Native Americans’ right to vote is under attack

The Voting Rights Act was supposed to protect the historically marginalized group. It’s not working.

Darrell Marks attends a Native American voting field hearing in Tuba City, Arizona. Credit: Getty Images, Kira Lerner / Illustration by Diana Ofosu
Darrell Marks attends a Native American voting field hearing in Tuba City, Arizona. Credit: Getty Images, Kira Lerner / Illustration by Diana Ofosu

TUBA CITY, ARIZONA — Growing up on the sprawling Navajo Nation land in the northeast corner of Arizona, Darrell Marks remembers telling people how to find the two-bedroom home he shared with his mother and five siblings. It’s the “brown house five miles south of the trading post,” he’d explain.

Marks’ childhood home in Tonalea doesn’t have an official postal address, like many homes across the nation’s largest Native American reservation. Outside the populated towns like Flagstaff and Page, the landscape is dotted with more cacti than homes, scattered across the rolling hills and mesas.

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“My grandmother and my great-grandmother’s homes were the closest to ours, and their homes were a quarter of a mile away,” he said. “The nearest neighbor from that was about a mile.”

Since moving out of his childhood home, Marks has chosen to live in a more populated area, near Flagstaff High School, where he works as the Native American academic advisor. He’s become active in his community and rarely misses a tribal, state, or federal election. In that way, he takes after his mother, who was born just a few decades after the government granted Native Americans civil rights. She votes every opportunity she can.

But in recent years, voting has become more difficult for her. Arizona, like several other western states, has shifted its elections over the last two decades to majority vote-by-mail. In 2016, 80 percent of Arizona voters cast a ballot by mail.

Left: A sign taken through a windshield of a car driving through Arizona. Right: Julio Almeida, 8, jumps off one of the rickety shacks that litter the backyard where he lives, not far from Tuba City. (Photos by Ivan Dmitri/Michael Ochs Archives and Barbara Davidson/Los Angeles Times via Getty Images)
Left: A sign taken through a windshield of a car driving through Arizona. Right: Julio Almeida, 8, jumps off one of the rickety shacks that litter the backyard where he lives, not far from Tuba City. (Photos by Ivan Dmitri/Michael Ochs Archives and Barbara Davidson/Los Angeles Times via Getty Images)

At first glance, vote-by-mail sounds like a policy that would benefit voters. Democratic lawmakers and elections officials claim it’s more convenient, cheaper to administer, and leads to higher turnout. Oregon, Washington, and Colorado all mail ballots to every registered voter, and some lawmakers have proposed expanding it to the entire country.

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But with more voters casting ballots from their homes, Arizona is offering fewer opportunities for people to cast ballots in person. That’s a problem for Native Americans, who say they enjoy the communal aspects of voting on Election Day and sometimes need their ballots translated in-person into non-written Native languages. It also makes voting nearly impossible for people like Marks’ mother, who can’t receive mail to their homes and instead share PO boxes miles away —  sometimes in a different county or even state — and who check their mail infrequently.

“We have an aging community,” Marks said. “A lot of our elders, they feel passionate about voting, [but] they’re not always in the condition or position or have the ability to bring themselves in to a polling place to drop off their ballot or even to the post office to mail it at the appropriate time.”

The mail-in ballot is just one of many ways that voting, a constitutional right, is harder if you’re Native American. While voting has never been easy for people living on reservations, in many ways it’s become even more difficult in recent years, as states and the federal government turn their back to the problems.

Some states aren’t just ignoring the barriers to the ballot — they’re actively making them worse. In 2016, Arizona’s Republican-controlled legislature passed a law banning “ballot harvesting,” a term conservatives coined to refer to the act of mailing a ballot that’s not your own.

Shirlee Smith, the voting rights coordinator in Bernalillo County, Utah, and her mother listen during the Tuba City field hearing. CREDIT: Kira Lerner
Shirlee Smith, the voting rights coordinator in Bernalillo County, Utah, and her mother listen during the Tuba City field hearing. CREDIT: Kira Lerner

Under the law, which a federal court upheld in May, an individual who is not a voter’s relative, household member, or caregiver could face felony charges if he or she brings someone else’s completed ballot to a mailbox or election office. In other words, if Marks’ mother were to give her ballot to one of her neighbors who runs her errands, that person could face time in prison.

