Indeed, before Tuesday, Alaska and Arizona plus two counties of South Dakota had to obtain VRA pre-clearance from the Justice Department for any changes made to election law affecting their indigenous populations. Two other counties in South Dakota, one in Nebraska and the entire state of New Mexico were "bailed in" for pre-clearance under a different statute with the same effect in the 1970s.
As I wrote Sunday in American Indians won the right to vote in 1924, but some officials still haven't gotten the message, without the Voting Rights Act and its pre-clearance provisions, discrimination against Indians seeking to exercise their congressionally mandated franchise would be more extensive and effective than it is.
One of the first places to feel the impact of the VRA was Colorado. Even though the Indian Citizenship Act of 1924 had theoretically extended the franchise to all Indians everywhere, numerous states blocked that. Not until 1948 did Arizona and New Mexico let reservation Indians vote. Utah finally complied with federal law and extended the franchise to all Indians in the state in 1956. Idaho, Maine, Minnesota, Mississippi, Montana, Nebraska, Washington and Wyoming all continued to find means to block or dilute the Indian vote.
The Voting Rights Act made that tougher even though, at the Justice Department, Indians remained under the new law only slightly less invisible than they had been before. Nonetheless, Colorado was forced in 1970 to extend the vote to Ute Indians living on reservations in the southwest corner of the state.
But South Dakota resisted. Shannon and Todd counties, home of the Pine Ridge and Rosebud Sioux reservations, respectively, were covered under Section 5 for pre-clearance because of the 1975 VRA amendments. This sent Indian-hating South Dakota Attorney General William "Wild Bill" Janklow over the edge. He labeled the act an unconstitutional federal encroachment that rendered state power “almost meaningless.”
Quoting the dissent of Justice Hugo Black in South Carolina v. Katzenbach, Janklow said Section 5 treated covered jurisdictions as “little more than conquered provinces.” He missed the irony of such a remark given South Dakota's often venomous relationship with the Sioux, particularly those at Pine Ridge.
In 1977, he told the secretary of state not to comply with the pre-clearance requirement. He said, “I see no need to proceed with undue speed to subject our state’s laws to a ‘one-man veto’ by the United States Attorney General.” And so they didn't. Between 1976 and 2002, they passed more than 600 election-related statutes and regulations that affected Shannon and Todd counties, including a state redistricting plan. Fewer than 10 changes were submitted for pre-clearance. Two lawsuits were filed in 1978 and 1979, but after that the DOJ simply ignored South Dakota's Section 5 scofflaws.
Finally, in 2002, the American Civil Liberties Union filed a federal court challenge to these laws on behalf of four Lakota voters. Most of the 600 laws passed without pre-clearance were not objectionable. But the ACLU identified a dozen that were discriminatory. The lawsuit sought a court order prohibiting the state from implementing any of the statutes until South Dakota complied with Section 5. The federal court entered a consent order in December 2002 that directed South Dakota to develop a comprehensive plan “that will promptly bring the State into full compliance with its obligations under Section 5.” That process was completed in 2006.Unless Congress acts cough-cough, South Dakota is under no obligation to pre-clear any new election changes. But that makes no never-mind to five members of the Supreme Court who have shown themselves to be more politically aligned with the late Wild Bill Janklow than those who sought to curb the impact of his and his successors' racism.