|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)
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
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
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
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.
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
. Copyright 2004 Danna R. Jackson.