Petition for Writ of Certiorari — Eli Erickson, aka Black, Petitioner v. United States

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

NO. _ _ __

ELI ERICKSON,

PETITIONER,

-vs.-

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Timothy J. Rensch

Rensch Law Office

832 Saint. Joseph St.

Rapid City, SD 57701

Phone: 605-341-1111

ATTORNEY FOR PETITIONER

QUESTION PRESENTED

Was Defendant/Appellant Eli Erickson denied his right to a fair trial of

jurors drawn from a fair cross·section of the community under the District of

South Dakota's jury selection plan which sources jurors solely from the registered

voter pool that excludes Native Americans who only have tribal identification

cards or do not have a house number?

LIST OF PARTIES

The only parties to the proceeding are those appearing in the caption to this

petition.

11

TABLE OF CONTENTS

Question Presented .............. ........................................................... ............................ i

List of Parties ..... ...... ............................................................... ................................... ii

Table of Contents ............................................................ .......................................... iii

Table of Authorities ... ........... ..... .............................. .... ........... ......................... ......... .iv

Petition for a Writ of Certiorari ........................................................................ ...... ... 1

Opinions Below ......................................................... ........... ............................ ........... 1

Jurisdiction ................... ..... .............................................................. ........................... 2

Constitutional and Statutory Provisions Involved .................................. ................. 3

Statement of the Case ................................................................................................. 3

Reasons for Granting the Petition ..... ............................ ................................. ............ 6

I.

The Constitution requires a jury chosen from a fair cross-section of

the community, but the test established by Duren v. Missouri does

not guarantee racial equality in jury selection ................................ 8

II.

The Question Presented Significantly Impacts the Administration

of Criminal Justice ... ........ ................ .................................................... 12

Conclusion ................................................................................................................. 16

APPENDIX

Appendix A - Superseding Indictment

Appendix B - Opinion and Order Denying Motion for a New Trial

Appendix C - Affidavit of Mathew Thelen, Clerk of District Court

lll

Appendix D - Eighth Circuit Court of Appeals' Decision

Appendix E - District Court Judgment

Appendix F - Eighth Circuit Denial of Motion for Rehearing En Banc

TABLE OF AUTHORITIES

Cases

Page

Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382 (2010) .................. ..... ... ......... 8

Brnovich v. Democratic National Committee, 594 U.S._ (2021) ..................... 15

Brekbill v. Jaeger, 586 U.S._ (2020) ........ ............. .................. .... ...... ....... 15

Casteneda v. Partida, 430 U.S. 482 (1977) ....................................................... 7

Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979) ............................... passim

Floyd v. Garrison, 996 F.2d 947 (8th Cir. 1993).. ........ .............. ....... ......... ........ 7

Hernandez v. Texas, 347 U.S. 475 (1954) ........................................................ 6

Strauder v. West Virginia, 100 U.S. 303 (1880) ................................................ 6

Swain v. Alabama, 380 U.S. 202 (1965) .......... .. . .... ....... ........... ... ....... .. ............ 7

Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L.Ed.2d 690 (1975) .. 3, 6, 8, 14

Thiel v. Southern Pac. Co., 328 U.S. 217 (1946) ......................................... 3, 6, 9

United States v. Grisham, 63 F.3d 1074 (11th Cir. 1995) ................................... 7

United States v. Yazzie, 660 F.2d 422 (10th Cir. 1981) ...................................... 9

IV

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend VI .... ....... . .............. .... ... ............................................. 2

STATUTES

18 U.S.C. § 921(a)(6) .................. ...... .......... .... .... .. ...... .... ....... .... .. .. ........... ....2

18 U.S.C. § 922(d) ... .. ... .. ... .. ........ .... ... ... .. .. ..... ......... .... ........... ...... ......... ......2

