Supreme Court ruling fails to protect Indigenous voters
In Brnovich v. DNC, the court has made it harder for people of color — especially Indigenous populations — to vote.
On July 1, 2021, the Supreme Court released its decision in a prominent voting rights case that Indigenous activists and attorneys say will make it harder for people of color — especially Indigenous populations — to vote.
In the case, Arizona Attorney General Mark Brnovich v. Democratic National Committee, the court looked at whether a pair of voting policies in Arizona violated Section 2 of the Voting Rights Act, a provision that prohibits voting laws or practices that discriminate on the basis of race, color or language. In a 6-3 vote split between its conservative and liberal judges, the court upheld Arizona’s policy disqualifying any ballot cast in the wrong precinct as well as a 2016 law that made it a felony for anyone but a family member, household member or caregiver to return another person’s mail ballot — a method known as ballot harvesting or collecting, often used by get-out-the-vote groups to increase turnout.
The latest decision may carry the most perilous consequences for Indigenous voters since Shelby County vs. Holdereight years ago, voting rights attorneys say. Shelby overturned a portion of the Voting Rights Act, allowing state legislatures to pass voter laws without federal oversight. That paved the way for more restrictive voter legislation, including the Arizona laws at the heart of Brnovich. The Supreme Court’s decision could not only make voting harder for rural Indigenous voters, Indigenous voting advocates and attorneys say, it will also make it harder to challenge new voting rules that disproportionately affect Indigenous populations and people of color.
“The (court) set goalposts that are really hard to meet and said that sometimes discriminatory effects can be small enough that they don't matter.”
“The (court) set goalposts that are really hard to meet and said that sometimes discriminatory effects can be small enough that they don't matter,” Native American Rights Fund staff attorney Jacqueline De León (Isleta Pueblo) said. “And that is particularly disturbing to Native Americans, because in this instance they were saying some Native communities don't matter.”
In Arizona, where 27% of the state land is tribal land and about 6% of the population is Indigenous, the nearest ballot box might be from 45 minutes to more than two hours away. “Because of that distance, it was common practice for neighbors, clan, relatives or extended family and otherwise people who are considered kin in terms of tribal relations to pick up your ballot and return it because they were making that two-hour drive,” Torey Dolan, a member of the Choctaw Nation of Oklahoma and Native Vote fellow at the Sandra Day O'Connor College of Law at Arizona State University, said.
Unmoved by this reality, the court ruled that Arizona’s ballot-collection law did not violate Section 2 of the Voting Rights Act, saying that having to identify one’s polling place and then travel there to vote does not exceed the “usual burdens of voting.”
Indigenous people first gained the right to vote in 1924 through the Indian Citizenship Act. But tribal communities’ ability to vote has long been hindered by intentional discrimination. Obstacles include a lack of polling stations on reservations, cumbersome traveling requirements and ballots that fail to adhere to the language minority requirement of the Voting Rights Act, which holds that states and local election boards must provide adequate assistance for communities and voters that speak Asian, Native, Alaska Native and Spanish languages. Meanwhile, gerrymandered districts are deliberately designed to dilute the impact of tribal votes.
After the Voting Rights Act passed in 1965, civil rights attorneys and tribes were able to challenge these discriminatory voting practices in court — and win. One of the main weapons in their arsenal was Section 2 of the law. But in Brnovich v. DNC, the Supreme Court changed what Section 2 can do to protect voters.
Tribal members on the Navajo Nation and in other rural areas often possess non-standard addresses that make it difficult for counties to place them in the correct precinct. In addition, unreliable internet access makes it hard to find precinct information online. Until 2020, even tribal members with internet access lacked a publicly available tool online to verify precincts with non-standard addresses, Dolan said. As a result, the ballots of Indigenous voters were discarded at a rate higher than those of non-Native, particularly white, voters, in the 2016 election.
While the court acknowledged that Arizona’s out-of-precinct policy can burden Indigenous, Black and Latino communities more than non-minority voters, it dismissed the racial disparity as being “small in absolute terms.” “A policy that appears to work for 98% or more of voters to whom it applies — minority and non-minority alike — is unlikely to render a system unequally open,” Justice Samuel Alito wrote.
“The Supreme Court (might say)... out of this really sizable Native American population — that's not enough to make a difference, but that number could be an entire tribe.”
This particular ruling is very alarming, Dolan said. “When you consider the court's emphasis on statistics and number of voters impacted, the Supreme Court (might say) 2,000 Native Americans are impacted, and out of this really sizable Native American population — that's not enough to make a difference,” Dolan said. “But that number could be an entire tribe.”
The Democratic National Committee argued that both Arizona laws disproportionately affected Black, Latino and Indigenous voters and were enacted with “discriminatory intent.” Arizona Attorney General Mark Brnovich welcomed the ruling as a means to prevent voter fraud, despite the fact that there has never been a case of voter fraud associated with ballot collection in Arizona.
“One of the really disturbing things that this case did was it allowed this idea of fake voter fraud to serve as a justification for discrimination,” De León said. “It didn't require states to prove that there was actually a risk or even a result of voter fraud in their states. They just allowed the lie to be accepted as a justification. And that really just unburdened states in a lot of ways from having to prove their justifications for laws and instead put that burden on litigants.”
Midterm elections are still more than a year away, but Indigenous voting rights and activists, such as OJ Semans (Rosebud Sioux Tribe), co-executive of the Indigenous voting rights advocacy nonprofit Four Directions, are already hard at work. “We're already warning tribes, ‘This is coming now, we're going to need to prepare,’” Semans said. Meanwhile, De León believes that Congress needs to act by reforming the Voting Rights Act or passing the Native American Voting Rights Act.
“They know that it would change the status quo, and that’s worth fighting for.”
“At the end of the day, the margins on the most consequential elections are exceedingly small, and Native communities are the missing votes in a lot of those communities,” De León said. “That's why all of this effort is going into stopping the Native vote. … They know that it would change the status quo, and that’s worth fighting for.”
Jessica Douglas is a staff writer at High Country News and a member of the Confederated Tribes of Siletz Indians. Email her at [email protected] or submit a letter to the editor.
NOTE: This story was updated on August 5.
