Lower Brule Sioux Tribe v. Lyman Cnty.
| Decision Date | 02 September 2022 |
| Docket Number | 3:22-CV-03008-RAL |
| Parties | LOWER BRULE SIOUX TRIBE, NEIL PIERRE RUSSELL, INDIVIDUAL MEMBER OF THE LOWER BRULE SIOUX TRIBE; STEPHANIE BOLMAN, INDIVIDUAL MEMBER OF THE LOWER BRULE SIOUX TRIBE; AND BEN JANIS, INDIVIDUAL MEMBER OF THE LOWER BRULE SIOUX TRIBE; Plaintiffs, v. LYMAN COUNTY, LYMAN COUNTY BOARD OF COMMISSIONERS, BRIAN KRAUS, IN HIS OFFICIAL CAPACITY AS LYMAN COUNTY COMMISSIONER; LESLIE REUER, IN HER OFFICIAL CAPACITY AS LYMAN COUNTY COMMISSIONER; ZANE REIS, IN HIS OFFICIAL CAPACITY AS LYMAN COUNTY COMMISSIONER; RYAN HUFFMAN, IN HIS OFFICIAL CAPACITY AS LYMAN COUNTY COMMISSIONER; JARED SCHELSKE, IN HIS OFFICIAL CAPACITY AS LYMAN COUNTY COMMISSIONER; AND DEB HALVERSON, IN HER OFFICIAL CAPACITY AS LYMAN COUNTY AUDITOR; Defendants. |
| Court | U.S. District Court — District of South Dakota |
This Opinion and Order repeats much of what appears in the prior Opinion and Order Granting Motion for Preliminary Injunction Depending on Adoption of an Appropriate Remedial Plan, Doc 55. That way both the parties and the United States Court of Appeals for the Eighth Circuit, if necessary, will have the reasoning supporting entry of a preliminary injunction and the nature of that injunction in a single opinion and order.
Plaintiffs Neil Russell, Stephanie Bolman, and Ben Janis are members of the Lower Brule Sioux Tribe (“the Tribe”) and registered voters in Lyman County, South Dakota. Doc. 1 at 4. The Tribe, Russell, Bolman, and Janis (collectively “Plaintiffs”) filed a motion for preliminary injunction to compel Defendants Lyman County, the Lyman County Board of Commissioners (“the Commission”) and its individual members, and Lyman County Auditor Deb Halverson (collectively “Defendants”) to implement a new redistricting plan for Lyman County commissioner elections. Doc. 3. In short, this case centers on the delayed implementation of redistricting plans for Lyman County commissioner elections that the Commission adopted after the Tribe raised a Voting Rights Act (“VRA”) concern; the original plan adopted by the Commission was to be fully implemented in 2026 but an amended plan adopted by the Commission after this Court's initial opinion would implement changes to address VRA concerns in 2024. Both plans leave the 2022 county commissioner elections undisturbed. Plaintiffs allege that, without relief extending to the 2022 Lyman County commissioner elections, the voting power of tribal members will be diluted in violation of § 2 of the VRA, 52 U.S.C. § 10301. Doc. 1 at 17. This Court determines that Plaintiffs are likely to succeed on the merits of their claim and grants the motion for preliminary injunction to a limited extent.
After communication with counsel, this Court issued a scheduling order to facilitate timely submission of the case. Doc. 31. Defendants filed a Motion To Dismiss, Doc. 34, and Brief Opposing the Motion for Preliminary Injunction, Doc. 37, arguing among other things that this Court cannot grant Plaintiffs relief this close to the November 8, 2022 election. Doc. 34; Doc. at 10-11; Doc. 37 at 11-21.
Plaintiffs filed a Motion to Decide Preliminary Injunction on the record. Doc. 38. Both parties filed Declarations or Affidavits to submit material into the record. Doc. 5; Doc. 6; Doc. 7; Doc. 8; Doc. 36.
On July 26 and July 27, 2022, this Court held an evidentiary hearing on the Motion for Preliminary Injunction, during which it denied the Defendants' Motion to Dismiss and denied the Plaintiffs' Motion to Decide the Preliminary Injunction Motion on the Record. Doc. 32; Doc. 48. The Tribe then presented five witnesses: Tribal Chairman Clyde Estes, Professor Loren Collingwood, Timothy Azure, and Professor Daniel McCool by video deposition since he was on a family vacation to Ireland, and on rebuttal Brandon Campea. Doc. 48. Defendants also called five witnesses: Tribal Public Relations Director Christian Skunk, South Dakota Secretary of State officials Kea Warne and Suzanne Wetz, Lyman County Auditor Debra Halverson, and South Dakota State Representative Rebecca Reimer. Id.
