Native Americans, like other minority groups, face racially motivated disenfranchisement efforts. Watershed victories for equal access to the ballot – including the passage of the Fifteenth Amendment and the Nineteenth Amendment – did not affect Native Americans because they were not considered U.S. citizens until the enactment of the Indian Citizenship Act in 1924. While the Act nominally enfranchised Native Americans, disenfranchisement tactics remained pervasive at the state level. Early disenfranchisement techniques included staples such as literacy tests and laws that prohibited Natives from voting without saying so explicitly (i.e., denying the franchise to “Indians not taxed”). Modern disenfranchisement techniques include everything from gerrymandering to voter harassment and intimidation.
Following the Court’s decision in Shelby County, Native voters have had to rely more heavily on the courts and Congress to combat voter suppression. The Obama Department of Justice (DOJ) offered draft legislation that would increase the number of polling stations available on tribal lands; this legislation has not been introduced. In 2015, Senator Jon Tester introduced a much more comprehensive Native voting rights bill that incorporated DOJ’s suggested language and included provisions aimed at remedying other important voter suppression challenges such as language barriers, harassment and intimidation, and voter identification laws. While Senator Tester’s bill would go much further in combating Native voter suppression than DOJ’s, Tester’s bill might raise federalism concerns that could be fatal. Native voter suppression requires a federal legislative fix. This post reviews the legislative fixes that have been suggested so far, and suggests modifications to help them achieve their policy goals.
Suppressing the Native Vote
Progress in combatting some race-based disenfranchisement has led scholars and activists to ask complex questions, such as ‘Is there a difference between descriptive representation and substantive representation?’ and ‘Should support from a minority elected official for a challenged voting procedure influence judicial analysis under the Voting Rights Act?’. Instead of grappling with these more difficult representation issues, Native voters are still facing the basic question of how they can elect representatives of their choosing at all. Native voters “are a generation behind in their quest for effective political power.” Modern disenfranchisement techniques – such as gerrymandering and other forms of vote dilution, a scarcity of polling places, voter identification laws, language barriers, and voter harassment and intimidation – compound structural barriers many Native voters face in voting that result from geography, cultural differences, and a history of exclusion.
Vote Dilution. Gerrymandering and other mechanisms of vote dilution are rife in states home to large populations of Native Americans. Arizona, for example, has sought to dilute the Native vote by packing districts: Apache County found itself in legal trouble after it was discovered that the county had a Native population that was fifteen times greater than the county with the smallest population. States seeking to swamp out minority influence in local government can also employ district at-large election systems. For example, Fremont County, Wyoming, adopted a district at-large system for its county commission to make it difficult for Natives to attain representation on the five-member county commission board even though Natives constituted about 21% of the county population.
Polling Location Access. The geographic remoteness of many tribal communities, differences in culture, language barriers, and a lack of accessible polling locations also create barriers to effective participation in the political process for indigenous voters. Reservations are typically located in rural areas, far from city or county centers where voting-related activity often takes place. If registration stations and polling places aren’t sited on reservation land, Native people can be forced to travel great distances. For example, Ed Moore, a member of Montana’s Fort Belknap tribe, has to travel 126 miles to reach the nearest polling location. Native communities tend to be socioeconomically worse-off than others, with lower rates of car ownership, issues with stable housing, and higher rates of transience. Professor Gerald Webster found that members of three Montana tribes who live on reservations have to travel 2-3 times further than whites to get to a county courthouse to vote, that Natives are 2-3 times less likely to have a car for the trip, and that they are also less likely to have the money needed for gas to make that trip. Mail-in balloting does not resolve these issues. The geographical isolation of reservation land means that mail delivery, even by the U.S. Postal Service, is not always dependable. Compounding the lack of reliable mail service is a cultural difference in community organization – many Native communities do not use address numbering systems common in non-Native communities, and personal mailbox use is less frequent. Additionally, mail-in balloting can exacerbate language barriers: some Native languages are historically unwritten and so not easily amenable to the American document-based voting process; not all Native languages have equivalent words for important voting terms such as “Democrat” and “Republican;” and translation services can be difficult to come by.
Voter Identification Laws. Voter identification laws have also worked to disenfranchise Native Americans. For example, under a North Dakota voter identification law, nearly a quarter of Native voters became disenfranchised. Many states do not accept tribal identification. Acceptable forms of identification can be hard for Native voters to obtain if securing that form of ID requires proof of residence (which often includes an address). Further, voting practices like voter identification laws generally fall under the purview of state and local governments. Because systematic exclusion has resulted in an underrepresentation of Native Americans in these bodies, there’s often no one present to object to decisions that place burdens on Indian voters rather than non-Indian voters.
