]” Allen v. Wright,
468 U.S. 737, 755 (1984). Nonetheless, “[t]he actual or threatened injury
required by Art. III may exist solely by virtue of statutes creating legal rights,
the invasion of which creates standing.” Warth v. Seldin, 422 U.S. 490, 500
(1975) (citation omitted) (internal quotation marks omitted).
Defendants focus their standing argument on whether plaintiffs have
shown an injury-in-fact sufficient to confer standing.5 See Docket 23 at 5-9.
Defendants argue that the complaint contains no facts showing that the
plaintiffs were unable to vote absentee or vote by regular ballot. Id. at 8.
Similarly, defendants argue that the complaint does not allege that plaintiffs
were unable to register to vote, or that plaintiffs had no transportation to
The only argument defendants make as to causation or redressability is
based on the absence of an injury-in-fact. Defendants also do not raise any
prudential standing issues.
5
9
Kadoka. Id. According to defendants, plaintiffs have not alleged an injury, even
if voting could be made more convenient. Id. at 8-9.
According to the complaint, each plaintiff is registered to vote in Jackson
County. Each plaintiff lives in or near Wanblee. Thus, to cast an in-person
absentee vote, each plaintiff would be required to travel a significantly greater
distance than the white residents of Jackson County, particularly those
residents living in Kadoka. According to plaintiffs, the relative difficulty and
inconvenience they experience with in-person voter registration and in-person
absentee voting results in less opportunity for them to participate in elections.
“At the pleading stage, general factual allegations of injury resulting from
the defendant’s conduct may suffice, for on a motion to dismiss [the court]
presume[s] that general allegations embrace those specific facts that are
necessary to support the claim.” Lujan, 504 U.S. at 560 (citation omitted)
(internal quotation marks omitted). The Supreme Court has recognized that the
location of and access to polling places can directly impact a person’s ability to
vote. Perkins v. Matthews, 400 U.S. 379, 387-88 (1971). Plaintiffs need not
show they were unable to vote or that the challenged practices were more than
an inconvenience, they only need to allege facts that, assumed to be true, show
their legally protected right to equal access to the electoral process was
infringed. See Coalition for Sensible & Humane Solutions v. Wamser, 771 F.2d
395, 399 (8th Cir. 1985) (finding standing based on allegations that “refusal to
make voter registration facilities more accessible and convenient infringed
[plaintiff’s] right to register and thus her right to vote”); Wandering Medicine v.
10
McCulloch, No. CV 12-135-BLG-DWM (D. Mont. Mar. 26, 2014) (unpublished
interim order denying motion to dismiss); see generally 52 U.S.C. § 10301
(prohibiting voting practices that afford protected groups “less opportunity than
other members of the electorate to participate in the political process and to
elect representatives of their choice”). Here, plaintiffs have alleged that the
location of in-person absentee voting is remote and that the distance makes it
more difficult for them personally to vote absentee compared to other residents
of Jackson County. These allegations are sufficient to show an injury-in-fact.
Whether that alleged injury constitutes a violation of the VRA or plaintiffs’
constitutional rights is a question to be determined on the merits.
II.
Voting Rights Act Results Test Claim
In their first claim for relief, plaintiffs allege that the acts and omissions
of defendants have resulted in the denial of plaintiffs’ right to vote, in violation
of § 2 of the VRA. Docket 1 at 13-14. Section 2 provides:
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a matter which results in a denial or
abridgement of the right of any citizen of the United States to vote
on account of race or color, or [membership in a language minority
group],6 as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the
totality of circumstances, it is shown that the political processes
leading to nomination or election in the State or political
Section 10303(f)(2) 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 because he is a member of a language minority
group.” 52 U.S.C. § 10303(f)(2). The VRA includes American Indians as a
“language minority group.” 52 U.S.C. § 10310(c)(3).
6
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subdivision are not equally open to participation by members of a
class of citizens protected by subsection (a) in that its members
have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of
their choice. The extent to which members of a protected class
have been elected to office in the State or political subdivision is
one circumstance which may be considered: Provided, That
nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the
population.
52 U.S.C. § 10301. “The essence of a § 2 claim is that a certain electoral law,
practice, or structure interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by [minority] and [majority] voters to
elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47
(1986).
