Most Americans do not understand the realities of life in tribal communities, in the most fundamental sense. Modern America has ingrained assumptions about peoples’ access to mail, running water, electricity, internet, public or private transportation, motor vehicles offices, state and local government offices, and English fluency/literacy that make it difficult to highlight and remedy the barriers to voting that Native Americans face that contradict these assumptions. In the worst instances, these realities are exploited in the legislative process as part of efforts to disempower Native American communities.
On July 1, the Supreme Court dealt another blow to the Voting Rights Act by curtailing the power of Section 2 to strike down election laws and practices that result in a racially disparate impact, one of the few remaining arrows in the bow of minority voters. Some inequalities — according to the court — are facts of life that the states cannot remedy, “differences in employment, wealth, and education may make it virtually impossible for a State to devise rules that do not have some disparate impact.” The crux of disenfranchisement lies in the exploitation of existing inequalities through facially neutral election laws that result in high barriers for minority voters.
In Arizona, recent federal elections have been won on the margins, and those recent win margins have included the state’s sizable Native American population. In 2018, Sen. Kyrsten SinemaKyrsten SinemaBiden pushes back at Democrats on taxes Yarmuth and Clyburn suggest .5T package may be slimmed Of partisan fights and follies, or why Democrats should follow Manchin, not Sanders MORE (D) won by a margin of under 60,000 votes; in 2020, President BidenJoe BidenCapitol fencing starts coming down after 'Justice for J6' rally Senate parliamentarian nixes Democrats' immigration plan Biden pushes back at Democrats on taxes MORE won by a margin of 10,457. However, since the Supreme Court’s decision in Shelby County v. Holder in 2013, Arizona is no longer covered by the Voting Rights Act’s pre-clearance formula. Meaning that new laws and policies no longer have to be cleared by the Department of Justice (DOJ) as race-neutral before going into effect.
In, in the wake of the Shelby decision in 2016, the Arizona legislature passed House Bill 2032, which criminalizes ballot ballots being carried/returned by third parties. Due to the reality of life on the reservation, including lack of at-home mail delivery, lack of access to transportation, disability and the cost of traveling to the post-office many Native American voters relied on friends, neighbors, clan relatives and tribal employees to overcome these barriers to return their ballots. For Navajo voters, clan relatives are recognized as akin to familial relationships, but the law limits the definition of relatives to “someone related by blood, marriage, adoption, or legal guardianship.” Tribal governments that had formalized ballot collection programs to assist their members had to abandon their plans. These rise beyond the usual burdens of voting and explain the woeful reality that voter turnout in tribal communities in Arizona continues to lag behind statewide turnout. Arizona’s out-of-precinct voting system has created mazes for Native American voters, often placed in the wrong precinct or unable to ascertain their proper precinct, due to nonstandard addresses, which results in ballots being discarded. Nonetheless, the Supreme Court has deemed these policies lawful in Brnovich and they are a part of a broader election system that is becoming increasingly difficult for voters to navigate.
In 2021, in the wake of contentious elections and unsubstantiated claims of mass voter fraud, Arizona took the national spotlight for the number of bills introduced that limited access to the ballot. These bills are not benign and have in some instances, intentionally or unintentionally, targeted the gains made by tribal nations.
Take for example the Navajo Nation. In 2018, the Navajo Nation sued the state of Arizona, in addition to three counties, among the issues was the lack of opportunity to cure unsigned ballots. Monolingual Navajo voters that did not speak or read English were not instructed on the signature requirement and at least one voter was told that a signature was not necessary. These voters were not given an opportunity to cure their ballot, whereas, voters with mismatched signatures were given the opportunity to cure. The suit resulted in settlement agreements that sought to treat ballots missing signatures as equal to the ballots with mismatched signatures. In 2019, the practice of curing mismatched signatures was codified but did not mention unsigned ballots.
This past legislative session, the State of Arizona passed SB 1003, which requires that ballots with unsigned signatures be cured by 7:00 PM on election day or be discarded. Ballots with mismatched signatures still have until five business days after the election. Nothing in the bill addressed the original issues of lack of minority language translations of ballot instructions, failure to instruct voters to sign the ballot or the like. Instead, this class of Navajo voters now faces a stricter deadline than counterparts with mismatched signatures and the Navajo Nation settlement agreements were undermined. The Navajo Nation President Jonathan Nez and Vice President Myron Lizer publicly urged Gov. Doug DuceyDoug DuceyWhite House debates vaccines for air travel OSHA faces big challenge with Biden vaccine mandate DeSantis: Local governments will face K fines for imposing vaccine mandates MORE (R) to veto the bill. Nonetheless, it became law.
Outside of Arizona, other tribal communities have faced similar challenges. For example, the Montana legislature banned ballot collection in 2018, which was a critical tool for tribal communities in the state since 2005. The law was permanently struck down on Sep. 25, 2020, in state court as an infringement on the fundamental right to vote of Native Americans in the state. Despite this ruling, the 2021 legislature passed a soft version of the ban by prohibiting pecuniary benefit for ballot return drives, an effective death knell in ballot drives that have historically relied on paid collectors.
In the light of recent movements and political contentions, the future of voting rights legislation, litigation and policies remains uncertain. But what has always pushed the right to vote in the face of adversity has been the tenacity and resolve of the voter. Tribes, tribal organizations, and Native American voters raised with the stories of their ancestors’ fights for civil rights will continue the fight to protect the right to vote for indigenous voters.
Torey Dolan is the Native Vote fellow at Arizona State University, Sandra Day O’Connor College of Law Indian Legal Clinic. The title is for identification purposes only.