In 2018, Montana voters approved a law that was originally framed as a way to address election fraud. The Ballot Interference Prevention Act, introduced by state legislators, put tight restrictions on who can collect a voter’s ballot and on how many they can collect. It also added a “registry form” for each ballot and a $500 fine for violations. But voting rights advocates say the law is part of a nationwide pattern of disenfranchisement of Native voters.
“It’s really creative how the Native vote is being disenfranchised by different states,” says Lillian Alvernaz (Dakota, Nakoda), the Indigenous justice legal fellow at the ACLU of Montana. “People were kind of fear-mongered into passing this law. Voter fraud is not an issue in Montana.”
Ballot security is often used as the rationale for voting restrictions, including Montana’s ballot collection regulations and South Dakota’s identification requirements. But voter fraud is “vanishingly rare,” according to the nonpartisan Brennan Center for Justice. In Montana, Secretary of State Corey Stapleton alleged fraud in the 2017 elections, then later walked back the claim, citing more ambiguous “voter misconduct.”
Within the last decade, a host of new laws have appeared that further disenfranchise marginalized voters, including Indigenous voters, according to the Native American Voting Rights Coalition, a nonpartisan alliance of voting rights advocates. In June, the coalition published a detailed report on widespread Native disenfranchisement.
The coalition tracked Native voting rights across the U.S., holding field hearings with tribal citizens who offered firsthand testimony about structural impediments, including long distances to polling sites off-reservation, inadequate language assistance with voter guides or ballots, and poll officials’ rejection of tribal IDs.
The coalition found that Native voters still face “first generation voting barriers,” meaning basic access like difficulty in registering to vote or casting a ballot.
The coalition initially focused on states with a poor record on voting rights, such as Arizona, South Dakota and Utah. But they were soon asked to expand the study and eventually interviewed 125 witnesses covering 17 states and representing dozens of tribal nations. According to the report, attorneys were “shocked at the depth and breadth of the violations across the country.” They were also surprised to find that tribal members in the Pacific Northwest, California and the Great Lakes region — none of them particularly known for voter access problems — experienced similar impediments, said James Tucker, probono voting rights counsel to the Native American Rights Fund (NARF), which is a member of the coalition.
The coalition found that Native voters still face “first generation voting barriers,” meaning basic access like difficulty in registering to vote or casting a ballot. Some state election officials have taken steps in response. New Mexico’s Native American Voting Task Force, for example, is made up of 10 Indigenous members. Created in 2017, the group is tasked with making recommendations to state election officials and developing an action plan to increase tribal voter registration and election participation. But other state officials have failed to actively engage or work with tribal nations. In San Juan County, Utah, Tucker said, “you’ve got local election officials actively trying to suppress the Native vote.”
The report also describes the strategies of state redistricting plans that use a method called “cracking” to split a reservation into different voter districts, diluting voting strength. “Cracked” districts create a majority of non-Native voters despite a substantial Native population. The Yakama Nation in the Pacific Northwest was “cracked” into two districts: When a Yakama citizen ran for state Legislature in 2012, half the tribal members couldn’t vote for him. More recently in 2019, Utah state legislators contemplated a bill that could split counties like San Juan County, which is majority Navajo, shortly after a protracted fight for Indigenous representation on the county commission and a court-ordered redistricting plan. Similar cracking stories came from the Colville Tribes and Lummi Nation in Washington and the Crow Tribe in Montana.
The report paints a clear picture of the structural and behavioral barriers that keep Native Americans from voting, Jacqueline De León (Isleta Pueblo), a staff attorney at NARF who co-directed the project, said. “Native Americans just face really unreasonable obstacles when it comes to voting. Frankly, the overt racism that we saw throughout the field hearings, I think, would be shocking to the average American. Most people don’t think that type of racism exists anymore, but we did see directly hostile actions towards Native voters.”
Examples include an elderly non-Native poll worker registering voters in an Indigenous community in South Dakota, who asked to sit somewhere “safe,” saying she didn’t want to be around “people who are drinking” or “people who are going to harass us.” In Wisconsin, voters felt intimidated when police officers stayed outside polling places in a community that was largely Indigenous. In Guadalupe, Arizona, 100 miles from the U.S.-Mexico border, a similar instance occurred when a Border Patrol van parked in front of a polling place. And in South Dakota in 2014, a 12-person non-Native community received its own polling site along with early voting and registration; meanwhile, a nearby town of 1,200 on the Crow Creek Sioux Reservation was allowed just one voting site on Election Day, with neither early voting nor registration available. Whether it’s intentional, caused by a lack of action or the personal prejudice of local election officials and poll workers, De León says, it “makes it all the more reason why we need federal action to ensure Native access.”
“Frankly, the overt racism that we saw throughout the field hearings, I think, would be shocking to the average American. Most people don’t think that type of racism exists anymore.”
In February, De León testified in Congress in support of the Native American Voting Rights Act, a piece of legislation informed by the coalition. The act calls for a Native American Voting Task Force grant program to address the unique needs of Native voters, with funding attached: $10 million annually through 2035. Introduced by Sen. Tom Udall, D-N.M., and Rep. Ben Ray Luján, D-N.M., in 2018 and again in 2019, the act has received widespread support from voting rights advocates like the ACLU, National Congress of American Indians and the Southern Poverty Law Center. But it has yet to advance in Congress, despite 2020 being a general election year.
In lieu of federal action, which could by stymied for some time while Congress focuses on the COVID-19 pandemic, some states have taken action on their own. In 2019, Democratic Gov. Jay Inslee of Washington signed the Native American Voting Rights Act, which will make registration easier for Native voters. It also allows nontraditional addressing, a common need on reservations that don’t conform to state addressing systems.
Meanwhile, in March, the Native American Rights Fund and the American Civil Liberties Union filed a lawsuit against the state of Montana on behalf of the get-out-the-vote group Western Native Voice and five tribes (Assiniboine and Sioux Tribes of Fort Peck, Blackfeet Nation, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Crow Tribe, and Fort Belknap Indian Community), alleging that the Ballot Interference Prevention Act disenfranchises Native voters.
The lawsuit argues that ballot collection is a regular and necessary practice for Native voters. Indigenous people in the state’s rural areas often live much farther from polling locations than non-Natives do, making ballot collection by friends, organizers or community members a common-sense practice. (And as the COVID-19 crisis deepens, such practices could prove essential to the safety of vulnerable voters.) After the new law went into effect in 2019, criticism from election officials was blunt. “This is a way of suppressing voters,” Casey Hayes, the elections administrator for Gallatin County, told the Independent Recorder.
The legal fight against the restrictive ballot-collecting law will continue into the summer. In May, a judge granted the ACLU and NARF’s request for a restraining order on the act, meaning ballot collection would be allowed for the primaries. Montana’s primary is June 2, and many people already have their ballots. “There have been so many attempts, historically and in contemporary times, to disenfranchise the Native vote,” Alvernaz said. “That’s why it’s especially important that we support people and make it easier to vote, rather than harder.”
Note: A photo caption has been updated to reflect that Jacqueline De León works as a staff attorney for the Native American Rights Fund, not New Mexico’s Native Voting Rights Task Force.
Anna V. Smith is an assistant editor for High Country News. Email her at annasmith@hcn.org or submit a letter to the editor. Follow @annavtoriasmith
This article appeared in the print edition of the magazine with the headline Widespread suppression.
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