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Voting from a Native American reservation is much harder than it should be

A legal expert explains the unique, underdiscussed voting struggles Native Americans face in Arizona.

DEA / G. CAPPELLI

As Election Day approaches, candidates are rallying their bases to vote. But for Native American voters in places like Arizona, access — not apathy — may be the biggest barrier to turnout.

After the Supreme Court invalidated parts of the 1965 Voting Act, Arizona (with the second-largest Native American population in the country) has passed restrictive measures that have been shown to target voters of color in particular.

Native voters have since been dealing with a new host of unique voting roadblocks, says Patricia Ferguson-Bohnee, a law professor at Arizona State University. For instance, those who live on reservations often don’t have standard addresses reflected on both the rolls and their photo ID, which are now used to verify a person’s polling location and eligibility to vote. Many have to deal with burdensome transportation — think traveling several hours — just to get to a polling place.

Even with mail-in ballots, a law passed after the Supreme Court’s ruling makes it illegal for most people to mail a ballot for someone else, unless they’re a caregiver or family member. This becomes a problem for those who don’t have access to neighborhood mailboxes, a local post office, or a car to get them to either.

These problems play out clearly among native populations in Arizona, says Ferguson-Bohnee. For example, only a quarter of Navajo Nation households have cars, and many people don’t receive mail at their home. So if a neighbor is going into town, the typical offer to drop off any mail becomes a problem if a mail-in ballot is involved.

“Unless that person is living with you or they’re your health care worker,” she says, “that person is subject to a Class 6 felony.”

Ferguson-Bohnee also serves as the coordinator for Arizona’s Native Vote Election Protection Project, a nonpartisan campaign group working to prevent Native American voters’ disenfranchisement. Vox spoke with her to examine what unique challenges Native American voters face today.

The interview has been edited for length and clarity.

Victoria Massie

How are Native Americans often left out of the kinds of conversations we have about voting rights access?

Patricia Ferguson-Bohnee

Well, first I think the Native American population is small compared to the other minority groups in the United States, and because of that, a lot of times, the issues that impact Native Americans aren't discussed. Also, there are places in the United States where Native Americans have some of the highest rates of poverty, which means they also have less access to vehicles. And we have places on reservations that don't have access to utilities, which includes water, electricity, telephone service, and also internet access. So there's just less access to information in Indian country. And one of those issues is the digital divide, and infrastructure.

The other issue deals with poverty. There have been efforts in the past to suppress the Native American vote, specifically to prevent Native Americans from even voting, denying that they are citizens. So really, the ability for Native Americans to participate in elections in states like Arizona didn't really start until the 1970s because of [native] language access issues [after certain counties were required to provide translation services to native voters]. Now we do have native languages that are covered. Specifically, in Arizona, nine out of 15 counties are covered for Native American languages.

Whether or not the counties are following the law with regards to that is a different issue. Counties that are following the law are doing that as a result of lawsuits that were brought to enforce the Voting Rights Act, specifically section 203, which is a language minority provision.

Victoria Massie

Arizona is becoming a major battleground state this election. How do Native Americans fit into the state's current electoral politics?

Patricia Ferguson-Bohnee

After the Voting Rights Act, English literacy requirements were banned; Native Americans in Arizona started participating in elections and started being elected to office. But there were challenges to that, and there continue to be challenges because we have a lot of individuals who live on reservations who don't have standard addresses.

So say, for example, in 2002, we had a very high Native American turnout. The election of Janet Napolitano [as governor] was credited with the Native American vote. They also had a gaming proposition on the ballot, and there was a big push for Native Americans to participate because their issues were actually on the ballot. They felt like they were a part of the process. Since that time, there have been a lot of changes in election administration, specifically laws that have been passed to suppress the vote. And I think one of those, most importantly, is the voter ID law.

The big issue with the voter ID law, and why it limits access disproportionately in the Native American community, is because if you vote by mail or early vote, you don't have to show an ID. So if there's in-person early voting available to you, you can participate in that. You don't have to show ID. But if you vote in person on Election Day, you have to show ID. We have elders who have never needed a photo ID [to vote] who have been turned away from the polls.

