Native American voters living on rural reservations often use ballot collection services due to limited access to home mail services and polling places. Yet last year, Montana — home to 12 tribal nations — enacted a law that makes it illegal to pay organizers who collect completed absentee ballots from voters.
The law is part of a nationwide surge in voter suppression legislation instigated by state legislators embracing former president Donald Trump’s Big Lie of a “stolen” election. In 2021, states around the country enacted dozens of restrictive voting laws, making vote by mail and early voting more difficult, imposing harsher voter ID requirements, and making faulty voter purges more likely.
These laws often disproportionately impact voters of color, poor voters, and young voters. As detailed in a recent White House report, Native Americans are often faced with a unique set of limitations that further obstructs their access to the ballot. Many reservations don’t have traditional street addresses recognized by the USPS. And ballot drop boxes, polling places, and election offices are sometimes located hundreds of miles away from reservations.
With the wave of restrictive voting legislation we saw in 2021 and continue to see this year, Native Americans across the country are facing threats of disenfranchisement.
What is the history of Native American voting rights?
When the Constitution was ratified in 1788, Native Americans living in the United States weren’t considered citizens. When the 14th Amendment formally granted Black Americans citizenship in 1868, it was interpreted to exclude Native Americans.
In 1924, Congress passed the Indian Citizenship Act, finally granting Native Americans all the legal rights of a U.S. citizen. However, despite their official status as citizens, Native Americans didn’t secure the right to vote nationwide for nearly four more decades. Although federal law formally recognized their citizenship, the Constitution gives the states primary responsibility to decide who is qualified to vote in state and federal elections, and some states continued to disenfranchise Native Americans for years afterward.
To justify disenfranchisement, some states argued that Native Americans living on reservations weren’t qualified to vote because they didn’t pay state taxes or because they were wards of the federal government. For example, for decades Arizona courts interpreted the state’s constitution to deny the right to vote to Native Americans as “persons under guardianship.”
It wasn’t until a landmark decision in 1948 that the Arizona Supreme Court recognized the legal right of Native Americans to vote. The same year, a federal three-judge panel in a New Mexico case held that a provision of New Mexico’s constitution denying the franchise to “Indians not taxed” violated the 14th and 15th Amendments. Finally, in 1957, Utah became the last state to remove its laws denying Native Americans the right to vote.
However, even after Native Americans secured the right to vote across the country, states continued to suppress their votes and those of other minority voters through discriminatory practices like literacy tests.
The Voting Rights Act of 1965 finally provided a framework through which voters’ rights would be enforced. Section 5 of that law required states with a history of discriminatory voting policies to get federal approval for any changes to their voting rules before implementing them in future elections to ensure that the changes wouldn’t have a racially discriminatory effect on voters. Section 2 also provided voters a mechanism for challenging discriminatory practices in court in jurisdictions that were not subject to this “preclearance” rule.
For nearly 50 years, Section 5 preclearance helped ensure that states did not deny the right to vote on account of race, color, or membership in a minority language group. However, in 2013, the Supreme Court effectively gutted preclearance in Shelby County v. Holder. The disastrous effects of this decision were immediate. Many of the states that were previously covered — and the Native American communities within them — saw new restrictive voting policies enacted in the years that followed.
Then in 2021, the Supreme Court did further damage to the Voting Rights Act in a case called Brnovich v. Democratic National Committee. In that case, which concerned Arizona policies that disproportionately burdened the rights of Native American voters — including a limitation on ballot collection — the Court made it harder to challenge such discriminatory policies under Section 2.
How do voter suppression laws target Native Americans?
Laws that make voting harder often have a disproportionate impact on Native American voters, frequently by design. Many Native American communities find voting difficult and inaccessible, often due to inadequate investment into voting resources and infrastructure on reservations. And some laws take direct aim at services Native American voters rely heavily on to overcome existing barriers.
Drop boxes and election offices can be located miles away from reservations, making voting particularly burdensome for those communities. The Blackfeet reservation in Montana, for example, is almost the size of Delaware and has some 17,300 enrolled members. And yet, in 2020, it had only four ballot drop-off locations until a successful lawsuit brought under Section 2 of the Voting Rights Act provided for an additional satellite office on the reservation.
Some reservations don’t have any polling places or drop boxes at all, forcing voters to take time off of work and drive miles out of their way to cast their ballots — something many can’t afford to do. Individuals on the Duckwater reservation in Nevada, for instance, have to travel 140 miles each way to reach the closest elections office in Tonopah.
The locations of polling places have a significant impact on one’s ability to participate in elections. A 2017 survey of Native Americans reported that 32 percent of respondents in South Dakota said that the distance needed to travel to the polls affected their decision to cast a ballot.
While Native American voters have tried to navigate these obstacles, some voting policies have provided crucial support for those determined to cast their ballot. For those traveling long distances, same-day voter registration has been a boon, especially for voters who don’t have access to the internet and can’t register online. Paid ballot collection can make casting ballots easier for voters who don’t have easy access to drop boxes by allowing a third party to collect and deliver ballots on behalf of other voters. Laws like Montana’s H.B. 176 — which targets Election Day registration — and H.B. 530 — which goes after ballot collection —threaten to eliminate these options for voters.
Some states are also passing stricter voter ID laws, which can often impact Native Americans more than others. Many voters living on reservations don’t have traditional street addresses and instead rely on P.O. boxes for mail services. Thus, strict voter ID laws that require address-displaying forms of identification to vote disproportionately burden tribal communities that are less likely to possess qualifying ID. In 2018, 19 percent of Native American eligible voters in North Dakota did not have a qualifying ID to cast a ballot under the state’s strict ID law, in comparison to 12 percent of other voters across the state.
How can Native American voting rights be protected now?
One route for protecting voting rights is the courts. Right now, the Native American Rights Fund and the ACLU are challenging the constitutionality of Montana’s H.B. 176 and H.B. 530. In April 2022, a state judge blocked enforcement of the two laws while the case proceeds.
But litigation can be costly and time-consuming. And as explained above, recent decisions by the U.S. Supreme Court have weakened federal protections and limited the tools available to fight discriminatory measures in court.
But Congress can help. The bipartisan Native American Voting Rights Act was introduced in the House in August 2021 and was included as part of the Freedom to Vote: John R. Lewis Act, which was defeated in the Senate in January. Endorsed by many Native American tribes and advocacy groups, the bill would allow tribes to determine an assortment of items pertaining to voting, including the number and location of voter registration sites, polling places, and drop boxes on their reservations. It would also require states to accept tribal ID as voter identification.
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The United States has a troubled history of discriminating against Native Americans, especially with respect to the franchise. With states continuing to pass laws threatening to disenfranchise Native Americans across the country, Congress must act now and pass the Native American Voting Rights Act.
