Tribal Elections 101 – Consider the Following When Updating Tribal Election Laws and Regulations

By Denise Bareilles, CILS Eureka Office Directing Attorney

I have had the pleasure of working closely with several Tribes in administering tribal elections.  It is an interesting area of tribal law that constantly presents new issues for tribal self-governance. Consider the information below when updating Tribal Election laws and regulations.

Does the Tribe’s Constitutional Framework Still Meet the Needs of Tribal Elections?

Most tribal Constitutions set forth the basic framework for tribal elections. The Constitution will generally have a specific section explaining the following:

  • The governing body (committee, board, or other administrative agency) responsible for administering elections
  • Qualifications for running as a candidate and respective nomination procedures
  • Voter registration process
  • When elections will be held
  • Process for enacting or amending the tribal election law
  • Process for challenging election results

The Constitution is a living document that should continuously serve its intended purpose. Does the election provisions in the Constitution continue to reflect the needs on how to administer tribal elections effectively? If not, work on updating the Constitution to avoid disputes that challenge election procedures as unconstitutional.

Here is an example of this issue presenting itself in tribal elections. The Tribe’s Constitution stated that all members of an Election Board must be elected by the voting membership. Through time, it became common practice (and well known in the community) that the Board made emergency appointments when necessary to fill empty Board seats. These emergency appointments were necessary to avoid cancelling elections due to the lack of a Board quorum to carry out election administrative actions. This emergency appointment procedure was not expressly provided for in the Constitution, and a lawsuit was eventually filed challenging the practice in the Tribal Court.  The emergency appointment procedure was ultimately held unconstitutional.

Who is Regulating the Tribal Elections?

It is important to understand the significance of an administrative election agency independent from the Tribal Council when holding elections for Tribal Council seats. Tribal governments predate the formation of the United States government. However, some tribal governments have organized under a tribal Constitution that provides that the Tribal Council substantially regulates tribal elections. Consider updating these types of Constitutions to ensure independent elections and as the tribe’s election system becomes more sophisticated. If not, this again invites disputes regarding the conflict of interest presented by the Tribal Council regulating its seats in tribal elections.

Is Tribal Election Law and Regulations Being Reviewed and Updated?

We cannot stress enough the importance of regularly reviewing and updating tribal election laws and regulations. Is nomination paperwork being submitted and reviewed correctly? Is the registrar of voters sufficiently being updated? Are petitions for ballot measures processed correctly? Are ballots being counted accurately? Are challenges to election results thoroughly addressed?

When reviewing ballot counting procedures, carefully evaluate the procedures to confirm that no one may tamper with final election results. There must be a paper trail for every single ballot. Ballots should be stored in secure locations. There should be a live video feed to the ballot tabulation room. Require tamper-evident seals, identification badges, and the presence of two or more staff members of opposite political affiliations. Tabulation equipment should be tested and certified before and after the election to confirm the machines are tabulating correctly. Provide a method for voters to track their ballots.

Is the Tribe Encouraging its Tribal Members to be a Member of its Administrative Election Agency?

Administering tribal elections is a complicated task that requires staff with substantial experience. Tribal elections are intimidating. Tribal officials and staff must understand tribal law, policies, and regulations and succinctly communicate the information to the tribal community. Tribal elections occur in smaller communities; thereby politics can be pervasive and run deep throughout. The tribal election agency’s actions are closely scrutinized and challenged sometimes on a regular basis. This may discourage tribal members from working for the election agency due to the constant pressure to respond quickly with correct information on all issues. To support the community, it is important to regularly do outreach to the community by holding regular training on administering tribal elections.

CILS has been assisting tribal governments in tribal self-governance for the last 50 years. Reach out to the CILS office closest to you if you have any questions or comments in administering tribal elections.

Restoring the Voting Rights Act: Protecting the Native American and Alaska Native Vote

By Sheila Quinlan, CILS Escondido Office Staff Attorney

Early November is election season nationwide.  While blatant, state-sanctioned barriers to voting for Native Americans ended more than 50 years ago, many barriers—whether intentional or accidental—still hamper access to voting for many native communities.  In some places, ill-intentioned state legislatures take advantage of structural deficiencies in Indian country to suppress the native vote.  Poor roads, remote residences, and lack of access to reliable transportation, for example, can make it challenging for voters on reservations to make it to far-flung polling places off reservations to cast their ballots.  State mandates that require identification with residential addresses pose barriers to many reservation residents who may not have physical addresses.

