Why this lawsuit was filed challenging South Dakota’s numerous violations of the National Voter Registration Act (NVRA), what a federal court found in the suit, and what the case's settlement agreement means for voters in South Dakota.
Rosebud Sioux Tribe v. Barnett, No. 5:20-cv-05058-LLP (D.S.D.) is a federal lawsuit filed in the District of South Dakota, Western Division September 2020 against the South Dakota Secretary of State and other state officials challenging widespread violations of South Dakota’s voter registration obligations under the National Voter Registration Act of 1993 (“NVRA”), commonly known as the “Motor-Voter” law.
The NVRA was passed by Congress in 1993 to make it easier for all Americans to register to vote by requiring voter registration services at government agencies where voters already spend time, including driver’s license offices and public assistance agencies. In passing the NVRA, Congress recognized that “the right of citizens of the United States to vote is a fundamental right” and that the failure of state and local governments to promote the exercise of that right through “discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.” The NVRA requires those offices to provide voter registration services to all individuals who apply for or renew a driver’s license/state-issued ID card or for public assistance, including Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), medical assistance (including Medicaid and the Children’s Health Insurance Program (CHIP)), and the Low Income Energy Assistance Program (LIEAP). The law also requires voter registration services to be offered when individuals change their address on their license or with their public assistance program.
Plaintiffs in the lawsuit are the Rosebud Sioux Tribe, Oglala Sioux Tribe, Lakota People’s Law Project, and two individuals, Kimberly Dillon and Hoksila White Mountain.
The lawsuit was filed in September 2020 after an investigation by the Native American Rights Fund (NARF) and Demos uncovered serious deficiencies in South Dakota’s compliance with the NVRA, particularly in areas of the state serving Native residents. The investigation found that the number of voter registration applications completed at state agencies had declined drastically in recent years and that the state failed to process many voter registration applications completed at public assistance agencies, depriving those voters the opportunity to vote in some recent elections.
Plaintiffs are represented by attorneys at NARF, Demos, Wardenski P.C., and the Pechota Law Office.
Federal Court Decision Finding Multiple NVRA Violations by the State of South Dakota
On May 26, 2022, a federal judge in the U.S. District Court for the District of South Dakota ruled in plaintiffs’ favor, issuing a decision holding that South Dakota had violated the NVRA in multiple respects.
In its decision, the court ruled that the South Dakota Department of Public Safety (DPS), the State’s driver’s licensing agency, violated Section 5 of the NVRA by:
failing to automatically update the voter registration addresses of voters who change their driver’s license address;
refusing to provide voter registration services to individuals who lack an existing driver’s license number or Social Security number;
failing to forward completed voter registration applications to county election officials in a timely way;
failing to properly train DPS employees, maintain agency-wide procedures, or conduct internal oversight of local DPS offices sufficient to ensure NVRA compliance; and
failing to ensure that driver’s license “issue sites” operated by other agencies under contract with DPS, which are common in Indian Country and other rural areas in South Dakota, provide voter registration services.
The court also held that the South Dakota Department of Social Services, which administers TANF, SNAP, Medicaid, CHIP, and other public assistance programs, violated its obligations under the NVRA by:
failing to provide voter registration services to clients during certain transactions, including changes of address conducted by telephone, administrative renewals of Medicaid benefits, and six-month eligibility reports for TANF and SNAP recipients;
failing to submit voter registration applications completed at DSS to county election officials in a timely way; and
failing to adequately train DSS staff or monitor the agency’s compliance with its NVRA obligations.
Finally, the court held that South Dakota Secretary of State Steve Barnett, who as South Dakota’s chief election official is charged with coordinating the state’s compliance with the NVRA, “contributed to these failings” through inadequate oversight and training of the other agencies.
In August 2022, the plaintiffs and the State reached a comprehensive settlement agreement requiring the State, over the next three years, to implement policies and practices to ensure that South Dakota fully complies with the NVRA.
Under the settlement agreement, the South Dakota Secretary of State will strengthen its oversight of NVRA compliance throughout South Dakota, including by:
designating a statewide NVRA coordinator to ensure, monitor, and oversee compliance with the law by all relevant state agencies;
developing a comprehensive NVRA training curriculum that will be used to provide annual training to county election officials and employees of driver’s license offices and public assistance agencies on their voter registration responsibilities;
instituting new procedures to track and monitor when residents register to vote at driver’s license or public assistance offices, and when completed applications are transmitted to county election offices, to enable the State to identify issues in local offices; and
amending the state’s voter registration application form to allow voters without a USPS address to provide a description of the physical location of their residence.
The agreement requires the Department of Public Safety (DPS), the state’s driver’s licensing authority, to ensure that all voters who apply for, renew, or change their address on a driver’s license are provided mandatory voter registration services, including by:
designating an agency-wide NVRA coordinator to provide guidance to DPS employees and local driver’s license offices on their NVRA obligations, and monitoring local offices’ compliance with the law;
ensuring that voter registration services are provided at all driver’s license offices, including those operated by DPS, travel offices that serve tribal and rural communities, and driver’s license “issue sites” run by other agencies
posting information about the availability of voter registration services at every driver’s license office;
establishing complaint procedures so that any member of the public can notify DPS of NVRA violations;
ensuring that the locations, hours, and days of operation for all driver’s license offices are posted on the DPS website and routinely updated;
treating all requests for address changes on driver’s license/state-issued ID cards as a change of voter registration address, unless the person specifically declines; and
allowing individuals without an existing driver’s license or Social Security number to register to vote at a driver’s license office if they sign an affidavit that they are eligible to vote.
The agreement requires the Department of Social Services, which administers most of the state’s public assistance programs, to take actions to improve NVRA compliance, including by:
designating an agency-wide NVRA coordinator to provide guidance to DSS employees across the state and monitor local offices’ compliance with the NVRA;
offering voter registration applications to all public assistance applicants, except those who decline in writing to register to vote;
posting information on DSS’s website and in all DSS offices about the availability of voter registration services and contact information for the agency-wide coordinator;
ensuring that applicants who change their address with DSS remotely are provided voter registration applications and assistance in completing them
offering voter registration services to individuals who complete a pre-application for TANF benefits at a Department of Labor and Regulation (DLR) office.
The settlement agreement will be in effect for three years, until September 2025.
Reporting Voter Registration Issues
During the three-year term of the agreement, the federal court has the power to enforce any violations of the agreement by the State.
Any South Dakota resident who believes that they were denied the opportunity to register to vote at a driver’s license office or public assistance agency—including for transactions completed remotely online, by email, or over the phone—should contact ([email protected]) or Demos.