IN THE SENATE OF THE UNITED STATES
October 3 (legislative day, September 28), 2018
Mr. Udall (for himself, Ms. Warren, Ms. Heitkamp, Ms. Klobuchar, Ms. Cortez Masto, Ms. Smith, Ms. Harris, Mrs. Feinstein, Mr. Van Hollen, Mr. Tester, Mr. Booker, Mr. Heinrich, and Ms. Hirono) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To protect the voting rights of Native American and Alaska Native voters.
This Act may be cited as the
Native American Voting Rights Act of 2018.
Findings and purposes
Congress finds the following:
The Constitution explicitly and implicitly grants Congress broad general powers to legislate on issues relating to Indian Tribes, powers consistently described as plenary and exclusive. These powers arise from the grant of authority in the Indian Commerce Clause and through legislative matters arising under the Treaty Clause.
The Federal Government is responsible for upholding the obligations that the Federal Government has agreed to through treaties, legislation, and Executive orders, referred to as the Federal trust responsibility toward Indian Tribes and their members.
The Supreme Court has repeatedly relied on the nature of this
government to government relationship between the United States and sovereign Indian Tribes for congressional authority to enact
legislation that singles out Indians for particular and special treatment. Morton v. Mancari, 417 U.S. 535, 554–555 (1974).
Legislation removing barriers to Native American voting is vital for the fulfillment of Congress’s
unique obligation toward Indians, particularly ensuring that Native American voters are fully included as
qualified members of the modern body politic. Board of County Comm’rs v. Seber, 318 U.S. 705, 715 (1943).
Under the Elections Clause of article I, section 4 of the Constitution, Congress has additional power to regulate any election conducted at least in part to select Members of Congress. Taken together, the Indian Commerce Clause and the Election Clause give Congress broad authority to enact legislation to safeguard the voting rights of Native American voters.
Despite Congress’s decision to grant Native Americans Federal citizenship, and with it the protections of the Fifteenth Amendment, with passage of the Act of June 2, 1924 (Public Law 68–233; 43 Stat. 253) (commonly known as the
Indian Citizenship Act of 1924), States continued to deploy distinct methods for disenfranchising Indians by enacting statutes to exclude from voter rolls Indians living on reservations, requiring that Indians first terminate their relationship with their Indian Tribe, restricting the right to vote on account of a Tribal member’s
guardianship status, and imposing literacy tests.
Barriers to voter access for Native Americans persist today, and such barriers range from obstructing voter access, to vote dilution and intentional malapportionment of electoral districts.
The Native American Voting Rights Coalition’s recent 9 field hearings in Indian Country and 4-State survey of voter discrimination revealed a number of additional obstacles that Native Americans must overcome in some States, including—
a lack of accessible registration and polling sites, either due to conditions such as geography, lack of paved roads, the absence of reliable and affordable broadband connectivity, and restrictions on the time and place that people can register and vote, and the manner in which people can register and vote, including unequal opportunities for absentee, early, mail-in, and in-person voting;
nontraditional addresses for residents on Indian reservations, which make voter registration, acquisition of mail-in ballots, and securing required identification difficult, if not impossible;
inadequate language assistance for Tribal members, including lack of outreach and publicity, the failure to provide complete, accurate, and uniform translations of all voting materials in the relevant Native language, and an insufficient number of trained bilingual poll workers; and
voter identification laws that discriminate against Native Americans.
The Department of Justice and courts have also recognized that some jurisdictions have been unresponsive to reasonable requests from federally recognized Indian Tribes for more accessible voter registration sites and in-person voting locations.
According to the National Congress of American Indians, there is a wide gap between the voter registration and turnout rates of eligible American Indians and Alaska Natives, and the voter registration and turnout rates of non-Hispanic White and other racial and ethnic groups.
Despite these obstacles, the Native American vote continues to play a significant role in national, State, and local elections.
In Alaska, New Mexico, Oklahoma, and South Dakota, Native Americans comprise approximately 10 percent or more of the voting population.
The Native American vote also holds great potential, with over 1,000,000 voters who are eligible to vote, but are not registered to vote.
The purposes of this Act are—
to fulfill the Federal Government’s trust responsibility to protect and promote Native Americans’ exercise of their constitutionally guaranteed right to vote, including the right to register to vote and the ability to access all mechanisms for voting;
to establish preclearance procedures for a specific subset of State actions that have been used to restrict access to the polls on Indian lands;
to expand voter registration under the National Voter Registration Act of 1993 (52 U.S.C. 20506 et seq.) to cover all Federal facilities, at the request of the Indian tribe;
to afford equal treatment to forms of identification unique to Indian Tribes and their members;
to clarify the obligations of States and political subdivisions regarding the provision of translated voting materials for American Indians and Alaska Natives under section 203 of the Voting Rights Act of 1965 (52 U.S.C. 10503);
to provide Tribal leaders with a direct pathway to request Federal election observers, and to allow public access to the reports of those election observers; and
to direct the Department of Justice to consult on an annual basis with Indian Tribes on issues related to voting.