Voter Intimidation. Finally, misinformation, harassment, and voter intimidation abound when Native voters travel into largely white county centers to cast ballots. Poll workers do not always inform Native voters who fail to present any state-required identification that they can cast provisional ballots, or that they have a right to bring an escort with them to help them translate their ballot. Poll workers have also engaged in more questionable behavior, such as turning away Native voters, and police have been documented blatantly intimidating Native voters. For example, South Dakota’s voter identification law provides that, in lieu of presenting valid forms of identification, a voter may sign an affidavit instead, swearing they are who they claim to be in order to vote. However, there is evidence that during state elections in 2004 this provision was ignored and poll workers refused to allow Native voters without valid forms of identification to sign affidavits, thereby preventing registered and otherwise-qualified voters from casting ballots. Tribes have repeatedly requested federal observers at polling locations frequented by Native voters to address incidents of misinformation and intimidation. When observers are not present, poll workers have been known to incorrectly translate ballots, rush voters, fail to provide lawfully required assistance to voters, and fail to post important notices.
The Need for Federal Legislation
In Shelby County, the Court held that the federal preclearance formula that subjected some state election laws to federal oversight in the Voting Rights Act was unconstitutional. Although several bills have been introduced since 2013, Congress’s efforts to update the formula have come to naught, leaving states with a history of suppressing the Native vote, such as Arizona and Alaska, free to change their voting practices and procedures without federal oversight.
Given the lack of federal action, Native voters have turned to the courts for relief from disenfranchising election practices. Lawsuits against both states have spiked since 2013: Native plaintiffs have challenged drastic reductions in the number of polling places and newly enacted crimes aimed at suppressing Native votes. In most cases, Native plaintiffs have prevailed. However, lawsuits are expensive, and judgments do not always provide lasting solutions – some issues have to be re-litigated for every election.
The disadvantages of using lawsuits to end disenfranchisement have lead many tribes and Native organizations to call for federal legislative fixes. Tribes have also raised voting issues with DOJ during consultation, federally required meetings between tribal leaders and members of the federal government on a variety of topics. In a letter to then-Vice President Joe Biden, the Assistant Attorney General noted that Native communities face significant obstacles to voting, and that “there is a pressing need for federal legislation to ensure equal access to voting for Native American voters.”
Proposed Federal Legislation: The Tribal Equal Access to Voting Act and the Native American Voting Rights Act of 2015
In 2015, the Department of Justice submitted draft legislation designed to address a major barrier to equal access to the ballot for Native Americans: dependable access to nearby polling stations. The Tribal Equal Access to Voting Act (TEAVA) would increase access to the ballot for Native peoples in all federal elections by requiring states to provide polling places and voting materials to any tribe that files a formal request to have a polling place on Indian lands and certifies that they have arranged for access to and can staff that polling facility. This legislation was never introduced in Congress.
In that same year, Senator Jon Tester introduced the Native American Voting Rights Act of 2015 (NAVRA), which incorporated TEAVA and built on it. In addition to allowing tribes to file a standing request for a polling station on tribal land, NAVRA requires:
- States with early voting to provide at least one early voting location on reservation land upon the request of a tribe for an early voting polling location;
- The provision of federal election observers at the request of tribes;
- States with voter identification laws to accept tribal forms of identification;
- Bilingual voting assistance to voters whose native language is historically unwritten;
- The Attorney General to consult annually with tribes on Native voting issues; and
- The implementation of a limited preclearance regime.
The preclearance regime applies only to those states that overlap with Indian Country: a state, or any political subdivision thereof, would be prohibited from making an election-related change that would affect Indian Country – such as eliminating or moving polling places located on Indian reservations or decreasing the time allotted for voting at polling places on reservations – unless they get that change cleared by either the Attorney General or by the federal district court for the District of Columbia.
While the bill was positively received by Native communities, no action was taken on it after it was referred to the Judiciary committee.
Suggestions for Native Voting Rights Legislation
Both TEAVA and NAVRA would be a step in the right direction, but there are problems with each one. TEAVA’s greatest problem is that it doesn’t do nearly enough: increasing the number of polling stations on tribal lands is important, but the bill does nothing to combat the challenges presented by language barriers, voter ID laws, harassment and intimidation, or state and local government vote dilution techniques. Additionally, TEAVA’s additional polling places would only be required for federal elections – not for state or local elections. Finally, TEAVA’s provisions provide a heavy burden on some smaller tribes. There are 562 federally recognized tribes, and many of them have less than 300 enrolled members, not all of whom live on reservation lands. These smaller tribes likely lack the capacity and expertise to staff and train poll workers.
In contrast, Senator Tester’s bill addresses nearly every issue raised by Native voters as impediments to their exercise of the franchise, and seemingly applies to federal, state, and local elections. However, in the absence of adequate appropriations, states might rightly be able to avoid compliance with a law like NAVRA by claiming it is an unfunded mandate. Other, more generalized federalism concerns might be piqued by legislation like NAVRA because many in Congress might see it as unwarranted federal meddling in state business.
Neither bill authorizes funding for public education and advocacy campaigns. Many tribal members lack access to reliable information about elections and voting procedures. By including provisions authorizing funds to improve voter education and increase voter registration, the federal government could do a lot more to make democracy accessible to everyone.
Native voters have historically faced barriers when seeking to access the ballot, and that denial continues today. Several factors contribute to the disenfranchisement of America’s first people, many of which can be resolved permanently by federal legislation. The federal government has both the authority and the responsibility to remove these barriers and equalize access to the political process to Native Americans.
Kaitlyn Schaeffer is a Quorum Editor and a J.D. candidate, Class of 2018, at N.Y.U. School of Law.