Protecting Voting Rights and Indian Country: A Precedent Setting Victory

Bryan Sells & Tim Pordon

The summer of 2016 has seen a series of decisions from state and federal courts across the country striking down onerous new voting laws. In the last two weeks of July alone, courts ruled against an array of voting restrictions in Kansas, Michigan, North Carolina, Texas, and Wisconsin. These rulings followed a decision in May that struck down an Ohio law that would have rolled back early voting and same-day registration.

Then, on August 1, 2016, the federal district court in North Dakota issued an order in Brakebill v. Jaeger, 1:16-CV-008 DLH (D.N.D. August 1, 2016) and joined this growing list of jurisdictions rejecting restrictions on the right to vote. Brakebill, however, was the first such decision to focus on the impact of anti-voter laws on American Indian voters living on reservations. The court’s analysis in Brakebill, which highlights many of the unique challenges faced by these Native voters, establishes an important precedent that will be useful as American Indian voters across the United States fight to protect their voting rights.

The Brakebill court identified many challenges to obtaining an acceptable voter ID that disproportionately impact American Indians. The court based these findings on a statistical survey of North Dakota voters which found that American Indian voters in North Dakota were much less likely than their non-Indian counterparts to have a current acceptable photo ID, to have a current North Dakota driver’s license, and to own or lease a car. Further, American Indian voters in North Dakota were more likely to lack the underlying documents necessary to obtain an acceptable ID and were, on average, required to travel twice as far as non-Indians to visit a Driver’s License site. Tellingly, the State of North Dakota did not dispute or challenge any of these findings. The court then found that the voter ID laws had disenfranchised American Indian voters in North Dakota and that North Dakota lacked any proof that the allegations of in-person voter fraud which purported to establish a public interest in the challenged voter ID requirements were real.

Brakebill is an important decision going forward for American Indian voters across the country. The challenges facing American Indian voters in North Dakota that the court recognized in Brakebill are not, unfortunately, unique to the Flickertail State. Nor are they unique to issues of voter ID. Rather, they are representative of the challenges to voting that face many American Indian and Alaska Native communities.

Significant barriers to voting exist throughout Indian Country today. For example, residents of the Duck Valley Indian Reservation in Elko County, Nevada, have to travel over 200 miles round trip to register or vote in person. Some members of the Navaho Nation in San Juan County, Utah, have to travel over 9 hours round trip to register or vote in person. In Blaine County, Montana, residents of the Fort Belknap Indian Reservation were effectively denied the opportunity to take advantage of early voting and late registration opportunities in the distant county seat until legal pressure forced the county to open an alternate site on the reservation in May of this year. And Blaine County still refuses to make election-day registration accessible to Indian voters on the reservation.

The court’s rationale in Brakebill will help American Indian and Alaska Native voters challenge these and other restrictions on their right to vote. The socio-economic conditions and geographic isolation that led to “substantial and disproportionate burdens” on American Indian voters in North Dakota likewise impose similar burdens on Native voters in places like in Elko, San Juan, and Blaine counties who seek equal access to all aspects of the electoral process. And there is no conceivable excuse, like preventing non-existent voter fraud, that jurisdictions can use to justify continued inequality. As the Brakebill court noted: “[t]he public interest in protecting the most cherished right to vote for thousands of Native Americans who currently lack qualifying ID and cannot obtain one, outweighs the purported interest and arguments of the state.” This holding can only strengthen voting access arguments on behalf of similarly isolated and impoverished American Indians across the United States as they challenge the myriad of discriminatory voting practices that impact them.

Tim Purdon is a partner at Robins Kaplan LLP where he co-chairs the firm’s American Indian Law and Policy Group and Government and Internal Investigations Group. He is the former United States Attorney for North Dakota.

Bryan Sells is the founder of the Law Office of Bryan L. Sells, LLC. He is a former Special Litigation Counsel in the Voting Section of the Civil Rights Division of the United States Department of Justice.

Purdon and Sells represent the Fort Belknap Indian Community in their efforts to ensure equal voting access for tribal members.

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