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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 15-063

General Memorandum 15-063
Native American Voting Rights Legislation Introduced

On July 30, 2015, Senator Tester (D-MT) introduced S 1912, the Native American Voting Rights Act of 2015. The bill is intended to strengthen voter protections and increase access to the polls for Native Americans. It was referred to the Judiciary Committee. Original cosponsors are Senators Franken (D-MN), Heitkamp (D-ND), and Udall (D-NM). Native American voters living on Indian reservations have historically participated at much lower rates in elections due in part to barriers based on registration procedures, distance, language, and discrimination.

We reported on the Department of Justice's draft tribal voting rights bill in our General Memorandum 15-040 of June 5, 2015. S 1912 includes some, but not all, of the provisions of the Department of Justice draft bill.

The bill defines "Indian reservation" as in Section 203 of the Voting Rights Act of 1965 (52 U.S.C. §10503): "the term 'Indian reservation' means any area that is an American Indian or Alaska Native area, as defined by the Census bureau for the purposes of the 1990 decennial census." (The bill would amend the Voting Rights Act to substitute 2010 for the 1990 census.)

We summarize the major provisions of S 1912 below.

Section 3 would require state preclearance before any of the following actions could be taken on an Indian reservation:
• Eliminating the only polling place or voter registration site;
• Moving or consolidating a polling place or voter registration site one mile or further away from its existing location;
• 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;
• Eliminating in-person voting by designating a village or reservation as a permanent absentee voting location;
• Removing an early voting location or otherwise diminishing early voting opportunities;
• Reducing the dates or hours that an in-person or early voting location is open.

Section 4 would provide tribes with the assurance of polling places within their lands. It would require each state that has at least one Indian reservation to designate a compliance officer for each reservation in that state and to notify each tribe who that officer is. Upon request and a showing that certain requirements are met, the state would be required to provide at least one polling place on each reservation. The state would be required to provide additional polling places if the tribe can show that they are needed to ensure that tribal members have the same opportunity to vote as other citizens. The exact number of additional polling places would be determined by a formula that takes into account the number of eligible voters, distance to the polls, time required to get to the polls, the modes of transportation voters use to get to the polls, and the availability of public transportation. The tribe would be required to first certify that all voters will have access to the additional polling places, and that the polls will be staffed with trained workers.

Section 4 also provides that, upon request of a tribe, states which allow absentee or mail-in voting shall provide all registered voters on the reservation absentee ballots. In this case, the reservation is to be designated an absentee ballot location. Furthermore, states that provide for early voting must provide at least one early voting location on each reservation upon request. Tribes may use federal facilities such as Indian Health Service or Bureau of Indian Affairs facilities as polling locations.

Section 4 would reject the attempts of certain states to restrict acceptable voter identification. The bill would require that states accept tribal identification as a valid form of identification. It would also give both the Justice Department and tribes the power to bring an enforcement action against a state that violates the Act.

Section 5 of the bill would provide protections for Native American voters who have difficulty 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. (See our General Memorandum 11-118 of October 21, 2011.) 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." S 1912 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 be required to provide translated voting materials.

Section 6 would require the Office of Personnel Management to assign federal election observers when the U.S. Attorney General certifies that he or she has received a written complaint from a tribe alleging that a state or subdivision is likely to restrict the right of its members to vote.

Section 7 would require public disclosure of federal election observer reports no later than six months following their finalization.

Section 8 would encourage the Justice Department to consult with tribes on a yearly basis regarding Native American voting rights.

Section 9 would allow a court to award attorney fees to the prevailing party, except when the prevailing party is the United States.

Please let us know if we may provide additional information regarding S 1912, the Native American Voting Rights Act.

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

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