18 U.S.C. § 922(g)(3) ...... ...... ......... .. ................ ........ ... . .. .... ........... ............... 2

18 U.S.C. § 924(c)(l)(A) ......... ... .......... ... ......... ..................... ..... .. ...... .... ... .... 2

18 U.S.C. § 924(c)(l)(B)(i) ..... ..... .. ............ ........ ... ....... .. .... ..... ... .......... .. ....... .. 2

18 U.S.C. § 924(d) .. ...... ........ ... .. .. ...... ......... .. .. ...... .. .............. ..... ... ... ............ 2

21 U.S.C. § 841(b)(l)(A) .. ..................................... .. .. ........ ........ ................. ... 2

21 U.S.C. § 846, ...... ... ....... .......... .. ........ ... .... ..... ... .. .... .. ..... .. ...... ... ... .. .......... 2

21 U.S.C. § 853 ... .. .................................................................................... ... 2

28 U.S.C. § 2461(c) ........... ... ... .... ..... ...... .... ... ... ..................... ... ... .... .. ..... .... .. 2

28 U.S.C. § 1863(b)(2)... ............................. .... ..... . ... ........ ............................ 12

Plan for the Random Selection of Grand and Petit Jurors,

U.S. DIST. CRT. FOR DIST. SD, § 5A (Oct. 2018) .... ......... .. .. ......... .......... .... 3, 4

Jury Selection Plan of the United States District Court for the District of

Minnesota for the Random Selection of Grand and Petit Jurors,

U.S. DIST. CRT. DIST. MINN. § 6 (Nov. 2019) ....................................... .. .. .... 13

Plan for Random Jury Selection,

U.S. DIST. CRT. DIST. NEB., § 5 (Oct. 2019) .................... ..... ................ .... .... 13

V

Jury Selection Plan,

U.S. DIST. CRT. NORTHERN DIST. IOWA,§ 5(c) (Jan. 2017) .. .. ... ...... ...... ... ... 13

Jury Selection Plan,

U.S. DIST. CRT. SOUTHERN DIST. IOWA, § 5(c) (Feb. 2019) ........................ . 13

Jury Selection Plan,

U.S. DIST. CRT. WESTERN DIST. MO., 2 (Apr. 2019) ............ .. ... ..... .... .. ........ 13

Plan for the United States District Court for the Eastern District of Missouri

for the Random Selection of Grand and Petit Jurors, §§ 2, 4 (May 2016)

U.S. DIST. CRT. EASTERN DIST. MS .......... .... ..................................... ..... . 13

Plan for the Random Selection of Jurors,

U.S. DIST. CRT. WESTERN DIST. ARK., § 401 (Nov. 2015) ................... .. ... ... 13

OTHER AUTHORITIES

Brennan Center for Justice (2012) Voting Rights & Elections,

New York University School of Law.................. .. ............................. .... .......... 11

Brennan Center for Justice (Jan. 31, 2017),

Debunking the Voter Fraud Myth ...... ...... ......... ... ............... ......... ................. 7

Fagan, Jeffery, Brieffor Social Scientists, Statisticians, and Law Professors,

et al., as Amici Curiae Supporting Respondent, at 22, Berghuis v. Smith,

559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010) ............... .... ..... ... ... ...... 8

Ferguson·Bohnee, Patty, How the Native American Vote Continues to be

Suppressed, American Bar Association, Human Rights Magazine,

Volume 45, No. 1, Voting Rights (Feb. 9, 2020) ..................... .................... .. .... 15

Frampton. Thomas Ward, For Ca use: Rethinking Racial Exclusion and the

American Jury, 118 MICH. L. REV. 785 (2020) ............. .... ...... ......................... 6

Finkelstein, Michael O., The Application ofStatistical Decision Theory to the

Jury Discrimination Cases, 80 HARV. L. REV. 338 (1996) ........... ...... ....... .. .. ..... 8

VI

Ninth Circuit Jury Trial Improvement Committee, First Report on Goals and

Recommendations, U.S. CTS. NINTH CIR., at 3 (May 2004) .. ...... .................... 13

