September 07, 2022 By Breeauna Sagdal

The state of South Dakota has been embroiled in one of the longest-standing legal challenges to its election process. In 2002, the ACLU filed, "The Largest-Ever Voting Rights Lawsuit on Behalf of Native Americans in South Dakota." According to the ACLU, South Dakota state officials have ignored federal law meant to protect minorities from voting discrimination for nearly 50 years, as the Justice Department has approved more than 600 statutes and regulations that affect voting and elections in the state, without proper preclearance.

The ACLU has long since contended that South Dakota flouts elections laws. In August of this year, Federal Chief Judge Roberto A. Lange agreed, ordering the state, and specifically Lyman County to come up with a new redistricting plan that will provide for two County Commissioner seats by this November's 2022 election.

September 6, 2022, another lawsuit filed recently, was just settled yesterday. Filed by plaintiffs; Rosebud Sioux Tribe, the Oglala Sioux Tribe, Lakota People’s Law Project, and voters Kimberly Dillon and Hoksila White Mountain, was settled against Secretary of State Steve Barnett, Department of Social Services Cabinet Secretary Laurie Gill, Department of Labor and Regulations Cabinet Secretary Marcia Hultman, and Department of Public Safety Cabinet Secretary Craig Price.

A D V E R T I S E M E N T

A D V E R T I S E M E N T

“This agreement requires South Dakota establish training and accountability mechanisms so voters, including Native voters, actually receive the legally required opportunities to register to vote,” said Oglala Sioux Tribe President Kevin Killer, regarding the case.

Secretary Of State Steve Barnett, however, is currently seeking employment in Minnesota, as the Benson City Manager. Barnett, who recently lost his party's nomination at the SDGOP Convention to Monae Johnson, now appears to be entertaining job opportunities out-of-state. Barnett will not leave his office until the new Secretary of State takes office after November's election. With a family to care for, some have expressed concerns that Barnett might be understandably, occupied with where he will land. Meanwhile, trainings and collaboration between agencies must occur before the next election to satisfy the state's agreement with the Rosebud and Ogala Tribes.

Conversely, state officials have claimed that South Dakota has "the gold standard" of elections. During the 2020 federal election, Donald Trump won the state of South Dakota by a significant margin, while still losing his bid for re-election. Following the election, however, another group of voters have been in hot-pursuit of election materials, in an effort to audit South Dakota's so-called "gold standard." Some media sources, outside of The Dakota Leader, have conflated SD Canvassing with Trump sycophants, still angry about the loss of the 2020 election. The logical fallacy of this stigma caught the attention of TDL, and we began to investigate after republican counties started to hire top attorneys, and fight back against full disclosure.

Jessica Pollema of SD Canvassing tells The Dakota Leader, "South Dakota is one of only four states in the entire nation, that do not conduct a post-election audit process." Post-election audits are vital to transparency as the integrity of any election safeguards minority thoughts, ideas, and candidates seeking to reform the status quo.

According to ES&S (Election Systems and Software) the company contracted with the state of South Dakota to help provide secure elections, "Post-election audits are a legal process by which election officials verify that votes were counted accurately." The company goes on to state that, "ES&S voting systems support these audits by providing election details," specifically CVRs or Cast Vote Records, which the company says is used by election officials to ensure accuracy.

These samplings ensure that ballots match what the computer is registering as the voter's preferred selection. The ability to access these drives was a highlighted selling point, after the contested election of Al Gore vs George W. Bush in 2000, which resulted in a very long process of hand-counting ballots.

The group tells TDL, auditors across the state have been told these records do not exist, or have never received training on how to access them. Several have reported feeling frustrated that they are expected to certify the results of the election, when they themselves cannot verify each ballot actually matches what the computer software has registered as the vote.

Now it has come to light that this information came directly from the Secretary Of State's office, and Steve Barnett himself. An email dated August 24, 2022 from Kea Warne, who works for Steve Barnett, states "a CVR doesn't exist."

On Friday September 1, 2022, the South Dakota Freedom Caucus hosted a public meeting for County Auditors and the public to try and facilitate trainings, and get to the bottom of varied information.

During the meeting, Lyman County Auditor Deb Halverson confirmed that she had been notified by the Secretary Of State that the Cast Vote Record did not exist, and due to the determination by the Office of Hearing Examiners, third-party documents could not be shared.

"It has been our understanding that the ruling that came from the Office of Hearing Examiners, called the ES&S data proprietary information. Um Past that, I understand the Office Of hearing Examiners if not a court order, but it is close to it, and it is not my responsibility to violate any sort of ruling that has been made. Whether or not that is, that is not something that I can determine. But we have been told that, due to the Office of Hearing Examiners' determination, third party documents are not ours to share."

In a follow-up question related to being told auditors could not share third-party documents, Senator-Elect Tom Pischke (R-Dell Rapids) asked, "who has directed you to that conclusion?" Deb Halverson responded, "to the exact person who told us that information, we, the Secretary Of State has very clearly told us that a CVR does not exist in the counties that do not have an ERM."

As previously reported from last week; Lincoln, Minnehaha, and Pennington Counties are currently in litigation with SD Canvassing over public records requests made in order to obtain the CVR data. Those documents are legally allowed to be destroyed 22 months following the federal election. On August 31, 2022, Circuit Court Judge John Pekas ordered these three counties to preserve all election materials from the 2020 election, until the case for public records and access to records could be heard.

On the following day, September 1, 2022, Judge John Pekas then ordered all counties across the state to preserve their election materials. However, in an unprecedented move, Judge Pekas vacated his own order within 24 hours "ex-parte," meaning without the presence of both legal sides. The order was issued as legislators met at the Capitol with the public and county auditors Friday afternoon.

The Dakota Leader was able to verify that Judge Pekas vacated the "all counties" order, but according to the attorney for SD Canvassing, the order for Lincoln, Minnehaha and Pennington Counties is still in effect.

Lincoln County Auditor, Sheri Lund, told Kelo News in a recent interview that she has no intention of destroying the data being requested. The Dakota Leader reached out to Lund to ask if she or her legal counsel were present as the Judge vacated his order. Lund replied that due to current litigation she is unable to answer questions at this time. Lund also notified TDL that the meeting County Auditors are hosting on the 8th, will in fact be open to the public.

The public records requests were made in an attempt to help provide expert training for auditors and agencies alike, according to SD Canvassing. With the potential destruction of that material in 63 counties, and the turn-over of the current Secretary Of State, Pollema tells The Dakota Leader, "the amount of time before November's 2022 election is dwindling, I worry for the Native American vote, down ballot candidates, and the over-all level of public trust for the democratic process, if the state can't get training and collaboration organized ahead of time. As we witnessed in 2016, and in 2020, concerns exist all the way around. It's time to address these concerns for everybody and ensure that the will of the people is being done."



Help Support Local Investigative Journalism... DONATE TODAY!

--Breeauna Sagdal- Editor At Large

Post Date: 2022-09-07 09:25:32

Last Update: 2022-09-07 12:54:56