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“When people don’t get mail at their homes, how is this going to work?” asked Patty Ferguson-Bohnee, the faculty director of the Indian Legal Program at Arizona State University’s law school. “The census data shows that only one in four homes on the reservation have access to cars and there’s not great infrastructure or public transportation, so it’s likely someone else is going to bring your ballot back to town. Are those people going to be felons?”

Arizona’s ballot-harvesting law is just one part of a multi-pronged attack on minority voting rights that certain states launched after the U.S. Supreme Court ruled in 2013 in Shelby County v. Holder that vital protections of the Voting Rights Act were no longer necessary. Since then, many of the nine states that previously had to have federal approval to change their voting laws have implemented new laws that created new barriers to voting. In states with large Native American populations, elected officials have cut voting hours and opportunities, refused to add places on reservations, eliminated language assistance services, and fought to keep Native voters into majority-white gerrymandered districts where they’d never get political representation.

It wasn’t always that way. Voting was never easy and the system was never perfect, but Marks said his mother remembers a time when Navajo community members met at the local polling place, celebrating the day and discussing which candidates they were going to support.

A sign from Marks' 2014 campaign for Navajo Nation Council. CREDIT: DARRELL MARKS
A sign from Marks' 2014 campaign for Navajo Nation Council. CREDIT: DARRELL MARKS

Before the Supreme Court gutted the landmark voting law, Arizona was required to get pre-approval for changes like cuts to in-person polling places or laws like the ballot harvesting ban from the Department of Justice. In 2011, Arizona tried to pass a less restrictive version of the law, but the Justice Department came back with questions about its intent. The request was enough of a deterrent that state officials dropped their effort altogether.

Immediately after the Shelby County Supreme Court decision, Arizona’s legislature was free to pass suppressive laws without oversight. On the second try, the ballot harvesting law went into effect immediately.

“That’s a perfect example of the damage that the Shelby decision has caused,” said Patty Hansen, who administers elections in Coconino County, where more than a quarter of voters are Navajo.

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Native American communities have done their best to fight back. Over the past five years, Native American voters and groups representing them have brought at least seven lawsuits in six states, accusing state and local governments of discriminating against Native American voters.

“Because the preclearance was struck down, it’s left upon the people who were harmed to bring those lawsuits,” Hansen said.

With the exception of Arizona, legal challenges against changes to voting laws that disadvantage Native Americans have been successful in every state. Courts have sided with the voters in finding that the laws are discriminatory and violate Native Americans’ voting rights. But litigation is long, costly, and often out of the realm of possibility for remote populations with high rates of poverty and limited resources. The six successful lawsuits have lasted an average of more than 27 months before a successful remedy is reached, according to an analysis of court records, and advocacy groups have had to spend millions of dollars to get to favorable solutions.

“What has essentially resulted is a lot of expensive and time consuming litigation by civil rights groups… to stop the laws from going into effect,” said Jim Tucker, an attorney and member of the Native American Voting Rights Coalition.

But advocates say that litigation can’t be the only solution, especially now that federal laws are no longer designed to protect marginalized voters.

“The overall, dominant theme of barriers that you see in Indian County are the sort of barriers that federal legislation including the Voting Rights Act was intended to eradicate,” Tucker said. “They are just entrenched in many parts of the country and it makes it much more difficult to bring litigation because there’s no simple, magic bullet fix now. You have to address many, many different issues in order to provide equal opportunities to participate and elect candidates of choice.”

As a result, millions of Native Americans are effectively disenfranchised.

“Even though they’re the original residents and occupants of this land, they’re among the last people in the United States that have been given the opportunity to vote,” Tucker said. “Clearly there’s a lot more work that needs to be done in Indian County.”

