Experts: New state election laws make it harder for Native Americans, other classes to vote

By: - March 9, 2022 10:57 am

Photo illustation by Getty Images.

As multiple groups challenge changes to Montana’s voting laws in court, several groups have called upon key experts to outline in detail how the new laws disenfranchise Native voters, including hundreds of pages of documents in court filings that tell a comprehensive, systematic history of leaving American Indians in Montana behind.

Yellowstone County District Judge Michael Moses will set the course Thursday for the legal challenge in which three different groups, including the American Civil Liberties Union, are arguing that laws passed by the 2021 Legislature are illegal because they interfere with the right to vote and affect communities of color disproportionately.

The testimony and evidence introduced to the court spans several hundreds of pages and challenges the state’s changes to Election Day registration, often called “same-day registration,” where a voter can register and vote on Election Day. Montana lawmakers opted to change the law, closing Election Day registration, pushing it to the Monday before Election Day. Changes to Montana law also strike down most ballot collection, sometimes referred to as “harvesting” by critics.

Even though a Yellowstone County judge struck down similar provisions the 2019 Legislature approved, agreeing that the changes disenfranchised many Native communities, lawmakers passed similar bills, claiming they had corrected legally objectionable portions.

However, lawyers in three different cases have told the court that the changes the Legislature made last year were little more than window dressing and the structural flaws still remain.

In extensive filings, expert witnesses pointed out that Native voters must often travel twice as far as other Montana voters just to access their Post Office boxes and often those boxes are shared by multiple tribal members, which make it difficult to guarantee access to the ballot.

Moreover, they claim that Indian communities are often situated much farther away from the county election offices than their counterparts in Montana, which already puts them at a disadvantage. Because of the long distances, many struggle with reliable transportation or fuel to get to county offices to vote.

Finally, tribal members living on one of Montana’s seven reservations also have less access to internet and broadband, meaning they’re also less likely to understand the changes to state law.

One of the experts who filed testimony and research with the court is Alexander Street, associate professor of political science at Carroll College in Helena.

Street found that Natives living on reservations used Election Day registration at higher rates than those living off.

“Particularly for general elections, my analysis demonstrated that Montanans living on reservations were indeed more likely, and in some cases much more likely, to request absentee ballots during the late registration period,” Street wrote. “Additionally, relying on Census block data, I consistently demonstrated that this reliance on requesting absentee ballots during the late registration period is higher in the parts of the reservations with more Native individuals, demonstrating that the reliance is driven by Native voters, and not by non-Native voters living on reservations.”

Street’s research also led him to conclude that “on-reservation voters were more likely to have their ballots rejected for reasons that could have been prevented by experienced ballot collectors.”

Street also demonstrated that while voters living off the reservation had nearly identical voter turnout in 2020 as they did in 2016, the rate fell significantly after lawmakers had implemented laws restricting ballot collection. The number of voters, even when controlled for other variables, dropped by 3.5% when lawmakers passed laws banning ballot collection.

“The Ballot Interference Protection Act had a disparate, negative impact on turnout for Native American voters living on reservations in Montana,” he wrote. “This finding is also consistent with the claims of the plaintiffs … that by preventing people and groups, including Western Native Voice, from helping voters to return absentee ballots, HB 530 would have a disparate, negative effect on turnout among voters living on rural reservations in Montana.”

Daniel McCool, a professor emeritus of political science at the University of Utah, has spent his entire career studying Native Americans and political participation, including co-authoring “Native Vote: American Indians, The Voting Rights Act and the Right to Vote.” McCool has written 10 books, 27 articles and 19 book chapters on the subject.

McCool examined more than 300 sources of information and came to the conclusion that House Bill 176 and House Bill 530 will “increase voter costs and lower turnout, and the impact will be felt mostly heavily by Native Americans and other groups that share some of the same socio-economic factors that are typical of Indian Country.

“In short, these new laws will make it harder for people to vote. Both laws targeted diminution in freedoms associated with elections; each law deprives citizens of an option that is helpful to Native American voters. An analysis of alleged benefit of these laws – to reduce fraud and increase election integrity – finds no support for such a claim.”

McCool’s thorough report details the socioeconomic barriers that Native Americans face, which often translate into problems at the polls. For example, Native Americans tend to have 19 times higher rates of having no indoor plumbing than Anglo households, and nearly half of the homes do not have access to reliable water resources. That housing instability can lead to problems because Native Americans often change physical addresses, or rely on shared Post Office boxes.

Moreover, only eight percent of the nation as a whole is without broadband coverage, while that number rises to 35 percent on reservations, making online voting information more difficult to obtain.

“The logic is straightforward,” McCool quotes from academic research. “People weigh benefits of voting against the costs, and the higher the costs, the lower the participation rate. For a voter with high socio-economic voter costs, assistance from someone who is willing to deliver their ballot for them, which dramatically lowers their procedural voter costs, may be the only way they can participate in elections.”

He said the reason why Election Day registration is so important is because “it converts two processes – registration and voting – into one act.” Otherwise, it requires two separate trips, which because of distance and personal finance may be too much of an obstacle.

“There is no evidence that EDR in any of these states has led to voter fraud,” McCool said.

In three different counties with significant Native populations, McCool used Big Horn, Blaine and Rosebud counties as examples of the challenges:

County                 White distance                 Native distance                Difference
Big Horn              11.6                                        22.0                                        10.4
Blaine                   9.8                                          31.4                                        21.6
Rosebud              16.8                                        44.9                                        28.1

Most Native Americans have to drive double to triple the distance just to register or vote.

“This means that the poorest people in the county have to drive the furthest to the county courthouse,” McCool said.

Moreover, much of mail delivery service on the reservation is slowed or office service has limited hours.

“Many reservation homes do not have physical addresses and the Postal Service does not deliver mail to these homes,” McCool said. “Most Native people do not have home mail delivery and must use a Post Office Box that may be a considerable distance from their home.”

McCool gave the example of the “convoluted” process of mail delivery by referencing one example from the Fort Belknap Indian Community: “Tribal members who get their mail through Post Office boxes in Lodge Pole have to use the address ‘Lodge Pole Route,’ their box number, followed by ‘Dodson, Montana,’ which is located in Phillips County. However the locations of their residences are in Precinct 14, which is in Blaine County.”

“Apart from Montana, no state has withdrawn Election Day registration after voters had already come to rely upon it,” Street said.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.