By Emma Whitford

Law360 (October 28, 2020, 7:51 PM EDT) -- Native American voting rights advocates say the coronavirus pandemic has heightened the stakes of their efforts to protect ballot collection and in-person voting options through the courts, driving home the need for strong federal laws tailored to tribes' needs.

As many organizations tout vote-by-mail as the safest option for the Nov. 3 general election, recent lawsuits in Indian Country have focused on protecting and expanding safe alternatives thanks to systemic inequities that the pandemic has deepened: poor mail service, a dearth of accessible polling places and high poverty rates.

"Before COVID-19, there were serious socioeconomic disparities that exacerbated differences in access to voting for Native and white voters," said Arusha Gordon, counsel for the Lawyers' Committee for Civil Rights Under Law. "Now, with COVID-19 hitting Native communities particularly hard, these disparities are even more concerning. If someone didn't have the resources — like gas money — to make the trip to vote before, COVID-19 has only made those resources more tight."

So far this cycle, Native American voters have clocked multiple wins in the courts, including two in Montana. But setbacks in Arizona and South Dakota have kept advocates busy on the ground.

Last month, the Blackfeet Nation and Crow Tribe of Montana were among a group of tribes and voting rights groups to overturn the state's Ballot Interference Prevention Act. Defended by the state as an anti-fraud measure, the law effectively prevented volunteers from collecting ballots from voters on rural reservations. 

Though the lawsuit didn't focus its argument on COVID-19, U.S. District Judge Jessica T. Fehr referenced the pandemic in her Sept. 25 ruling, saying the pandemic "has made the disparities created by BIPA in the Native American communities in Montana even more dramatic and apparent."

Samantha Kelty is a staff attorney with Native American Rights Fund, which has brought or settled five election-related cases this year. She described the BIPA case as a relatively easy win, because the state could not turn up evidence of fraud and because the disparities Native American voters face in the state are so stark.

"Some of these claims that you see in all voting rights litigation are just emphasized with the Native American communities," Kelty told Law360. "While the disabled community may rely on ballot collection as well, they may not have some of the other factors, like the poor roads or the technological barriers or the really tough socioeconomic conditions."

NARF also had success this fall establishing a satellite election office on the Blackfeet Reservation, offering voter registration, early voting and Election Day voting.

The group and the ACLU of Montana sued Pondera County in federal court, saying the county had discriminated by failing to establish a satellite office in Heart Butte, which is 93.7% Native American. The city of Conrad, which is 95.1% white and up to an 80-mile trip for Blackfeet voters, did get an office.

"Forcing Blackfeet tribal members who disproportionately lack residential mail pickup or delivery relative to the white voters in Pondera County to vote by mail is discriminatory," the complaint said. The county agreed to settle three days after the lawsuit was filed.

But some recent cases in Arizona have stumbled. For example, the Pascua Yaqui Tribe of Pima County, south of Tucson, lost a bid for a preliminary injunction that would have reinstated an early voting site on the reservation that was shut down in 2018.

The tribe had argued the county violated Section 2 of the Voting Rights Act, citing lengthy travel times and Native Americans' greater likelihood of contracting COVID-19 as evidence of the requisite disparate burden, but the court was not persuaded.

While tribe members may have to travel 8 miles to their nearest early voting site, U.S. District Judge James A. Soto said, there are many other voters that have to travel greater distances. Setting up an early voting site so close to Election Day would also burden the county, he said.

Section 2 claims are difficult to argue, according to Kelty of NARF. "It's just harder to show that disparate burden," she said. "It's very fact-intensive."

In a January win for Native American voters in Arizona, a divided en banc Ninth Circuit found that racial discrimination "was a motivating factor leading to the enactment of H.B. 2023," a state law disallowing third-party ballot collection, in violation of Section 2 of the VRA.

But the decision was stayed the following month, pending a U.S. Supreme Court appeal brought by Arizona Attorney General Mark Brnovich, a Republican. The high court granted his petition this month.

"Even though the law was found to be unconstitutional and a violation of Section 2, it's in effect for this election," said Patty Ferguson-Bohnee, an election law expert at Arizona State University and member of the Pointe-au-Chien Indian Tribe.

Meanwhile, in South Dakota, one jurisdiction cited the pandemic as justification for modifying a memorandum of agreement that established in-person early voting on the Pine Ridge Reservation.

In August, the Board of Commissioners in Jackson County passed a resolution not to open an early absentee voting site on the reservation, urging residents to vote by mail instead. The site will be open on Election Day, but was supposed to offer pre-Election Day services through 2022 as part of an agreement between the county and state, prompted by the 2014 federal voting rights case Poor Bear v. Jackson County.

The county's move "really created hardship," said Rosebud Sioux Tribe member OJ Semans, executive director of Native American voting rights group Four Directions, which is doing voter outreach on the reservation. "People during this pandemic could have gone in there one at a time, two at a time, but now we're looking at having to get a bunch of people on the same day on Election Day."

James Tucker of Wilson Elser Moskowitz Edelman & Dicker LLP, NARF's pro bono counsel, believes many of these frequently litigated issues would be resolved with the passage of the Native American Voting Rights Act, a bill drafted in conjunction with NARF and sponsored by Sen. Tom Udall, D-N.M., and Rep. Ben Ray Luján, D-N.M.

"Almost all of NAVRA focuses on the structural barriers to participation," Tucker told Law360.

For example, it would require at least one polling site and voter registration location on each reservation, upon a tribe's request. It would also add tribe-specific pre-clearance requirements for changes that could make voting more difficult, like moving a polling location across a river or mountain range.
 
So far, the bill has failed to advance, though Luján said it's promising that several of its provisions have been included in two versions of the Democrat-backed Heroes Act for coronavirus relief, including one that passed the House Oct. 1.

"I have no doubt that guaranteeing the voting rights of every American would be a top priority for a Democratic-controlled Congress," Luján said in a statement to Law360. Luján is currently running to replace Udall, who is retiring.

Brian Gunn, principal at Powers Pyles Sutter & Verville PC and member of the Confederated Tribes of the Colville Reservation, said the bill needs a strong ally on the Senate Judiciary Committee.

"Judiciary has always been more of a tough nut to crack, especially when it's been under Republican control," Gunn told Law360. "If it ends up being a Democratically controlled Senate, I could see them having one of their platform issues be increased access for voters, and I could see this fitting in there very well."

--Additional reporting by Andrew Westney, Joyce Hanson and Stephen Cooper. Editing by Aaron Pelc and Orlando Lorenzo.

Correction: An earlier version of this story misstated the number of election-related cases brought by NARF. The error has been corrected.

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