U.S. v. State of S. D.

• Decision Date: 25 February 1981
• Docket Number: No. 80-1588,80-1588
• Citation: 636 F.2d 241
• Parties: UNITED STATES of America, Appellant, v. STATE OF SOUTH DAKOTA; Fall River County, South Dakota; Sherrill Dryden, in her official capacity as Fall River County Auditor, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 241

636 F.2d 241

UNITED STATES of America, Appellant, v. STATE OF SOUTH DAKOTA; Fall River County, South Dakota Sherrill Dryden, in her official capacity as Fall River County Auditor, Appellees.

No. 80-1588.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 13, 1980.

Decided Dec. 29, 1980.

As Amended Feb. 25, 1981.

James W. Clute, Atty., U. S. Dept. of Justice, Washington, D. C., for appellant.

Mark V. Meierhenry, Atty. Gen. of South Dakota, Pierre, S. D., for appellees.

Before HEANEY, BRIGHT and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

In April, 1976, Frank Rapp, an Indian and a resident of Shannon County, South Dakota, attempted to run for the office of county commissioner of Fall River and Shannon counties. The Fall River County Auditor refused to file his nominating petition on the advice of officials of Fall River County and the State Attorney General, who took the position that only residents of Fall River County could run for the office of county commissioner. As a consequence, Rapp's name did not appear on the ballot for the 1976 primary.

On April 4, 1978, the United States filed a complaint against the State of South Dakota, Fall River County and the auditor of Fall River County. The complaint alleged that the refusal of Fall River County to permit residents of Shannon County, 86.2 percent of whom are Indian, to run for elective county offices traditionally held by residents of Fall River County, violated 42 U.S.C. § 1971(a)(1), 42 U.S.C. § 1971(a)(2)(A), 42 U.S.C. § 1973, and the First, Fourteenth and Fifteenth Amendments.

The district court denied the request of the United States for declaratory and injunctive relief. United States v. South Dakota, 491 F. Supp. 1349 (D.S.D.). It held with respect to the statutory claims under 42 U.S.C. § 1971 that proof of intentional racial discrimination was necessary, and that the United States did not meet its burden of proof. The court rejected the Fourteenth Amendment claim, holding that Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978), overruled this Court's decision in Little Thunder v. State of South Dakota, 518 F.2d 1253 (8th Cir. 1975), on which the government's Fourteenth Amendment claim was based. The court did not address the government's claims under 42 U.S.C. § 1973 and the First and Fifteenth Amendments. We reverse.

THE FACTS

This litigation stems from the unusual governmental structure of counties in the State of South Dakota. This Court described it in Little Thunder v. State of South Dakota, supra, 518 F.2d at 1254-1255 as follows:

The State of South Dakota is divided, by S.D.C.L. §§ 7-1-2 through 7-1-68 (1967), into sixty-seven county units. For purposes of county administration and government, these sixty-seven counties are divided into organized and unorganized counties. S.D.C.L. § 7-4-1 (1967) recognized the validity of every county government operating as such on the date of South Dakota's admission as a state. These became the first organized counties. Presumably all other counties were at that time designated as unorganized counties. A statutory method of organizing a county government, through petition and referendum, was also established and at the present time the only unorganized counties are * * * Todd, Washabaugh and Shannon.

Each organized county has a full complement of elected county officials whose task it is to administer the affairs of local government. They include county commissioners, judges, clerk of court, register of deeds, auditor, treasurer, sheriff, coroner and attorney. The unorganized counties, however, do not elect these officials for themselves but rather are attached to an adjoining county for purposes of government and administration. The officials of the organized counties, under the provisions of S.D.C.L. §§ 7-17-3 (1967) and 7-17-5 (1974), administer the affairs of the attached unorganized counties and have all the powers and duties with regard to the attached county that they have in their own. The residents of the unorganized counties, such as plaintiffs, are not permitted to vote for the county officers in the organized county to which their county is attached. Thus plaintiffs cannot vote for most of the elected county officials who govern them. They may vote only for school board members and highway officials. See S.D.C.L. §§ 12-23-3 and 13-8-1 (1974). They can, of course, vote for all state and national offices. (Footnotes omitted.)