In this Act:
The term Indian has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
The term Indian lands includes—
any Indian country of an Indian Tribe, as defined under section 1151 of title 18, United States Code;
any land in Alaska owned, pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), by an Indian Tribe that is a Native village (as defined in section 3 of that Act (43 U.S.C. 1602)) or by a Village Corporation that is associated with an Indian Tribe (as defined in section 3 of that Act (43 U.S.C. 1602));
any land on which the seat of the Tribal Government is located; and
any land that is part or all of a Tribal designated statistical area associated with an Indian Tribe, or is part or all of an Alaska Native village statistical area associated with an Indian Tribe, as defined by the Census Bureau for the purposes of the most recent decennial census.
The term Indian Tribe has the meaning given the term Indian tribe in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
The term Tribal Government means the recognized governing body of an Indian Tribe.
Establishment of a Native American voting task force grant program
The Office for Civil Rights at the Office of Justice Programs of the Department of Justice (referred to in this section as the
Office) shall establish and administer, in coordination with the Department of the Interior, a Native American voting task force grant program, through which the Office shall provide financial assistance to eligible applicants to enable those eligible applicants to establish and operate a Native American Voting Task Force in each State with a federally recognized Indian Tribe.
The purpose of the Native American voting task force grant program is to—
increase voter outreach, education, registration, and turnout in Native American communities;
increase access to the ballot for Native American communities, including additional satellite, early voting, and absentee voting locations;
streamline and reduce inconsistencies in the voting process for Native Americans;
provide, in the community’s dominant language, educational materials and classes on Indian lands about candidacy filing;
train and educate State and local employees, including poll workers, about—
the language assistance and voter assistance requirements under sections 203 and 208 of the Voting Rights Act of 1965 (52 U.S.C. 10503; 10508); and
voter identification laws under section 8 of this Act;
identify model programs and best practices for providing language assistance to Native American communities;
provide non-partisan poll watchers on election day in Native American communities;
participate in and evaluate future redistricting efforts;
address issues of internet connectivity as it relates to voter registration and ballot access in Native American communities; and
facilitate collaboration between local election officials, Native American communities, and Tribal elections offices.
The term eligible applicant means—
an Indian Tribe;
a Secretary of State of a State, or another official of a State entity responsible for overseeing elections;
a nonprofit organization that works, in whole or in part, on voting issues; or
a consortium of one or more of the entities described in paragraphs (1) through (3).
Application and selection process
The Office, in coordination with the Department of the Interior and following consultation with Indian Tribes about the implementation of the Native American voting task force grant program, shall establish guidelines for the process by which eligible applicants will submit applications.
Each eligible applicant desiring a grant under this section shall submit an application, according to the process established under paragraph (1), and at such time, in such manner, and containing such information as the Attorney General may require. Such application shall include—
a certification that the applicant is an eligible applicant;
a proposed work plan addressing how the eligible applicant will establish and administer a Native American Voting Task Force that achieves the purposes described in subsection (b);
if the eligible applicant is a consortium as described in subsection (c)(4), a description of the proposed division of responsibilities between the participating entities; and
an explanation of the time period that the proposed Native American Voting Task Force will cover, which shall be a time period that is not more than 3 years.
Uses of funds
A grantee receiving funds under this section shall use such funds to carry out one or more of the activities described in subsection (b), through the grantee's Native American Voting Task Force.
Relationship with other laws
Nothing in this section reduces State or local obligations provided for by the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.), the National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.), the Help America Vote Act of 2002 (52 U.S.C. 20901 et seq.), or any other Federal law or regulation related to voting or the electoral process.
Authorization of appropriations
There are authorized to be appropriated to carry out this section $10,000,000 for each of fiscal years 2019 through 2034.
