By: Ashleigh Herrin[*]
Published: April 10, 2022
I. INTRODUCTION
Native Americans have resided in the Americas for at least fifteen thousand years.[1] No group has a longer-established presence in what is now the contiguous United States. And yet, Native Americans have historically, consistently been denied the full rights afforded to other citizens. With the passage of the Snyder Act[2] in 1924, Native Americans were given American citizenship, but the decision to give Native Americans the right to vote was left in the hands of the individual states.[3] Native Americans did not have voting rights in all fifty states until 1962, when Utah granted Native Americans the right to vote.[4] However, that right to vote has been under attack since 2013, when the United States Supreme Court struck down key provisions in the Voting Rights Act of 1965 in Shelby County v. Holder.[5]
As more and more states enact laws that impact Native American voting rights, Congress must act to create a national protection for those rights. That protection’s need is clear because, with more than 5.1 million constituents,[6] the Native American voting bloc’s significance has received greater recognition in recent years. That bloc was particularly impactful in the senatorial elections in Washington in 2000 and Montana in 2006, gubernatorial elections in Oklahoma in 2002 and Arizona in 2004, and the successful write-in 2010 senatorial election in Alaska.[7] In more recent years, Native Americans were also viewed as critical to the 2012 election of Senator Heidi Heitkamp of North Dakota and the 2018 re-election campaign of Senator John Tester of Montana; both races were decided on slim margins.[8] In the 2020 Presidential Election, swing states like Arizona, Wisconsin, and North Carolina felt the impact that the Native American voting bloc can make.[9] In Arizona, a state that President Biden won by fewer than 11,000 votes, members of the Navajo Nation, the largest tribe in the state, rode on horseback to cast their ballots, and President Biden won a majority of the 67,000 eligible Navajo voters’ votes.[10] The Navajo Nation’s ability to access the polls on Election Day 2020 occurred in spite of restrictions Arizona created that disproportionately harm Native voters. Experts note that the upcoming 2022 midterm elections have highly competitive races occurring in districts with large Native populations.[11]
Last summer, the Supreme Court upheld two Arizona election policies that burden the voting rights of Native Americans within the state.[12] This decision demonstrates why the current state-by-state approach fails to protect Native American voting rights and emphasizes that the best solution is to adopt a uniform federal law on Native American voting rights. Despite, or perhaps because of, the power that Native American votes have to change the course of elections, their right to vote continues to be attacked. While there are federal statutes designed to protect all Americans’ right to vote, the degradation of Native voting rights demands that Congress take action to ensure that states do not strip Native Americans of their constitutional right to vote. Last summer, in Brnovich v. Democratic National Committee,[13] the Supreme Court reversed the Ninth Circuit’s holding that two election procedures utilized in Arizona violated the Voting Rights Act, despite the lower court’s finding that the state’s discriminatory history was causally linked to the adoption of these procedures.[14] The holding in Brnovich further undermines the Voting Rights Act of 1965 and the ability of Native Americans to effectively litigate vote denial claims.
II. Background
Through a series of three cases in the 1800s, now known as the Marshall Trilogy,[15] the Supreme Court affirmed that the federal government has supremacy over the Native American tribes and also determined that states have no authority in tribal lands.[16] This line of cases forms the foundation for Native American law in the United States.[17] Following these cases, the Supreme Court upheld Congress’s plenary power and gave great deference to Congress in matters relating to Native American affairs.[18] Under the Indian Commerce Clause[19] and the Treaty Clause,[20] the federal government has an obligation to uphold their responsibilities to Native American tribes, also known as the federal Indian trust responsibility.[21] The responsibility of Congress “to legislate on behalf of federally recognized Indian tribes”[22] is meant to further the federal “[g]overnment’s trust obligation toward the Indian tribes”[23] by encouraging self-government within Native American tribes.[24]
During the Civil Rights Movement, Congress enacted several pieces of legislation designed to protect minority voters’ right to vote. One such law that can impact Native American voting rights is the National Voter Registration Act (“NVRA”),[25] which, coupled with an executive order,[26] allows federal agencies, such as Indian Health Services, to register voters amongst individuals the agency serves. Another is the Help America Vote Act (“HAVA”),[27] which allows voters to vote by mail using many forms of identification that establish residency but does not explicitly include tribal documents as valid forms of identification.[28] The most prominent piece of federal voting rights legislation is the Voting Rights Act of 1965 (“VRA”), which bans voting practices or procedures that discriminates on the basis of race or color.[29] The VRA was later amended to include “members[hip in one of the] language minority group[s,]”[30] thus encompassing many Native American tribes.[31] In the landmark case, Shelby County v. Holder, the Supreme Court struck down the key provision in the VRA that required jurisdictions with a history of discrimination, or “covered jurisdictions,” to receive preclearance prior to enforcing laws that would affect voter rights.[32] Since then, states have reacted in different ways and adopted different forms of legislation, either protecting or restricting the Native American right to vote.
