The right to vote has been an uphill battle for Native Americans. The Voting Rights Act of 1965 helped to secure and protect that right for many Native Americans and Alaska Natives. With the Voting Rights Act, voter participation among Native Americans increased. However, the Supreme Court invalidated the Section 5 preclearance formula in 2013 (Shelby County v. Holder, 570 U.S. 529 (2013)), removing one of the most powerful tools to ensure equal access to the ballot, including Alaska and Arizona, and two jurisdictions in South Dakota with significant Native American and Alaska Native populations. Since the Shelby County decision, efforts to suppress the vote have increased. For Native Americans, these voter suppression efforts can and do have devastating impacts.
Despite the passage of the Indian Citizenship Act of 1924, many Native Americans living on reservations continued to be excluded from the democratic process. In 1948, Native Americans in New Mexico and Arizona successfully litigated their right to vote. Utah and North Dakota became the last states to afford on-reservation Native Americans the right to vote in 1957 and 1958, respectively. When the right to vote was finally secured, voter suppression laws kept Native Americans from voting and seeking elected office. In Arizona, for example, Native Americans could not fully participate in voting until 1970 when the Supreme Court upheld the ban against using literacy tests (Oregon v. Mitchell, 400 U.S. 112 (1970)). Today, the right to vote continues to be challenged through the passage of new laws and practices that either fail to consider, disregard, or intentionally target Native American voters.
In order to understand the challenges faced by Native American voters, one must recognize the vast differences in experiences, opportunities, and realities facing on-reservation voters as compared to off-reservation voters.
I will never forget the Navajo grandmother who spoke only Navajo and could not vote after Arizona passed its voter ID law in 2004. She tried several times to obtain an Arizona ID on her own but was denied because she was born at home in a hogan, and the boarding schools changed her Navajo name to English. She lived in a modest home on the Navajo Reservation without electricity and running water, and lived a traditional lifestyle taking care of her sheep. She was embarrassed and devastated when she was turned away from the polls for not having an ID. Working with her, a team from the Indian Legal Clinic traveled five hours to meet her at multiple agency offices to obtain her delayed birth certificate; we then went to two separate Motor Vehicle Division Offices. The first one did not issue same-day photo IDs, and the other initially denied her request. The office rejected her delayed Navajo birth certificate, until I was able to intervene and demonstrate to them that it was an acceptable document. The system failed to consider her reality as a Navajo woman and failed to value her as a voter. Fortunately, she was persistent in exercising her right to vote, but not all voters are, nor should they have to be.
This example helps explain why voting can be difficulty for Native American voters. Turnout for Native Americans is the lowest in the country, as compared to other groups. While a number of issues contribute to the low voter turnout, a study conducted by the Native American Voting Rights Coalition found that low levels of trust in government, lack of information on how and where to register and to vote, long travel distances to register or to vote, low levels of access to the internet, hostility toward Native Americans, and intimidation are obstacles. Isolating conditions such as language barriers, socioeconomic disparities, lack of access to transportation, lack of residential addresses, lack of access to mail, and the digital divide limit Native American political participation. Changes to voting processes further frustrate the ability of Native Americans to vote.
As part of their socioeconomic reality, Native Americans face obstacles when making choices about feeding their families or expending resources that might affect their right to vote. This could include renewing their P.O. box, replacing an ID to update a residential address, or driving a considerable distance to register to vote or vote. Nationally, the poverty rate of Native Americans is 26.8 percent. Native Americans are more likely to work multiple jobs, lack reliable transportation, and lack adequate childcare resources, thus making voting pragmatically difficult.
An additional problem affecting many Native Americans is homelessness or near homelessness due to extreme poverty and lack of affordable housing on many reservations. A study by the Department of Housing and Urban Development found that between 42,000 and 85,000 people in tribal areas are couch surfers, staying with friends or relatives only because they have no place of their own. This lack of permanent housing impacts the ability of these tribal members to have a permanent physical address, yet this should not impede their ability to exercise their right to vote.
Nontraditional Addresses, Voter Registration, and Voter ID Laws
Something as simple as not having a residential address impacts all aspects of voting, including getting your mail, registering to vote, and complying with ever-increasing voter ID laws.
