Rosebud Sioux Tribe v. Barnett
| Decision Date | 26 May 2022 |
| Docket Number | 5:20-cv-5058 |
| Citation | 604 F.Supp.3d 827 |
| Parties | ROSEBUD SIOUX TRIBE and their members, Oglala Sioux Tribe and their members, and Lakota People's Law Project, Kimberly Dillon and Hoksila White Mountain, Plaintiffs v. Steve BARNETT, in his official capacity as Secretary of State for the State of South Dakota and Chairperson of the South Dakota State Board of Elections; Laurie Gill, in her official capacity as Cabinet Secretary for the South Dakota Department of Social Services; Marcia Hultman, in her official capacity as Cabinet Secretary for the South Dakota Department of Labor and Regulation; and Craig Price, in his official capacity as Cabinet Secretary for the South Dakota Department of Public Safety, Defendants |
| Court | U.S. District Court — District of South Dakota |
Terry L. Pechota, Pechota Law Office, Rapid City, SD, Adam Lioz, Pro Hac Vice, Demos, Washington, DC, Samantha B. Kelty, Pro Hac Vice, Native American Rights Fund, Washington, DC, Brenda Wright, Pro Hac Vice, Demos, New York, NY, Jacqueline D. DeLeon, Pro Hac Vice, Kim J. Gottschalk, Pro Hac Vice, Native American Rights Fund, Boulder, CO, Joseph J. Wardenski, Pro Hac Vice, Wardenski P.C., Brooklyn, NY, for Plaintiffs Rosebud Sioux Tribe, Oglala Sioux Tribe.
Clifton E. Katz, Attorney General of South Dakota, Pierre, SD, Grant M. Flynn, Bachand & Hruska, P.C., Pierre, SD, for Defendants.
Pending before the Court is Plaintiffs’ Motion for Summary Judgment (Doc. 76, 77) which Defendants have resisted (Doc. 93). Plaintiffs have replied to Defendants’ response (Doc. 99). The United States has filed a Statement of Interest (Doc. 113). Having considered the filings of the parties, including the statement of uncontested facts from Plaintiff and response from Defendant, the Court grants the motion in part and denies the motion in part.
The National Voter Registration Act has a number of goals, and among them, it seeks "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office...." 52 U.S.C. § 20501. To achieve this goal, the statute includes requirements to allow prospective voters to register to vote in conjunction with applying for a driver's license, 52 U.S.C. § 20504, and applying for public assistance and assistance for people with disabilities. 52 U.S.C. § 20506(a)(2). The statute sets forth a detailed list of services that voter registration agencies must provide to individuals in conjunction with registering to vote, 52 U.S.C. § 20506, and the gist of Plaintiffs’ Complaint is that the State of South Dakota has failed to comply with the statutory requirements. (Doc. 44).
The process to challenge a state's implementation of and adherence to the NVRA's requirements appears at 52 U.S.C. § 20510. The initial step in the process requires notice to the State election officer of purported deficiencies in the state's implementation of the NVRA to enable the state to correct any such deficiencies. 52 U.S.C. § 20510(b)(1). See, e.g., Scott v. Schedler , 771 F.3d 831, 836 (5th Cir. 2014) ; Assn. of Cmty. Orgs. For Reform Now v. Miller , 129 F.3d 833, 838 (6th Cir. 1997) ; Black Voters Matter Fund v. Raffensperger , 508 F. Supp. 3d 1283, 1293 (N.D. Ga. 2020) ; True the Vote v. Hosemann , 43 F. Supp. 3d 693, 716 (S.D. Miss. 2014). A timeframe for correction of the alleged violation is set out in the statute, and a person aggrieved by the response may file suit thereafter. 52 U.S.C. § 20510(b)(2) and (3).