Robert, Amanda, Pass laws making it easier for Native Americans and those

without addresses to vote, American Bar Association Newsletter,

February 17, 2020 ... ........... ... ..... .................. ...... .. ... .................................. 11

Rose, Mary R, et al., Jury Pool Underrepresentation in the Modern Era: Evidence

from Federal Courts, 15 J. EMP. L. STUD. 1, 13 (2018) .. ...... ......... .... ........... .... 6

Stambaugh, Hannah (2019), America's Quiet Legacy ofNative American

Voter Disenfranchisement: Prospects for Change in North Dakota After

Brakebill v. Jaeger, AMER. UNIV. L. REV.: Vol. 69: Issue 1, Article .............. .. .. 11

Waldman, Michael, Voting in America: A National Perspective on the Right to

Vote, Methods of Election, Jurisdictional Boundaries, and Redistricting: Hearing

Before the Subcomm. on Elections, 117th Cong. (2021) ............ .. ................ ....... 7

Vll

PETITION FOR A WRIT OF CERTIORARI

Petitioner Eli Erickson respectfully petitions for a writ of certiorari to review

the judgment of the 8 th Circuit Court of Appeals.

OPINIONS BELOW

On June 2, 2021, the Eighth Circuit Court of Appeals denied Erickson's

appeal of challenging the racial cross section of his jury under the District of South

Dakota's Plan for Selection of Grand and Petit Jurors, and his claims that the

selection process is flawed in Central South Dakota, as the Native Americans who

are selected are customarily stricken for cause due to the personal knowledge of the

witnesses and parties appearing at trial. (Appendix D). The Eighth Circuit held

that under the second prong of the test set forth in Duren v. Missouri, 439 U.S. 357,

99 S. Ct. 664, 58 L.Ed.2d 579 (1979), "Erickson had not provided any explanation

for how the Central Division of South Dakota's reliance on voter registration rolls

otherwise operates to systematically exclude Native Americans from criminal jury

pools and as a result, he was missing a required element of his prima facie case."

(Appendix D). The Eighth Circuit held that, "Because Erickson has not presented

evidence about the number of Native Americans in the Central Division's jury pool,

he necessarily has failed to show that their representation in that pool was 'not fair

and reasonable in relation to the number of [Native Americans] in the community."'

(Appendix D). However, South Dakota does not maintain records about the number

of Native Americans in each district, but only as to the entire state as a whole.

(Appendix C). Thus, Erickson's appeal was denied based upon his failure to provide

1

information which does not exist, making it a legal impossibility for him to be

successful on appeal. Erickson filed a Motion for Rehearing En Banc on June 14,

2021, which was denied. (Appendix F).

JURISDICTION

On November 14, 2018, Erickson was charged with seven counts of offenses

involving the violation of the laws of the United States of America under 21 U.S.C.

§§ 846, 84l(a)(l) and 84l(b)(l)(A); 18 U.S.C. §§ 924(c)(l)(A), 924(c)(l)(B)(i), 92l(a)(6),

922(g)(3), 922(d) and 924(d); 26 U.S.C. §§ 586l(d), 586l(h), 5845(a)(2) and 5871; 21

U.S.C. § 853; and 28 U.S.C. § 246l(c), all of which occurred in South Dakota. On

November 7, 2019, Erickson was found guilty of Conspiracy to Distribute a 500

grams of Methamphetamine, Possession of a Firearm in Furtherance of a Drug

Trafficking Crime and three counts of Possession of a Firearm as a Drug

Addict/User. On April 20, 2020, Mr. Erickson, was sentenced to a total of 188

months in federal prison, followed by 5 years of supervised release, a $1,000 fine,

and a $500 special assessment to the Federal Crime Victims Fund. On April 24,

2020, Erickson timely filed his Notice of Appeal challenging his conviction and

sentence on four separate grounds. On June 2, 2021, the Eighth Circuit entered a

decision denying Erickson's appeal on all gi·ounds. On June 14, 2021, Erickson filed

a Motion for Rehearing En Banc, which was denied on July 13, 2021, affirming his

conviction and denying his request for a new trial.

