Senate Bill 69, the big bill in the petition reform package that moves petition circulation up a month to run from December 1 to the last Tuesday in February, was deferred again Friday in Senate State Affairs. Recall that on Wednesday, Chairman Tim Rave (R-25/Baltic) and the committee deferred the bill to Friday upon hearing concerns from ACLU South Dakota policy director Libby Skarin and ballot access watchdog Richard Winger that the February deadline violates case law requiring that newly organizing political parties be given until later in the spring to submit petitions for official recognition by the state. Skarin told the committee that the ACLU could prepare language for an amendment to SB 69 to protect new parties by the end of the day.

Friday at 10 a.m., Senate State Affairs convened. The first action was to defer SB 69 until Monday. Senator Corey Brown (R-23/Gettysburg) complained that the ACLU had just delivered the amendment to the committee members. Senator Brown indicated that, out of courtesy, he'd like to see amendments delivered ahead of time. (Now Senator Brown nows how folks feel when they show up to testify and haven't been given heads up of amendments that totally change the bill and the dynamics of the debate. How about posting those amendments online ahead of time, Senator Brown?)

Senator Rave echoed Senator Brown's complaint, saying that while the Session is starting more slowly this year, "things are going to pile up" and he'd like to keep things moving.

I'd be grousing, too. The ACLU said it could submit wording by end of business Wednesday; why'd it take until Friday?

The wording isn't that hard. To satisfy the ACLU's concerns, one need simply move to amend Section 10 by inserting the following language at the end of its existing amendment of SDCL 12-5-1:

If a new political party seeks to participate in the general election but not the primary election, the deadline for that party to submit its petition to the Secretary of State shall be the last Tuesday in June.

It's that simple. If the ACLU wants to add a provision for a late-coming party to nominate folks for Governor, U.S. House, or U.S. Senate, we'll have to get tricky and make allowances for Independents as well. If that's what the ACLU is after in this amendment, then they are probably barking up too complicated a tree and should get someone to sponsor a whole separate bill (and I'm very open to that action!).

But we need to get things moving. The petition reform package has two other moving parts. The Senate has sent SB 68 to the House; Senate Bill 67 is waiting. These bills shouldn't be going anywhere until we see the final form SB 69 takes.

Senate State Affairs takes up SB 69 tomorrow, Monday, January 26, at 10 a.m., along with five other bills. Chairman Rave didn't like spending 50 minutes on the bill Wednesday, and from the tone of Friday's deferral, I'm betting this is the last time Senate State Affairs gives SB 69 its attention.

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The Senate State Affairs Committee heard concerns from the American Civil Liberties Union this morning that the petition reform legislation working its way through Pierre may need some changes to protect ballot access for new political parties.

In testimony on Senate Bill 69, South Dakota ACLU policy director Libby Skarin said her organization understands the overarching reasons the Board of Elections has proposed this bill along with SB 67 and SB 68, to improve the validation process for nominating petitions. However, said Skarin, moving the petition circulation period one month earlier, to a submission deadline at the end of February, creates ballot access issues, especially for new political parties seeking official recognition from the state. Skarin said that the ACLU brought litigation in 1984 challenging a February petition deadline and got that deadline moved later.

To flesh out the ACLU's opposition, Skarin recruited Richard Winger, the ballot access expert blogger Ken Santema cited yesterday in contending that SB 69's February deadline may violate the Constitution. Testifying by phone from out of state on the kind indulgence of committee chairman Senator Tim Rave, Winger said that the Supreme Court has held that states must allow new parties to form in the spring of an election year. He noted that the Republican Party formed in July 1854 in response to the Kansas-Nebraska Act passed that spring. Winger said South Dakota is the only state that requires new parties to petition for status before the primary elections. He said there is no need for new parties to form before the primaries.

Winger and Skarin did not ask the committee to reject Senate Bill 69 or even any portion of it. They asked instead that the Legislature add language moving the petition filing date for new parties back to a more reasonable and Constitutional summertime date and allow new parties to nominate their candidates at convention. Neither had a formal amendment fleshed out to present to the committee this morning, but Skarin said she could have a proposal to senators by the end of the day.

Building on the ACLU's point about ballot access, Senator Bernie Hunhoff (D-18/Yankton) said the February deadline could make it much harder for legislators to help their parties recruit candidates. It's hard enough getting people to run, said Senator Hunhoff. Move that recruitment period to the holidays and the heart of Session when legislators are busy in Pierre, and even more ballot slots may go unfilled. Senator Hunhoff proposed that State Affairs defer SB 69 to allow a couple days to draft legislation that would cover the ACLU's concerns and perhaps create a provision to allow party chairs to fill ballot slots left empty at primary filing time.

