October 4, 2012
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,
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 DEFENDANTS' MOTION TO DISMISS AND GRANTING DEFENDANTS' MOTION TO EXTEND
Plaintiffs brought this cause of action seeking declaratory relief and for a temporary and permanent injunction that would require defendants to provide the full period of statutorily authorized early voting within Shannon County. Docket 1. All defendants move to dismiss plaintiffs' motion for a permanent injunction as moot because they claim that plaintiffs' alleged harm has been remedied by defendants' voluntary conduct and that no case or controversy remains. Docket 77. Plaintiffs contest that motion and assert that because defendants' agreement to provide early voting expires in 2019, and there is no guaranteed funding for early voting beyond 2018, their alleged harm is likely to recur and their request for declaratory and permanent injunctive relief is a live claim. Docket 81. Defendants also move to extend the discovery and other motions deadline. Docket 73. Plaintiffs resist this motion and claim defendants cannot show good cause. Docket 76. For the following reasons, defendants' motion to dismiss is denied, and defendants' motion to extend the scheduling order is granted.
Plaintiffs are enrolled members of the Oglala Sioux Tribe who reside in Shannon County and are registered to vote. Docket 1 ¶¶ 10-34. Defendants are the entities or people responsible for conducting voting in Shannon County and Fall River County or who are related to voting in South Dakota. Shannon County is entirely within the boundaries of the Pine Ridge Indian Reservation. Docket 1 ¶ 1. Shannon County contracts for certain services, including conducting 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 in the weeks leading up 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 statutory 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 March 2, 2012, Shannon County determined that it would provide the full statutorily set window of early voting for each 2012 election. This decision was made in part due to the Secretary of State's commitment to provide an additional $12,000 through Help America Vote Act (HAVA) funds to reimburse Shannon County for the 8-hour-per-day wages for early voting election workers. Docket 56 at 3. On March 6, 2012, defendants filed a joint motion to dismiss plaintiffs' motion for preliminary relief on the grounds that it was moot because of defendants' voluntary conduct and because the requested relief had been granted. Docket 55.
On March 8, 2012, the court heard evidence and oral argument on the pending motions. Docket 64. Following that hearing, the court granted defendants' motion to dismiss plaintiffs' request for preliminary relief and denied plaintiffs' motion for a preliminary injunction as moot. Docket 66; Brooks v. Gant, Civ. No. 12-5003, 2012 WL 871262 (D.S.D. Mar. 14, 2012).
Plaintiffs' motion for a permanent injunction and request for declaratory relief continued, and the parties began discovery.
In the interim, defendants voluntarily agreed to provide early voting beyond the 2012 voting cycle within Shannon County. On August 3, 2012, Shannon County and Secretary of State Jason Gant entered into a Memorandum of Agreement (the agreement) whereby Gant agreed to release additional HAVA funds to Shannon County to allow the county to provide staff for early voting through January of 2019. Docket 79-1. On that same day, Shannon County passed two resolutions. The first, Resolution 2012-10, resolved for Shannon County to enter into the agreement. Docket 79-2. The second, Resolution 2012-11, acknowledged that Shannon County agreed to provide in-person, absentee voting at a satellite office in Shannon County for the full 46 days of early voting. The county also agreed to provide notice of such voting rights to the public through 2018. Docket 79-3. The agreement commenced on August 3, 2012, and it continues through January 1, 2019.*fn1
Defendants moved to dismiss plaintiffs' request for permanent injunctive and declaratory relief on August 10, 2012. Docket 77. Defendants also moved to extend the deadline to disclose their expert and other motions because the amount of discovery and complexity of the case required additional time. Docket 73. Plaintiffs resist that motion and state that defendants have failed to show good cause and they will sustain prejudice if an extension is granted. Docket 76.
Federal Rule of Civil Procedure 12(b)(1)*fn2 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 ...
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