By Mica Llerandi, CILS Escondido Staff Attorney
2020 is a big election year. With the COVID-19 pandemic, many state and tribal governments are looking to voting by mail (VBM) as a safe way to conduct elections. However, Native voter advocates raise concerns that VBM disenfranchises Native voices. Tribes who are reviewing their ordinances and grappling with ways of keeping their voters safe should consider the issues raised here.
Before making any changes to the election process, tribes should first review their election ordinances and governing documents. Tribes should determine whether a change requires a new ordinance or an amendment to the constitution. For example, if a tribe determines VBM is the best option to protect the health of voters, the tribe should verify that ordinances or the constitution support VBM for all voters, not just those residing out of tribal lands.
Tribes should also review the emergency provisions of their election ordinances. Many state and federal election officials thought the November election would not be affected by COVID-19, but now are scrambling to determine how to conduct the general election in a safe manner. In response, some tribes have cancelled elections and others are using CDC guidelines to ensure safe election polling locations. With uncertainty looming for the November general election, tribes should examine how an outbreak could affect their ability to conduct in-person voting.
With the pervasive use of technology in our daily lives, tribes should consider how their election process might be supported or affected by new technology. For example, social media is beneficial for disseminating information, but unregulated use of social media could also result in tacit endorsements of tribal candidates. Tribal ordinances written 20 years ago may not fully contemplate the impact of the internet or social media on tribal elections.
Tribes should ensure election committees are operating independently but with oversight. Some suggestions for elections committees include establishing standards for appointment, staggering terms, and requiring training or a handbook on duties. Tribal law should include oversight mechanisms and remedies to ensure election officials are discharging their duties with integrity, honesty, and transparency.
Tribes should review the election process from beginning to the end. Some things to examine include:
(1) Verifying date and deadline calculations are clear (i.e. distinction between calendar or business days);
(2) How to account for human error in tallying votes (i.e. ballot counting occurs 3 times);
(3) Whether the process is open and transparent (i.e. who can be present during the tallying?); and
(4) How to handle unusual results (i.e. ordinance only explains what to do in a two-way tie, but not a three-way tie).
Tribes should review their ordinances regularly to ensure a clear and fair voting process.
Tribal elections are vital to tribal governance and sovereignty. Tribal elections demonstrate to outside entities that tribes are legitimate and fully functioning governments. For members, individual participation has a visible impact on tribal governance. Tribes should continuously scrutinize their elections to ensure the process is appropriate, fair, and transparent. CILS assists tribes with revising and drafting tribal election ordinances, conducting tribal elections, and advising and representing election committees. If your tribe needs any assistance with tribal elections, CILS is ready and able to assist.
 Noel Lyn Smith. Complaint Filed Against Navajo Nation over canceled primary election. Farmington Daily Times. https://www.daily-times.com/story/news/local/navajo-nation/2020/08/13/navajo-nation-faces-complaint-over-canceled-primary-election/3365989001/ (accessed on August 14, 2020).
 Center for Disease Control and Prevention. Considerations for Election Polling Locations and Voters. https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (accessed on August 14, 2020).
 Native Vote. Native Vote Toolkit 2018. http://www.nativevote.org/wp-content/uploads/2018/06/Native-Vote-Toolkit-2018.pdf, at p.17 (accessed on August 14, 2020).