While 84 percent of the U.S. population lives in urban areas, many Native Americans and Alaska Natives live in rural communities that lack residential addresses. Homes are usually described in terms of landmarks, crossroads, and directions. Numerous roads on reservations are unimproved dirt or gravel roads in poor quality and are often unnamed. After storms, many roads are impassable. Due to these poor conditions, the U.S. Postal Service does not deliver mail to the majority of the reservation residents at their homes.
Due to the lack of residential addresses, most residents rely on P.O. boxes in a nearby town or get their mail through a trading post or other location. Some reservation residents have to travel up to 70 miles in one direction to receive mail. In Arizona, for example, only 18 percent of reservation voters outside of Maricopa and Pima Counties have residential addresses and receive mail at home. The Navajo Nation, the largest reservation in the United States—larger than West Virginia—does not have an addressing program, and most people live in remote communities. Similarly, many other reservations lack home mail delivery. On the Tohono O’odham Reservation, there are 1,900 P.O. boxes and some cluster mailboxes. Residents may check their mail every two weeks, and some only once per month.
Through no fault of the voter, the lack of a residential address can result in the political subdivision placing the voter in the wrong precinct, the voter’s ID address not matching the voter rolls, and/or the voter not receiving election mail timely, if at all.
While many Americans can register to vote through the click of a button from the comfort of their homes, that is simply not the case for reservation residents. For reservation voters, there are few opportunities to register or update their voter registration due to location of voter registration services, the lack of residential addresses, and lack of broadband capability. Less than half of the homes on tribal lands have reliable broadband access. Even if a voter has access to broadband on the reservation, most online voter registration systems require a state ID to register to vote and do not accept tribal IDs. In Arizona, for example, an individual must have a state ID and a residential address on file with the Department of Motor Vehicles to register online, eliminating this option for most reservation residents.
Registering to vote online or driving somewhere to register to vote, or voting itself, can be logistically challenging if not economically infeasible. For example, in Arizona, the lack of residential addresses resulted in registered voters having their IDs rejected at the polls or being included on a suspense list, meaning the voter is not placed in a voting precinct. While county offices may offer in-person voter registration during normal business hours, this can be challenging for Native American voters who may live 100 miles or more from the county seat. Further, for some Native American and Alaska Natives, oral translations must be provided for voter registration and voting.
Voter ID laws further complicate this issue. Native Americans are less likely to have a form of ID compliant with voter ID laws requiring residential addresses because in addition to states failing to consider tribal IDs when passing these laws, there are also socioeconomic and institutional factors that keep reservation residents from obtaining IDs. Although many tribes issue IDs, not all tribal IDs include addresses. Even if a tribal member has an ID with an address, because reservation voters lack residential addresses, the ID may have a P.O. box or descriptive address. Nontraditional addresses do not fit into county database systems, resulting in counties reassigning addresses to voters. This may result in the ID being rejected due to insufficient poll worker training or because it does not match the residential address in the voter file. This has resulted in voters being denied a regular ballot because the address on their IDs did not match the addresses assigned by the counties for the voter registration database.
A voter ID law requiring a residential address went into effect in North Dakota right before the 2018 midterm elections that expressly excluded the use of P.O. boxes as residential addresses. Over 5,000 Native Americans lacked the requisite form of ID to vote, as no reservation had residential addresses. The tribes searched for solutions prior to Election Day. The North Dakota Secretary of State informed tribal leaders that voters could call the county 911 coordinator to receive an address. This was a meager solution given that most of the tribal reservations span multiple jurisdictions, creating inconsistencies and confusion for tribes. For Sioux County, where the Standing Rock Sioux Tribe is located, the 911 coordinator is the county sheriff, which posed a deterrent for community members wary of law enforcement. When a Standing Rock Sioux tribal member called to determine her residential address, the sheriff told her that he was transporting prisoners and could not assign addresses that day. Another voter was assigned a residential address corresponding to a nearby bar, exposing that tribal member to fraud if he voted based on that address.
As a result, North Dakota tribes had to create emergency plans to produce residential addresses and corresponding IDs for their members. They kept their offices open for extended hours and began providing free IDs to tribal members, to the point where the Turtle Mountain Band of Chippewa’s ID machine overheated. Although the Secretary of State never explicitly endorsed the tribes’ plan, the tribes were left with no other options and had to undertake the extraordinary effort in order to ensure that their tribal members could vote.
