U.S. District Judge: South Dakota Natives Vote T-Shirt Ruling Allows Nonpartisan Message

• Lonnie Provost, a Yankton Sioux tribe member, was initially prevented from voting in Charles Mix County, South Dakota, for wearing a 'Natives Vote' T-shirt during the 2024 general election.
• County officials cited state electioneering laws, which prohibit campaign materials within 100 feet of a polling place, as the reason for the refusal.
• U.S. District Judge Karen E. Schreier granted a temporary restraining order, allowing Provost to vote in the shirt.
• Judge Schreier ruled that the 'Natives Vote' shirt represented nonpartisan voter participation messaging and was protected under the First Amendment.
• Provost, represented by the Native American Rights Fund, is now seeking a permanent declaratory judgment on the matter.

The court found that the 'Natives Vote' shirt conveyed a nonpartisan message promoting Native voter participation, rather than advocating for any specific candidate, political party, or ballot measure.

Lonnie Provost, a member of the Yankton Sioux tribe, faced an unexpected hurdle when attempting to cast his ballot in Charles Mix County, South Dakota. During the 2024 general election, Provost was turned away from his designated polling place because he was wearing a T-shirt emblazoned with the phrase "Natives Vote." This incident prompted immediate legal action, as Provost and his legal team contended that his constitutional rights were being infringed upon.

Charles Mix County Auditor Jason Gant justified the decision by asserting that the "Natives Vote" T-shirt violated South Dakota's electioneering statutes. These laws prohibit the display of campaign materials within a 100-foot radius of a polling site. Provost's attorneys had previously engaged with state and county officials, including the South Dakota Secretary of State's Office, to address the policy, but these efforts proved unsuccessful, with Gant remaining firm in his interpretation of the regulations.

Following the county's refusal to permit Provost to vote while wearing the shirt, a federal lawsuit was filed on Monday, seeking a temporary restraining order (TRO) that would allow him to exercise his right to vote the very next day. U.S. District Judge Karen E. Schreier, a Bill Clinton appointee, presided over a hearing in Sioux Falls on Tuesday morning and promptly granted the requested motion, ensuring Provost could cast his ballot as intended.

In her order, Judge Schreier articulated that Provost had demonstrated a strong likelihood of prevailing on his First Amendment claim. The court found that the 'Natives Vote' shirt conveyed a nonpartisan message promoting Native voter participation, rather than advocating for any specific candidate, political party, or ballot measure. Consequently, Judge Schreier concluded that the defendants' classification of this message as prohibited campaign material lacked an objectively reasonable basis consistent with the First Amendment. The judge mandated that Auditor Gant instruct all election workers in Charles Mix County to permit voters wearing the 'Natives Vote' shirt or similar apparel to cast their votes. Following this ruling, Provost successfully voted while wearing the shirt, and the order remained in effect until all polling places in Charles Mix County closed on Tuesday.

The swift federal court intervention underscores the critical balance between maintaining orderly elections and protecting fundamental free speech rights at polling places. Samantha Blencke, a senior staff attorney for the Native American Rights Fund, which co-represented Provost, emphasized that "No voter should have to choose between expressing pride in Native electoral participation and casting a ballot." She further noted that the actions taken by Charles Mix County conveyed an inappropriate message regarding voter engagement.

Thad Titze, an associate at Robins Kaplan firm in Sioux Falls, also representing Provost, highlighted the importance of an active citizenry in a democratic society, stating that more individuals should emulate Provost's enthusiasm for civic participation. While the immediate issue was resolved, Provost is continuing his legal efforts, seeking a declaratory judgment and permanent relief to prevent similar incidents in the future. The Native American Rights Fund had been involved with Provost since the initial 2024 incident, escalating the matter to federal court only after exhausting other avenues with state and county officials.

Lawyers advising election officials or political campaigns should note this precedent regarding permissible attire and messaging at polling sites, particularly concerning non-partisan voter participation efforts, to avoid potential First Amendment challenges. Compliance officers involved in election administration need to review their policies on voter attire to ensure they do not unduly restrict protected speech.

Source: Original reporting via Courthouse News Service