2

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States Constitution provides in relevant

part: "[T]he accused shall enjoy the right to a speedy and public trial, by an

impartial jury." The U.S. Constitution guarantees all criminal defendants "the

right to a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed." The right to a jury chosen from a

"fair cross-section of the community" is a fundamental element of this guarantee.

See Taylor v. Louisiana, 419 U.S. 522, 530 (1975) ("We accept the fair·cross·section

requirement as fundamental to the jury trial guaranteed by the Sixth Amendment

and are convinced the requirement has solid foundation."); Thiel v. Southern Pac.

Co., 328 U.S. 217, 227 (1946) ("Trial by jury presupposes a jury drawn from a pool

broadly representative of the community ....").

STATEMENT OF THE CASE

This case presents the important question of whether the District of South

Dakota's 2018 Plan for the Random Selection of Grand and Petit Jurors, which

solely uses the South Dakota voter registration database, denied Erickson his right

to a jury of his peers, because the South Dakota Voters Registration Action

excludes person who do not have a State of South Dakota identification card, or a

house number which simply aren't available to many Native Americans living on

South Dakota's reservations. Under the Plan, "[A]ll jurors [are] selected at random

from the list of registered voters provided by the office of the South Dakota

3

Secretary of State." See U.S. DIST. CRT. FOR DIST. SD, § 5A (Oct. 2018), Plan for

the Random Selection of Grand and Petit Jurors.

During the voir dire held in Erickson's jury trial on November 5, 2019, fifty·

one qualified jurors reported for service. Appendix Affidavit of Matt Thelen, Clerk

of Court, Docket 124. Of those 9 people, or 17.6%, identified their race as American

Indian or Alaska Native. As of 2015, South Dakota's Central Division had a

population which was 25% Native American. Affidavit of Matt Thelen, Clerk of

Court. Docket 124. The district court excused six of these potential jurors for cause

because they either knew Erickson, or knew the witnesses, or knew the facts of the

case given the fact that it occurred on the Pine Ridge Indian Reservation which is a

small, rural and cohesive community in which most people know of each other.

The government exercised peremptory challenges to remove two other Native

Americans for legitimate reasons not subject to a challenge under Baton v.

Kentucky, 476 U.S. 79 (1986).

On November 7, 2019, following impaneling a jury which included no Native

Americans, Erickson was found guilty of Counts 1, 2, 5, 6, and 7 of the Superseding

Indictment. On April 20, 2020, Mr. Erickson was sentenced to a total of 188

months in federal prison, followed by 5 years of supervised release, a $1,000 fine,

and a $500 special assessment to the Federal Crime Victims Fund. On April 24,

2020, Erickson timely filed his Notice of Appeal challenging his conviction and

sentence on four separate grounds.

4

Two of Erickson's grounds on appeal were related to the inability to obtain

Native American jurors on cases in Central South Dakota. In additional to

contesting the problems of South Dakota Plan for Selection of Grand and Petit

Jurors related to voter registration, Erickson also argued that the nature of the

reservation system in South Dakota was such that many of the Native American's

who were selected were being excluded as they were related or know the witnesses

in the trials. On June 2, 2021, the Eighth Circuit entered a decision denying

Erickson's appeal, holding that he had failed to provide information regarding the

Native American percentages of the Central Division's Master Wheel as compared

to the general population, and thus had failed to meet the requirements of Duren

test. This ruling centered a legal impossibility for Erickson, however, in that South

Dakota keeps only one Master Wheel for which statistics are available. See

Appendix C · Affidavit of Matthew Thelen, Clerk of Court, Docket 124.

In South Dakota, when a jury is selected, a computer takes this registered

voter pool and assigns potential jurors for a trial to a jury pool. There are no

statistics kept of what the race percentages are in the Central Division. There

simply is not a separate Master Wheel for the Central Division. See Appendix C.

