Published on March 28th, 2016 | by Meteor Blades1
Arizona primary voter suppression – they’ve been doing it to Native Americans for years
Those long lines at the polling stations in Maricopa County, Arizona, during last week’s primary elections were, at least in part, a product of the U.S. Supreme Court’s Shelby County ruling three years ago – a decision that wrecked a key element of the Voting Rights Act.
Because of past discrimination, Arizona was one of the nine states that were previously required under the VRA to “pre-clear” any changes in its election laws with the Department of Justice or the courts. But since Shelby, neither Arizona nor the rest of those states have to get such changes approved in advance.
In effect, ending “pre-clearance” gave a green light to current discrimination.
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American Indians had no reason to be surprised by what happened last week in Arizona. In 1928, four years after the federal Snyder Act made all Indians citizens, the Arizona Supreme Court ruled against a Pima man from the Gila River Reservation’s right to vote on the grounds that the state constitution denied the vote to “mental incompetents and people under guardianship.”
The Nationality Act of 1940 reaffirmed the citizenship of all Indians living on or off reservations. But after the war, Arizona denied federal benefits to Indians even though they had paid taxes to fund them.
In 1947, two World War II veterans, both Yavapai from the Fort McDowell Reservation, tried to vote in Maricopa County, but were refused. A state superior court ruled against the two. In New Mexico, another veteran, this one from the Isleta Pueblo, ran into the same problem when he tried to vote. The lower courts ruled against him. But in 1948, both men won their cases on appeal.
That didn’t stop Arizona and many other states from trying to suppress voting by American Indians. And those efforts—more subtle (or sneaky) than in the old days, just as Jim Crow is more subtle than it used to be—continue right up to the present. Hardly a year goes by that a lawsuit isn’t filed in one state or another against such discriminatory machinations.
Three weeks ago, Suzette Brewer at Indian County Today noted that Native people in 17 mostly Western states are at risk for voter suppression. Litigation is ongoing in many of them.
A couple of cases Brewer highlights:
In Utah, the Navajo Nation has brought suit against San Juan County, the state’s largest, for gerrymandering the county’s districts to lessen the impact of the Native majority; a second suit by the nation claims voting access was unfairly restricted, with some Navajo driving upwards of ten hours round-trip to polling stations. […]
In Arizona, tribal members who use post office boxes on their IDs because they have no official address have been purged from the rolls or placed on a “suspense” list because they live in remote rural areas with no street names.
At Mother Jones, Edwin Rios points to some others, including:
Brakebill v. Jaeger: In January, seven members of the Turtle Mountain Band of Chippewa Indians filed a lawsuit against North Dakota State Secretary Alvin Jaeger, alleging that the strict requirements under the state’s voter ID law imposed a discriminatory burden on Native Americans. When the state enacted House Bill 1332 in April 2013, it limited the forms of permissible identification at voting booths, required forms of identification to display the voter’s home address and date of birth, and eliminated a provision that allowed voters to use a voucher or affidavit if they failed to bring an ID. The lawsuit alleges that the bill “disenfranchised and imposed significant barriers for qualified Native American voters by establishing strict voter ID and residence requirements.”
As noted above, attempting to keep American Indians away from the ballot box has been going on ever since the majority of Natives gained the right to vote 92 years ago via the Indian Citizenship Act of 1924, also known as the Snyder Act. As we’ve seen, making that law stick requires challenging discriminatory laws and actions. And that requires going to court, an expensive and difficult task for the tribes or for individual Indians.
The Indian vote matters. In all but seven states, Indians constitute fewer than 5 percent of the eligible voters. In only four states—Alaska, New Mexico, South Dakota, and Oklahoma—do they account for more than 7.5 percent of the total population. But even in some cases where they count for no more than 1 to 2 percent of the population, Indian voters have been critical to the success of candidates for public office, and Democrats have usually been the beneficiaries.
From the founding of the Republic, American Indians had been denied citizenship except when they became naturalized, or under special statute or treaty. But to become a citizen and exercise the franchise required Indians to renounce their tribal citizenship, give up their culture and language, and assimilate into the dominant culture. In other words, they had to stop being Indians.