If you look at the statistics, there are actually a high number of people who aren't voting on Election Day because they don't have ID. They're either denied a ballot or they arrive at the polling place and they never return with ID. Under Arizona's law, you have to return with ID within five days of a federal election in order for your ballot to be counted [if you didn’t initially arrive to vote with an ID card]. So that's a barrier.

And that's a barrier for some of the reasons I mentioned earlier, which includes the types of ID that are allowed: a utility bill, a property tax statement, a vehicle registration card, vehicle insurance card — things that Native Americans are less likely to have.

[On] most reservations, most people do not receive mail at their homes, and they have nonstandard addresses. They have to sometimes travel an hour or more to receive their mail. In one county in particular, [the county] changed everyone's address, so that people's addresses didn't match the voting roster, so people were turned away from the polls.

All of these impact the ability of Native Americans to exercise their vote. I think because there's been more attention paid to Arizona this election cycle, there are going to be efforts to turn out the vote by both parties. In Arizona, we have more independents than Democrats or Republicans.

Also the rhetoric before the election has even happened, that the voting is rigged, is encouraging more people to volunteer as poll watchers. Those people can challenge voters, and depending on how it's done, that can have a negative impact on voters even though you're supposed to be ensuring that the law is followed. So it could have a positive impact to make sure that poll workers aren't asking things that they shouldn't be asking, or that they're allowing people to vote [with IDs sanctioned under the expanded ID law, which allows] Native Americans to vote, using a provisional ballot with any ID issued by the tribe or tribal division with just their name on it. If people aren't trained properly on that, they could be challenging voters.

That could result in voters not exercising their vote, or feeling embarrassed, or being turned away despite what the law allows. And a lot of that has to do with poll worker training. But when you have poll watchers, sometimes they're challenging things that need not be challenged.

Victoria Massie

Is that typical?

Patricia Ferguson-Bohnee

It's not typical, but I think sometimes with the nonstandard addresses, people aren't placed in a poll[ing place]. That happened during the last general election. And so what happens is that if the poll workers don't check the other voting list, then people will be told, "Oh, you're not registered. You can't vote here." But we have the Help America Vote Act, which ensures that if someone believes they're at the correct polling location, the poll workers have to issue them a ballot. And so sometimes that doesn't happen.

If we have volunteers there, we go back in with them, or if they call our hotline, we check their voter registration. And sometimes it says “voter precinct unspecified.” Or we try to call the country recorders. They'll have a regular list, an inactive list, and, the last election, Apache County had a [list] for individuals who weren't placed in a polling precinct. Sometimes people have to draw their addresses, and then the county places them in their precinct.

A voter can be properly registered but the poll workers [could] not be aware of that.

Victoria Massie

Mail-in ballots are supposed to help voter access, especially when it comes to early voting. But is that always the case, especially in areas like Arizona, where Native Americans don't necessarily have standard addresses?

Patricia Ferguson-Bohnee

If you don't have a standard address, you may describe your address. And that address may be on your driver's license or your Arizona ID card. But that address doesn't fit into the county's voter registration database.

So [the county has] to change the addresses. And under the Arizona process, the Arizona county officials get to decide whether your ID reasonably matches [the voter rolls] for you to receive a regular ballot on Election Day. So they're supposed to have both your physical address and your mailing address. Your physical address could be the address on your driver's license, [but] if it's not a standard address, it won't fit in their voter registration database.

[During] the last presidential election in Pinal County, people were being turned away. Reservation voters were being turned away because all of their addresses had been changed, and people didn't know that.

We had an elder that we worked with who was very passionate about voting, and she was subject to this law because a lot of native people like to vote in person on Election Day, and especially if you need language translation, the only way you're really going to achieve that is if you vote at the polls on Election Day. So we had a Navajo elder who had been voting since she had been allowed to vote in the '70s. And after this law was enacted, she went to the polls to vote, and she didn't have ID, or the ID that they were asking for. And so they berated her. She wasn't allowed to vote. So she didn't return for the next election.