Tribal designated voter registration sites
Section 7(a) of the National Voter Registration Act of 1993 (52 U.S.C. 20506(a)) is amended—
in paragraph (2)—
in subparagraph (A), by striking
and after the semicolon;
in subparagraph (B), by striking the period at the end and inserting a semicolon; and
by adding at the end the following:
at the request of an Indian Tribe, any Federal facility or federally funded facility that is primarily engaged in providing services to Indian Tribes and that provides such services to the requesting Indian Tribe; and
at the request of an Indian Tribe, not less than one Federal facility or federally funded facility that is located on the Indian lands of the requesting Indian Tribe (which may be the Federal facility or federally funded facility described in subparagraph (C)).
by adding at the end the following:
Where practicable, each Federal agency that operates a Federal facility or a federally funded facility that is subject to the provisions of paragraph (2) (C) or (D), shall designate one or more special days at a centralized location within the boundaries of the Indian lands of each applicable Indian Tribe for the purpose of informing members of the Indian Tribe of the timing, registration requirements, and voting procedures in elections for Federal office, at no cost to the Indian Tribe.
Accessible tribal designated polling sites
Designation of state officer
Each of the several States whose territory contains all or part of an Indian Tribe’s Indian lands shall designate for each Indian Tribe an officer within that State who will be responsible for compliance with the provisions of section. The State shall provide written notice to each such Indian Tribe of the officer so designated.
Provision of polling places
For each Indian Tribe that satisfies the obligations of subsection (c), and for each election for a Federal official that is held 180 days or later after the date on which the Indian Tribe initially satisfies such obligations, any State or political subdivision whose territory contains all or part of an Indian Tribe’s Indian lands—
shall provide a minimum of one polling place for each precinct in which there are eligible voters who reside on Indian lands, in a location selected by the Indian Tribe and at no cost to the Indian Tribe;
shall provide, at no cost to the Indian Tribe, additional polling places in locations selected by an Indian Tribe if, based on the totality of circumstances described in subsection (b), it is shown that not providing those additional polling places would result in members of the Indian Tribe and individuals residing on the Indian Tribe’s Indian lands having less opportunity to vote than eligible voters in that State or political subdivision who are not members of an Indian Tribe and do not reside on Indian lands;
shall, at each polling place located on Indian lands and at no cost to the Indian Tribe, make voting machines, tabulation machines, ballots, provisional ballots, and other voting materials available to the same extent that such equipment and materials are made available at other polling places in the State or political subdivision that are not located on Indian lands;
shall, at each polling place located on Indian lands, conduct the election using the same voting procedures that are used at other polling places in the State or political subdivision that are not located on Indian lands;
shall, at each polling place located on Indian lands, provide training, compensation, and other benefits to election officials and poll workers at no cost to the Indian Tribe and to the same extent that such training, compensation, and benefits are provided to election officials and poll workers at other polling places in the State or political subdivision that are not located on Indian lands;
shall cooperate in good faith with the efforts of the Indian Tribe to satisfy the requirements of subsection (c); and
may fulfill the State’s obligations under subparagraphs (A) and (B) by relocating existing polling places, by creating new polling places, or both.
Equitable opportunities To vote
When assessing the opportunities to vote provided to members of an Indian tribe and to other eligible voters in the State residing on Indian lands in order to determine the number of additional polling places (if any) that a State or political subdivision must provide in accordance with subsection (a)(2)(B), the State, political subdivision, and any court applying this section, shall consider the totality of circumstances of—
the number of voting-age citizens assigned to each polling place;
the distances that voters must travel to reach the polling places;
the time that voters must spend traveling to reach the polling places, including under inclement weather conditions;
the modes of transportation, if any, that are available to voters to use to reach the polling places;
the existence of and access to public transportation to the polling places; and
any other factor relevant to effectuating the purposes of this Act.
Obligations of the Indian Tribe
The State and political subdivision obligations under subsection (a)(2) shall apply with respect to an Indian Tribe only if that Indian Tribe files a standing request with the officer designated under subsection (a)(1) for a polling place or polling places for future elections, pursuant to subsection (a)(2)(A), or subsection (a)(2)(B) (if applicable), which—
specifies the number and locations of such polling places that the Indian Tribe is requesting;
certifies that the Indian Tribe has arranged access to the facilities in which such polling places will be located, and that such access is in accordance with Federal and State law;
certifies that the Indian Tribe will ensure that each such polling place will be open and available to all eligible voters who reside in the precinct or other geographic area assigned to such polling place, regardless of whether such eligible voters are members of the Indian Tribe or of any other Indian Tribe; and
requests that the State shall designate election officials and poll workers to staff such polling places, or certifies that the Indian Tribe will designate election officials and poll workers to staff such polling places on every day that the polling places will be open.
At any time that is 60 days or more before the date of an election, an Indian Tribe that previously has satisfied the obligations of paragraph (1) may notify the State that the Indian Tribe intends to opt out of the standing request for one or more polling places that were requested in accordance with subsection (a)(2)(A) or subsection (a)(2)(B) for a particular election or for all future elections.