The 14th Amendment, which gave citizenship and the vote to any male born in the territory of the United States, specifically excluded Indians, just as the original Constitution had done. But the phrase “Indians not taxed” was taken by many legal scholars and politicians at the time the amendment was ratified to exclude only tribal Indians—that is, those whose land was held in trust by the U.S. government and therefore not taxed. But in the case of Elk v. Wilkins (1884), the Supreme Court held that Indians who voluntarily severed all ties to their tribes and paid taxes did not automatically gain citizenship.
It was not until after World War I that the situation began to change. More than 7,000 Indians served in the military during the war. In recognition of that,Congress passed legislation in 1919 stating that all Indians who had served honorably in the armed forces were granted American citizenship. That, plus the suffragists’ hard-won success at gaining the vote for women, spurred a movement to extend the franchise to all Indians. And under the Indian Citizenship Act of 1924, all Indians were granted citizenship and with it, of course, the right to vote.
That should have ended the matter. But it didn’t.
Some states continued to deny Indians the right to vote by means of poll taxes, literacy tests, and pure intimidation, just as the Jim Crow laws of the South were used to keep blacks from voting.
The courts affirmed the right of reservation Indians in Arizona and New Mexico to vote in 1948. But other states continued using various justifications for keeping Indians from voting. Colorado, Maine, Mississippi, Montana, Nebraska, Utah, Washington, and Wyoming all found means to block or dilute the Indian vote.
Although it’s not widely known, the Voting Rights Act of 1965 included American Indians in its mandate. Because of the act, Indians on the Ute reservations of southwestern Colorado finally obtained guaranteed voting rights in 1970. Under Section 5 of the Voting Rights Act (the teeth-filled section of the law made mute by the Supreme Court in 2013’s Shelby ruling), certain states or selected counties of states that previously employed discriminatory means to restrict voting by people of color were required to get federal approval in advance of any changes in voting laws or practices before they can be implemented. Brewer writes:
Almost immediately after the 2013 decision, states and counties moved swiftly to enact more restrictive voter identification laws; close and/or move polling places further away from Indian reservations and Indian communities; purge voter rolls; limit access to late registration and absentee ballots; initiate “mail-only” balloting; and ignore provisions in the act which require access to translation and other forms of assistance for voters who may have limited language or literacy, according to voting rights experts.
Moreover, tribal nations have been forced to sue election commissions for their refusal to redraw voting districts based on current Census data―known as “packing”―in order to maintain a white majority in voting districts which are, in fact, majority Native.
Section 5 had been used during the 21st century to force state and local authorities to change racist practices curtailing the Indian vote. Here are two instances:
No state has been as bad as South Dakota, a state where there are seven Lakota (Sioux) reservations, collectively known as the Oceti Sakowin, which means the “seven council fires” in Lakota. Slightly more than 8 percent of the population is Indian, concentrated in a few counties.
Having ignored the 1924 citizenship act, it took until 1951 for South Dakota to repeal a 1903 law requiring a culture test for Indians to prove they had abandoned their identity as Indians, their culture, their language, and their homeland in order to vote or hold office. As late as 1975, authorities prohibited Indians from voting in elections in Todd, Shannon (now Ogala Lakota), and Washabaugh counties, where residents are overwhelmingly Indian. The state also prohibited residents of these counties from holding county office until as recently as 1980.
But decades later, South Dakota has continued suppressing Indian voting rights.
As a result of the 1975 amendments of the Voting Rights Act, the counties of Shannon and Todd, home to the Pine Ridge and Rosebud Indian reservations respectively, became subject to pre-clearance. Eighteen other counties, because of their large Indian populations, were required to conduct bilingual elections. The state’s Republican attorney general and notorious Indian-hater, William “Wild Bill” Janklow, was infuriated.