In Little Thunder v. State of South Dakota, supra, we held the South Dakota laws which prevented residents of unorganized counties from voting for county officers of the organized county to which their county was attached to be unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment. This lawsuit arose in the wake of our decision in Little Thunder, when Fall River County officers and the State Attorney General took the position that only residents of Fall River County could become candidates for the office of county commissioner even though residents of Shannon County could vote for that office.

The United States contends, inter alia, that denial of the right of Shannon County residents to become candidates for Fall River County offices is in violation of the Equal Protection Clause of the Fourteenth Amendment. We agree and reverse the district court on the basis that the Equal Protection claim raised in this case ¹ was implicitly decided in favor of the United States in the Little Thunder decision. ²

Little Thunder established that residents of Shannon County have the right to vote for Fall River County offices. That right to vote may not be burdened by arbitrary restrictions. As the Supreme Court stated in Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 1754, 26 L.Ed.2d 370 (1970),

there can be no doubt at this date that "once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (86 S.Ct. 1079, 1080, 16 L.Ed.2d 169) (1966); see Williams v. Rhodes, 393 U.S. 23, 29 (89 S.Ct. 5, 9, 21 L.Ed.2d 24) (1968). Moreover, the right to vote, as the citizen's link to his laws and government, is protective of all fundamental rights and privileges. See Yick Wo v. Hopkins, 118 U.S. 356, 370 (6 S.Ct. 1064, 1071, 30 L.Ed. 220) (1886); Wesberry v. Sanders, 376 U.S. 1, 17 (84 S.Ct. 526, 534, 11 L.Ed.2d 481) (1964).

The candidacy restriction at issue here clearly burdens the right to vote in that it restricts the field of candidates and thus limits the voters' freedom of choice. As the Supreme Court pointed out in Powell v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 1977, 23 L.Ed.2d 491 (1969):

A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." * * * As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.

We next must determine the appropriate test with which to assess whether an Equal Protection violation has occurred here. As we stated in McLain v. Meier, 637 F.2d 1159, 1163 (1980), restrictions affecting the right to vote

must cause a discrimination "of some substance" before the compelling state interest test is triggered. American Party of Texas v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974); see also Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); McDonald v. Bd. of Election Comm'rs. of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).

When dealing with candidacy restrictions in particular, before close scrutiny is called for, the restriction in question must have "a real and appreciable impact on the exercise of the franchise." Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972).

Such an impact exists here. Approximately 43 percent of those eligible to vote for Fall River County offices reside in Shannon County. Those voters have been found by this Court to have sufficient interest in the affairs of Fall River and Shannon counties to have the right to vote. That right to vote is severely circumscribed by their inability to vote for candidates who live in the same county as they do. A huge segment of the population from which the pool of candidates is normally drawn has been cut off by the candidacy restriction under attack here. The ultimate effect of the candidacy restriction would be the denial of representation to an identifiable class of voters with a common interest.

Because of the impact of the candidacy restriction on the right to vote, we must look to whether the State and Fall River County offer sufficient justification for the restriction. The justification offered is that because the great majority of Shannon County voters reside on the Pine Ridge Indian Reservation and hence have little, if any, interest in the county government of either Shannon or Fall River County, ³ election of Shannon County residents would subject Fall River County residents to the possibility of a government dominated by persons who have a personal stake in the government insufficient to insure responsible exercise of their duties.

We have already held in Little Thunder that the residents of Shannon County have a sufficient interest in the election of Fall River County officials to be entitled to the right to vote for those officials. We described that interest as follows residents of the unorganized counties possess a substantial interest in the choice of county officials since those officials govern their affairs.

Little Thunder v. State of South Dakota, supra, 518 F.2d at 1256. We are unable to accept the argument that a heightened level of interest is necessary before a Shannon County resident is entitled to run for office. The presumption that a...