By Andrew Westney

Law360 (August 31, 2020, 6:26 PM EDT) -- Tribe members on rural reservations already face massive impediments to voting, and the authors of a recent Native American Rights Fund report say the situation is likely to grow even worse for the 2020 election as the COVID-19 pandemic shutters polling stations and voting by mail brings its own set of problems.

NARF's "Obstacles at Every Turn" report, released in June, identified a host of problems that Native Americans face — and have successfully challenged in court in recent years — in terms of registering to vote, casting a ballot and making sure their ballots have been counted.

But the pandemic is exacerbating many of those problems, particularly by making in-person voting harder to access and more dangerous. And the potential solution of mail-in voting is far from a panacea for rural tribe members, according to Jacqueline De León of Native American Rights Fund, a co-author of the report and an enrolled member of the Isleta Pueblo.

"A lot of the conversation has shifted to vote by mail, but unfortunately, vote by mail just doesn't work in Indian Country because so many Native Americans across the country don't get mail delivery at their homes," De León said.

And with worries that U.S. Postal Service slowdowns could be even more severe on reservations and states weighing whether to close polling stations for safety reasons, the 2020 election presents "a perfect storm for Native American voters," said Dan McCool, another co-author of the report and professor emeritus of political science at the University of Utah.

The 2018 election was "very positive" for Native Americans — with increases in voter turnout and the first two Native American women elected to Congress in Pueblo of Laguna member Deb Haaland and Ho-Chunk Nation member Sharice Davids — but that momentum is threatened by the ongoing health crisis, according to James Tucker, of counsel with Wilson Elser Moskowitz Edelman & Dicker LLP, pro bono voting rights counsel for NARF and the third co-author of the report.

"I'm confident that we'll be able to overcome that for much of Indian Country, but it's going to be very, very difficult to do it," Tucker said. "And all we can hope at the end of the day is there's enough energy to carry it forward."

"Obstacles at Every Turn" grew out of field hearings conducted by NARF's Native American Voting Rights Coalition to come to grips with the problems Indigenous people face to vote in the United States, especially following the 2013 Shelby County v. Holder decision from the U.S. Supreme Court that struck down the Voting Rights Act's pre-clearance requirements for states with a history of voting discrimination.

Many Americans may find it "easy to vote" with mail options, online registration and nearby polling locations, the report states, but "the field hearings revealed that this is not true" for the roughly 6.8 million American Indians and Alaska Natives in the U.S.

"Instead, they continue to face a wide array of first-generation barriers to voting — actual barriers to voting — that are in fact preventing them from exercising their rights to vote and stripping them of their political power," according to the report.

Those existing problems for Native American voters had already been getting more severe, the reports' authors say.

For example, states have increasingly moved to online registration, but "those opportunities are simply not available on tribal lands because you don't have reliable broadband," and it's typically much more costly where it is available, according to Tucker.

And even before the pandemic, many locations were starting to emphasize vote by mail, which often meant closing in-person polling stations or restricting their hours, he said.

The shift to voting by mail has also led to regulations aimed at suppressing ballot collection, in which community groups, family members or neighbors bring a number of ballots to the polls, De León said.

"Ballot collection is really necessary for Indian Country since nobody gets mail at home, and the post office is 40 miles away and only opens during limited hours because it's a rural office," De León said. "Native Americans face this huge hurdle just to get their ballots and drop off their ballots. It's just the only way for people who are really struggling to get that ballot turned back in."

Claims that ballot collection, which opponents call ballot "harvesting," leads to large-scale voter fraud is "a categorical lie," as there's "zero correlation" between the two, McCool said.

In the report, De León said, "what we found was that the regulations that supposedly keep out fraud, all they did was serve to make it much more difficult for American citizens to vote."

With the pandemic, Americans everywhere are seeing how "very, very fragile" the U.S. voting system is, said Tucker.

"Suddenly, average Americans are experiencing what that's like, at least for vote-by-mail issues, for themselves," he said.

While progressives have been pushing for increased access to vote by mail, making sure viable in-person voting options are available is a must for Native Americans, according to Tucker.

A key reason is that many speakers of Native languages with limited English may require language assistance to vote that they can't get by mail, he said.

Mail-in voting is designed to benefit white, middle-class voters and can actually drive down participation by Native Americans if in-person voting becomes harder to access, according to OJ Semans, the executive director of Native voting rights group Four Directions and an enrolled member of the Rosebud Sioux Tribe, who chaired two of NARF's field hearings.

Four Directions is currently backing a bid in Arizona to make sure Navajo Nation members' votes are counted even if they fail to arrive by Election Day, as state law requires.

The group tested how long it typically takes for mail to arrive from different locations on the Navajo Nation, the largest reservation in the country, and discovered that it can take several days longer for mail to travel from those sites to county offices than from locations in urban areas — putting Navajo citizens' votes at risk, Semans said.

The problem could be fixed by requiring the state to accept ballots postmarked by Election Day that are received within 10 days following the election, which "we thought was a no-brainer," Semans said.

"We are thinking that this is happening everywhere in Indian Country — that they're not given the same time frame in which to participate in an election as non-Indians," he said. "We think we're looking at the tip of the iceberg."

For all the issues with vote by mail, the pandemic puts unprecedented stresses on in-person voting as well.

"Native people are literally risking their lives to go to a poll, especially if [authorities] decide to close multiple polls and concentrate people in vote centers," which "in a pandemic means you're just concentrating social contact, you're just exacerbating the problem," McCool said.

And many of the same issues that crop up with voting, such as a lack of broadband access for tribe members on rural reservations, will also impact the 2020 census, according to Tucker.

"The census is going to be an absolute disaster in Indian Country" and is likely to "provoke numerous lawsuits over malapportionment and redistricting," Tucker said.

There are several steps governments can take to improve Native Americans' access to the vote during the pandemic, according to NARF's report, including providing more curbside voting, mobile voting stations, ballot drop boxes and written on-reservation Native language materials,

And while time is short before the election to help improve the situation, De León said that whenever Congress manages to pass the next COVID relief package, it should include election funding to make sure in-person polling locations are available and to cover the costs of accepting absentee ballots.

In the meantime, voting rights advocates will focus on educating Native voters on how their local voting laws operate and keeping pressure on states, according to Semans.

"If we're going to be forced into vote by mail, we need to ensure that we have equality with others," he said.

--Editing by Philip Shea and Rebecca Flanagan.

For a reprint of this article, please contact reprints@law360.com.