When Senator Hunhoff asked her if such a proposal would complicate the election process at all, Secretary Krebs mentioned that parties right now can recruit placeholders to achieve the same end but said she'd have to check with her staff to see if they could think of any complications.

Senator Corey Brown (R-23/Gettysburg) said deferring the bill wouldn't change the indigestion he was feeling over Senator Hunhoff's proposal. Senator Brown said he finds the whole placeholder concept "abhorrent," and he didn't sound any more enthusiastic about letting party chairs pick nominees for blank spots. He also seemed uneasy about letting new parties nominate legislators at convention, as if facing an opponent selected by just a handful of his neighbors was an affront to democracy.

Chairman Rave, sounding a bit irked to have spent 50 minutes on this one bill, nonetheless urged and the committee agreed to defer SB 69 to Friday, when he promised to handle the bill briefly (translation: if you've got amendments, Bernie, they'd better short and sweet).

Senate State Affairs felt no need to delay SB 69's companion legislation, SB 67. That bill, which would set the second Tuesday in March as the deadline for filing court challenges against nominating petitions, drew no opposition and moves to the Senate floor.

But proceed carefully, Senate: passing SB 67 and SB 68 (which passed Senate Local Government this morning) only makes sense if SB 69 passes without amendment to its petition submission deadline of the last Tuesday in February. Make changes to SB 69 without changing SB 67 and SB 68, and you'll have a statutory spaghetti spill on your hands. (Remind me, Board of Elections, why we didn't write all these changes into one bill?)

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I told the Miller School District in May that their decision to allow the Gideons to distribute Bibles to fifth graders was unconstitutional. And the Miller School District listened!

Actually, they listened to the American Civil Liberties Union, which sent the Miller School District a complaint outlining the obvious church-state-separation problem of a public school letting religious groups proselytize on campus. Last month, the school board reversed its Bible-distribution policy and told the Gideons and other converters to hand out their tracts elsewhere.

This reversal is a small but instructive victory for us liberals trying to bring secular sanity to South Dakota. The Miller board president's comments on the reversal explain why:

"It's been through the court system and everything. We've got to follow the letter of the law," said board president Tim Zacher.

The reversal came after the ACLU sent a letter to the Miller School District in May saying the school was on "shaky constitutional ground" by allowing religious literature to be distributed in a public school.

...Zacher said he was disappointed the board was forced to change its policy and disallow the Bible distribution.

"Our founding fathers felt God very strong in this country," he said.

The Bibles had been distributed in previous years at Miller, though Zacher didn't know for how long.

"We had never had a bit of problem with it before," he said. "I guess that's the way it is" [David Montgomery, "Miller School Board Reverses Policy Allowing Handout of Bibles," that Sioux Falls paper, 2014.07.30].

Never had problem before... there's a key phrase. We may think that conservative Republican fundagelicanism is just entrenched in South Dakota culture and institutions. But Miller shows that bad policy may be less entrenched and simply unchallenged. As long as there's not a problem, nothing happens. But create a problem, or even warn there could be a problem, and local leaders may surrender. The ACLU didn't have to lawyer up; they just wrote a letter, showed the Miller school board that the Constitution was not on their side, and got the proper result.

That's why, instead of retreating to Minnesota and other saner political spheres, I keep encouraging my fellow South Dakota liberals, atheists, and other lovers of freedom to stand up and fight. Not every school board or city council will surrender before superior logic and law. But many will, preferring to avoid conflict and headlines. If we challenge every instance of local theocracy and other oppression, and if only 25% of the boards we challenge give in without a fight, those few easy victories give us that much more precedent for fighting hard against the remaining 75% to get liberty and justice for all... including liberty for our fifth-graders from Gideons, jihadis, Satanists, and atheists who may try to co-opt school grounds to advance or denigrate specific religions.

* * *

Under the Constitution schools cannot intentionally, or unintentionally, advance religion or become too entangled with religious groups. The courts have repeatedly said that schools must also avoid favoring or appearing to favor a religious view, and they may not create any situation in which students feel coerced to participate in religion. These constitutional protections ensure that students can find and follow their own faith with the guidance of their family and religious leaders, free from government intrusion [ACLU, press release, 2014.05.12].

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Leading the fight against abuses of South Dakota's foster care system is the American Civil Liberties Union, which is helping the Oglala and Rosebud Sioux tribes fight state officials who have been removing children from American Indian homes without sufficient due process and in violation of the federal Indian Child Welfare Act.

