With the next election less than a month away, how are Native American tribes being impacted at the ballot box — and should anything be done to increase their participation?
In at least four states Native Americans comprise at least 10 percent of their voting population: Alaska, New Mexico, Oklahoma, and South Dakota. Many other states contain a not-insubstantial share of Native American voters as well.
But in some states, tribal members and reservation residents can face barriers to voting. These include everything from geographically distant polling locations of up to 100 miles away (because tribal members often live in some of the most inaccessible areas of the country) to “nontraditional addresses” making absentee ballots or voting by mail impossible.
Indeed, Native American voter turnout can be up to 14 percent lower than for other groups.
What the bill does
- Reinstituting “preclearance” for states before passing laws which could adversely affect tribal members or reservation residents. The preclearance provision, in effect from the 1960s until the Supreme Court struck it down in 2013, had required certain states with histories of discrimination to get permission from the federal government before making changes to their voting or elections laws. Since 2013, these states can pass virtually any such laws without oversight.
- Requires tribal identification cards to be used as a valid form of voter ID, in states where voter identification is currently required. Depending on the state, acceptable forms of identification can include a birth certificate, driver’s license, or a hunting license — but often not a tribal ID.
- Ensuring that early voting, voting by mail, and other similar forms are available for every tribal voting precinct.
The bill was introduced in the Senate as S. 3543 on October 3 by Sen. Tom Udall (D-NM).
What supporters say
Supporters argue the legislation would protect voting ease and access for one of the country’s more vulnerable population demographics.
“In 1948–70 years ago — my grandfather, Levi Udall, served as Chief Justice of the Arizona Supreme Court where he authored the opinion extending the right to vote to Native Americans then living on-reservation,” Sen. Udall said in a press release. “My grandfather wrote, ‘To deny the right to vote… is to do violence to the principles of freedom and equality.’ I wholeheartedly agree.”
“But today, 70 years later, state and local jurisdictions continue to erect insidious new barriers to the ballot box for Native Americans, from the elimination of polling and registration locations to the passage of voter ID laws intentionally designed to prevent Native Americans from voting,” Udall continued. “These undemocratic barriers have blocked too many Native voters across New Mexico and Indian Country from exercising their franchise.”
“In light of highly destructive recent court decisions like Shelby County v. Holder, it is more important than ever that we pass legislation to ensure that the voices of Native communities across Indian Country are heard at the ballot box.”
What opponents say
GovTrack Insider was unable to locate any statements of direct opposition to this bill specifically, likely due to the poor optics of such a move and its low level of public attention. But there has been opposition stated to several specific provisions.
On the preclearance issue, for example, the Supreme Court struck it down as no longer being necessary as it had been upon its originally 1960s enactment.
“Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years,” Chief Justice John Roberts wrote in the Court’s majority opinion.
“And voter registration and turnout numbers in the covered States have risen dramatically in the years since,” Roberts continued. “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”
(However, several states began the process of passing voter identification laws within hours of the Supreme Court’s decision, with the vast majority of those affected being non-white.)
Odds of passage
The bill has attracted 12 Senate cosponsors, all Democrats. It awaits a potential vote in the Senate Judiciary Committee.
Being introduced only about a month before the midterm elections, this bill during the current Congress is more meant to serve as a Democratic Party template and statement of values regarding elections and the right to vote.
Even if it were to theoretically pass before Election Day 2018, most of its provisions couldn’t be implemented in time — although they could be for Election Day 2020.