Federal polling sites
At an Indian Tribe’s request, each State shall designate as voter polling facilities any of the facilities identified in accordance with section 7(a)(2) (C) or (D) of the National Voter Registration Act of 1993 (52 U.S.C. 20506(a)(2)), at no cost to the Indian Tribe, provided that the facility meets the requirements of Federal and State law as applied to other polling places within the State or political subdivision. The applicable agency of the Federal Government shall ensure that such designated facilities are made available as polling places.
In States or political subdivisions that permit absentee or mail-in balloting, the following shall apply with respect to an election for Federal office:
All postage shall be prepaid by the Federal Government and each ballot postmarked the day the ballot is received at a postal facility located on Indian lands.
An Indian Tribe may designate a Tribal Government building as a ballot pickup and collection location at no cost to the Indian Tribe. The applicable State or political subdivision shall collect ballots from that location.
The State or political subdivision shall provide mail-in and absentee ballots to each registered voter residing on Indian lands in the State or political subdivision without requiring a residential address, a mail-in or absentee ballot request, or an excuse for a mail-in or absentee ballot.
The address of a designated Tribal Government building that is a ballot pickup and collection location under paragraph (2) may serve as the address and mailing address for voters living on Indian lands if the designated Tribal Government building is in the same precinct as that voter. If such designated Tribal Government building is not in the same precinct as the voter, the voter may use the designated Tribal Government building as a mailing address and may separately designate the voter's appropriate precinct through a description of the voter's address, as specified in section 9428.4(a)(2) of title 11, Code of Federal Regulations.
In the case of a State or political subdivision that is a covered State or political subdivision under section 203 of the Voting Rights Act of 1965 (52 U.S.C. 10503), that State or political subdivision shall provide absentee or mail-in voting materials in the language of the applicable minority group as well as in the English language, bilingual election voting assistance, and written translations of all voting materials in the language of the applicable minority group, as required by section 203 of the Voting Rights Act of 1965 (52 U.S.C. 10503), as amended by this Act.
In a State or political subdivision that provides for early voting, that State or political subdivision shall provide not less than one early voting location on Indian lands, upon the request of the applicable Indian Tribe and at a site selected by the applicable Indian Tribe.
The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as is necessary to carry out this section.
Private right of action
A person or Tribal Government who is aggrieved by a violation of this section may provide written notice of the violation to the chief election official of the State involved.
An aggrieved person or Tribal Government may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to a violation of this section, if—
that person or Tribal Government provides the notice described in subparagraph (A); and
in the case of a violation that occurs more than 120 days before the date of an election for Federal office, the violation remains and 90 days or more have passed since the date on which the chief election official of the State receives the notice under subparagraph (A); or
in the case of a violation that occurs 120 days or less before the date of an election for Federal office, the violation remains and 20 days or more have passed since the date on which the chief election official of the State receives the notice under subparagraph (A).
In the case of a violation of this section that occurs 30 days or less before the date of an election for Federal office, an aggrieved person or Tribal Government may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation without providing notice to the chief election official of the State under subparagraph (A).
Rule of construction
Nothing in this section shall be construed to prevent a State or political subdivision from providing additional polling places on Indian lands if no request was made by an Indian Tribe under this section.
Actions requiring preclearance
No State or political subdivision may carry out any of the following activities unless the requirements of subsection (b) have been met:
Eliminating the only polling place or voter registration site on the Indian lands of an Indian Tribe.
Moving or consolidating a polling place or voter registration site on the Indian lands of an Indian Tribe to a location 1 mile or further from the existing location of the polling place or voter registration site.
Moving or consolidating a polling place on the Indian lands of an Indian Tribe to a location across a river, lake, mountain, or other natural boundary such that it makes travel difficult for a voter, regardless of distance.
Eliminating in-person voting on the Indian lands of an Indian Tribe by designating an Indian reservation as a permanent absentee voting location, unless—
the entire State is or becomes a permanent absentee voting State; or
the Indian Tribe requests such a designation.
Removing an early voting location or otherwise diminishing early voting opportunities on Indian lands.
Decreasing the number of days or hours that an in-person or early voting location is open on the Indian lands of an Indian Tribe or changing the dates of in-person or early voting on the Indian lands of an Indian Tribe.
The requirements of this subsection have been met if—
the impacted Tribal Government submits to the Attorney General the Tribal Government's written consent to the proposed activity described in subsection (a);
the State or political subdivision institutes an action in the United States District Court for the District of Columbia for a declaratory judgment, and a declaratory judgment is issued, establishing that the specified activity described in subsection (a) that the State or political subdivision desires to carry out neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or membership in a language minority group; or
the chief legal officer or other appropriate official of such State or political subdivision submits a request to carry out the specified activity described in subsection (a) to the Attorney General and the Attorney General has not interposed an objection within 60 days after such submission, or upon good cause shown, to facilitate an expedited approval within 60 days after such submission, the Attorney General has affirmatively indicated that such objection will not be made.