Recently, Senator Ben Lujan, a Democrat from New Mexico, introduced legislation, the Native American Voter Protection Act, that would seek to promote and protect the Native American vote.  Some key features of the proposed legislation include requiring that states offer on-reservation early voting, registration, and polling places along with drop boxes for ballots, and that they accept tribal identification cards as a valid form of voter identification.  The proposed legislation also bans states from placing a cap on the number of ballots collected on Indian tribal lands, allowing organizations to help deliver ballots for tribal members on reservations who may live far from polling places and lack mailboxes at their homes.

During a recent hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution, Senator Richard Blumenthal, a Democrat from Connecticut, highlighted that one million eligible Native Americans are not registered to vote.  He described the proposed legislation as a means of imposing accountability on public officials whose actions often have a disparate impact on Native American voters.  One witness at the hearing described a polling official’s decision not to put a polling place on a reservation, as she did not want to “catch COVID on the reservation.”  In fact, COVID-19 case numbers were comparable on the reservation as compared to the broader surrounding communities in which the polling official worked.   Witnesses at the hearing also emphasized the importance of the legislation in light of the Supreme Court’s recent erosion of the 1965 Voting Rights Act in Brnovich v. Democratic National Committee (2021) 594 U.S. ___ and Shelby County v. Holder (2013) 570 U.S. 529.

On October 5, 2021, the Senate introduced a modified John R. Lewis Voting Rights Advancement Act, which incorporated the Native American Voting Rights Act (NAVRA) as part of the bill.  The aim of the broader John R. Lewis Voting Rights Advancement Act is to restore key provisions of the now-eroded Voting Rights Act of 1965.

Unfortunately, due to political gridlock and a deeply divided Senate, on November 3, 2021, a Republican filibuster blocked both debate and a vote on the legislation.  While the Act had majority support in the Senate, the vote fell short of the needed 60 votes to advance over Republican opposition.  Despite the setbacks, one still hopes that in the case of voting rights, as Martin Luther King, Jr. noted, “The arc of the moral universe is long, but it bends toward justice.”

Efforts to protect the Native American vote are a topic currently on President Biden’s agenda.  Earlier this year, he established a Native American Voting Rights committee.  The committee will produce a report next spring outlining recommendations for protecting the Native American vote.  The committee held several tribal consultations throughout the year addressing difficulties in voting that tribes and tribal members may have faced.  The committee also sought to collect ideas for remedying any challenges faced in voting.  The President’s Committee is still accepting written comments until November 12, 2021, at consultation@bia.gov.

Resources

  1. https://www.calindian.org/california-native-voter-guide-2020/
  2. https://www.hoganlovells.com/en/publications/hiltime-with-hilary-tompkins
  3. https://www.judiciary.senate.gov/meetings/restoring-the-voting-rights-act-protecting-the-native-american-and-alaska-native-vote
  4. https://www.npr.org/2021/10/20/1040238982/senate-democrats-are-pushing-a-voting-rights-bill-republicans-have-vowed-to-bloc
  5. https://www.nytimes.com/2021/10/20/us/politics/senate-voting-rights-filibuster.html
  6. https://www.politifact.com/article/2021/oct/11/whats-voting-rights-bill-named-john-lewis/
  7. https://www.brennancenter.org/our-work/court-cases/shelby-county-v-holder
  8. https://www.narf.org/senate-testimony-voting/
  9. Addressing Barriers to Native American Voting Rights: A Tribal-Federal Roundtable Discussion https://www.youtube.com/watch?v=Jh0ITcYBQ3M&t=12s
  10. https://vote.narf.org/wp-content/uploads/2020/06/obstacles_at_every_turn.pdf
  11. https://www.hcn.org/articles/indigenous-affairs-law-6-things-you-should-know-about-the-2021-native-american-voting-rights-act
  12. https://www.narf.org/brnovich/
  13. https://www.pbs.org/wgbh/americanexperience/features/vote-overcoming-barriers-for-native-american-voters/
  14. https://thehill.com/homenews/senate/577643-senate-will-vote-on-john-lewis-voting-bill-as-soon-as-next-week
  15. https://www.congress.gov/117/crec/2021/11/01/167/191/CREC-2021-11-01-pt1-PgS7535.pdf
  16. https://www.narf.org/voting-tribal-consultation/
  17. https://www.nytimes.com/2021/11/03/us/politics/senate-republicans-voting-rights-act.html

 

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