“The right to vote freely for the candidate of one’s choice is of the essence
of a democratic society, and any restrictions on that right strike at the heart of
representative government.” Reynolds v. Sims, 377 U.S. 533, 554 (1964). In
1982, Congress amended § 2 to clarify that a plaintiff may establish a violation
of § 2 by showing a discriminatory result alone.7 Gingles, 478 U.S. at 50-51.
Also, the Supreme Court has stated that the VRA “should be interpreted in a
manner that provides the broadest possible scope in combating racial
discrimination.” Chisom v. Roemer, 501 U.S. 380, 403 (1991) (internal
quotations omitted).
This “results” test was adopted by Congress in 1982 to supplant an
earlier Supreme Court decision that required a showing of discriminatory
intent. See Gingles, 478 U.S. at 35.
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12
A violation of § 2 occurs if, based on “the totality of the circumstances,” a
voting practice, standard, or procedure produces a discriminatory effect.
Gingles, 478 U.S. at 37. The Senate Judiciary Committee Report accompanying
the amended § 2 laid out a number of typical factors8 that may be probative of
a § 2 violation:
(1) the history of voting-related discrimination in the state or
political subdivision; (2) the extent to which voting in the state or
subdivision is racially polarized; (3) the extent to which the state or
subdivision has used voting practices or procedures that tend to
enhance opportunities for discrimination against the minority
group; (4) whether minority candidates have been denied access to
any candidate-slating process; (5) the extent to which minorities
have borne the effects of past discrimination in relation to
education, employment, and health; (6) whether local political
campaigns have used overt or subtle racial appeals; (7) the extent
to which minority group members have been elected to public
office in the jurisdiction; (8) whether there is a significant lack of
responsiveness on the part of the elected officials to the
particularized needs of members of the minority group; and (9)
whether the policy underlying the use of voting qualifications is
tenuous.
Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1385-86 (8th Cir. 1995)
(citing Gingles, 478 U.S. at 36-37); see also S. Rep. No. 97-417, at 28 (1982),
reprinted in 1982 U.S.C.C.A.N. 177, 206-07. These factors are “non-exclusive,”
Harvell, 71 F.3d at 1385, and “there is no requirement that any particular
number of factors be proved, or that a majority of them point one way or the
other.” Gingles, 478 U.S. at 45.
Plaintiffs contend that the refusal to establish a satellite in-person
absentee voting office in Wanblee will result in Native American citizens having
8
Hereinafter referred to as the “Senate factors.”
13
less opportunity than non-Native American citizens to participate in elections
and elect candidates of their choice. Docket 1 at 12-13. Specifically, plaintiffs
claim that if Native Americans want to vote absentee in person they must travel
a significantly greater distance than other residents of Jackson County, which
distance acts as a barrier to Native Americans who do not have the means to
travel. To support those claims, plaintiffs have provided data on the
comparative residence rates of Native American and white residents in Jackson
County (Docket 1 at 6-7); travel time and distance between parts of Jackson
County (Docket 1 at 7); socioeconomic data demonstrating the prevalence of
poverty among Native American residents of Jackson County and the disparity
in socioeconomic status between Native American and white residents of
Jackson County (Docket 1 at 8); data on the availability of transportation to
both Native American and white residents of Jackson County (Docket 1 at 7-8);
facts supporting a history of racial discrimination in voting against Native
Americans in South Dakota resulting in very low Native American voter turnout
(Docket 1 at 11-12); and facts showing the policy justification given by Jackson
County is tenuous (Docket 1 at 9-11). These facts, accepted as true, would give
weight to some of the Senate factors, particularly the first, second, fifth, and
ninth. Compare Spirit Lake Tribe v. Benson Cnty., N.D., Civil No. 2:10-cv-095,
2010 WL 4226614, at *3 (D.N.D. Oct. 21, 2010) (granting a preliminary
injunction based on a combination of facts showing that Native American
plaintiffs were socioeconomically disadvantaged, could not reliably get to
14
polling places, and were more likely than others to have not received a mail-in
ballot application).
Defendants contend that the complaint fails to state a claim upon which
relief can be granted because the burden alleged in the complaint is not a
proper basis for a § 2 claim. Docket 23 at 18-20 (quoting Jacksonville Coalition
for Voter Protection v. Hood, 351 F. Supp. 2d 1326, 1334-38 (M.D. Fla. 2004)).
