Rosebud Sioux Tribe v. Barnett

603 F.Supp.3d 783

ROSEBUD SIOUX TRIBE and their members, Oglala Sioux Tribe and their members, and Lakota People's Law Project, Kimberly Dillon and Hoksila White Mountain, Plaintiffs

v.Steve BARNETT, in his official capacity as Secretary of State for the State of South Dakota and Chairperson of the South Dakota State Board of Elections; Laurie Gill, in her official capacity as Cabinet Secretary for the South Dakota Department of Social Services; Marcia Hultman, in her official capacity as Cabinet Secretary for the South Dakota Department of Labor and Regulation; and Craig Price, in his official capacity as Cabinet Secretary for the South Dakota Department of Public Safety, Defendants

5:20-cv-5058

United States District Court, D. South Dakota, Western Division.

Signed May 17, 2022

Terry L. Pechota, Pechota Law Office, Rapid City, SD, Adam Lioz, Pro Hac Vice, Demos, Washington, DC, Samantha B. Kelty, Pro Hac Vice, Native American Rights Fund, Washington, DC, Brenda Wright, Pro Hac Vice, Demos, New York, NY, Jacqueline D. DeLeon, Pro Hac Vice, Kim J. Gottschalk, Pro Hac Vice, Native American Rights Fund, Boulder, CO, Joseph J. Wardenski, Pro Hac Vice, Wardenski P.C., Brooklyn, NY, for Plaintiffs Rosebud Sioux Tribe, Oglala Sioux Tribe.

Clifton E. Katz, Attorney General of South Dakota, Pierre, SD, Grant M. Flynn, Bachand & Hruska, P.C., Pierre, SD, for Defendants.

MEMORANDUM AND ORDER

Lawrence L. Piersol, United States District Judge

Plaintiffs have filed suit alleging numerous violations of the National Voter Registration Act (NVRA), 52 U.S.C. § 20501, et seq., by several departments of South Dakota's state government. Pending before the Court is Defendants’ Motion to Dismiss (Doc. 73). The Defendants argue Plaintiffs have failed to state a claim for relief and dismissal is proper pursuant to Federal Rules of Civil Procedure 12(h), 12(c), and 12(b)(6). Fed. R. Civ. Pro. 12(h), 12(c) and 12(b)(6). Defendants also argue Plaintiffs Lakota People's Law Project, Kimberly Dillon, and Hoksila White Mountain lack statutory and Article III standing, which necessitates their dismissal from the lawsuit. Finally, Defendants argue Secretary of Labor Marcia Hultman should be dismissed as a defendant because the Department of Labor and Regulation does not administer programs covered by the NVRA. For the reasons that follow, Defendants’ motion is denied.

I. Background

Among the several purposes articulated in "the motor-voter law," the National Voter Registration Act seeks "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office...."

52 USC § 20501. To achieve this goal, the statute includes requirements to allow prospective voters to register to vote in conjunction with applying for a driver's license, 52 U.S.C. § 20504, and applying for public assistance and assistance for people with disabilities. 52 U.S.C. § 20506(a)(2). The statute sets forth a detailed list of services that voter registration agencies must provide to individuals in conjunction with registering to vote, 52 U.S.C. § 20506, and the gist of Plaintiffs’ complaint is that the State of South Dakota has failed to comply with the statutory requirements. (Doc. 44).

The process to challenge a state's implementation of and adherence to the NVRA's requirements appears at 52 U.S.C. § 20510. The initial step in the process requires notice to the State election officer of purported deficiencies in the state's implementation of the NVRA to enable the state to correct any such deficiencies. 52 U.S.C. § 20510(b)(1). See, e.g., Scott v. Schedler , 771 F.3d 831, 836 (5th Cir. 2014) ; Assn. of Cmty. Orgs. For Reform Now v. Miller , 129 F.3d 833, 838 (6th Cir. 1997) ; Black Voters Matter Fund v. Raffensperger , 508 F. Supp. 3d 1283, 1293 (N.D. Ga. 2020) ; True the Vote v. Hosemann , 43 F. Supp. 3d 693, 716 (S.D. Miss. 2014). A timeframe for correction of the alleged violation is set out in the statute, and a person aggrieved by the response may file suit thereafter. 52 U.S.C. § 20510(b)(2) and (3).

In this case, attorneys for the Native American Rights Fund and DEMOS submitted a letter dated May 20, 2020, to Secretary of State Barnett on behalf of the Rosebud Sioux Tribe and its members, the Oglala Sioux Tribe and its members, Four Directions, and "others similarly situated." (Doc. 44-1). The letter set forth numerous examples of alleged violations of the NVRA by the Department of Social Services, Department of Public Safety, and Department of Labor and Regulation, all allegedly under the supervision of the Secretary of State with respect to the NVRA. Id. The Secretary of State responded (Doc. 47, ¶ 7), and Plaintiffs responded in turn on June 26, 2020 (Doc. 44, ¶ 6). Defendants did not respond further (Doc. 47, ¶ 7). The original Plaintiffs filed suit on Sept. 16, 2020 (Doc. 1). On February 22, 2021, Plaintiff Four Directions’ claims were dismissed by stipulation (Doc. 31). Plaintiffs filed an amended complaint on August 10, 2021, which among other things replaced Four Directions with Lakota People's Law Project and added Kimberly Dillon and Hoksila White Mountain as Plaintiffs. (Doc. 44). The Defendants did not file an objection. (Doc. 43).