Native Americans’ quest for equal rights, including voting, has gone on for centuries.[33] Native Americans were not granted American citizenship until the passage of the Snyder Act of 1924.[34] Subsequently, many states adopted statutes that granted Native Americans the right to vote, but some states, including Arizona, were forced to give Native Americans the right to vote through judicial action.[35]
In contrast to Arizona’s restrictive voting regime, Washington State recently passed the “Native American Voting Rights Act” (“NAVRA”),[36] which, among other things, allows for Native American voters to use non-traditional addresses to register to vote.[37]
The extreme contrast between these states’ approaches and the Supreme Court’s decision in Brnovich emphasizes the need for a federal approach to protecting Native American voting rights that is consistent with the federal government’s authority as trustees for Indian tribes and available under Congress’s Constitutional authority. The need for a uniform federal approach is made clear after considering the history of Native American voting rights in American history, recent case law impacting Native American voting rights under the Voting Rights Act of 1965, and the disparate approaches taken by states regarding Native American voting rights.
A. Arizona’s Approach
Following Shelby County, Arizona, a formerly covered jurisdiction, took swift action in enacting the ballot collection statute, which makes it a felony for non-election officials to collect early ballots unless they qualify as the voter’s family member, household member, or caregiver.[38] The ballot collection statute was particularly harmful to Native Americans, many of whom rely disproportionately on third-party ballot collection.[39] For example, many Native Americans residing on reservations in Arizona lack formal mailing addresses and live long distances, sometimes a several hour drive, away from the nearest post office.[40] The effect of banning third-party ballot collection on reservations is to disenfranchise “tens of thousands of Native voters.”[41]
Another Arizona rule that harms Native American voting rights is the “out-of-precinct” policy.[42] Under this policy, counties are allowed to choose to adopt a voter center model whereby all voters in that county may go to the voter center to cast their ballot without consideration of their precinct.[43] The alternative is the precinct model that requires voters to cast their ballot within their precinct; if the voter votes in the wrong precinct, their vote is not counted.[44] Studies show that Native Americans and other minorities are disproportionately represented in those voters who vote out of precinct, thus having their votes thrown out, at a rate of two-to-one.[45] Even as the number of in-person voters decreases, the disparity between white voters and minority voters continues to grow.[46] As a result, nearly 4,000 ballots were thrown out during the 2016 election.[47] Previous elections have shown that as few as 537 votes in one state may impact the outcome of a presidential election.[48] In throwing out thousands of minority votes, Arizona’s out-of-precinct policy violates the VRA by denying Native Americans the right to vote for a representative of their choosing.[49]
B. Washington State’s Approach
While Arizona restricted Native Americans’ right to vote, Washington enacted a law designed to protect that right from degradation.[50] Named the “Native American Voting Rights Act,” key provisions of the Washington statute are designed to address struggles faced by Native voters in accessing the polls.[51] One key provision of the law allows for the use of nontraditional addresses to be used in registering to vote; the language of the statute explicitly notes that this provision is designed for “voter[s] resid[ing] on an Indian reservation or on Indian lands.”[52] The statute allows Native voters to use the address of a tribal government building as their residential address so long as the building is located within the voter’s precinct and the tribe designates the building for such use.[53] Native voters with a tribal identification card are also allowed to register to vote online so long as the secretary of state can obtain a copy of the voter’s signature.[54] Moreover, utilizing its authority under federal laws, such as NVRA, the governor may designate certain facilities on tribal lands to register Native voters while providing services to them.[55] To address the lack of access to post offices faced by Native Americans residing on tribal lands, NAVRA allows tribes to request that ballot drop-boxes be placed on their reservations or designate a building on the reservation where Native voters may drop off their ballots.[56] When casting ballots in person at a voting center, tribal identification cards are deemed valid even if they lack an expiration date or residential address.[57] Finally, NAVRA creates a private right to sue for violations of the act.[58]
III. Analysis
The different approaches taken by Washington State and Arizona underscores the importance of a uniform approach to Native American voting rights throughout the country. To protect this fundamental right for all Native Americans, the federal government should adopt Washington State’s approach and model federal legislation after NAVRA. Under the Constitution and the Supreme Court’s jurisprudence, Congress has the authority to enact federal legislation to ensure that the voting rights of all Native Americans, regardless of where they reside within the United States, are protected.
