Lower Brule voting lawsuit faces 'shadow docket' scrutiny
A lawsuit initiated by the Lower Brule Sioux Tribe against Lyman County could be complicated by a recent case on the U.S. Supreme Court’s emergency docket. Also referred to as the “shadow docket,” it allows justices to resolve an issue temporarily until a case can have a full hearing.
In early 2022, Justice Brett Kavanaugh wrote an explanation for why he sided with the majority to stay a lower court ruling in an Alabama voting rights case. In his writing, he raised the bar for plaintiffs claiming violations of the Voting Rights Act. Chief Justice John Roberts and Justice Elena Kagan each wrote a dissent.
One of the lawyers for Lower Brule says the authority of these writings is a debate for legal scholars. But she says even under Kavanaugh’s more stringent test for a voting rights challenge, the tribe is on solid ground.
Samantha Kelty is a staff attorney with the Native American Rights Fund. She represents Lower Brule in its attempt to get Lyman County to change its districting in time for the November 2022 election.
She explains how a U.S. Supreme Court emergency docket decision comes about.
“It’s issued without the normal formal analysis and reasoning and conclusions that we typically see from the Supreme Court,” Kelty said.
But she says Justice Kavanaugh’s decision demands that voting rights plaintiffs seeking an injunction must be able to prove that the merits are clear-cut in their favor. What’s not clear is whether that demand has standing to replace the previous standard, that plaintiffs prove they’re likely to succeed on the merits.
Kelty says she is thankful that Federal District Judge Roberto Lange confirmed in his Aug. 11 order that the Lower Brule Tribe meets those stricter standards.
“Actually, the merits are entirely clear-cut in favor of the plaintiffs, and the plaintiffs have not unduly delayed in bringing the complaint, and the changes are feasible, so those elements here are actually met,” Kelty said.
In his order, Judge Lange gave Lyman County seven days to come up with a more equitable districting plan to be put in place by November, rather than relying on the old single-district plan that dilutes the vote of tribal members.
Samantha Kelty says it’s not unreasonable to expect the county to implement the two-district plan it proposed as a compromise and that has at least tentatively been approved by the tribe.
“And the reason for that was because the county had already drawn up the two-district plan,” she said. “They had already finalized the maps, you know; they had already voted on it and decided that that was a plan that they liked.”
Lyman County officials testified at a hearing last month that they wouldn’t be able to adjust voting software and confirm tribal addresses in time to redistrict and print ballots. But Judge Lange said in his order that using the previous single-district plan violates federal law.