On August 11, 2022, this Court entered an Opinion and Order Granting Motion for Preliminary Injunction Depending on Adoption of an Appropriate Remedial Plan. Doc. 55. That 49-page Opinion and Order made preliminary findings of fact, explained why Plaintiffs had made a showing under the Dataphase[1] factors for preliminary injunctive relief, and rejected Defendants' arguments for dismissal of the case. That Opinion and Order concluded by granting Plaintiffs' Motion for a Preliminary Injunction “depending upon this Court determining proper injunctive relief.” Doc. 55 at 56. Part of that Opinion and Order discussed three possible relief plans: (1) Defendants' request for no alteration of the 2022 election, which likely would result in further evidence of dilution of Native American voting in Lyman County by the non-Indian majority, prompting this Court likely to remedy the situation through altering the redistricting plan so that the 2024 election would produce two Native-preferred commissioners; (2) Plaintiffs' request for cancelling the 2022 county commissioner races to hold special elections in 2023 for two commissioner positions representing the Reservation; and (3) a plan this Court floated to hold the commissioner elections in November of 2022 but with the two district plan in place, allowing the six qualified candidates to run-four in the non-Reservation district where two would be elected, and two in the Reservation district where one would be elected in a non-partisan election without party affiliations listed. Doc. 55 at 38, 51-56. The prior Opinion and Order concluded by giving Defendants seven days from the order to “propose an appropriate remedial plan in writing to this Court,” and directed the parties to cooperate in setting a hearing. Doc. 55 at 48. Working with counsel, this Court then set a hearing on remedial plan to occur on August 23, 2022.
Defendants then moved this Court for entry of a stay of any preliminary injunction, which this Court denied. Doc. 64. Defendants then appealed the denial of a stay to and sought a stay from the United States Court of Appeals for the Eighth Circuit, which promptly dismissed the appeal without prejudice to a later appeal. Lower Brule Sioux Tribe, et al. v. Lyman Cnty., et al., No: 22-2748 (8th Cir. Aug. 23, 2022). On August 22, 2022, the Commission adopted Ordinance 2022-01 Amendment 01, Doc. 66-2 at 1-2, which is a revised redistricting plan and in turn its remedial plan, though Defendants do not characterize it as such. Defendants also filed a Second Affidavit and Third Affidavit of Lyman County Auditor Debra Halverson with attachments, Docs. 60, 66. Defendants urged that no further injunctive relief was in order or indeed allowable.
This Court conducted a hearing on possible remedial plans on August 23, 2022, during which it heard additional testimony from Lyman County Auditor Halverson. Plaintiffs made clear that they do not believe that the newly adopted redistricting ordinance solves the VRA issue, although as a last resort Plaintiffs would want this Court to enjoin Defendants from altering the new redistricting plan if this Court does not grant other relief. Plaintiffs advocate cancelling or decertifying results of any Lyman County commissioner elections in November of 2022 and holding a special election in 2023 for two Native-preferred commissioners to be elected to four-year terms. Defendants oppose the entry of any injunctive relief, asserting that it is too close to the November of 2022 election for any change and no injunction is warranted.
After that hearing, this Court entered an Order Seeking Additional Information on Feasibility of Certain Ballot Changes, largely to explore the feasibility of the plan previously floated by this Court by which one commissioner might be elected from the new district comprising the Lower Brule Reservation in November of 2022, with two commissioners then elected from the non-Reservation district in 2022, followed by one commissioner elected in each district in 2024. Neither side favored that middle-ground option. The parties received until August 29, 2022, to respond to those questions and now have done so in part, as discussed below.
This Court restates preliminary findings of fact from the prior Opinion and Order Granting Motion for Preliminary Injunction Depending on Adoption of an Appropriate Remedial Plan but includes additional information from the August 23 hearing and material submitted after the July 26 and 27 evidentiary hearing. These preliminary findings of fact are based on the testimony, exhibits, and records that appear not subject to genuine dispute.[2]
Lyman County (“the County”) consists of 1,641.94 square miles in southcentral South Dakota. Doc. 1 at 5. The County is bounded by the Missouri River on its eastern and northeastern borders and the White River on its southern border. See id. Most of the Lower Brule Reservation (“the Reservation”) is in a relatively compact geographical area in the northeast comer of Lyman County. Doc. 1 at 5; Doc. 7 at 2. The Lower Brule Sioux Tribe is a federally recognized Indian Tribe with some 3,410 enrolled members. Doc. 1 at 3. Roughly one-half of the Tribe's enrolled members presently live on the Reservation. See id. at 6-7.
According to the 2020 census and County records, there are 3,718 people in Lyman County, of which 2,622 are of voting age, and approximately 2,185 are registered voters. Doc. 1 at 6; Doc 11 at 15, 19. The County's population has decreased by about 5% since 2010, with the...
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