States’ disparate treatment of Native American voting rights illustrates that a federal approach to Native American voting rights would best ensure that all 5.2 million[59] Native Americans have equal access to the ballot box, no matter where they are located within the United States. Equal access is especially important for Native American tribal reservations that span more than one state, such as the Navajo Nation in Arizona, Utah, and New Mexico.[60] For the Navajo, this concern is already a reality, with some tribal members who live in San Juan County, Utah, but have an Arizona zip code being directly impacted by Arizona’s abridgement of their voting rights.[61] Under a federal approach, Native Americans would not have to navigate through a potential patchwork of various state laws that dictate how Native Americans can exercise their right to vote. Avoiding this patchwork is especially beneficial because, historically, some states have utilized voting procedures and practices that discriminated against minority voters, including Native Americans.[62] Since Shelby County struck down the requirement in the VRA that jurisdictions with a history of implementing discriminatory voting practices receive preclearance before changing their voting practices, not only have states previously covered by this requirement again adopted these discriminatory policies,[63] but so too have states that were never covered,[64] increasing the legal barriers that minority voters face at the polls.[65] A state-by-state approach has failed to protect Native American voting rights. Individual states, without incentive to pass laws protecting Native American voting rights, like the one passed in Washington, have not and are unlikely to adopt their own version of the law.
Although states are generally left with the responsibility to administer elections within their jurisdictions as they see fit,[66] Congress retains authority over congressional elections[67] under the Elections Clause of the Constitution.[68] The Supreme Court has explicitly provided “that the Elections Clause grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.”[69] Therefore, Congress undoubtedly has the authority to pass a federal law, such as NAVRA, that creates a uniform treatment of Native Americans’ right to vote.
Congress has been charged with acting in the best interest of Native American tribes in encouraging their self-determination under the federal trust responsibility. Because the state-by-state approach has failed to protect Native American voting rights, and thus their ability to exercise self-determination, Congress must step in and pass federal legislation. The federal government has a well-established obligation to protect Native Americans.[70] Therefore, it must act on that obligation and pass a law similar to Washington’s NAVRA to protect Native Americans’ fundamental right to vote.[71]
Footnotes
[1] See Simon Worrall, When, How Did the First Americans Arrive? It’s Complicated., Nat’l Geographic (June 9, 2018), https://on.natgeo.com/3KLR0tU.
[2] Indian Citizenship Act, ch. 233, 43 Stat. 253 (1924).
[3] See Becky Little, Native Americans Weren’t Guaranteed the Right to Vote in Every State Until 1962, History (Nov. 13, 2020), https://bit.ly/3AJ5LsJ.
[4] Id.
[5] See id.; see also Shelby County v. Holder, 570 U.S. 529, 557 (2013) (finding that Section 4(b) of the Voting Rights Act, which contained the coverage formula to determine whether a jurisdiction was covered and therefore required to receive preclearance under Section 5 prior to changing their voting laws, was unconstitutional).
[6] See Maria Givens, The 5 Million Americans that 2020 Candidates Refuse to Talk About, Vox (Mar. 13, 2020, 9:10 AM), https://bit.ly/3rXF3ZD.
[7] See Tova Wang, Ensuring Access to the Ballot for American Indians & Alaskan Natives: New Solutions to Strengthen American Democracy 10–11 (2012), https://bit.ly/3INjrWu.
[8] See Every Vote Counts: Fast Facts Sheet, Nat’l Cong. of Am. Indians, at 2, https://bit.ly/35zJQJd (last visited Apr. 6, 2022).
[9] See Julian Brave NoiseCat, In Trump v. Biden, Native Americans Played a Crucial Role. It’s Time to Recognize That., NBC News (Nov. 27, 2020 4:32 AM), https://nbcnews.to/3KW4X8A.
[10] See id.