II. Discussion

1. Rules 12(h), 12(c) and 12(b)(6)

Defendants have invoked the procedure set forth in Federal Rule of Civil Procedure 12(h) that a motion to dismiss for failure to state a claim may be brought in the alternative as a motion for judgment on the pleadings under Rule 12(c). Fed. R. Civ. P. 12(h)(2) and 12(c). Once the pleadings have closed, a party may move for judgment under Rule 12(c). Union Insurance Company v. Scholz , 473 F. Supp. 3d 978, 981 (D. S.D. 2020). The same legal standard applies to ruling on motions brought under Rule 12(c) and Rule 12(b)(6). Id. (citing Ashley Cnty., Ark. v. Pfizer, Inc. , 552 F.3d 659, 665 (8th Cir. 2009) ). As the Eighth Circuit has noted, the only distinction between the two is that a Rule 12(c) motion is filed after the pleadings have closed, while a motion pursuant to Rule 12(b)(6) cannot be brought once the answer has been filed. Westcott v. City of Omaha , 901 F.2d 1486, 1488 (8th Cir. 1990). In any event, this is a "formal distinction" because the two types of motion are reviewed in the same way. Id. (citing St. Paul Ramsey County Med. Ctr. v. Pennington County, S.D. , 857 F.2d 1185, 1187 (8th Cir. 1988) ; Morgan v. Church's Fried Chicken , 829 F.2d 10, 11 (6th Cir. 1987) ). See generally, Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (setting forth standard for reviewing motion under Rule 12(b)(6) ); Bell Atlantic v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (same).

When ruling on a motion under Rule 12(c), courts accept as true well-pleaded allegations and resolve inferences in favor of the non-moving party. Wishnatsky v. Rovner , 433 F.3d 608, 610 (8th Cir. 2006). Furthermore, "Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law." Id. In this context, a court relies on the pleadings and "must ignore all materials outside the pleadings." Porous Media Corp. v. Pall Corp. , 186 F.3d 1077, 1079 (8th Cir. 1999). The caveat to this is that the court may consider "materials that are part of the public record or do not contradict the complaint ... as well as materials that are necessarily embraced by the pleadings." Id.

2. Standing

a. Article III Standing

Defendants have moved to dismiss Plaintiffs Kimberly Dillon, Hoksila White Mountain, and Lakota People's Law Project from this lawsuit. As noted above, the Plaintiffs also include the Rosebud Sioux Tribe and its members, and the Oglala Sioux Tribe and its members. (Doc. 44). The Defendants have not moved to dismiss the latter Plaintiffs from the lawsuit, and it is clear those parties have standing under U.S. Const. art. III, § 2, cl.1 and the NVRA.

The Supreme Court has set forth the requirements for Article III standing in numerous cases. The "irreducible constitutional minimum of standing" is that a plaintiff must have suffered an "injury in fact," meaning, invasion of a legally protected interest; "there is a causal connection between the injury and the conduct complained of"; and the injury can be "redressed by a favorable decision." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (cleaned up). See also Department of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2565, 204 L.Ed.2d 978 (2019) (in a dispute over a citizenship question on the 2020 census, states had standing, given the potential impact on their representation in Congress).

Standing requirements seek to ensure that a litigant has a "sufficient stake in an otherwise justiciable controversy" to obtain judicial resolution of the controversy. Sierra Club v. Morton , 405 U.S. 727, 731-32, 92 S. Ct. 1361, 31 L.Ed.2d 636 (1972). In the context of a Motion to Dismiss, courts review the factual allegations in the Complaint, and "presume[e] that general allegations embrace those specific facts that are necessary to support the claim." Lujan v. National Wildlife Federation , 497 U.S. 871, 889, 110 S. Ct. 3177, 3189, 111 L.Ed.2d 695 (1990). The Eighth Circuit has reinforced these requirements. See, e.g., Carlsen v. GameStop , 833 F.3d 903 (8th Cir. 2016) ; Keller v. City of Fremont , 719 F.3d 931 (8th Cir. 2013) ; Ashley v. U.S. Dept. of Interior , 408 F.3d 997 (8th Cir. 2005) ; National Federation of Blind of Missouri v. Cross , 184 F.3d 973 (8th Cir. 1999).

With respect to the specific issue of organizational standing, the Supreme Court has addressed the requirements, stating that an organization must meet the same standard as an individual, i.e., injury in fact caused by the opponent and redressable by the opponent. Havens Realty Corp. v. Coleman , 455 U.S. 363, 378, 102 S. Ct....