While tribes took actions to issue free tribal IDs meeting the new requirements, they expended resources they did not have in order to assist their tribal members. Tribal members in North Dakota have high unemployment and poverty rates. At Spirit Lake, almost 50 percent of the tribal members live below the poverty line; and at Turtle Mountain, the unemployment rate is almost 70 percent. Native American voters living on reservations have the same constitutional right to vote as any other citizen. In this instance, tribal governments had to expend their own resources to ensure that tribal members could vote in state and federal elections.
Access to In-Person Polling Locations and the Vote-By-Mail Movement
If a Native American or Alaska Native voter living in a rural community overcomes the inherent barriers of nonstandard addresses, voter registration barriers, and manages to have the correct ID, the voter may be further burdened by the vote-by-mail system or the lack of available polling places. Voting by mail is often unreliable and not as accessible for Native Americans living on reservations as it is for off-reservation voters. Native American voters are less likely to have mail delivered to their homes, especially when living on tribal lands. Many on-reservation voters live in rural areas where it is common for mail to arrive late or not at all. Non-Hispanic whites are 350 percent more likely to have mail delivered to their homes than Native Americans in Arizona. The difficulties accessing mail make voting by mail difficult because traveling to the P.O. box to pick up your ballot and then returning it can be an all-day task; without a car, it may be impossible. Similar concerns exist for Alaska Native voters in rural villages who rely on shared P.O. boxes, and at times, mail delivery may take up to three weeks due to weather. In addition, many Native American languages are oral; therefore, language assistance to Native American voters requires in-person translations, which cannot be done through mail.
Because of increased urbanization, many people and policymakers do not understand why it can be difficult for individuals to get to a polling location or to vote by mail. For some, voting by mail has given them more choices and made voting more convenient. However, we need to think about the effects on minority and language minority populations when we eliminate or move polling locations because a right as sacred as voting should not be lost for minority populations in search of convenience for other populations.
The following examples illustrate how decisions made by elected officials affect the ability of Native voters to participate in the democratic process. In 2008, the Alaskan government eliminated polling locations for Alaska Native villages as part of a “district realignment” that resulted in voters having to travel by plane in order to vote. In 2016, the Pyramid Lake and Walker River Paiute Tribes in Nevada filed a lawsuit prior to the 2016 general election in order to get polling locations on the reservation. In 2016, San Juan County, Utah, switched a mail-only voting system and offered in-person early voting only in the majority white part of the county; the Navajo Nation sued to ensure in-person locations and compliance with the language assistance requirements under Section 203 of the Voting Rights Act.
For the Kaibab Paiute Tribe in Arizona, voters had to travel 280 miles one way in 2016 and 2018 in order to vote early in person. When Pima County closed early voting on the Pascua Yaqui Reservation in 2018, Pascua Yaqui voters reported that it took over two hours to participate in early voting using public transportation. Recently, the closure of polling locations on the Mandan Hidatsa Reservation in North Dakota resulted in voters having to travel 80–100 miles in order to cast a ballot. These examples demonstrate the extreme distances voters must travel and obstacles they must overcome in order to vote. The prevalence of these barriers undermines our democracy and contributes to low voter participation among Native Americans.
Native American Voting Rights Act
Congress introduced the Native American Voting Rights Act of 2019 (H.R. 1694; S. 739) to remove voting barriers and improve access to voting for Native American and Alaska Native voters. The legislation would provide resources and oversight to ensure that Native Americans have equal access to the voting process. In furtherance of the trust responsibility, the bill would require the Department of Justice to consult annually with tribes on voting issues. Key elements of the bill include improving access to voter registration sites and polling locations, approving the use of tribal IDs for election purposes, and requiring jurisdictions to consult with tribes prior to closing voter registration or polling locations on Indian lands. The bill explicitly states that a tribal ID need not include a residential address or expiration date for voting purposes. The bill would also create a Native American Voting Task Force grant program to provide much needed funding for voter outreach, education, registration, and turnout in Native American communities.
Legislation suppressing the right to vote purports to be neutral; however, in many instances it undermines the most basic right to participate in our democracy. The loss of the right to vote is the loss of a voice in the democratic process. We should do more to ensure that all Americans, including Native Americans, can exercise this right easily and with undue hardship.
Patty Ferguson-Bohnee is the faculty director of the Indian Legal Program and director of the Indian Legal Clinic at the Sandra Day O’Connor College of Law. She is a voting rights attorney and leads the Arizona Native Vote—Election Protection Project.
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