The John Lewis Voting Rights Advancement Act Protects Native Americans’ Voting Rights

Women wearing Covid masks sitting around a large wooden table with American flags in the background.
Vice President Kamala Harris hosts a conversation on voting rights with Tribal leaders and other Native leaders from Alaska Native and American Indian communities in the Eisenhower Executive Office Building of the White House in Washington, U.S., July 27, 2021. Harris is joined by Secretary of the Interior Deb Haaland. Photo by Ken Cedeno/Consolidated News/Sipa USA/Alamy Live News

The U.S. Senate has introduced an updated version of the John Lewis Voting Rights Advancement Act, (S.4), which incorporates the Native American Voting Rights Act (NAVRA) of 2021.

This important legislation will help reduce the barriers Native Americans face to participation in the U.S. political process, giving them an increased opportunity to have an equal say in the key decisions impacting their lives.

1. Historical Barriers to Voting for Native People

The U.S. and individual states and localities have a long history of depriving Native Americans of the right to full and equal participation in the U.S. political process. In fact, despite the ratification of the 14th Amendment in 1868, Native Americans did not become U.S. citizens until 1924 with the passage of the Indian Citizenship Act.

Even after Native Americans attainted U.S. citizenship, states and localities continued to disenfranchise them through laws directly targeted at tribal citizens.

States passed blatantly discriminatory laws denying the right to vote to “Indians not taxed,” requiring tribal citizens to sever all tribal relations prior to casting a ballot or determining that residence on a reservation located within a state’s borders was insufficient to meet the residency requirement for voter eligibility.

Discriminatory devices like poll taxes and literacy tests, which were used to block access to the ballot for Black voters and other voters of color, similarly targeted Native American voters. Many of these restrictions were not lifted until the passage of the Voting Rights Act (VRA) of 1965 and its 1975 amendments extending protections to Native Americans and other language minorities.

2. Present Day Barriers to Voting for Native American People

Despite decades of advocacy and litigation by members of Native American tribes, Native Americans continue to face unique and substantial barriers to voting.

One example is the inaccessibility of in-person voting due to distant placement of polling places. Frequently, this is compounded by a lack of access to reliable transportation and roadways that often become unusable during winter, when elections are usually held, which can prevent Native Americans from voting.

Earlier this year, Campaign Legal Center successfully won a lawsuit on behalf of the Pascua Yaqui Tribe addressing the issue of the distant placement of a polling location.

Often, the lack of reliable mail service, bans on ballot collection and conveyance or the lack of a clear system for assigning residential addresses can also prevent Native American voters from being able to receive or submit their ballots.

A ban on ballot collection became a central issue in the voting rights case Brnovich v. Democratic National Committee, where several groups sued the state of Arizona for violating the VRA because the state’s law restricting ballot collection prevented Native American and Hispanic voters from being able to return their ballots at disproportionately high rates.

Additionally, in North Dakota, members of the Spirit Lake Nation and the Standing Rock Sioux Tribe were denied the right to vote because the state required them to present ID that listed a valid residential address.

However, many of those voters lacked residential street addresses, and the state and counties created a confusing and inconsistent system for determining residential addresses on tribal reservations, effectively preventing residents of those reservations from accessing the ballot.

It wasn’t until CLC helped the tribes reach settlement a with the state in April 2020 that their members could access the ballot without the lack of the ability to know their address posing an obstacle.

According to research by the Native American Rights Fund, many states and localities also create deliberate barriers to voting by failing to comply with the language assistance provisions of the VRA, allowing voter intimidation by non-Native poll workers and voters and failing to recognize tribal IDs as a method of voter validation.

Other factors that make voting more challenging for Native Americans include the lack of equitable access to the internet on many reservations, thereby reducing access to online voter registration and online mail  ballot requests, and voting maps that undermine Native Americans’ political representation through vote dilution, racial gerrymandering and malapportionment.

3. What the NAVRA Would Do

The NAVRA, which has been incorporated into S.4, would comprehensively address many of these present-day barriers if passed. This bill has strong provisions that would increase Native Americans’ ability to access voter registration, in-person voting and mail voting.

Furthermore, the bill’s focus on recognizing and affirming tribal sovereignty, providing language assistance and supporting voter education efforts would help remove additional harmful and unnecessary barriers to voting for Native Americans.

Improving Access to In-Person Voting and Voter Registration

The NAVRA would require states to establish polling places and voter registration sites at federal facilities located within tribal lands or that serve tribal citizens.

It would also make states establish at least one early voting location within each precinct on tribal lands to be open for a period of no less than 15 days, and it would permit tribal citizens and voters living on tribal lands to cast a ballot at any polling place or early voting location on those lands.

The NAVRA would also require states with voter validation laws to recognize tribal identification cards as a way for voters to validate their identities.

Expanding Access to Mail Voting

There are several ways that the NAVRA would preserve and expand access to vote-by-mail for Native American voters. The legislation would permit voters living on tribal lands to use a tribally designated building as their residential address for the purposes of voter registration as well as their mailing address for the purpose of mail voting.

It would also permit a tribe to request that the state where the tribe is located extend mail voting and provide a mail ballot to voters living on tribal lands within that state, notwithstanding state law restrictions on mail voting.

The bill also mandates the establishment and maintenance of at least one ballot drop box per precinct on tribal lands, enabling tribes to designate at least one building in each precinct as a ballot drop off location.

Under the NAVRA, voters residing on tribal lands could designate any person to return their mail ballot on their behalf in a sealed envelope to a post office, drop box or other building where ballots may be returned, so long as the person is not compensated based on the number of ballots that they bring back.

Additionally, under this bill, the federal government would pay for postage for mail ballots returned by tribal members in elections for federal office.

Improving Voting Access in Additional Ways

The NAVRA would recognize the inherent right of tribal law enforcement officers to detain and remove individuals engaged in voter intimidation or harassment, require the U.S. attorney general to consult annually with tribes on issues related to elections for federal office and mandate that states seek tribal administrative review prior to taking actions that would restrict voting opportunities.

The NAVRA would also update the language assistance provisions of the VRA to require states and political subdivisions to provide written materials in all covered Indigenous, American Indian or Alaska Native languages.

A grant program within the Department of Justice, administered in consultation with the Department of the Interior, would provide funding for voter outreach, education, registration, turnout and ballot access would also be created if this legislation was enacted.  

Finally, the NAVRA would require that federal and federally funded facilities on tribal lands that provide services to tribal citizens designate at least one day per year to conduct voter education on the tribal lands of each applicable tribe.

While Native American voters and tribes have successfully blocked discriminatory laws and improved voting access under the VRA and the U.S. Constitution, congressional action is necessary to address the unique barriers that Native American voters continue to face.

The NAVRA will better enable the federal government to honor its commitments to allowing tribes to govern themselves and respecting their sovereignty.

To strongly affirm Native Americans’ right to vote, Congress must act now to pass the NAVRA provisions included in S. 4. We must ensure that barriers to voting that discriminate against Native American voters are dismantled, so they can have an equal say in our future.

Nicole is a Skadden Fellow/Law Clerk at CLC.
What All Is In the John Lewis Voting Rights Advancement Act?