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Danna R. Jackson

excerpted from: Danna R. Jackson, Eighty Years of Indian Voting: a Call to Protect Indian Voting Rights , 65 Montana Law Review 269-288, 270-271, 281-288 (Summer 2004)(111 Endnotes)

I. Introduction

Fifty-four years after the 15th Amendment granted all citizens, regardless of race, color, or previous condition of servitude the right to vote, the "Citizenship Act," made Indians citizens, thus granting them protection under the 15th Amendment. Despite their U.S. citizenship and accompanying right to vote, historically Indians were prevented from participating in elections. Indians were treated in a similar fashion to disenfranchised blacks in the pre-Civil Rights Act South. Unfortunately, situations such as that described by Mrs. Denetclaw were far too numerous. Indians were among the last group of people to secure the right to participate in federal, state, and local elections. During the 2004 election season, Indians will observe eighty years since the passage of the Citizenship Act.

In 1965, in hopes of correcting voter disenfranchisement, primarily of blacks in the South, President Johnson signed into law the Voting Rights Act. After several amendments, the Voting Rights Act continues to provide protection from voter disenfranchisement. However, the Voting Rights Act, as amended, expires in 2007.

In certain states, Indians make up a significant voting bloc and have proven that their votes can determine the fate of national races. For example, in 2002, Senator Tim Johnson (D-SD) was re-elected to the Senate largely because of the increase in Indian voter turnout. Tribal governments, organizations and individuals are pledging to increase Indian voter participation in 2004. In light of the 80th anniversary of the Indian right to vote and the increased attention placed on Indian voter participation, a re-examination of Indian voter rights is in order. This article reviews the political context into which the Voting Rights Act was born, describes its amendments, and highlights litigation that arose pursuant to the Act. This article also summarizes the Helping Americans Vote Act of 2002. Finally, this article concludes that because Indian voters continue to need the protection of the Voting Rights Act, the Act must be strengthened and reauthorized before it expires in 2007.

III. The Effect of the Voting Rights Act

"The cumulative effect of the Supreme Court's decisions, Congress' enactment of voting rights legislation, and the ongoing efforts of concerned private citizens and the Department of Justice, has been to restore the right to vote guaranteed by the 14th and 15th Amendments." Congress called the Voting Rights Act the single most effective piece of civil rights legislation ever passed.

A. Effect of the Voter Rights Act on Indians

Vote dilution has been an ongoing struggle in Indian Country. In Arizona, state lawmakers in the early 1980s attempted to create an all-Indian county, a proposal one state senator called the "Arizona Apartheid Act." In Windy Boy v. County of Big Horn, Wyoming was found to have committed "official acts of discrimination [that] have interfered with the rights of Indian citizens to register and vote" in the form of an at-large scheme that denied the plaintiffs' right to participate in elections and to elect representatives of their choice to county and school board offices.

In Buckanaga v. Sisseton School District, the Sisseton Wahpeton Sioux tribe challenged its local school district's voting system after many years of unsuccessful attempts to elect Indians to the school board. "On remand in 1985, a cumulative voting system was adopted that gave voters the option of casting their allotted votes in any combination they wished, thereby providing Indian voters with a more meaningful opportunity for political participation." In May of 1990, three of the nine school-board members elected were Indians.

In April of 2004, the United States Court of Appeals for the Ninth Circuit ruled on a case involving Blaine County, Montana. The United States brought a Section 2 action against Blaine County, Montana, alleging that the county's at large voting system prevented Indians from participating equally in the country's political process. The district court determined that Section 2 was a constitutional exercise of Congress's powers under the Fourteenth and Fifteenth Amendments, and that Blaine County's at large voting system violated Section 2. On Appeal, Blaine County lost - the Ninth Circuit affirmed the district court's decision.

More recently, the United States and advocates for Indians in South Dakota, Montana, and New Mexico filed several lawsuits alleging violations of the Voting Rights Act. Many minority language cases involving American Indians were also filed.

B. Voting in the New Millennium

Many charge that not every vote counted in the 2000 Presidential election. Florida received most of the attention, although voting irregularities were reported in other states. After the Florida election, civil rights groups, the state of Florida, the federal government, and the media conducted investigations of such claims. The investigations identified problems pertaining to registration processes, election procedures, election equipment, training of election staff, and discriminatory practices at polling precincts. At the federal level, both the Department of Justice and the U.S. Commission on Civil Rights (CCR) reviewed the complaints. The CCR issued a report verifying many of the identified complaints. Other civil rights organizations verified the CCR findings. The Department of Justice's review of the presidential election of 2000 is ongoing.