To demonstrate how hard it was for her to obtain an ID, she lived in Chilchinbito, Arizona, which is more on the eastern side of the Arizona portion of the Navajo reservation. Somebody brought her to Tuba City, Arizona. We drove from Tempe to Tuba City to meet her so that she could receive her affidavit of live birth from the Navajo Nation and then go to the DMV next door. Well, we received her affidavit of birth, and then we went to the DMV, and the DMV wasn't issuing photo ID cards. They were issuing paper cards. Well, that wouldn't be sufficient to obtain a regular ballot.

So we then drove to Flagstaff. She went in to receive her ID as she had told us she had tried several times before. And when she got there, she said they would not accept her affidavit of birth from the Navajo Nation. But since we were there, we said, "No, this is an acceptable form of documentation to prove citizenship, so you must accept it." And they issued her an ID.

But it was a very long process. She doesn't have a car, she lived in a home without utilities, and she just didn't ever have a need for a photo ID. And we drove. It took us five hours one way and then another five hours back. And she drove from the other part of reservation to Tuba City, and then [in] Flagstaff, someone had to pick her up. So it was a lot of energy invested into that process, and it really shouldn't be that hard for someone to vote.

Victoria Massie

You've mentioned some of the issues Native American elders in particular face. Is there a generational divide in terms of access among Native American voters?

Patricia Ferguson-Bohnee

I think that's a great question because if you're younger, you may be able to go to the chapter [office on the reservation], get on the internet, and request an early ballot. I will say that the limited opportunities for early voting on the reservation prevent native voters from having the same type of voting opportunities as non-reservation individuals.

For example, Apache County — it's a huge county. But early voting is located off the reservation. [Polling workers] may come to the reservation a couple times for a few hours to engage in early voting, but how are people notified about that? In Nevada they just recently were able to win a preliminary injunction to allow for that early voting on the reservation because of the distance it requires to go off the reservation. There's no public transportation for people to even go off the reservation to do this.

Victoria Massie

How did the 2013 Supreme Court decision on the Voting Rights Act impact Native American voters in general, and specifically in Arizona?

Patricia Ferguson-Bohnee

There is a native community in Maricopa County called Guadalupe, and it's a Yaqui community, and it's not on a reservation. It's just a Yaqui Indian community within the county, and at the presidential preference election, Maricopa County reduced the number of polling locations to 60. And I think in the previous presidential preference, where it was contested, there were at least 400 — people stood in line for five hours. There were people who didn't have access to the polling location because of transportation issues.

And one of the questions asked to the county recorder was whether or not they considered the impact on minority voters. And the answer was no. Without Section 5 of the Voting Rights Act, some individuals and officials do not consider the negative impact that laws may have on minority voters.

Victoria Massie

But now you could be criminalized for trying to exercise your basic right to vote under the circumstances that this is the only way you can do it.

Patricia Ferguson-Bohnee

Right. And it was really, I think, because one of the parties was more successful in canvassing to see who had received a permanent early vote. Or early vote to say, "Hey, have you turned in your vote? I can go pick it up for you." I don't understand why that is a problem, especially when there is no evidence of any sort of fraud. And that's the same thing for voter IDs across the country. There isn't all this evidence of voter fraud — or in some cases, any voter fraud — and these laws are being passed. So the purpose of the law isn't to ensure integrity of the voting system if you don't have fraud. It's to suppress the vote.

Victoria Massie

What key points do Native American voters, specifically in Arizona, but also more generally, need to know gearing up for the election this year?

Patricia Ferguson-Bohnee

Whoever is elected, whether it's for Senate or president, will make a difference on who is confirmed to many of these positions that undertake the federal relationship and federal trust responsibility. So that includes who is the secretary of the interior, and who is the assistant secretary of Indian affairs whose main job is to enforce the trust responsibly. And whoever the Supreme Court justices are, because we have a number of federal Indian law decisions that will be decided by the Supreme Court. Those are extremely important issues.

Also whoever your senators are, the Affordable Care Act includes funding for Indian health care. And if that's overturned, that's something that tribes should be aware of, specifically what individuals are saying. Whether they're going to limit that or whether they're [supporting] health care funding that is direly needed in Indian country. So even though they may feel remote and not a part of the process of a lot of the decisions that are being made, at the federal level, they are impacting their daily lives.