Redistrict case may proceed

By Chet Brokaw, Associated Press Writer | Friday, October 07, 2005

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PIERRE — A federal judge’s decision has cleared the way for the state to file an appeal in a dispute on whether the Legislature’s 2001 redistricting plan violated the voting rights of American Indians in an area that includes the Pine Ridge and Rosebud Indian reservations.

U.S. District Judge Karen Schreier of Rapid City ruled there is no need to have the U.S. Justice Department review the district boundaries she approved last month.

Schreier’s order means the state can proceed to appeal the entire case to the 8th U.S. Circuit Court of Appeals, Attorney General Larry Long said Thursday. The state will appeal Schreier’s ruling that threw out the Legislature’s plan.

Long said the state likely will ask Schreier to allow the continued use of the Legislature’s redistricting plan rather than her version until the appeal is concluded. He said he doubts that the appeals court will decide the case before early April, when candidates will have to file nominating petitions to run for legislative seats in the 2006 election.

If Schreier declines to delay the effect of the new district boundaries she approved, the appeals court could be asked to do so, the attorney general said.

In August, Schreier redrew the boundaries of three districts. The new plan, suggested by the American Civil Liberties Union, is intended to give Indian voters a chance to elect an additional member of the Legislature.

Last year, Schreier ruled that the Legislature’s 2001 redistricting plan illegally packed too many Indians into District 27, which for many years has included the Rosebud reservation and the main part of the Pine Ridge reservation. Nearly 90 percent of those living in the district, which covers Shannon and Todd counties and a connecting strip across southern Bennett County, are Indians.

The ACLU, representing four Indians who sued the state, said the boundaries of District 27 and adjoining District 26 should be changed.

That could result in an Indian candidate gaining a House seat in District 26, which previously has included Haakon, Jackson, Jones, Lyman, Mellette and Tripp counties and part of Bennett County.

The judge’s plan calls for a new District 27 that includes Shannon, Bennett, Jackson and Haakon counties, an area that includes the entire Pine Ridge reservation and the Oglala Sioux Tribe’s off-reservation trust lands. Indians would make up nearly 66 percent of the voting-age population, the judge said.

The new District 26 would include Todd, Mellette, Tripp and Gregory counties, which would cover the entire Rosebud reservation and nearly all of the Rosebud Sioux Tribe’s off-reservation land.

Nearly all of South Dakota’s 35 legislative districts elect one senator and two House members at-large. District 26 would be split into two single-member House districts, each of which would elect its own representative, under Schreier’s plan.

The single-member House district in Todd and Mellette counties would have a chance to elect a candidate preferred by Indians because nearly three-fourths of its voting-age population would be Indian.

The changes in Districts 26 and 27 also require adjustments in adjoining District 21 to make the district populations nearly equal, Schreier said.

District 21 has covered Charles Mix, Gregory, Brule and Buffalo counties. The new district approved by the judge would include Jones, Lyman, Buffalo, Brule and Charles Mix counties.

The federal Voting Rights Act requires that the U.S. Justice Department review any changes in laws or rules that would affect the voting rights of Indians in Shannon and Todd counties. The state argued that such a Justice Department review, called preclearance, would be required for the redistricting plan ordered by Schreier.

But the judge ruled the state lacked standing to raise the issue and that the state’s claims were insubstantial. The federal law protects voters, not state governments, Schreier said.

“Every court that has addressed this question has concluded that court-adopted remedial plans proposed by private citizens are not subject to preclearance,” Schreier wrote.