A long history of voting discrimination

On a hot, dry morning in April, Marks pulled his SUV off the highway in Tuba City, kicking up dust as he steered through the dirt parking lot outside the chapter house of the To’Nanees’Dizi local government, a subset of the Navajo Nation. It was a Wednesday, but Marks wasn’t at work. He had taken the day off to testify at a hearing in this tribal meeting place, a sparse room lined with folding tables and chairs.

Although the testimony had begun earlier that morning, most seats were still empty and Marks found a spot in the front row. Like the people depicted in the large murals painted on the walls around him, Marks was dressed in traditional Navajo clothing — leather moccasins that keep his feet close to the earth, a turquoise beaded necklace, and a headband with his hair pulled back into a tsiiyeel, a traditional bun. On his left arm, he wore a prominent silver bowguard to protect the passionate parts of his spiritual being from the outside world. “It’s like a literal shield when we go into public spaces,” he explained. While many his age on the reservation have abandoned the traditional dress, Marks said wearing the these items strengthens his connection to his Navajo kin and ancestors and their history.

Marks listens to voters and attorneys speak during the Tuba City field hearing. CREDIT: Kira Lerner
Marks listens to voters and attorneys speak during the Tuba City field hearing. CREDIT: Kira Lerner

Most Native Americans weren’t granted U.S. citizenship until 1924, when Congress passed the Indian Citizenship Act. On paper, the law meant that Native people born in the United States were granted the right to vote, but in practice, a vast majority were still disenfranchised because the Constitution still left it up to states to decide who could cast ballots. More than a decade later, seven states still prohibited Native Americans from voting, including Arizona, where courts didn’t strike down a provision that disenfranchised Native Americans until 1948. And even after that ruling, the same voting discrimination and barriers that disenfranchised black citizens, like poll taxes, literacy tests, and intimidation, meant that many Native communities across the country were still effectively disenfranchised.

Even when Congress passed the landmark Voting Rights Act of 1965, lifting those barriers for African Americans, most of the vital enforcement mechanisms did not apply to Native Americans. It wasn’t until 1975 that the law’s preclearance requirement was extended to Arizona and Alaska, states with large Native populations.

At the hearing — one of nine held on or near Native communities around the country by the Native American Voting Rights Coalition — Navajo voters, elections officials, and lawyers spoke about how voter suppression and barriers to the ballot have increased since the Supreme Court gutted the VRA.

“It was working,” Hansen said about the preclearance section of the VRA. “Arizona is a perfect example of a state that needs to have [preclearance] because the floodgates have opened to our legislature to pass voter suppression laws and to try to manipulate things. It’s very sad.”

Patty Hansen testifies about voting in Coconino County CREDIT: Kira Lerner
Patty Hansen testifies about voting in Coconino County CREDIT: Kira Lerner

While she spoke, a federal court 200 miles away in Phoenix was considering a challenge to the ballot harvesting ban, filed by Democratic groups who claimed it was unconstitutional and deliberately intended to suppress turnout among certain groups of voters, including Native Americans.

“It was a very overbroad law and as-written, it could have applied to someone who was picking up the mail and innocently didn’t even know that the ballot was there or was taking something to mail even though they had nothing to do with the contents of the ballot,” Tucker said.

Voting advocates also claimed its mere existence is enough to deter hesitant voters from participating in elections. “We had testimony from community organizers that were absolutely terrified as a result of that law and didn’t know exactly what that meant and were no longer doing any type of outreach for mail-in ballots,” said Native American Rights Fund attorney Jacqueline De León, who planned and attended all nine hearings.

When the ban first passed in 2016, Hansen said she and some of the other 14 county recorders in Arizona agreed they would take no action to enforce it. Law enforcement was not part of their job, and she claimed she was in no place to reject ballots. “If Arizona is so concerned about voter fraud, they need to have somebody that investigates and prosecutes, and they don’t,” she said.

Republican lawmakers, like state Rep. Michelle Ugenti-Rita (R) who originally sponsored the bill, disagreed, claiming there was no discriminatory intent and the purpose of the law was to prevent voter fraud.

“This commonsense legislation will ensure voted ballots are secure with the USPS and not in the hands of activist groups walking door-to-door in neighborhoods collecting hundreds of ballots without any oversight,” she said in a statement.

