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Chris Brooks, Francis Rencountre v. Jason Gant

September 27, 2012

CHRIS BROOKS, FRANCIS RENCOUNTRE, GLORIA RED EAGLE, SHARON CONDEN, JACQUELINE GARNIER, JENNIFER RED OWL, EDWINA WESTON, MICHELLE WESTON, MONETTE TWO EAGLE, MARK A. MESTETH,
STACY TWO LANCE, HARRY BROWN, ELEANOR WESTON, DAWN BLACK BULL, CLARICE MESTETH, DONOVAN L. STEELE, EILEEN JANIS, LEONA LITTLE HAWK, EVAN RENCOUNTRE, CECIL LITTLE HAWK, SR., LINDA RED CLOUD, LORETTA LITTLE HAWK, FAITH TWO EAGLE, EDMOND MESTETH, AND ELMER KILLS BACK, JR., PLAINTIFFS,
v.
JASON GANT, IN HIS OFFICIAL CAPACITY AS SOUTH DAKOTA SECRETARY OF STATE, SHANNON COUNTY, SOUTH DAKOTA, FALL RIVER COUNTY, SOUTH DAKOTA, SHANNON COUNTY BOARD OF COMMISSIONERS, FALL RIVER COUNTY BOARD OF COMMISSIONERS, JOE FALKENBUERG, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR FALL RIVER COUNTY, SOUTH DAKOTA, ANNE CASSENS, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR FALL RIVER COUNTY, SOUTH DAKOTA, MICHAEL P. ORTNER, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR FALL RIVER COUNTY, SOUTH DAKOTA, DEB RUSSELL, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR FALL RIVER COUNTY, SOUTH DAKOTA, JOE ALLEN, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR FALL RIVER COUNTY, SOUTH DAKOTA, BRYAN J. KEHN, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR SHANNON COUNTY, SOUTH DAKOTA, DELORIS HAGMAN, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR SHANNON COUNTY, SOUTH DAKOTA, EUGENIO B. WHITE HAWK, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR SHANNON COUNTY, SOUTH DAKOTA, WENDELL YELLOW BULL, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR SHANNON COUNTY, SOUTH DAKOTA, LYLA HUTCHISON, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE COUNTY BOARD OF COMMISSIONERS FOR SHANNON COUNTY, SOUTH DAKOTA, SUE GANJE, IN HER OFFICIAL CAPACITY AS THE COUNTY AUDITOR FOR SHANNON AND FALL RIVER COUNTIES, AND JAMES SWORD, IN HIS OFFICIAL CAPACITY AS ATTORNEY FOR SHANNON AND FALL RIVER COUNTIES, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING DEFENDANT GANT'S MOTION TO DISMISS

Plaintiffs brought this cause of action for declaratory relief and for a temporary and permanent injunction that would require defendants to provide the full period of statutorily authorized early voting in Shannon County. Docket 1. Plaintiffs claim that defendants' failure to establish early, in-person voting locations within the boundaries of Shannon County similar to what exist in almost every other county and for every other voter in South Dakota violates the Voting Rights Act, the South Dakota Constitution, and the Equal Protection Clause. Defendant Jason Gant, in his official capacity as South Dakota Secretary of State, moves that he be dismissed from this cause of action because he has Eleventh Amendment immunity, plaintiffs cannot establish standing, and they have failed to state a claim upon which relief can be granted. Docket 43. Plaintiffs contest this motion and claim that there is a sufficient connection between the Secretary of State and voting to deny Gant's motion to dismiss, that standing and sovereign immunity do not provide grounds for dismissal, and that they have succeeded in stating a claim upon which relief can be granted. Docket 47.

BACKGROUND

Plaintiffs are enrolled members of the Oglala Sioux Tribe who reside in Shannon County and are registered to vote. Docket 1 ¶¶ 10-34. Defendant Jason Gant is the duly elected Secretary of State for the state of South Dakota. Shannon County is entirely within the boundaries of the Pine Ridge Indian Reservation. Docket 1 ¶ 1. Shannon County contracts for certain services like the conduction of elections through an adjacent county, Fall River County. Docket 1 ¶ 61.

