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

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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