Bone Shirt v. Hazeltine, CIV.01-3032.

• Decision Date: 02 May 2002
• Docket Number: No. CIV.01-3032.,CIV.01-3032.
• Parties: Alfred BONE SHIRT; Belva Black Lance; Bonnie High Bull; and Germaine Moves Camp, Plaintiffs, v. Joyce HAZELTINE, in her official capacity as Secretary of the State of South Dakota; Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives; South Dakota House of Representatives; Arnold Brown, in his official capacity as President of the South Dakota Senate; and South Dakota Senate, Defendants.
• Court: U.S. District Court — District of South Dakota

200 F.Supp.2d 1150 Alfred BONE SHIRT; Belva Black Lance; Bonnie High Bull; and Germaine Moves Camp, Plaintiffs,
v.
Joyce HAZELTINE, in her official capacity as Secretary of the State of South Dakota; Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives; South Dakota House of Representatives; Arnold Brown, in his official capacity as President of the South Dakota Senate; and South Dakota Senate, Defendants. No. CIV.01-3032. United States District Court, D. South Dakota, Central Division. May 2, 2002.

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Patrick K. Duffy, Rapid City, SD, Laughlin McDonald, Bryan L. Sells, Neil Bradley, American Civil Liberties Union Foundation, Atlanta, GA, for Plaintiffs.

John P. Guhin, Sherri Sundem Wald, Attorney General's Office, Pierre, SD, for Defendants.

Cheryl Schrempp Dupris, U.S. Attorney's Office, Pierre Office, Pierre, SD, Gaye L. Tenoso, R. Tamar Hagler, Department of Justice, Civil Rights Division, Washington, DC, for United States.

Before LOKEN, Circuit Judge, KORNMANN and SCHREIER, District Judges.

OPINION AND ORDER

SCHREIER, District Judge.

On November 1, 2001, South Dakota enacted a state-wide legislative redistricting

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plan in the wake of the 2000 census. Like its 1991 predecessor, the 2001 Plan divides South Dakota into thirty-five legislative districts, each of which elects one senator to the State's bicameral legislature. Each legislative district, except one, also elects two representatives to the State's House of Representatives. The remaining district is divided into two single-member house districts. Four Native American qualified voters who reside in Districts 26 and 27 commenced this action, alleging that the 2001 Plan must be precleared in accordance with § 5 of the Voting Rights Act of 1965, and that the Plan denies or abridges their right to vote on account of their membership in a language minority in violation of § 2 of that Act. See 42 U.S.C. §§ 1973, 1973b(f)(2), 1973c. Plaintiffs moved for a preliminary injunction preventing defendant state officials from implementing certain portions of the 2001 Plan until it has been precleared in accordance with § 5.

The chief judge of the circuit convened this three-judge district court to consider plaintiffs' § 5 claim. See 28 U.S.C. § 2284(b); 42 U.S.C. § 1973c. We consolidated their preliminary injunction motion with a trial on the merits of that claim. See Fed.R.Civ.P. 65(a)(2). The parties submitted briefs and affidavits and appeared for a lengthy argument hearing at which no testimonial evidence was offered. On the eve of that hearing, the United States moved to participate as amicus curiae, represented by the Voting Section of the Civil Rights Division of the Department of Justice. We granted that motion and have considered briefs submitted by the United States as amicus arguing that the 2001 Plan must be precleared. We now grant plaintiffs limited permanent injunctive relief on their § 5 claim and order the State to submit the plan for preclearance within thirty days.

I. Background.

Section 5 requires federal preclearance of voting changes in certain state and local jurisdictions. Section 5 initially covered southern states and areas in the north where literacy tests and other discriminatory devices had been used to disenfranchise qualified African-American voters. In 1975, coverage was expanded to include state and local jurisdictions which hold English-only elections if (i) Native Americans or another "language minority" comprise more than 5 percent of the population, and (ii) less than 50 percent of the voting-age citizens were registered to vote or voted in the 1972 presidential election. See 42 U.S.C. §§ 1973b(b), 1973b(f)(3), 1973c. In South Dakota, Shannon and Todd counties became covered jurisdictions by reason of the 1975 amendment. See 28 C.F.R. pt. 51 app. (list of covered jurisdictions); 41 Fed. Reg. 784 (Jan. 5, 1976).