Various civil rights groups filed lawsuits in state and federal courts challenging voting policies and practices in Florida's electoral processes. The lawsuits allege violations of the 14th Amendment, the Voting Rights Act, and state law. The American Civil Liberties Union filed lawsuits in Illinois and Georgia alleging that both the Equal Protection clause of the 14th Amendment and the Voting Rights Act were violated in the 2000 election.

In an attempt to resolve some of the concerns, Congress held hearings and ultimately passed the Helping Americans Vote Act (HAVA). President Bush signed HAVA into law in 2002. HAVA created a new federal agency charged with reviewing voter-registration systems in an attempt to safeguard elections by requiring states to computerize, centralize and purge voter rolls prior to the 2004 election. The implications of HAVA have yet to reveal themselves; however, HAVA has been heavily criticized. There is distrust towards the manufacturer of the leading voting machine, as well as in the software itself. Further, many express grave concern that HAVA will make balloting susceptible to political manipulation, fraud, and racial bias. Some are concerned that a lack of independent testing of the voting machines allows security flaws of the software to stand uncorrected, potentially allowing for manipulation of election outcomes.

Florida, Illinois, and Georgia were not the only states in which elections were scrutinized in recent years. Intimidated by Indian voter clout, conservatives accused Indians of stealing the 2002 South Dakota Senate election. Bob Novak of CNN Crossfire referenced the upcoming race between Senator Daschle (D-SD) and John Thune by discrediting the 2002 race:

Daschle should have been saved the trouble of opposing Thune. In 2002, Thune would have been elected to the state's other Senate seat but the election was stolen by stuffing ballot boxes on the Indian reservations. Now Tom Daschle may have to pay for that theft.

Equally inflammatory, the Wall Street Journal characterized Tim Johnson's win as "highly suspicious, if not crooked." In response, South Dakota Attorney General Mark Barnett, a Republican, called the allegations of ballot stuffing false. Others, including Senate Minority Leader Tom Daschle (D-SD) responded to the allegations of voter fraud.

In 2003, a year after Indians made the difference in the election of Senator Johnson, the Republican controlled South Dakota State Legislature passed a new voter identification law that effected Indians. The law requires voters to present a valid form of personal identification before he or she may vote. If a person does not have a valid form of identification, he or she may complete an affidavit instead. Many feared that because some Indians do not have a driver's license, poll workers might ignore the other identification provisions, including the affidavit, and keep otherwise registered Indians from voting. There is evidence that during the June 1, 2004 election, just such activity may have occurred.

IV. Conclusion

In 2007, the Voting Rights Act, particularly Section 203, must be reauthorized to ensure limited language districts receive the support they need. Congress should amend the Voting Rights Act to include penalties to discourage future violations of the Act. In light of the controversy surrounding Florida and other states, clearly much attention will go into the reauthorization of the Voting Rights Act in 2007. It is likely that part of the reauthorization will focus on the Indian vote. Now is the time to mobilize interested parties.

Recent elections demonstrate that Americans have not protected the "one person one vote" principal. Close elections are expected in November 2004 for the presidency, as well as several other Senate and Congressional seats, and there remain distinct possibilities of voter access disputes and charges of ballot-box and voter registration irregularities. Following the Florida fiasco of 2000, both Democrats and Republicans are likely to be aggressive in voter registration, get-out-the-vote efforts, and follow-up of close races. Once close elections are decided, the losing sides may once again attempt to de-legitimize the victors in an attempt to weaken their position in office and rally their own side for the next race.

For these reasons, it is crucial that the Voting Rights Act not expire and that in the meantime, monitoring of the election process is both strong and visible not only to ensure access to the ballot box, but also to prevent any doubt as to the legitimacy of the victors.

Where Congress will not act, or does not have the ability to act quickly enough, it is incumbent upon the legal profession to ensure that every citizen is permitted to exercise his or her right to vote and to place the results of elections beyond reproach, doubt, or politically motivated attack by those defeated. At stake is not just the abstract principle of the right to vote, but also the confidence among the electorate that the process is in fact the fairest that can possibly be attained.

. Copyright 2004 Danna R. Jackson.