Although defendants quote Hood at length, that decision does not resolve the
issues presented in this case. Hood was a motion for a preliminary injunction,
which requires a substantial likelihood of success on the merits. Hood, 351 F.
Supp. 2d at 1331. In Hood, the plaintiffs argued that the relatively low number
of early polling places in a heavily African-American county had a
disproportionate impact on African-Americans. Id. at 1334. But the court
pointed out that four of the five early polling places were in predominantly
African-American neighborhoods, found that plaintiffs had presented no
evidence of African-Americans experiencing difficulty voting, and concluded
that the issue was one of voting convenience. Id. at 1334-35.
This court does not accept defendants’ contention that in-person
absentee voting is always a convenience and thus not actionable under § 2 as
interpreted in Hood. The Supreme Court stated, “[e]ven without going beyond
the plain words of the statute, we think it clear that the location of polling
places constitutes a ‘standard, practice, or procedure with respect to voting.’ ”
Perkins, 400 U.S. at 387. The Senate Report makes clear that the comparative
availability of absentee voting is also actionable under § 2. S. Rep. No. 97-417,
15
at 30 n.119 (1982) (“[T]he statute’s scope is illustrated by a variety of Section 2
cases involving such episode discrimination. For example, a violation could be
proved by showing that the election officials made absentee ballots available to
white citizens without a corresponding opportunity being given to minority
citizens.”) Also, plaintiffs are not simply asserting that it would be easier to vote
absentee in-person than voting absentee by mail or voting on election day in
person. Rather, the crux of plaintiffs’ § 2 claim is that the location of in-person
absentee voting in Jackson County interacts with the socioeconomic factors of
poverty and lack of access to transportation to deprive plaintiffs and other
Native Americans who would like to vote absentee in-person—particularly at
the time of registration—of an equal opportunity to vote. The ability to vote
absentee in-person must be viewed in conjunction with practical realities—
such as poverty and lack of transportation—that exist on the Pine Ridge
Reservation and must be compared to the opportunity to vote available to other
Jackson County white citizens.
Defendants advance an argument accepted by the court in Hood that
allowing this § 2 claim would open the floodgates to other similar claims that
should not be actionable under § 2. Docket 23 at 18-20. But the fact that one
county may have more satellite locations than another, or that one state may
offer absentee voting while another does not, is missing a key element of a § 2
claim: less opportunity for a protected group to participate in the political
process. In Hood, the plaintiffs did not prevail on their § 2 claim because there
was no evidence that the placement of early polling sites resulted in unequal
16
access. Hood, 351 F. Supp. 2d at 1334-35. Similarly, the hypothetical
examples put forward by defendants contain no facts suggesting a
disproportionate impact on minority voters resulting from a voting standard,
practice, or procedure.9
Defendants also argue that plaintiffs have failed to allege a causal
connection between the challenged practice and the alleged harm. Docket 23 at
20-24. Defendants primarily rely on Gonzalez v. Arizona, 677 F.3d 383 (9th Cir.
2012), and Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), cert. denied, 135
S. Ct. 1551 (2015). In Gonzalez, the plaintiff’s § 2 claim failed because the
plaintiff did not produce evidence or expert testimony on the relationship
between the challenged voter identification law and the opportunity of Latinos
to participate in the political process. Gonzalez, 677 F.3d at 405-07. In this
case, plaintiffs are not required to make an evidentiary showing or produce
expert testimony to survive a motion to dismiss. The complaint alleges:
Defendants argue that residents of the town of Belvidere in Jackson
County would have a cognizable § 2 claim if the court accepts plaintiffs’ theory
of this case. Docket 23 at 20. In so arguing, defendants gloss over the striking
statistical disparities in the minority populations of Kadoka (94.5 percent
white) and Wanblee (95.5 percent Native American) and the relative
socioeconomic positions of those groups. See Docket 1 at 6-8. A § 2 claim only
exists when, based on a totality of the circumstances, a voting standard,
practice, or procedure deprives a protected group of an equal opportunity to
vote. Thus, it is not true that any town without a satellite in-person absentee
voting location necessarily has a viable § 2 claim. According to defendants,
Belvidere has a population of 49 people, 14 percent of whom are Native
American. Docket 23 at 20. A bare showing that the town of Belvidere is 14
miles from Kadoka and has a population that is 14 percent minority is
insufficient to establish a viable § 2 claim under the theory presented by
plaintiffs.