In a formal opinion addressed to the secretary of state, he derided the 1975 amendment and called the Voting Rights Act itself an unconstitutional federal encroachment that rendered state power “almost meaningless.” He quoted Justice Hugo Black’s dissent in South Carolina v. Katzenbach (which held the basic provisions of the Voting Rights Act constitutional), saying that Section 5 treated covered jurisdictions as “little more than conquered provinces.” That’s a remarkably ironic assertion given the history of U.S. and South Dakota double-dealing with the tribes.
Meanwhile, Janklow advised the secretary of state not to comply with the pre-clearance requirement in 1977. He said, “I see no need to proceed with undue speed to subject our state’s laws to a ‘one-man veto’ by the United States Attorney General.” When a U.S. Commission on Civil Rights report confirmed that South Dakota had violated the civil rights of Native Americans, Janklow called the report “garbage.”
State officials went along with him. From 1976 until 2002, they passed more than 600 election-related statutes and regulations that affected Shannon and Todd counties, including a state redistricting plan. But fewer than 10 of these changes were submitted for pre-clearance. After two lawsuits in 1978 and 1979, the federal Department of Justice simply ignored South Dakota’s Section 5 scofflaws. You read that right. Nobody from the Department of Justice did squat to stop the racist application of voting laws in South Dakota for nearly 23 years.
Finally, in 2002, the American Civil Liberties Union filed a federal court challenge to these laws on behalf of four Lakota voters. Most of the 600 laws passed without pre-clearance were not objectionable. But the ACLU identified a dozen that were discriminatory. The lawsuit sought a court order prohibiting the state from implementing any of the statutes until South Dakota complied with Section 5. The federal court entered a consent order in December 2002 that directed South Dakota to develop a comprehensive plan “that will promptly bring the State into full compliance with its obligations under Section 5.” That process was completed in 2006.
Such slaps in the face haven’t stopped South Dakota from trying other shenanigans, such as restrictions on the days allowed for early voting in reservation-dominated counties, and limiting the number of polling stations.
Another recent instance of institutionalized racial discrimination involved Fremont County, Wyoming. The county has five commissioners. Even though the people of the Eastern Shoshone and Northern Arapaho tribes of the Wind River reservation make up 22 percent of the population of the county, none had ever been elected to a county commissioner post because at-large elections favored the non-Indian majority. An ACLU lawsuit was launched in 2005.
The county was represented by the right-wing Mountain States Legal Foundation, founded in 1977 by James Watt, the crooked Secretary of the Interior under Ronald Reagan. MSLF has a long history of suing over protections for sacred sites, opposing subsistence rights for Alaska Natives and representing clients who oppose tribal sovereignty. The Fremont case took five years to wind its way through the courts.
Before it was resolved, the negative publicity around it helped elect Keja Whiteman, a member of the Turtle Mountain Band of Chippewa whose husband is Arapaho, to the Fremont board of county commissioners.
In 2010, U.S. District Judge Alan B. Johnson ruled that the at-large system effectively diluted the votes of the county’s Indian population. He ordered the county to adopt a district system for its commissioners, with one district created in a way so that members of the two tribes are in the majority. Fremont County appealed the case and argued for a hybrid system of districts instead. The court threw that idea out. All five commissioners, who serve staggered four-year terms, have now been elected by district, with Whiteman having been re-elected in 2010.
There are a score of other cases undertaken because of redistricting plans designed to water down voting strength, unfounded allegations of election fraud on reservations, burdensome identification and registration requirements, lack of language assistance, distant polling stations, and noncompliance with the Voting Rights Act.
As Brewer laments, the return to “case-by-case” litigation because of Shelby has shifted the burden of proof for voting discrimination from the states onto the tribal governments and individual tribal members. These cases are expensive and time-consuming for the tribes, and point to the need for a resurrected Voting Rights Act that puts the onus back on the authorities to prove their laws don’t work to exclude Indians from the polls.
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Some sources for further reading:
Laughlin MacDonald’s American Indians and the Fight for Equal Voting Rights (2011)
Daniel McCool’s Native Vote (2007)
(Originally appeared at Dailykos)