The ACLU had to fight South Dakota judges to gain access to transcripts from initial custody hearings involving Oglala and Rosebud parents and children. ACLU attorney Stephen Pevar says the 120 transcripts they've been able to review so far show regular disregard for parental and child rights under ICWA:

Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit [Stephen Pevar, "Why Are These Indian Children Being Torn Away From Their Homes?" ACLU: Blog of Rights, 2014.07.23].

Department of Social Services data show that South Dakota Indian children are eleven times more likely to be taken from their parents and placed in foster care than non-Indian children.

In a motion for summary judgment filed July 11, the ACLU and plaintiffs contend that the defendants (Department of Social Services Secretary Kim Malsam-Rysdon, Department of Social Services employee LuAnn Van Hunnik, Pennington County State's Attorney Mark Vargo and 7th Judicial Circuit Court Presiding Judge Jeff Davis) have failed to dispute any material facts in the case, including the clear obligation imposed on the state by this clause in the Indian Child Welfare Act:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate [ICWA, Section 1922, emphasis added in plaintiffs' motion for summary judgment, Oglala et al. v. Hunnik et al., 2014.07.11].

Pevar offers these examples from the 48-hour hearing transcripts of the state failing to terminate emergency removal or placement of Indian children when the threat of imminent harm has passed:

  • A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
  • A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
  • A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
  • A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody [Pevar, 2014.07.23].

The plaintiffs had to get federal Judge Jeffrey Viken to order the release of the transcripts that support their case. Defendant Judge Davis had released some of those transcripts of his own accord but now is apparently trying to withhold additional information. In a motion to unseal filed Monday, the plaintiffs allege that Judge Davis is "concealing information prejudicial to his case" by asserting that a motion for sanctions filed by the plaintiffs should remain sealed because "it subjects the Defendant Judge Davis to unnecessary and unjustified embarrassment and public scandal." The plaintiffs find that justification for sealing a public document wanting:

The ground asserted by Judge Davis in support of keeping the Motion sealed is invalid in this context. Specifically, if subjecting a party to “unnecessary and unjustified embarrassment and public scandal” could justify the sealing of pleadings in federal litigation in the manner asserted here, every defendant in every civil case would have the power to seal each plaintiff’s complaint and other court filings.

...The sole ground tendered by Judge Davis for keeping Plaintiffs’ Motion for Sanctions sealed is invalid. This is a case of major public importance, involving the fundamental liberty interests and federal statutory rights of every Indian family with children in Pennington County, South Dakota. Judge Davis may not control the public’s access to documents filed in federal court merely to protect his sensibilities or his reputation [Plaintiff's Motion to Unseal, Oglala et al. v Hunnik et al., 2014.07.21].

This is a case of major public importance. A victory in this lawsuit would be a firm step toward addressing the systemic abuses of Indian family rights in South Dakota's foster care system revealed by NPR's Laura Sullivan and Amy Walters in 2011. That victory requires the persistence of the tribes and the continued conscientious service of the ACLU.

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In October 2011, NPR published a scathing critique of South Dakota's treatment of Indian foster children and compliance with the Indian Child Welfare Act. The South Dakota Legislature declined again this February to do anything about the problems NPR spotlighted. South Dakota's executive branch and Congressional delegation have either denied or kept quiet about the Indian foster care issue.

Maybe the ACLU can get some answers and action with the class-action lawsuit it filed in Rapid City last week:

Three Indian parents and two tribes in South Dakota today stood up against these unlawful and disgraceful practices by filing a class-action lawsuit in Rapid City, South Dakota. The ACLU filed the complaint on their behalf in order to put an end to this unconstitutional process, which has unfortunately become standard practice in the state.

...Robert Doody, executive director of the ACLU of South Dakota, said it is time for state officials to start following the law: "After years of complaints, South Dakota has failed to address the systematic practices of removing Indian children from their homes. This lawsuit seeks to address these unconstitutional and harmful policies, and will hopefully prompt state officials to finally start following the law and respecting people's basic rights" [Vesna Jaksic, "South Dakota Parents and Tribes File Lawsuit Over Unlawful Separation of Children From Families," ACLU: Blog of Rights, 2013.03.12].

The complaint names Department of Social Services Secretary Kim Malsam-Rysdon, Department of Social Services employee LuAnn Van Hunnik, Pennington County State's Attorney Mark Vargo, and 7th Judicial Circuit Court Presiding Judge Jeff Davis as defendants. But if the allegations are true, the defendants list should be expanded to include the folks at the top, Governors Daugaard and Rounds, who have facilitated the endemic discrimination in our foster care system.