What is called early voting is absentee voting that is done in person. Docket 1 ¶ 63. Most voters in South Dakota can exercise their right to vote prior to election day at their county courthouse. Docket 1 ¶ 63. Shannon County does not have a courthouse. Its registered voters can vote early in person at the Fall River County courthouse. In the past, Shannon County has offered some days of early voting at locations within Shannon County itself, but never for the full statutorily authorized time period. Docket 1 ¶ 63. In 2012, Shannon County planned to offer six days of early voting at a location within Shannon County, but any other early voting had to be done in Fall River County. Docket 1 ¶ 102. The auditor's office in Fall River County is located in Hot Springs, which is between 53 minutes and 2 hours and 45 minutes from voters in Shannon County depending on the residence of the voter. Docket 1

¶ 63. The voters in the other counties in South Dakota are able to vote early, in person, at a location within their county, for the entire time period set by statute. Docket 1 ¶ 63.

On January 13, 2012, plaintiffs filed this cause of action pursuant to Sections 2, 5, and 12(d) of the Voting Rights Act of 1965, the Indian Citizenship Act, 42 U.S.C. § 1983, 28 U.S.C. § 2201-2202 for declaratory relief, and Article II, Section 1 of the South Dakota Constitution. Docket 1. On February 14, 2012, Gant moved to dismiss himself as a party to this suit. Docket 43.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). It is a rule " 'rooted in the unique nature of the jurisdictional question.' " Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Under a motion to dismiss based on lack of subject matter jurisdiction, the defendant may challenge either the plaintiff's complaint on its face or based on the factual truthfulness of the claims. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). The plaintiff carries the burden of showing that jurisdiction exists. V S Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citation omitted). "A motion to dismiss for lack of jurisdiction under rule 12(b)(1) which is limited to a facial attack on the pleadings is subject to the same standard as a motion brought under Rule 12(b)(6)." Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003) (citation omitted).

When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court assumes that all facts in the complaint are true and construes any reasonable inferences from those facts in the light most favorable to the plaintiff. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). To decide the motion to dismiss under Rule 12(b)(6), the court may consider the complaint, some materials that are part of the public record, or materials embraced by the complaint. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). To survive the motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual content in the complaint must "allo[w] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Braden v. Wal-Mart Stores, 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).

DISCUSSION

I. Standing*fn1

Gant argues that plaintiffs cannot show an imminent or particularized

injury or that there is a connection between his conduct and their harm. Gant also claims that because he does not have the authority to establish early voting in Shannon County, plaintiffs' injury is not traceable to his conduct. Plaintiffs respond that their potential harm is substantial because the fundamental right to vote should be zealously guarded and without a court order requiring defendants to grant plaintiffs access to early voting, plaintiffs could be denied that right based on their race. Plaintiffs also allege that Gant is the chief elections officer in South Dakota with the statutory power to conduct county elections in an emergency and the elected official responsible for distributing federally given HAVA funds, thus, his position and conduct are related to their alleged harm.

" 'Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.' " Gray v. City of Valley Park, Mo., 567 F.3d 976, 982-83 (8th Cir. 2009) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Article III requires that there be a case or controversy at every stage of the litigation, and " '[f]ederal courts must always satisfy themselves that this requirement has been met before reaching the merits of a case.' " Id. (quoting Schanou v. Lancaster Cnty. Sch. Dist. No. 160, 62 F.3d 1040, 1042 (8th Cir. 1995)). "Standing requires (1) an injury that is concrete and particularized and

actual or imminent, not conjectural or hypothetical, (2) that the injury be fairly traceable to the challenged action of the defendant, and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Turkish Coal. of Am., Inc. v. Bruininks, 678 F.3d 617, 621 (8th Cir. 2012) (quotations and citation omitted). It is insufficient to show an injury in fact by mere "[a]llegations of possible future injury." Mo. ...


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