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General Memorandum 14-041

General Memorandum 14-041
Native Voting Rights Legislation Introduced; Justice Department Initiates Consultation on Improving Native Voting Access

On May 22, 2014, Senator Begich (D-AK) introduced the Native Voting Rights Act of 2014 (S 2399). The bill's purpose is to ensure that Native Americans have equal access to the polls. The bill is cosponsored by Senators: Heitkamp (D-ND); Hirono (D-HI); Johnson (D-SD); Schatz (D-HI); Tester (D-MT); and Walsh (D-MT). Native American voters living on Indian reservations have historically participated at much lower rates in elections due to barriers based on registration procedures, distance, language, and discrimination. Senator Begich, when introducing the bill, clarified that the Native Voting Rights Act is intended to supplement, not compete with, a broader voting rights act bill, S 1945, introduced earlier in the year by Senate Judiciary Committee Chairman Leahy (D-VT). The Begich bill has been referred to the Senate Judiciary Committee.

Below are the major provisions of the Native Voting Rights Act bill.

Section 2 would require all states to recognize tribal identification cards for voter registration and voting purposes. It would also authorize the Justice Department to bring cases against states or political subdivisions of a state under Section 2 of the Voting Rights Act of 1965. Section 2 prohibits voting practices or procedures that discriminate on the basis of race, color, or language. The bill would give the Justice Department the authority to act in cases where it finds that Indians have less opportunity to vote in person than do non-Indians. A court could order a state or subdivision to increase the number of polling stations in order to remedy the disparity. The bill would allow private individuals to also bring disparate voting access claims.

Section 3 is intended to address the effects of the Supreme Court's 2013 decision in Shelby County v. Holder which held that Section 4(b) of the Voting Rights Act was unconstitutional. Section 4(b) established a formula to determine which states and subdivisions fell under the coverage of Section 5 which requires them to get preclearance before changing their voting laws. See our General Memorandum 13-061 (June 28, 2013) for further coverage of the Shelby County decision. S 2399 would create new criteria that would trigger Section 5 preclearance requirements for states and subdivisions seeking to change voting procedures in Indian Country. The new criteria would be:

1. eliminating the only polling place or voter registration site in a village or reservation
2. moving or consolidating a polling place or voter registration site one mile or further away from its existing location
3. moving or consolidating a polling place across a river, lake, mountain, or other natural boundary that makes travel difficult for a voter, regardless of distance
4. eliminating in-person voting by designating a village or reservation as a permanent absentee voting location
5. removing an early voting location or otherwise diminishing early voting opportunities, and
6. reducing the dates or hours that an in-person or early voting location is open

The criteria in the Begich bill would supplement the new standards in the Leahy bill (the Voting Rights Amendment Act of 2014) that would replace the old Section 4 standards struck down by the Supreme Court.

Section 4 would give the Justice Department the authority to assign federal election observers at the request of a tribe when there is a polling location located on tribal lands and where the tribe has alleged that the state or subdivision has tried to restrict the right of its members to vote.

Section 5 would provide that, if assigned, federal election observers may stay until the following Presidential election is concluded.

Section 6 would define "Indian tribe," "Tribal organization" and "Member of an Indian tribe" as in Section 4 of the Indian Self-Determination Act and includes members of Native Corporations as defined in Section 6 of the Alaska Native Claims Settlement Act.

Section 7 would provide protections for Native American voters who have trouble understanding voting materials written in English. Section 203 of the Voting Rights Act is intended to eliminate voting discrimination against voters who do not speak or write in English. It applies in jurisdictions where there are high concentrations of non-English speaking voters and in certain areas of Indian Country. Section 203 defines Indian reservations broadly and in 2011 the Census Bureau published a list of covered Section 203 jurisdictions, over 100 of which include Indian reservations, Oklahoma Tribal Statistical Areas, State-Designated American Indian Statistical Areas, and Alaska Native Village Statistical Areas. Section 203 requires states and subdivisions to provide translated materials to voters in covered jurisdictions but does not require them to translate for languages which are "historically unwritten." The Begich bill would clarify that if a Native American language is presently written (even if it was historically unwritten) then a state or subdivision in a Section 203 jurisdiction would have to provide translated voting materials.

Section 8 would require public disclosure of these federal election observer reports no later than 6 months following their finalization.

Section 9 would encourage the Justice Department to consult with tribes on a yearly basis regarding Native American voting rights.

Justice Department Consultation on Native Voting Rights. On June 9, 2014, Attorney General Holder, in his weekly video message, brought forth the suggestion of requiring election administrators whose territory includes tribal lands to place at least one polling place in a location chosen by the tribe. He said that the Justice Department will begin consultation with tribes on this matter. On the same day, Associate Attorney General Tony West addressed the National Congress of American Indians conference in Anchorage on the idea of tribally-designated polling places. The Attorney General's video message is available at http://www.justice.gov/agwa.php and Associate Attorney General West's address at the NCAI conference is available at:
http://www.justice.gov/iso/opa/asg/speeches/2014/asg-speech-140609.html

Please let us know if we may provide additional information regarding the Begich or other voting rights legislation.

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Inquiries may be directed to
Chris Stearns (cstearns@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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