In an email, a representative with Arizona’s attorney general’s office confirmed that in the two years the law has been in effect, there have been no prosecutions of violators.

Federal courts ruled in favor of granting Native Americans the right to register and vote in 1948. The New Mexico State Constitution had previously denied voting rights to those who did not pay property taxes while living on reservations lands. CREDIT: Getty Images
Federal courts ruled in favor of granting Native Americans the right to register and vote in 1948. The New Mexico State Constitution had previously denied voting rights to those who did not pay property taxes while living on reservations lands. CREDIT: Getty Images

Barriers to the ballot are not just a question of discriminatory laws, but persistent, systemic prejudices that continue to create obstacles for Native Americans at the polls.

Native American voters in states from Wisconsin to Utah reported issues that prevent them from casting ballots, like having to travel unreasonably long distances to get to the polls. Voters spoke of polling locations on reservations being in undesirable locations — one poll was located inside a chicken coop — and they testified that voter ID laws made it difficult for low-income Native Americans, many of whom don’t have drivers’ licenses.

“One of the most common things we encountered is lack of in-person registration and voting opportunities on tribal land,” Tucker said.

Even when Native American voters have places to vote, they often face additional hurdles, such as hostility from police or non-Native poll workers at polling places.

“In Wisconsin we had testimony where they ended up putting a polling place serving a reservation in the sheriff’s office,” De León said. “They also would, on voting days, have police cars on the one road that leaves the reservation, pulling people over, using the police as a means to intimidate the voter.”

In other jurisdictions, Natives said they have to deal with so-called second generation problems — ballots not being available in their languages or extreme gerrymandering — which make it clear that even if Native Americans were to have accessible polling locations and voting opportunities, their votes still may not count.

Fighting back

Native Americans have had success in court defending their right to vote since long before the Shelby decision. Since President Lyndon B. Johnson signed the Voting Rights Act, Native Americans and groups representing them have filed about 94 voting lawsuits. Roughly 93 percent of these lawsuits have ended with rulings or settlements in voters’ favor, according to Dan McCool, a professor emeritus at the University of Utah and an author of Native Vote: American Indians, the Voting Rights Act, and the Right to Vote.

“When you have 90-some cases and you win almost all of them, year after year after year after year, decade after decade, that’s a problem,” he said. “That means somebody doesn’t want Native Americans to have an equal opportunity to elect candidates of their choice.”

That success has continued since the Shelby decision made litigation the first course of action against discriminatory laws. Since 2013, lawyers have filed seven lawsuits alleging voting discrimination against Native American voters. All but one of them — the only one not filed directly on behalf of Native plaintiffs — have been successful.

Several of the lawsuits targeted states that were not providing language assistance to non-English speakers. In 2015, in a lawsuit filed less than a month after the Shelby ruling, a court approved a settlement giving Alaskan Native voters a comprehensive language assistance program.

The lawsuits also went after counties that were forcing Native voters to travel long distances to vote in-person. And they targeted discriminatory voter ID laws, like North Dakota’s.

The litigation also took on gerrymandering. Last year, a Utah federal judge ordered San Juan County to redraw its districts, giving Navajos a significant majority in two of three commission districts and three of five school board districts. This year, Native voters will have an opportunity to elect candidates of their choice for the first time.

In May, the litigation over Arizona’s ballot harvesting ban became the only case not to result in an outright win or a favorable settlement for the Native voters since the Shelby ruling. In his opinion, the federal judge found no evidence that it was intentionally discriminatory or that it will impose a hardship on voters.

Still, with six rulings or settlements in favor of the voters, it’s clear that courts understand the barriers to the ballot in Native American communities. But litigation comes at a high cost, especially in remote regions of the country where many of these cases are fought.

In Alaska for example, where Tucker represented the Native voters, he said the litigation cost millions of dollars between attorneys fees and the costs of flying witnesses and plaintiffs to remote parts of the state.

Resources have also become more limited during a time when the Justice Department’s Voting Section is not inclined to help. While the department under President Obama intervened in the litigation seeking polling places on South Dakota’s Pine Ridge reservation, President Trump’s Justice Department has indicated it has no interest in protecting voters from discriminatory laws.

