ACLU Challenges Illegal Disfranchisement Of American Indian Voters In South Dakota

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SIOUX FALLS, SD – The American Civil Liberties Union filed an amended class action lawsuit in federal court today to restore the voting rights of American Indians who were illegally disfranchised in the 2008 presidential election. The lawsuit was filed in the U.S. District Court for the Western District of South Dakota on behalf of Kim Colhoff, Eileen Janis and others, who attempted to vote in the election but were improperly removed from the voter rolls due to felony convictions. Because state law only disfranchises individuals sentenced to prison and both women were just sentenced to probation, election officials unlawfully took away their voting rights.

“Felony disfranchisement laws in South Dakota have a disproportionate impact on American Indians, who represent the majority of those convicted of felonies at the federal level,” said Robert Doody, Executive Director of the ACLU, South Dakota Chapter. “Worse still, it’s clear that confusion regarding the South Dakota felony disfranchisement laws has resulted in legitimate voters, even those who haven’t been incarcerated for felony convictions, being purged from the rolls or denied the ability to register to vote or cast their ballots.”

The lawsuit charges that South Dakota officials’ illegal disfranchisement of individuals with felony convictions has had a disproportionate and negative impact on American Indian voters who are overly represented in South Dakota’s criminal justice system. The lawsuit also contends that the removal of individuals’ names from the state and county voter registration lists based on felony convictions for which they were sentenced only to probation violates their rights to equal protection and due process under the federal and state constitutions, the Help America Vote Act, the National Voter Registration Act and Sections 2 and 5 of the Voting Rights Act. The lawsuit names Secretary of State Chris Nelson, Shannon County Auditor Sue Ganje and members of the state board of elections as defendants.

The ACLU originally filed the lawsuit in February 2009 on behalf of Colhoff and Janis. The amended lawsuit filed today represents a class of individuals in South Dakota with felony convictions who were denied the right to vote despite the fact that they were never incarcerated.

Colhoff and Janis, both residents of Pine Ridge, South Dakota, registered to vote for the first time in 1974 and 1984, respectively, and remained on the voter rolls until early 2008, after they were each convicted of a felony offense and sentenced to five years probation but no jail time. Despite the fact that South Dakota only disfranchises those sentenced to prison, Colhoff and Janis were removed from the voter rolls without any notice and denied the right to vote at their polling places when they attempted to vote in the 2008 presidential election. In front of several other voters, election officials refused to allow Janis to cast either a regular or provisional ballot.

“I will never get the chance to go back and make my voice heard,” said Janis. “It deeply disturbs me that my right to vote was taken away because of administrative incompetence. No one should be denied a ballot just because election workers don’t understand the rules. It’s really hard not feeling like a second-class citizen when one of my most fundamental rights has been stolen from me.”

“What happened to our clients represents the tragedy that occurs when election officials do not know how to administer the law,” said Nancy Abudu, senior staff attorney with the ACLU Voting Rights Project. “Not only did election administrators take away their constitutional rights, but they robbed them of the opportunity to participate in this historic election.”

Attorneys on this case are Abudu, Bryan Sells and Laughlin McDonald of the ACLU Voting Rights Project; Doody of the ACLU, South Dakota Chapter; and cooperating attorney Patrick Duffy.

A copy of today’s proposed second amended complaint in Janis v. Nelson is available at: www.aclu.org/racial-justice-voting-rights/janis-v-nelson-second-amended-complaint-pending-court-approval-requesti

An ACLU report providing a historical overview of systemic discrimination against American Indians, limiting their ability to participate in local, state and national elections, can be found at: www.aclu.org/votingrights/minority/41203pub20090930.html

More information about the ACLU Voting Rights Project is available at: www.aclu.org/voting-rights