[11] See Gabriel R. Sanchez, What Might We Expect From Native American Voters in the Upcoming 2022 Election?, Brookings (Dec. 16, 2021), https://brook.gs/3ANXPXl.
[12] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2348 (2021).
[13] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).
[14] See id. at 2335–36, 2343–44.
[15] The Marshall Trilogy is a famous set of Supreme Court decisions regarding the federal government’s relationship with Native American tribes. See Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 82 N.D. L. Rev. 627, 627–28 (2006); see also Johnson v. McIntosh, 21 U.S. 543, 586 (1823) (holding that the United States held the right to extinguish Native American title in land on the grounds that the Native Americans were mere occupants who needed protection); Worcester v. Georgia, 31 U.S. 515, 538 (1832) (holding that Native American tribes were not subject to state jurisdiction because that would violate the treaties established between the United States and the tribes); Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (holding that the United States has established itself in a position of guardianship over Native Americans because the treaties signed between the United States and tribes place the tribes in a relationship of protection under the United States).
[16] See Fletcher, supra note 15, at 648–49.
[17] Fletcher, supra note 15, at 628–29 (“The foundations of the current debates over plenary power, state authority in Indian Country, the special canon of construction for Indian treaties, implicit divestiture, the trust doctrine, the political status of Indians and Indian tribes, and others are all to be found within the Marshall Trilogy.”).
[18] Matthew L.M. Fletcher, A Short History of Indian Law in the Supreme Court, Am. Bar Ass’n (Oct. 1, 2014), https://bit.ly/3uaM4Jq (citing Ex parte Crow Dog, 109 U.S. 556 (1883); United States v. Kagama, 118 U.S. 375 (1886); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); and Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)).
[19] U.S. Const. art. I, § 8, cl. 3.
[20] U.S. Const. art. II, § 2, cl. 2.
[21] H.R. 1694, 116th Cong. § 2(a)(1)–(2) (2019).
[22] Morton v. Mancari, 417 U.S. 535, 551 (1974).
[23] Id. at 541–42.
[24] See id. at 541.
[25] National Voter Registration Act of 1993, Pub. L. No. 103-31, § 4(a)(3)(B), 107 Stat. 77, 78 (1993).
[26] Executive Order 12926, 59 Fed. Reg. 47227 (Sept. 26, 1994).
[27] Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (2002).
[28] See 52 U.S.C. § 21083(b)(2)(A)(ii)(II).
[29] See 52 U.S.C. § 10301(a).
[30] Voting Rights Act of 1965, amendments, Pub. L. 94-73, 89 Stat. 400, 401 (1975) (hereinafter “VRA”).
[31] See About Language Minority Voting Rights, U.S. Dep’t of Just. (Jan. 4, 2022), https://bit.ly/34fpoww.
[32] Shelby County v. Holder, 570 U.S. 529, 537, 557 (2013).
[33] See Johnson v. McIntosh, 21 U.S. 543, 604–05 (1823) (holding Native Americans could not transfer valid title to land to private individuals); Fletcher, supra note 18 (detailing the impact of the early Native American cases known as the Marshall Triology); Trail of Tears, History.com (July 7, 2020), https://bit.ly/3u9MXSh (noting that despite the Supreme Court recognizing tribal dual sovereignty, President Andrew Johnson refused to enforce the Court’s decision and signed off on the forcible removal of Native Americans); The Dawes Act, Nat’l Park Servs., https://bit.ly/3HaVfwN (last visited Apr. 6, 2022) (detailing Congress’s passage of the Dawes Act, which allowed the federal government to divide tribal lands into individual plots, resulting in the stripping of over 90 million acres of land from tribes).
[34] Little, supra note 3.
[35] Harrison v. Laveen, 67 Ariz. 337, 349 (1948) (holding that Native Americans’ relationship with the federal government resembling guardianship was not legal guardianship of the nature that would prevent Native Americans from voting under state law).
[36] 2019 Wash. Sess. Laws Ch. 6.
[37] See Emma Epperly, Native American Voting Rights Act Signed Into Law, Seattle Weekly (Mar. 18, 2019, 10:30 AM), https://bit.ly/3HaxBAL.
[38] See Ariz. Rev. Sess. Ann. §§ 16-1005(H)–(I) (2021). This statute closely resembles a former version that was offered to the Department of Justice for approval while the state was subject to preclearance and later withdrawn from consideration when the state was asked to give more information on the impact of the statute on minority voters. See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1008 (9th Cir. 2020).