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As a result of Defendants’ refusal to establish the proposed satellite
office in Wanblee, Plaintiffs and other Native American citizens
residing in Jackson County . . . have substantially less opportunity
than the white population to avail themselves of the convenience
and benefits of casting in-person absentee ballots and using inperson registration . . . As a consequence, Native Americans will
not have an equal opportunity to participate in federal and state
elections . . . .
Docket 1 at 12-13 (italics added). These allegations are sufficient to show a
causal connection between the challenged voting standard, practice, or
procedure and the harm suffered by the protected group.
Defendants’ reliance on Frank is also unpersuasive. In Frank, the
Seventh Circuit upheld Wisconsin’s voter identification law because the law
itself imposed equal burdens on all citizens, and any statistical disparity was
not the result of the law itself but of the failure of low income groups to use the
opportunity to vote. See Frank, 768 F.3d at 753-55. And the panel noted that
because Wisconsin had not made it “needlessly hard to get photo ID, it has not
denied anything to any voter.” Id. at 753 (emphasis in original). Although the
plaintiffs in Frank showed no connection between the voter identification
requirement and any impact on their ability to participate in the political
process, plaintiffs have made such allegations here. See Docket 1 at 12-13. At
this stage, plaintiffs have sufficiently alleged a causal connection between the
challenged action and their ability to participate in the political process.
Finally, defendants argue that plaintiffs failed to plead any facts
supporting a necessary component of a § 2 claim: that plaintiffs have less
opportunity to elect representatives of their choice. Docket 23 at 24-27. For
18
support, defendants rely primarily on language found in Chisom v. Roemer, 501
U.S. 380 (1991):
[Section 2] does not create two separate and distinct rights. . . .
The singular form is also used in subsection (b) when referring to
an injury to members of the protected class who have less
“opportunity” than others “to participate in the political process
and to elect representatives of their choice.” It would distort the
plain meaning of the sentence to substitute the word “or” for the
word “and.” Such radical surgery would be required to separate the
opportunity to participate from the opportunity to elect. . . . [All
§ 2] claims must allege an abridgment of the opportunity to
participate in the political process and to elect representatives of
one’s choice. Even if the wisdom of Solomon would support the
LULAC majority’s proposal to preserve claims based on an
interference with the right to vote in judicial elections while
eschewing claims based on the opportunity to elect judges, we
have no authority to divide a unitary claim created by Congress.
Chisom, 501 U.S. at 397-98 (internal citation omitted) (italics in original).
According to defendants, because plaintiffs did not show that they have less
opportunity to elect representatives of their choice, they have not stated a claim
for relief under § 2.
Defendants’ position that Chisom requires a § 2 plaintiff to specifically
plead separate facts showing an “inability to elect representatives of their
choice” is flawed. Docket 23 at 24 (emphasis added). In Chisom, the Supreme
Court was presented with the limited question of whether § 2 extended to cover
state judicial elections. Chisom, 501 U.S. at 390 (“[T]his case presents us solely
with a question of statutory construction. That question involves only the scope
of the coverage of § 2 . . . . We therefore do not address any question
concerning the elements that must be proved to establish a violation of the Act
or the remedy that might be appropriate to redress a violation if provided.”).
19
The Supreme Court interpreted § 2 broadly to include judicial elections. Id. at
403. (“[T]he Act should be interpreted in a manner that provides ‘the broadest
possible scope’ in combating racial discrimination.”). Thus, Chisom expressly
disclaimed the purpose for which defendants now seek to use it.
Moreover, neither § 2 nor Chisom requires a plaintiff to show an inability
to elect representatives. Rather, the statutory test is whether a voting standard,
practice, or procedure results in a minority group having less opportunity to
participate in the political process and elect representatives of their choosing.
