"The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."
--U.S. Supreme Court Chief Justice Earl Warren, Reynolds v. Sims (1964)

The right to vote, and to have one's vote accurately and fairly counted, is as fundamental a right as we have in this country. In 1965, Congress passed the Voting Rights Act, one of the most effective civil rights laws ever enacted. The Act immediately outlawed the worst Jim Crow laws in the South, such as literacy tests and other devices that kept black citizens out of the voting booth.

Today, however, the hard won gains of the civil rights movement, and the Voting Rights Act, are in danger of being extinguished. At polling booths across the country, flaws in the voting system disproportionately affected people of color, effectively excluding them from the voting process.

The ACLU of South Dakota has been active in election law. We have worked to preserve rights guaranteed in the South Dakota Constitution through court challenges and by participating in initiative and ballot measure campaigns.


In March 2003, the ACLU settled a lawsuit against the Wagner Community School District over an election system which allegedly diluted Native American voting strength in elections for the school board. Under that agreement, the school district agreed to use an alternative system that resulted in greater Native American representation.

In August of 2005, Elaine Quick Bear Quiver

et al. v. Joyce Hazeltine et al., was filed on

behalf of two Lakota elders and two tribal officials residing in Todd and Shannon counties in an effort to enforce Section 5 of the Voting Rights Act of 1965. Section 5 requires certain states or parts of states, counties and municipalities to get federal approval or preclearance of their new voting laws or practices before they can be implemented. South Dakota is one of 16 states covered in whole or in part by Section 5 of the Voting Rights Act. The ACLU identified at least 12 state laws that appeared to be discriminatory in nature. A final federal appeals court affirmed the redrawing of legislative district lines in South Dakota to ensure that there is not discrimination against Native American voters.

Read More: http://www.aclu.org/voting-rights/aclu-files-largest-ever-voting-rights-lawsuit-behalf-native-americans-south-dakota

A similar case in December of 2007, Blackmoon v. Charles Mix County, was also settled on behalf of Native American voters in South Dakota. In a historic agreement reached with the American Civil Liberties Union, a South Dakota county agreed to federal supervision of its elections through 2024. The settlement resolves a 2005 ACLU lawsuit charging Charles Mix County with discriminating against Native American voters in violation of the Voting Rights Act of 1965 and the Fourteenth and Fifteenth Amendments to the United States Constitution.

View this settlement: http://www.aclu.org/voting-rights/blackmoon-v-charles-mix-county-consent-decree

More recently, in May 2010, the state of South Dakota and Shannon County agreed to restore the voting rights of American Indians who attempted to vote in the 2008 presidential election but were improperly removed from the voter rolls due to felony convictions. The settlement agreement also calls for procedures to prevent future illegal disfranchisement. The agreement follows a lawsuit filed by the American Civil Liberties Union on behalf of two women of Pine Ridge, South Dakota who were illegally disfranchised. South Dakota state law, which disfranchises individuals sentenced to prison, was improperly applied in this case since both women had been sentenced to probation.

In addition to restoring voting rights to those improperly removed from the rolls because of felony convictions that never resulted in prison sentences, the settlement agreement also calls for the establishment of procedures to prevent unlawful disfranchisement from happening in the future, including increased training for election officials and public education.

Kim Colhoff and Eileen Janis, represented by the ACLU, 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 historic 2008 presidential election. In front of several other voters, election officials refused to allow Janis to cast either a regular or provisional ballot.

The ACLU filed a lawsuit on Colhoff's and Janis' behalf in February 2009 in the U.S. District Court for the Western District of South Dakota. The lawsuit charged 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 contended 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 violated 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.

"This settlement clears the confusion regarding the South Dakota felony disfranchisement laws and adds significant protections to American Indians' voting rights in South Dakota," said Robert Doody, Executive Director of the ACLU South Dakota Chapter. "Unfortunately, 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."

More information on the case, including the state's settlement agreement, the ACLU's complaint and first amended complaint in Janis v. Nelson are available at: www.aclu.org/racial-justice-voting-rights/janis-v-nelson.


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

How Flawed and Inconsistent Voting Systems Could Deprive Millions of Americans of the Right to Vote.

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