Thus, what the Appeals Court based their decision on was information they alleged

Erickson failed to provide, but yet was not available.

On June 14, 2021, Erickson filed a Motion for Rehearing En Banc arguing

that the appeal decision provided Erickson with a legal impossibility under t he

Duren test. This request was denied on July 13, 2021.

5

This petition follows.

REASONS FOR GRANTING THE PETITION

1.

The issues of racial bias in the selection of juries is a perennial issue in that a

comprehensive test has not been established for both federal and state courts. See

Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the

American Jury, 118 MICH. L. REV. 785 (2020). The United States has had a long

history of excluding minorities from jury sourcing, resulting in serious collateral

consequences to the credibility, reliability, and integrity of the criminal justice

system. See Strauder v. West Virginia, 100 U.S. 303 (1880) (African Americans);

Taylor v. Louisiana, 419 U.S. 522 (1975)(women); Hernandez v. Texas, 347 U.S.

475, 479·80 (1954) (Mexican Americans); Thiel v. Southern Pacific Co., 328 U.S.

217, 222 (1946) (daily wage earners). The problem emanates from a lack of a single

test or clear numeric standard by which to measure underrepresentation or

discrimination in the sourcing of jury lists among t he federal district courts.

Certiorari has been denied in most challenges regarding the composition of juries.

See Mary R. Rose et al., Jury Pool Underrepresentation in the Modern Era:

Evidence from Federal Courts, 15 J. EMP. L. STUD. 1, 13 (2018). Consequently,

no uniform standard has emerged from case law, making it difficult to determine

when supplementation of jury lists beyond the registered voter lists is required. Id.

For instance, within the Eighth Circuit Court of Appeals seven of the ten districts

supplement their registered voter pool with other sources of prospective juror

6

without any real reason, test or standard to determine when supplementation is

required.

2.

This confusion and lack of an established test makes it possible for courts to

hide behind a presumption that voter registration lists are a constitutionally valid

source of potential jurors despite the fact that in practice there is an obvious lack of

minority jurors ending up in courts in the jury selection process. Id. at 364;

Casteneda v. Partida, 430 U.S. 482, 494 (1977). The lack of a uniform standard

allows courts to permit seemingly unreasonable underrepresentations to persist,

and effectively denies minority defendants their Sixth Amendment right to a jury

of their peers. See, e.g., Swain v. Alabama, 380 U.S. 202, 208·09 (1965); Floyd v.

Garrison, 996 F.2d 947, 950 (8th Cir. 1993); United States v. Grisham, 63 F.3d

1074, 1078·79 (11th Cir. 1995). Added to this problem is the constant changes to

the individual state's voter registration laws which recently have been expanded to

disenfranchising minority voters. According to the Brennan Center for Justice, as

of July 14, 2021, lawmakers had introduced more than 400 bills in 49 states to

restrict the vote-at least four times the number of restrictive bills introduced just

two years prior. To date, at least 18 states have enacted new laws containing

provisions that restrict access to voting. See Waldman, Michael, Voting in

America: A National Perspective on the Right to Vote, Methods ofElection,

Jurisdictional Boundaries, and Redistricting: Hearing Before the Subcomm. on

Elections, 117th Cong. (2021); see also Debunking the Voter Fraud Myth, Brennan

Center for Justice (Jan. 31, 2017).

7

3.

Erickson argues that the Duren test is an outdated and ineffective way to

evaluate whether a particular group is underrepresented in the jury pool because

the test fails to take into account the size of the excluded group, and permits

almost complete exclusion of small groups, while invalidating moderate

underrepresentation of large groups. For instance, this means it is impossible for

African-Americans to challenge underrepresentation in 75% of counties in the

United States. See Brief for Social Scientists, Statisticians, and Law Professors,

Jeffrey Fagan, et al., as Amici Curiae Supporting Respondent, at 22, Berghuis v.

Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249, 2010 U.S. LEXIS 2925

(2010). For Latinos and Asian-Americans, such challenges are impossible in more

than 90% of counties, and for other people of color this constitutional protection is

practically non-existent. Id. see also Finkelstein, Michael 0., The Application of

Statistical Decision Theory to the Jury Discrimination Cases, 80 HARV. L. REV.

338 (1996).

I.

The Constitution requires a jury chosen from a fair cross-section of the

community, but the test established by Duren v. Missouri does not guarantee

racial equality in jury selection.

4.

The Sixth Amendment to the United States Constitution provides in relevant

part: "[T]he accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been

committed." The right to a jury chosen from a "fair cross-section of the community"

is a fundamental element of this guarantee. See Taylor v. Louisiana, 419 U.S. 522,

530 (1975) ("We accept the fair-cross-section requirement as fundamental to the

8

jury trial guaranteed by the Sixth Amendment and are convinced the requirement

has solid foundation."); Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) ("Trial

by jury presupposes a jury drawn from a pool broadly representative of the

. ....").

community

5.

In Duren, this Court established a three·part test to be used to determine if a

defendant was denied a right to a fair trial based upon a lack of proportionate

representation. 439 U.S. 357, 99 S. Ct. 664, 58 L.Ed.2d 579 (1979). To prevail on a

claim of racial exclusion in jury selection, the Duren test requires a defendant to

prove that: (1) the group alleged to be excluded is a "distinctive" group in the

community; (2) the representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of such persons in the

community; and (3) this underrepresentation is due to systematic exclusion of the

group in the jury selection process. Id. at 364.

6.

In Erickson's challenges to his jury composition, the district court and the

Eighth Circuit both agreed that he had met the first element, which is that Native

Americans are a "distinctive" group in the community under the first element of the

Duren test. See also United States v. Yazzie, 660 F .2d 422, 426 (10th Cir. 1981).

7.

However, both the district court and the Eighth Circuit found that Erickson

ha d not proved the second element of the Duren test, because he had not proved

that the Native American representation of his jury panel was not fair and

reasonable in relation to the number of such persons in the community." See

Duren , 439 U.S. at 364. The Appeals Court based this upon their finding that

9

Erickson did not provide information regarding the Native American percentages of

the Central Division's Master Wheel as compared to the general population in the

Central Division of South Dakota. (Appendix D). This ruling provided a legal

impossibility for Erickson, however, in that South Dakota keeps only one Master

Wheel for which statistics are available. (Appendix C). When a jury is selected, a

computer takes this registered voter pool and assigns potential jurors for a trial to a

jury pool. (Appendix C). There are no statistics kept of what the race percentages

are in the Central Division, and there isn't a separate Master Wheel for the Central

Division. (Appendix C). Thus, what the Appeals Court based their decision on was

an allegation that Erickson failed to provide but yet was not available to him.

8.

A further disparity exists in the case in that the fact was that the charges

were alleged to have occurred on the Pine Ridge Indian Reservation, which is

populated essentially only by Native Americans, while the Central Division of South

Dakota as a whole has a population which is only approximately 25% Native

American. The Central division contains the Rosebud Indian Reservation, Crow

Creek Indian Reservation, and Cheyenne River Indian Reservation, with outlying

areas that are predominately Caucasian. See 2019 United States Census Bureau

Population Table. Erickson's criminal act is alleged to have occurred in Antelope,

South Dakota, an area 2.3 square miles in size according to the United States

Census Bureau, and which has a population of 867 people, 225 households, and 177

families residing there, with 96.89% of the people being Native American.

Antelope, South Dakota is located in Todd County, South Dakota, which has a

10

population of 10,177 people of which 86.8% are Native Americans. See 2019 United

States Census Bureau Population Table. The number of register voters in Todd

County was 4,623 out of 5,934 persons 18 years or older, meaning that 22% of the

citizens of Todd County are not registered to vote. Id. The caseload of the Central

Division primarily comprises crimes occurring in Indian County, yet the entire

district as a whole is used for an analysis of what a jury of Erickson's peers would

be. The result is that in trial after trial, Native Americans are being tried by nearly

all Caucasian juries for crimes occurring in nearly all Native American

reservations.