And Chisom states that “[a]ny abridgment of the opportunity of members of a
protected class to participate in the political process inevitably impairs their
ability to influence the outcome of an election.” Id. at 397. It is reasonable to
infer that if plaintiffs and other Native Americans are prevented from voting by
legal and practical obstacles, they would have less opportunity to elect
representatives of their choice. Thus, plaintiffs have sufficiently alleged that
they have less opportunity than white residents of Jackson County to both
participate in the political process and elect representatives of their choice
because a voting standard, practice, or procedure makes it more difficult for
them to vote compared to other residents of Jackson County.10
White v. Regester, 412 U.S. 755 (1973), and Whitcomb v. Chavis, 403
U.S. 124 (1971) were vote dilution cases, which require a plaintiff to show that
a districting or apportionment plan has the effect of diluting minority voting
strength even though minorities still have access to the ballot. See generally
Gingles, 478 U.S. at 47-51. In that context, “the inability to elect
representatives of their choice is not sufficient to establish a violation unless,
under the totality of the circumstances, it can also be said that the members of
the protected class have less opportunity to participate in the political process.”
10
20
Defendants also cite Jacob v. Board of Directors of Little Rock School
District, No. 4:06-CV-01007 GTE, 2006 WL 2792172 (E.D. Ark. Sept. 28, 2006),
for the proposition that a § 2 plaintiff must show “an inability to vote.” Docket
23 at 25-27. Like Hood, Jacob was a motion for a preliminary injunction, which
requires a plaintiff to show a likelihood of success on the merits—a different
standard than pleading facts that state a claim for relief. Jacob found that data
showing African-American candidates for school board fared well refuted
plaintiffs’ assertion that minority voters had less opportunity to elect
representatives of their choice and therefore the plaintiffs “failed to present any
evidence or even a colorable theory” supporting a § 2 violation. Jacob, 2006 WL
2792172, at *2. Here, plaintiffs carry no burden of proof at this early stage of
litigation, and there are no facts or evidence refuting plaintiffs’ claim that they
have less opportunity to elect representatives of their choice because they
experience more difficulty voting.
Plaintiffs have pleaded facts supporting the necessary elements of a § 2
claim and have introduced factual allegations that could weigh some of the
Senate factors in their favor. Thus, dismissal of plaintiffs’ § 2 claim at this
stage of litigation for failure to state a claim is inappropriate.
III.
Discriminatory Purpose Claim
In their second claim for relief, plaintiffs allege that defendants acted
with a discriminatory purpose, in violation of the VRA, the Fourteenth
Amendment, and 42 U.S.C. § 1983. Docket 1 at 14-15. In addition to
Chisom, 501 U.S. at 397.
21
prohibiting voting standards, practices, or procedures that result in less
opportunity for protected groups to participate in the political process, § 2 also
prohibits purposeful discrimination. See S. Rep. No. 97-417, at 27 (1982)
(“Plaintiffs must either prove such intent, or, alternatively, must show that the
challenged system or practice . . . results in minorities being denied equal
access to the political process.”).
Such discrimination may also violate the Fourteenth Amendment. See
Reynolds, 377 U.S. at 554. “[I]n order for the Equal Protection Clause to be
violated, ‘the invidious quality of a law claimed to be racially discriminatory
must ultimately be traced to a racially discriminatory purpose.’ ” Rogers v.
Lodge, 458 U.S. 613, 617 (1982) (quoting Washington v. Davis, 426 U.S. 229,
240 (1976)). “A plaintiff challenging the constitutionality of a discriminatory
electoral system must prove, by a preponderance of the evidence, that the
defendant had racially motivated discriminatory intent in enacting or
maintaining a voting practice.” Whitfield v. Democratic Party of the State of Ark.,
890 F.2d 1423, 1426 (8th Cir. 1989) (citing Perkins v. City of West Helena, Ark.,
675 F.2d 201, 207 (8th Cir. 1982)).
Plaintiffs and defendants agree that the proper framework for
determining whether a plaintiff has established purposeful discrimination is
found in Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977). Docket 27 at 29-30; Docket 28 at 16. To show intentional
discrimination, an important starting point is the impact of the challenged
official action and whether it bears more heavily on a minority group. Arlington
22
Heights, 429 U.S. at 266. Additionally, courts look to the historical background
of the decision, the specific sequence of events leading up to the decision,
whether the decision involved any substantive departures from normal
procedure, and any available legislative history. Id. at 266-67.