Section 5 is an "uncommon exercise of congressional power" intended to prevent covered jurisdictions from "contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." South Carolina v. Katzenbach, 383 U.S. 301, 334-35, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). The statute applies to changes in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." 42 U.S.C. § 1973c. Consistent with the purpose to frustrate discriminatory contrivances, the Supreme Court "has made clear that minor, as well as major, changes require preclearance." Young v. Fordice, 520 U.S. 273, 284, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997); see Allen v. State Bd. of Elections, 393 U.S. 544, 566-68, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). If § 5 applies, a voting change may not be implemented until the voting change receives preclearance—either no objection by the United States

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Attorney General after the change has been submitted for his review, or a declaratory judgment by a three-judge panel of the United States District Court for the District of Columbia that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or language minority status. 42 U.S.C. § 1973c; see Lopez v. Monterey County, Cal., 519 U.S. 9, 20, 117 S.Ct. 340, 136 L.Ed.2d 273 (1996).

In this case, South Dakota concedes, as it must, that if redistricting caused a voting change in Shannon or Todd county, that voting change must be precleared.¹ The State has not submitted the 2001 Plan to the Attorney General or the District of Columbia District Court for preclearance. Like the 1991 Plan, the 2001 Plan places Shannon and Todd counties in Senate District 27. The State sought preclearance for District 27 before the 2001 Plan was enacted, but the Attorney General will not consider pre-enactment submissions. See 28 C.F.R. § 51.22(a). After the 2001 Plan was enacted, the State concluded that preclearance is not required because the 2001 Plan is not a voting change in Shannon and Todd counties for purposes of § 5. Thus, the issues before us are (i) whether preclearance is required because the 2001 Plan includes a change in voting that affects Shannon and Todd counties within the meaning of § 5, and if so, (ii) whether the State is required to submit the Plan for preclearance, and (iii) to what injunctive relief are plaintiffs entitled. See City of Lockhart v. United States, 460 U.S. 125, 129 n. 3, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983).

II. Whether Preclearance Is Required.

It is well settled that a reapportionment plan is a "voting procedure, standard or practice" within the meaning of § 5. See Georgia v. United States, 411 U.S. 526, 531-35, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). Likewise, it is settled that the baseline to determine whether a change has occurred for purposes of § 5 is "the status quo that is proposed to be changed," here, the precleared 1991 Plan. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000). The Supreme Court has also clarified that § 5 only bars changes that would "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). As the Court recently observed, § 5 "prevents nothing but backsliding." Bossier Parish, 528 U.S. at 335, 120 S.Ct. 866.

This court plays only a limited role in enforcing § 5. The statute vests exclusive preclearance authority in the Attorney General and the District of Columbia District Court. Accordingly, we lack authority to decide the merits of whether any voting change in the 2001 Plan had the purpose or will have the effect proscribed by § 5. See Perkins v. Matthews, 400 U.S. 379, 385, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). Thus, our inquiry is limited but significant—to determine whether a change "in voting" that affects a covered jurisdiction has been adopted that has the potential for retrogressive discrimination. See Presley v. Etowah County Comm'n,

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502 U.S. 491, 501-03, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992); N.A.A.C.P. v. Hampton County Election Comm'n, 470 U.S. 166, 181, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985).

Plaintiffs argue that two demographic changes affect the new District 27 and require its submission for § 5 preclearance. First, Native Americans comprised 87 percent of the total population and 82 percent of the voting-age population of District 27 in the 1990 census, upon which the 1991 Plan was based, but Native Americans are 90 percent of the total population and 86 percent of the voting-age population in the 2000 census, upon which the 2001 Plan was based. (Defendants submit somewhat different figures, but the differences are de minimis for our purpose.) Second, District 27 was underpopulated by 4.1 percent in the 1991 Plan and was the sixth most underpopulated district, whereas District 27 is overpopulated by 4 percent in the 2001 Plan and is the third most overpopulated district.

Given the Supreme Court's mandate that even minor changes must be precleared, we conclude that these demographic shifts render the new District 27 a change "in voting" for the voters of Shannon and Todd counties that must be precleared under § 5. The State vigorously argues that this was not a retrogressive change prohibited by § 5. But it is not our task to decide the merits of that issue— that is for the Attorney General or the District of Columbia District Court to decide. Either would doubtless decide the merits of this issue on a far more comprehensive record than has been submitted to this court. See 28 C.F.R. § 51.27 (required contents of a preclearance submission).

III. The Appropriate Remedy.

"If a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change." Lopez...