9.

The Eighth Circuit Court of Appeals also found that Erickson failed to meet

the third prong of the Duren test in that he failed to show that "this

underrepresentation is due to systematic exclusion of the group in the jury selection

process." Duren, at 364. The same problems plaguing South Dakota's voter

registration were noted by Justice Ginsberg in her dissent in Brakebill v. Jaeger,

586 U.S. __ (2020) that, "(1) 70,000 North Dakota residents-20% of the turnout

in a regular quadrennial election-lack a qualifying ID; and (2) approximately

18,000 North Dakota residents also lack supplemental documentation sufficient to

permit them to vote without a qualifying identification card." See also Stambaugh,

Hannah, Americas Quiet Legacy ofNative American Voter Disenfranchisement:

Prospects for Change in North Dakota After Brakebill v. Jaeger, AMER. UNIV. L.

REV.: Vol. 69: Issue 1, Article 7 (2019). The Brennan Center for Justice has called

the structural obstacles facing Native Americans voters "an often overlooked crisis

11

in our democracy." See, Brennan Center for Justice (2012), Voting Rights &

Elections, New York: New York University School of Law.

http://www.brennancenter.org/content/section/category/voting rights.

10.

In February of 2020, the American Bar Association's House of Delegates

overwhelmingly passed a pair of resolutions that aim to increase voter participation

and minimize voter suppression noting the crisis and disenfranchisement of Native

Americans was a problem simply not being addressed. The resolution was cosponsored by the Coalition on Racial and Ethnic Justice, Commission on Disability

Rights, Commission on Hispanic Legal Rights and Responsibilities, Commission on

Sexual Orientation and Gender Identity, National Conference of Specialized Court

Judges, National Native American Bar Association, Section of State and Local

Government Law and Standing Committee on Election Law. See, Amanda Robert,

Pass laws making it easier for Native Americans and those without addresses to

vote, American Bar Association Newsletter, February 17, 2020. There is no

shortage of qualified sources identifying both the problem and the solution to this

longstanding disenfranchisement issue which begs the question of why a solution

has not been forthcoming.

II.

The Question Presented Significantly Impacts The Administration of

Criminal Justice.

11.

The practice of using voter registration rolls solely to compile the Master

Wheel in federal courts is expressly permitted under the Jury Selection and Service

Act of 1968. See 28 U.S.C. § 1863(b)(2). The Eighth Circuit has held "that a jury

12

selection plan based on registered voter lists withstands constitutional scrutiny

unless there is [otherwise] a showing of systematic exclusion of [the

underrepresented group] in the jury selection process." Smith v. Copeland, 87 F.3d

265, 269 (8th Cir. 1996); United States v. Warren, 16 F.3d 247, 252 (8th Cir. 1994).

The federal district courts for South Dakota do not supplement the registered

voter list. However, within the Eighth Circuit, Minnesota, Nebraska, Iowa,

Missouri and Western Arkansas, they include lists of names to supplement voter

records. See Jury Selection Plan of the United States District Court for the District

of Minnesota for the Random Selection of Grand and Petit Jurors, U.S. DIST. CRT.

DIST. MINN. § 6 (Nov. 2019); Plan for Random Jury Selection, U.S. DIST. CRT.

