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The Right That Protects All Other Rights

Tony West
8/2/14

The right to vote – the right to choose who will speak and act in our names – is a right that is, to paraphrase one American President, the foundation on which the temple of liberty is built. It is a right that protects all other rights. 

In the United States, it is the First Americans who have, for decades, too often been deprived that right. That is why Attorney General Holder and I support legislative steps that will guarantee voters access to polling places on Indian reservations and in Alaska Native villages.

On June 9 in Anchorage, Alaska, I announced at the National Congress of American Indians Mid-Year Conference that the Justice Department will seek formal consultation on a proposal that would give American Indian and Alaska Natives a polling place in their community, a convenience most citizens already take for granted. The consultation will take place on August 26, 2014, in conjunction with the 22nd annual Four Corners Indian County Conference in Flagstaff, Arizona, and will be followed by two telephonic consultations on September 3 and 4.

Even after the Indian Citizenship Act of 1924 brought First Americans within the protections of the Constitution’s voting amendments, states with large tribal populations continued to use a variety of discriminatory devices to keep native voters off the rolls. And while many of us know the story of African-American disenfranchisement, the history of Native American disenfranchisement is no less disgraceful.

In 1975, recognizing the barriers to full participation, Congress permanently prohibited literacy tests throughout the United States, and expressly included American Indians and Alaska Natives as protected groups under the Voting Rights Act. Sections 4 and 5 of the Act prohibited many jurisdictions with large tribal populations from changing their voting laws until they could prove that the change would not create new barriers to effective participation – a powerful statutory tool that, until last year’s Supreme Court decision in Shelby County v. Holder, helped protect the voting rights of First Americans for nearly 40 years. A number of jurisdictions with large Native American populations who have limited English proficiency are also covered by Section 203 of the Voting Rights Act, requiring bilingual election materials and assistance.

But despite reforms, participation rates among American Indians and Alaska Natives continue to lag behind those of non-native voters. For example, in Alaska, turnout among Alaska Natives often falls 15 to 20 or more percentage points below the non-native turnout rate.

The causes of these disparities are complex. Lingering effects of previous discrimination play a role, as do socioeconomic conditions. There are two factors in particular that we can and must address. The first is that many American Indians and Alaska Natives live far from established polling places. The second is that, in some tribal communities, many citizens face language barriers. 

In Blaine County, Montana, 45 percent of the residents are tribal members. Early voting is only offered at the county seat, many miles from the Fort Belknap Reservation where many of the county's tribal members live. For native voters there -- folks who are three times less likely than non-native residents to live in households with cars -- they have to travel more than three times as far to benefit from this option.

Or consider Kasigluk, a Yup’ik village 15 minutes from Bethel, Alaska, by air. According to evidence presented to Congress, “Election Day” there can better be described as “election hour.” The village is separated into two parts by a river, and there is no bridge. So on the first Tuesday after the first Monday in November, an election official announces that anyone who wants to vote in one part of the village has to come down to the community center by 11:30 a.m. At 11:30, the official collects the election materials, packs up the single ballot machine, drives it down to the river, and loads it onto a boat to cross. Once the ballot materials reach the other side, then the citizens there have a couple of hours to vote.

In one sense, though, the voters of Kasigluk are fortunate: they have a polling place. In many other Native villages, the Alaska Division of Elections has sought to eliminate that space altogether. In 2008, the Department of Justice used the Voting Rights Act’s preclearance process to put the brakes on Alaska’s plans for “precinct realignment”: a proposal to combine Native villages like Levelock and Kokhanok, or Tatitlek and Cordova, into a single precinct with a single polling place -- despite the fact that these communities are more than 75 miles apart and accessible to each other only by air or boat. 

But since the Supreme Court’s decision last June, the Justice Department has lost the ability to use this tool to prevent potentially discriminatory moves like Alaska’s proposed “precinct realignment.”

Moreover, many jurisdictions with large numbers of American Indian or Alaska Native citizens have failed to provide bilingual election materials or adequate language assistance at the polls. In Cibola County, New Mexico, the Department had to intervene earlier this year to prevent the county’s plan to eliminate voting-rights coordinators to train poll-workers and provide election information to Navajo- and Keres-speaking voters. 

If remote geography or the inability to speak English do not free us from the responsibilities and obligations of citizenship, then neither should they impede the exercise of fundamental rights. We must redouble our efforts to ensure that American Indians and Alaska Natives have a full and equal voice in our democratic dialogue. 

To accomplish this, we propose that the Department of Justice and tribal governments consider whether to recommend to Congress legislation requiring any state or local election administrator whose territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands to locate at least one polling place in a venue selected by the tribal government.

Our proposal would give American Indian and Alaska Native voters a right that most other citizens take for granted: a place in their community where they can cast a ballot and receive voter assistance to make sure their vote will be counted. By doing this, we can help to ensure that the election process is more sensitive to the needs of tribal voters.

Now obviously, a proposal such as this raises a number of questions. How should such places be operated? Should the state or the tribal governments themselves staff the polling places? How should states authorize and handle early voting on tribal lands? 

We look forward to formally consulting with tribal officials to answer these questions. In consultation, we hope to craft a proposal that will move us closer to the day when our nation fully realizes the promise that American Indians and Alaska Natives are full and equal participants in our democratic process, closer to the day when native peoples can claim their rights through the votes they cast; closer to the day when all of us, native and non-native alike, can enjoy the rights for which so many Native American men and women fought and died -- the Code Talkers and Cold War Warriors and so many others who proudly wore the uniform and whose continued service today helps secure the freedoms we enjoy.

Tony West is the Associate Attorney General of the United States.

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