Litigation is also piecemeal, and even a victory doesn’t ensure that the same problem won’t arise again. “Without Section 5… these jurisdictions can lose a case and be ordered to do something by the courts, and then in a brief period of time, commit another violation, and then you have to sue them again,” McCool said.

So even when it occurs, progress happens in fits and starts. In North Dakota, for example, a court invalidated the state’s voter ID law that disadvantaged Native voters in 2016, only for the legislature to turn around and enact another form of the same law. Voters had to take them back to court and spend more time and money on the legal challenge.

“Without preclearance and with the political animosity that is so rampant in politics today, I think we’re going to see a lot more Voting Rights Act cases,” McCool said.

‘There needs to be a reconciliation’ 

Native American voters stand to achieve representation like never before in November. In New Mexico, Deb Haaland won the Democratic primary and is likely to be the first Native American woman in Congress. In total, 14 Native Americans are running for U.S. House and Senate seats, 14 are running for statewide office, and 95 are campaigning for seats in state legislatures.

But the Native American voter turnout rate remains anywhere from five to 14 percent lower than other ethnic and racial groups, and over a third of the eligible Native American population is not registered to vote. A future with proportionate Native American representation in elected office will be impossible as long as systemic and pervasive barriers continue to keep Native voters from registering to vote and casting ballots.

Some voting advocates and elections officials are trying to remedy problems before litigation becomes necessary. The Native voting organization Four Directions has successfully pushed elections officials to open satellite voting locations on reservations. In Coconino County, Hansen said she has set up voter assistance sites on the Navajo reservation so that people can stop by to get help, including oral translation, to complete their mail-in ballots.

“Our Native voters take a great pride in voting and celebrate by making it a community event,” she said. “They had to fight hard for the right to vote and those of us in election administration need to dedicate the necessary resources to protect the voting rights of all of our citizens.”

But these fixes are small, budgets are limited, and advocates like De León recognize that in order to achieve equal access to the polls, a more widespread change is needed.

“There needs to be … a reconciliation — which is obviously a huge order, between tribes and their local communities — and an acknowledgement and an acceptance and an encouragement of participation,” she said. “If the community can vote consistently, you can start to get attention and Native communities can represent a statistically significant group, especially in some of these elections that aren’t won by very many votes.”

Elsie Werito, 84, a member of the To'hajiilee Chapter of the Navajo Nation, waits in line to cast her ballot at the Desiderio Center November 2, 2004 in To'hajiilee, New Mexico. Werito said she has been voting all her life and has never missed an election.  (Photo by Rick Scibelli/Getty Images)
Elsie Werito, 84, a member of the To'hajiilee Chapter of the Navajo Nation, waits in line to cast her ballot at the Desiderio Center November 2, 2004 in To'hajiilee, New Mexico. Werito said she has been voting all her life and has never missed an election. (Photo by Rick Scibelli/Getty Images)

As November approaches, Tucker said he plans to meet with members of Congress who have expressed interest in legislation that would address some of the access issues for federal elections. A proposal could look like the Native American Voting Rights Act of 2015, introduced by Sen. Jon Tester to prevent states from moving polling places to inconvenient locations, eliminating in-person voting on reservations, or altering early voting locations. The bill never made it out of committee.

State governments could do the same. They could also overturn laws like the ballot harvesting ban, which Marks said hurts voters like his mother. Instead of encouraging turnout among a historically marginalized population, the law takes “away people’s vested interest in wanting to vote and feeling safe to vote,” he said.

“That’s where a lot of the apathy starts to grow,” he said. “They’re not counting my vote. They’re not listening to me. So why should I try?”

Some immediate fixes do not seem that complicated: The county could open a polling place closer to Marks’ mother’s home, expand the hours that polls are open, and provide assistance when people do vote in-person and have questions. In the absence of wide-reaching legislation, the responsibility for now falls on local officials.

“This is a highly underserved population that’s in desperate need to have more elections officials actually address these issues,” Tucker said.