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Analysis

The State of Native American Voting Rights

Lawmakers must seize new opportunities to ensure political equality and fair access to the ballot box for Native American communities.

March 13, 2019

Voting rights advoc­ates have had much to celeb­rate in recent months: the pro-demo­cracy wave of the 2018 elec­tion has carried momentum into 2019 both on the state level and feder­ally with the recent passage of H.R.1 in the House of Repres­ent­at­ives. These victor­ies are import­ant and real. But we must also use this moment to shine the light on an often-over­looked crisis in our demo­cracy: the state of Native Amer­ican voting rights.

Although Native Amer­ic­ans were legally named citizens of the United States in 1924, the road to the fran­chise was not an easy one. The right of Native Amer­ic­ans to vote in U.S. elec­tions was recog­nized in 1948 with the land­mark cases Harrison v. Laveen and Trujillo v. Garley. Even so, they were not eligible to vote in every state until 1962, when Utah became the last state to remove formal barri­ers.

But perni­cious road­b­locks remain to this day. Restrict­ive voting laws through­out the United States often carry a discrim­in­at­ory effect, either by intent or consequence, for Native communit­ies. Some of the major chal­lenges to the ballot box faced by Native Amer­ic­ans include:

Restrict­ive voting laws that leave Native communit­ies on the side­lines: Many Native Amer­ic­ans, espe­cially those who live on reser­va­tions, do not have tradi­tional street addresses. This has resul­ted in voter regis­tra­tion applic­a­tions being rejec­ted in many states. Even when accep­ted, the current format of regis­tra­tion forms often does­n’t incor­por­ate this real­ity. States with voter ID laws often do not accept tribal IDs as a valid form of iden­ti­fic­a­tion.

North Dakota, a state with a sizable Native popu­la­tion, serves as an omin­ous example. A 2017 voter ID law requires a phys­ical address to vote. North Dakota failed to provide a phys­ical address to many Native Amer­ic­ans. Even when the state did assign an address, this inform­a­tion was often not commu­nic­ated to the indi­vidual, or the person was provided with multiple conflict­ing addresses. A lawsuit brought by the Native Amer­ican Rights Fund (NARF) and two North Dakota tribes chal­len­ging the law found that some voters with IDs list­ing an assigned resid­en­tial address had their absentee ballot applic­a­tions rejec­ted for having “invalid” addresses. While many local Native groups and indi­vidu­als success­fully mobil­ized to over­come these barri­ers before the 2018 elec­tion, the voter ID prob­lem contin­ues in the state.

The lack of proper alloc­a­tion of elec­tion resources for Native communit­ies: While often more perni­cious, the lack of polling sites, infra­struc­ture for early voting, and Elec­tion Day resources can have a crip­pling effect on voting. A 2017 survey of Native Amer­ic­ans by the Native Amer­ican Voting Rights Coali­tion found that 32 percent of respond­ents in South Dakota said that the distance needed to travel to the polls affected their decision to cast a ballot. The limited amount of polling sites and drop boxes for absentee ballots caused some on reser­va­tions to have to drive 150 miles to vote.

Shortly follow­ing the 2018 midterms, the Navajo Nation in Arizona filed a lawsuit alleging that state and county polling proced­ures viol­ated the Voting Rights Act. The suit claimed that the minimal number of polling loca­tions in reser­va­tion counties, inac­cur­ate inform­a­tion provided by poll work­ers, and lack of inter­pret­ers for non-English speak­ers effect­ively disen­fran­chised many voters.

Removal of federal protec­tions: Prior to the 2013 Supreme Court ruling in Shelby County v. Holder, the preclear­ance require­ment of the Voting Rights Act provided federal protec­tions to many Native Amer­ic­ans. Under preclear­ance, states with a history of discrim­in­at­ory voting prac­tices were required to get approval from the DOJ or a D.C. District Court before imple­ment­ing any voting changes.

Alaska and Arizona, home to sizable Native Amer­ican communit­ies, were among the nine states covered as a whole under preclear­ance. And the two South Dakota counties covered by preclear­ance (Oglala Lakota County and Todd County) contain the Pine Ridge and Rose­bud Indian reser­va­tions, respect­ively.

In the years since Shelby County, which effect­ively ended preclear­ance, many previ­ously covered juris­dic­tions have put new voting restric­tions in place. Arizona recently made it a felony to collect and turn in another voter’s completed ballot, even with that voter’s permis­sion. While it is hard to say whether such a bill would have been prohib­ited by preclear­ance, increased federal protec­tions would go far to ensure that states honor the right of Native Amer­ic­ans to vote.

These hurdles have real effects: stat­ist­ics from the National Congress of Amer­ican Indi­ans show that the turnout rate of Amer­ican Indian and Alaska Native registered voters is between 5 to 14 percent­age points lower than turnout rates of other racial and ethnic groups.

The good news is that bills currently at the state and federal level exist that could help right this historic wrong. This past week­end, the Native Amer­ican Voting Rights Act passed the Wash­ing­ton State legis­lature with deep bipar­tisan support. Among other things, the bill allows Native Amer­ic­ans to use nontra­di­tional addresses if living on a reser­va­tion and permits tribes to request more elec­tion resources from the state.

On the federal level, civil rights organ­iz­a­tions such as the NARF have spear­headed a congres­sional effort to pass the federal version of Native Amer­ican Voting Rights Act. The Act would create more commu­nic­a­tion chan­nels between Wash­ing­ton and Native Amer­ican tribes, direct states to accept tribal ID cards for voting purposes, and estab­lish a clear path­way for Native communit­ies to request federal elec­tion observ­ers.

Lawmakers must seize these oppor­tun­it­ies and ensure polit­ical equal­ity and fair access to the ballot box for Native Amer­ican communit­ies. It is way over­due.

(Image: Rick Scibelli/Getty)