No limitation on future actions
Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section, nor a written consent issued under paragraph (1)(A) shall bar a subsequent action to enjoin enforcement of an activity described in subsection (a). In the event the Attorney General affirmatively indicates that no objection will be made within the 60-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to the Attorney General’s attention during the remainder of the 60-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of 3 judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.
Tribal voter identification
Tribal government identification
If a State or political subdivision requires an individual to present identification for the purposes of voting or registering to vote in an election for Federal office, an identification card issued by a federally recognized Tribal Government, the Bureau of Indian Affairs, the Indian Health Service, or any other Tribal or Federal agency issuing identification cards to Indian voters shall be treated as a valid form of identification for such purposes.
Validity of tribal identification card
An individual shall not be required to show that a Tribal identification card includes a residential address or an expiration date in order for such Tribal identification card to be considered valid for purposes of voting or registering to vote. The voter may instead separately designate the voter's appropriate voting precinct through a description of the voter's address that conforms with the regulations for national mail voter registration forms, as established under section 9428.4(a)(2) of title 11, Code of Federal Regulations.
If a State or political subdivision requires an identification card for an individual to register to vote online or to vote online, that State or political subdivision shall consider an identification card as described in subsection (a) to be a valid form of identification for the purpose of registering to vote online or voting online.
Bilingual election requirements
Section 203 of the Voting Rights Act of 1965 (52 U.S.C. 10503) is amended—
in subsection (b)(3)(C), by striking
1990 and inserting
by striking subsection (c) and inserting the following:
Provision of voting materials in the language of a minority group
Whenever any State or political subdivision subject to the prohibition of subsection (b) of this section provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable minority group as well as in the English language.
In the case of a minority group that is not American Indian or Alaska Native and the language of that minority group is oral or unwritten, the State or political subdivision shall only be required to furnish, in the covered language, oral instructions, assistance, translation of voting materials, or other information relating to registration and voting.
In the case of a minority group that is American Indian or Alaska Native, the State or political subdivision shall only be required to furnish in the covered language oral instructions, assistance, or other information relating to registration and voting, including all voting materials, if the Tribal Government of that minority group has certified that the language of the applicable American Indian or Alaska Native language is presently unwritten or the Tribal Government does not want written translations in the minority language.
Written translations for election workers
Notwithstanding paragraph (2), the State or political division may be required to provide written translations of voting materials, with the consent of any applicable Indian Tribe, to election workers to ensure that the translations from English to the language of a minority group are complete, accurate, and uniform.
Federal observers to protect tribal voting rights
Amendment to the Voting Rights Act of 1965
Section 8(a) of the Voting Rights Act of 1965 (52 U.S.C. 10305(a)) is amended—
in paragraph (1), by striking
or after the semicolon;
in paragraph (2)(B), by adding
or after the semicolon; and
by inserting after paragraph (2) the following:
the Attorney General has received a written complaint from an Indian Tribe that efforts to deny or abridge the right to vote under the color of law on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), are likely to occur;
Publicly available reports
The Attorney General shall make publicly available the reports of a Federal election observer appointed pursuant to section (8)(a)(3) of the Voting Rights Act of 1965 (52 U.S.C. 10305(a)(3)), as added by subsection (a), not later than 6 months after the date that such reports are submitted to the Attorney General, except that any personally identifiable information relating to a voter or the substance of the voter’s ballot shall not be made public.
Tribal voting consultation
The Attorney General shall consult annually with Indian Tribes regarding issues related to voting in elections for Federal office.
Attorneys’ fees, expert fees, litigation expenses
In a civil action under this Act, the court shall award the prevailing party, other than the United States, reasonable attorney fees, including litigation expenses, reasonable expert fees, and costs.
Severability; Relationship to other laws
If any provision of this Act, or the application of such a provision to any person, entity, or circumstance, is held to be invalid, the remaining provisions of this Act and the application of all provisions of this Act to any other person, entity, or circumstance shall not be affected by the invalidity.
Relationship to other laws
Nothing in this Act shall invalidate, or limit the rights, remedies, or procedures available under, or supersede, restrict, or limit the application of, the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.), the National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.), the Help America Vote Act of 2002 (52 U.S.C. 20901 et seq.), or any other Federal law or regulation related to voting or the electoral process.
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this Act.