In this case, attorneys for the Native American Rights Fund and DEMOS submitted a letter dated May 20, 2020, to Secretary of State Barnett on behalf of the Rosebud Sioux Tribe and its members, the Oglala Sioux Tribe and its members, Four Directions, and "others similarly situated." (Doc. 44-1). The letter set forth numerous examples of alleged violations of the NVRA by the Department of Social Services, Department of Public Safety, and Department of Labor and Regulation, all allegedly under the supervision of the Secretary of State with respect to the NVRA. Id. The Secretary of State responded (Doc. 47, ¶ 7), and Plaintiffs responded in turn on June 26, 2020 (Doc. 44, ¶ 6). Defendants did not respond further (Doc. 47, ¶ 7). The original Plaintiffs filed suit on Sept. 16, 2020 (Doc. 1). On February 22, 2021, Plaintiff Four Directions’ claims were dismissed by stipulation (Doc. 31). Plaintiffs filed an amended complaint on August 10, 2021, which among other things replaced Four Directions with Lakota People's Law Project and added Kimberly Dillon and Hoksila White Mountain as Plaintiffs. (Doc. 44). The Defendants did not file an objection. (Doc. 43). Subsequently Defendants filed a Motion to Dismiss (Doc. 73), which Plaintiffs resisted (Doc. 92). Plaintiffs filed a Motion for Summary Judgment (Doc. 76) which Defendants resisted (Doc. 93).
According to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Garrison v. ConAgra Foods Packaged Foods, LLC , 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c) ). As the Eighth Circuit has noted, "[S]ummary judgment is not disfavored and is designed for every action." Briscoe v. Cnty. of St. Louis , 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Celotex v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). When a court is asked to review a motion for summary judgment it examines "the record in the light most favorable to the nonmoving party ... drawing all reasonable inferences in that party's favor." Whitney v. Guys , 826 F.3d 1074, 1075 (8th Cir. 2016) (citing Hitt v. Harsco Corp. , 356 F.3d 920, 923-24 (8th Cir. 2004) ). See also AgriStor Leasing v. Farrow , 826 F.2d 732, 734 (8th Cir. 1987) ; Kirkendall v. Shur-Co. , 2007 WL 1574423, *1 (D. S. D. 2007).
The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations of its pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e) ; Anderson, 477 U.S. at 257, 106 S.Ct. 2505 ; City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273–74 (8th Cir. 1988). See also Pinchas v. USA Deaf Sports Federation, Inc. , 457 F.Supp.2d 937 (D.S.D. 2006).
Furthermore, the Eighth Circuit has described the plaintiff's complaint as follows: "A plaintiff's verified ... Complaint is the equivalent of an affidavit for purposes of summary judgment and a complaint signed and dated as true under penalty of perjury satisfies the requirements of a verified complaint." Roberson v. Hayti Police Dep't , 241 F.3d 992, 994–95 (8th Cir. 2001) (citations omitted). See also Running Shield v. Huether , 2018 WL 3651353, *2 (D.S.D. 2018)
Local rules in this district provide additional requirements for parties with respect to motions for summary judgment. First, all motions for summary judgment must be accompanied by a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. D. S.D. LR 56.1(A). Further the opposing party is required to respond to the movant's statement of material facts with "a separately numbered response and appropriate citations to the record" and also must "identify any material facts on which there exists a genuine material issue to be tried." Id. 56.1(B). Material facts set forth in the movant's statement of material facts are deemed "admitted unless controverted by the opposing party's response to the moving party's statement of material facts." Id. 56.1(D). See also On Target Sporting Goods, Inc. v. Attorney General of the United States , 472 F.3d 572, 574 (8th Cir. 2007).
Plaintiffs filed a statement of undisputed facts (PSUF) (Doc. 78) with supporting declarations. Defendants responded (Doc. 94).
1. Department of Public Safety (DPS)--Plaintiffs have alleged that the Department of Public Safety (DPS) has failed to comply with NVRA (Section 5) in numerous respects (Doc. 44, 76, 77), which Defendants deny (Doc. 47, 93).
a. Change of voter's address--Plaintiffs allege DPS violates 52 U.S.C. § 20504(d) of the NVRA which provides as follows:
d--Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes.
52 U.S.C. § 20504.
Plaintiffs assert the statute requires that the voter registration form provide that the voter must opt out of having the form count as a voter registration form. Plaintiffs allege the form promulgated by DPS does the opposite—it requires the voter to opt in to have the change of address count as a change for voter registration. (Doc. 44, ¶¶ 80-82; Doc 77, PgID 674; PSUF 214, 221). Defendants agree that the DPS form requires a voter to opt-in. (Doc. 94, PgID 4046). Defendants submit the situation in South Dakota is "unique" with respect to the circumstances and the training provided to its officers, and that its version of the form is "necessary" to meet those circumstances. (Doc. 93, PgID 2541-44).
A number of cases have addressed the opt-in versus opt-out approach as...
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