Defendants contend that the complaint fails to state a claim for a
constitutional violation because it does not contain any facts showing that
defendants intended to discriminate when they did not establish the satellite
office in Wanblee. Docket 23 at 11-12. The complaint alleges that HAVA
funding was available to establish a satellite office in Wanblee (Docket 1 at 911); that defendants knew the HAVA funding was available (Id. at 9 (alleging
that Jackson County was provided with regular updates on the availability of
HAVA funding)); and that the reason defendants gave for not establishing the
satellite office was because funding was not available (Id. at 9, 12). At this stage
of litigation, the court assumes those facts to be true and draws all reasonable
inferences from those facts in favor of plaintiffs. Based on the facts in the
complaint, it is reasonable to infer that defendants knew that the funding
justification was not true at the time they made the decision not to establish
the satellite office. According to the complaint, the official action bears more
heavily on minority voters and occurred against a backdrop of historical
discrimination. Thus, the complaint alleges sufficient facts to state a claim for
relief based on intentional discrimination.11
In their reply brief, defendants contend that plaintiffs are required to
show that defendants’ actions were without a rational basis. See Docket 28 at
11
23
Defendants point the court to Denis v. New York City Board of Elections,
No. 94 CIV. 7077 (KMW), 1994 WL 613330 (S.D.N.Y. Nov. 7, 1994). Docket 23
at 12-13. In that opinion, the district court found on reconsideration that
dismissal of plaintiffs’ Equal Protection claim was appropriate because
plaintiffs had not shown that minority voters were intentionally turned away
from the polls or that mechanical irregularities were intended to suppress
minority votes. Denis, 1994 WL 613330, at *3. While Denis confirms that intent
is part of an Equal Protection claim, it does not shed any additional light on
this situation because the Denis court simply found that plaintiffs had not
shown intent. For the reasons stated above, plaintiffs in this case have alleged
sufficient facts to show that a discriminatory purpose may have been a
motivating factor in the decision not to establish a satellite office in Wanblee.
Defendants also cite to Frank and Crawford v. Marion County Election
Board, 553 U.S. 181 (2008), two cases upholding voter identification
requirements. Docket 23 at 12-14. Defendants argue that this case, like Frank
and Crawford, amounts to no more than an inconvenience that does not
impose a substantial burden on the right to vote and is not tied to race. Id. at
13. In Frank and Crawford, the challenges to voter identification laws were
rejected because all citizens had to shoulder the same burden to get acceptable
17 (citing Gustafson v. Ill. State Bd. of Elections, No. 06 C 1159, 2007 WL
2892667, at *8 (N.D. Ill. Sept. 30, 2007)). Gustafson, however, was an order
granting summary judgment that applied rational basis review to the equal
protection claim because there was no discriminatory component to the claim.
Thus, Gustafson presented a different claim in a different procedural posture
than the present case.
24
identification. See, e.g., Frank, 768 F.3d at 751-55 (citing Crawford and
discussing the burden imposed by voter identification laws). Unlike voter
identification cases, in which all voters are subject to the same inconvenience,
the complaint in this case alleges that the challenged action places a burden on
Native Americans that is not placed on white citizens of Jackson County. Thus,
the reasoning in Frank and Crawford does not conclude the analysis in this
case.
The constitutional claim discussed above serves as the basis for
plaintiffs’ claim under § 1983. See Docket 1 at 14. Section 1983 provides a
cause of action against any “person who, under the color of any statute,
ordinance, regulation, custom, or usage, of any state” causes the deprivation of
a right protected by federal law or the United States Constitution. 42 U.S.C.
§ 1983. “[T]o state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
Cir. 2009)). Here, defendants solely argue that because there is insufficient
evidence of a constitutional violation, plaintiffs have not stated a claim for relief
under § 1983. Docket 23 at 14-17. For the reasons stated above, plaintiffs have
alleged sufficient facts to state a claim for relief based on intentional
discrimination. Thus, dismissal of plaintiffs’ § 1983 claim is improper at this
time.
25
CONCLUSION
At this stage of litigation, the court assumes all of the well-pleaded
allegations in the complaint to be true. The complaint in this case includes
allegations that could support a finding of both a discriminatory result and a
discriminatory purpose. Accordingly, it is
ORDERED that defendants’ motion to dismiss in lieu of an answer
(Docket 22) is denied. Defendants’ answer is due by May 11, 2015.
IT IS FURTHER ORDERED that plaintiffs’ motions for a preliminary
injunction (Docket 13), judicial notice (Docket 14), and not to consolidate the
preliminary and permanent injunctions (Docket 15) are denied as moot.
Dated May 1, 2015.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
26
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