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South Dakota has the same crime rate as surrounding states but a higher incarceration rate. Betty Olson and Scott Craig probably think the solution is to hand out more guns.

The American Civil Liberties Union and South Dakota Families First want you to think about South Dakota's burgeoning prison population, the drug war, and how we might change public policy for the better. They are thus hosting a screening of The House I Live In at the downtown Public Library in Sioux Falls Thursday night:

SDFF board member and retired cop Tony Ryan explains why South Dakotans should pay attention to this film:

Last year alone, drug and alcohol offenses comprised more than half of the admissions to prison.

Ryan explains, “The criminalization of drug users is counterproductive. The increasing trend to lock up drug users has led to the crisis we’re dealing with today. Families are divided, addicts are left untreated, and taxpayers are burdened with hefty bills that have little to no return on public safety. We’re falling far below the national average of solving rape and robbery cases, so we’re concerned about the quality of law-enforcement after two decades of primarily going after low level drug offenders. Police and jailers are not addiction experts and shouldn’t be using a majority of their resources to lock up people simply for drug possession.”

Ryan believes many other states are moving to embrace a health-centered approach to drug policy, which will leave police free to focus on violent and serious crimes [press release, ACLU/SDFF, 2012.12.18].

The House I Live In won the Grand Jury documentary prize at Sundance 2012, the same film festival where The Invisible War, the documentary Rep. Stace Nelson helped make, won the Audience prize, so the film must be quality stuff!

If you want to see it and talk it over with interested neighbors, get to the downtown Sioux Falls public library Thursday evening, December 20. Meet and greet with film sponsors starts at 5:30 p.m.; film rolls at 6 p.m.; panel discussion happens at 7 p.m.

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Since Secretary of State Jason Gant can't do his job right, the American Civil Liberties Union and League of Women Voters are working to fill his gaps. After advocating a new law this year to disenfranchise convicted felons who get probation instead of jail time, he failed to update the official state webpage on this topic until September 6, two months after the law took effect. He still hasn't updated the official voter registration form to reflect the new restriction.

The South Dakota ACLU is thus touring the state to get out the word. As part of the national "Let Me Vote" campaign, the ACLU-SD will hold voter registration events in Rapid City, Pine Ridge, Eagle Butte, and Fort Thompson. They are focusing on Indian country because, frankly, South Dakota's efforts to discriminate against voters have focused on Indian country.

Here's the ACLU's clear explanation of the new rules for voting rights for folks who've crossed the law:

VOTING WITH A CRIMINAL RECORD
If you were convicted of a felony, there are new rules for voting.

  • You CAN vote if you have finished your sentence.
  • You CAN vote if you were sentenced to probation before July 1, 2012.
  • You CANNOT vote if you were sentenced to probation on or after July 1, 2012. (This is a new rule.)
  • You CANNOT vote if you are on parole.
  • You CANNOT vote if you are in prison.

If you were convicted of a misdemeanor or you are awaiting trial, you CAN vote. If you are in jail, you have to vote by absentee ballot.

[American Civil Liberties Union of South Dakota, voting rights information card, September 2012]

The ACLU-SD will hand out and explain these materials on voting rights and registration in South Dakota. They'll also give free dinner! The League of Women Voters will handle registering any interested voters. Here's when and where:

  • Rapid City: September 24, 6:00pm
    Mother Butler Center
    220 Wright Street
  • Pine Ridge: September 25, 6:00pm
    Prairie Winds Casino
    Hwy 18
  • Eagle Butte: September 26, 6:00pm
    Community Landmark Hall
    Main Street
  • Fort Thompson: September 27, 6:00pm
    Lode Star Casino
    1003 SD Highway 47
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This news should grate Pastor Hickey's cheese: Tiffany Campbell is back defending South Dakotans constitutional rights! Campbell played an important role in defeating the last unconstitutional abortion ban to make the South Dakota ballot back in 2008. Now she's on the job as director of advocacy for the South Dakota office of the American Civil Liberties Union.

Campbell will oversee legislative affairs at the local, state, and federal levels. She will also maintain and build coalitions dedicated to protecting freedom and liberty, and grow the ACLU's network of activities and volunteers statewide.

"My biggest goal for this position is to create new and enhance existing leadership among civil rights organizations to benefit future generations of South Dakotans," said Campbell, who is a former news producer and political campaign organizer. "I want people to know our office is here and fighting for their rights every day. Freedom can't protect itself" [ACLU-SD press release, 2011.10.17].

Campbell knows quite personally what it's like to have the government try to take away her fundamental American rights to privacy and autonomy. She will serve all South Dakotans well by defending them from further intrusions by our state legislature.

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