[39] See Democratic Nat’l Comm., 948 F.3d at 1032.
[40] See Jacqueline De Léon, Opposition to the Ban on So-Called “Ballot Harvesting,” Native Am. Rts. Fund (Mar. 5, 2019), https://bit.ly/3GbMMZh.
[41] Id.
[42] See Ariz. Rev. Sess. Ann. § 16-584 (2021).
[43] See Ariz. Rev. Sess. Ann. § 16-411(B)(4) (2021).
[44] See Ariz. Rev. Sess. Ann. § 16-584 (2021).
[45] See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1014 (9th Cir. 2020).
[46] See id. at 1015.
[47] Id.
[48] See Bush v. Gore, 531 U.S. 98, 100–03 (2000).
[49] See Thornburg v. Gingles, 478 U.S. 30, 47 (1986) (explaining that the essence of § 2 of the VRA is to address inequality between whites and minorities to elect their preferred candidates).
[50] See Epperly, supra note 37.
[51] See id.
[52] Wash. Rev. Code. Ann. § 29A.08.112(3) (West 2021).
[53] Wash. Rev. Code. Ann. § 29A.08.112(4) (West 2021).
[54] Wash. Rev. Code. Ann. § 29A.08.123(1) (West 2021).
[55] Wash. Rev. Code. Ann. § 29A.08.310(2) (West 2021).
[56] Wash. Rev. Code. Ann. § 29A.40.170(3)–(4) (West 2021).
[57] Wash. Rev. Code. Ann. § 29A.40.160(9)(b) (West 2021).
[58] Wash. Rev. Code. Ann. § 29A.84.060(2) (West 2021).
[59] See American Indians and Alaska Native by the Numbers, Admin. for Native Am., https://bit.ly/3tonoMv (last visited Apr. 6, 2022).
[60] Map of Indian Lands in the United States, U.S. Bureau of Indian Affs., https://bit.ly/3uY7VT4 (last visited Apr. 6, 2021).
[61] James Thomas Tucker et al., Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters 41 (2020), https://bit.ly/3INBHiI.
[62] See About Section 5 of the Voting Rights Act, U.S. Dep’t of Just. (Nov. 29, 2021), https://bit.ly/3AFsHJz.
[63] See H.B. 2023, 52nd Leg., 2nd Sess. (Ariz. 2016).
[64] See, e.g., N.D. Cent. Code. Ann. § 16.1-01-04.1 (West 2019).
[65] See Eliza Sweren-Becker, Filling the Voting Rights Hole Left by SCOTUS in Shelby County v. Holder, Brennan Ctr. for J. (June 22, 2021), https://bit.ly/3ucasIT.
[66] See U.S. Gov’t Accountability Off., GAO-01-470, Elections: The Scope of Congressional Authority in Election Administration 1 (2001).
[67] See id.
[68] U.S. Const. art. 1, § 4, cl. 1; see also U.S. Const. art. II, § 1, cl. 4 (stating that Congress also has some authority in presidential elections).
[69] Foster v. Love, 522 U.S. 67, 69 (1997) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832–33 (1995)).
[70] H.R. 1694, 116th Cong. § 2(b)(1) (2019).
[71] Native American Voting Rights, Am. Bar Assoc. (Feb. 1, 2020), https://bit.ly/3o6VIbS.
About the Author
Ashleigh Herrin is a third-year J.D. candidate at Penn State Law. She received her Bachelor of Science in Mathematics from the University of Missouri. While attending Penn State Law, Ashleigh participated in the Philip C. Jessup International Law Moot Court competition as a competitor and a coach. She has externed for the Honorable William I. Arbuckle, Magistrate Judge for the Middle District of Pennsylvania, and worked as a clinical student in the Civil Rights Appellate Clinic. Ashleigh has also served as the Vice Chair of Recruitment for the Moot Court Program, Vice President of the Public Interest Law Fund, and President of the Student Bar Association. Recently, Ashleigh was inducted into the Woolsack Society.
Suggested Citation: Ashleigh Herrin, A Tale of Two States: A Call for Uniform Protection of Native American Voting, Penn St. L. Rev.: F. Blog (Apr. 10, 2022), http://www.pennstatelawreview.org/the-forum/a-tale-of-two-states-a-call-for-uniform-protection-of-native-american-voting-rights/.