DIST. NEB., § 5 (Oct. 2019); Jury Selection Plan, U.S. DIST. CRT. NORTHERN

DIST. IOWA,§ 5(c) (Jan. 2017); Jury Selection Plan, U.S. DIST. CRT. SOUTHERN

DIST. IOWA, § 5(c) (Feb. 2019); Jury Selection Plan, U.S. DIST. CRT. WESTERN

DIST. MO., 2 (Apr. 2019) Plan for the United States District Court for the Eastern

District of Missouri for the Random Selection of Grand and Petit Jurors, §§ 2, 4

(May 2016); Plan for the Random Selection of Jurors, U.S. DIST. CRT. WESTERN

DIST. ARK., § 401 (Nov. 2015). Nearly all state courts use more than one source

list for prospective juror names. See Ninth Circuit Jury Trial Improvement

Committee, First Report on Goals and Recommendations, U.S. CTS. NINTH CIR. at

3 (May 2004).

12.

The resulting disparity between state and federal courts in the same

geographic area, and between deferent federal court districts within the same area,

13

has the effect of creating confusion and distrust among the public. See Srikrishnan,

Maya, Federal Court's Jury Selection Plan Under Fire, Voice of San Diego, January

25, 2021. In practice, most criminal cases arising from within the reservations of

South Dakota are tried to nearly all white juries, creating the appearance of

impropriety among non-legal trained observers. As noted in Taylor v. Louisiana,

"Community participation in the administration of the criminal law ... is not only

consistent with our democratic heritage but is also critical to public confidence in

the fairness of the criminal justice system." Quite simply, single-source jury pools

foster continued perceptions of racial segregation and racial inequity within the

federal framework which simply cannot be explained by reference to the Duren test,

which allows these inequities to continue.

13.

These are not simply the observation of the undersigned. They are well·

documented issues noted most recently by the American Bar Association. In an

effort to address these issues, the American Bar Association has adopted Principle

l0(A) which notes that supplemented jury pools are essential "to preserving the

right to a fair and impartial jury." Judge William Caprathe, et al., Assessing and

Achieving Jury Pool Representativeness, A.B.A. (May 1, 2016). The American Bar

Association, through the adoption of Principle l0(A), directly addresses the

remaining federal district courts that have failed to expand beyond voter

registration pools in the sourcing of juror. These remaining federal district courts

are directly targeted in the discussion as the last remaining bastions of jury

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inequality that need to be addressed as most state courts have already adopted

supplemental sourcing of their jury pools.

14.

The Court's most recent decision in Brnovich v. Democratic National

Committee, 594 U.S._ (2021), would support a finding that the South Dakota

Voter Registration Act is unconstitutional, and by implication the sourcing of the

South Dakota federal jury pool is as well. The holding of the majority in Brnovich

made it clear that any legislation that does not "make voting equally open to all"

and does not give everyone an equal opportunity to vote would be invalid. Brnovich

594 US at 21. (The interpretation set out above follows directly from what §2

commands: consideration of "the totality of circumstances" that have a bearing on

whether a State makes voting "equally open" to all and gives everyone an equal

"opportunity" to vote). The South Dakota voting registration process clearly does

not give everyone an equal opportunity to vote and consequently deprived Erickson

of a fair jury. Luckily, following the decision in Brekbill v. Jaeger, North Dakota

legislature adopted changes to their voter registration law, which essentially leaves

South Dakota as one of the last remaining states to continue Native American

disenfranchisement. Ferguson· Bohnee, Patty, How the Native American Vote

Continues to be Suppressed, American Bar Association, Human Rights Magazine,

Volume 45, No. 1, Voting Rights (Feb. 9, 2020).

15.

This Court is urged to consider granting this writ and set forth a federal jury

sourcing test or standard which unifies all of the federal district courts and takes

into account the large percentage of minorities who are excluded as a result of

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single-source voter registration pool jury sourcing. Absent some judicial oversight

or change to the Duren test, the public's deterioration of trust within our criminal

justice system will continue to decline at a time when the public is demanding

transparency, accountability and equality in government institutions.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Certiorari should be

granted.

Dated this 4 -day of October, 2021

Respectfully submitted,

RENCH Lb-W OFFICE

A Pro~ ?w Corporation

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Timothy J. Rensch

Rensch Law Office

832 Saint Joseph Street

Rapid City, SD 57701

Phone: 605·341 ·1210

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