An election worker inserting a ballot into a locked ballot box.
An election worker inserting a ballot into a locked ballot box.
March 12, 2020
Alora Thomas-Lundborg, Senior Staff Attorney, ACLU Voting Rights Project
Lillian Alvernaz, Indigenous Justice Legal Fellow, ACLU of Montana

Voting has never been easy for Native Americans living on rural reservations in Montana, which are often geographically isolated, with limited access to postal service and transportation. The passage of the Montana Ballot Interference Prevention Act (BIPA) has made these obstacles even greater, severely inhibiting Native Americans’ access to the ballot. That’s why we’re suing.

In a state where the majority of individuals vote by mail, rural tribal communities often work with get-out-the-vote organizers who collect and transport ballots to election offices that would otherwise be inaccessible. These ballot collection efforts are often the only way Native Americans can access the vote. BIPA would effectively end the practice of ballot collection efforts, and would thus disenfranchise Native American voters en masse.

The legacy of suppressing the Native American vote

The United States has a long history of suppressing the voting rights of Native Americans. Despite being indigenous to the land, for centuries they were not considered citizens and thus were not afforded the right to vote. Victories for civil rights and civil liberties during the Reconstruction Era, like the Civil Rights Act of 1866, specifically excluded Native Americans. The 14th Amendment also excluded Native Americans since they were not considered citizens at the time of its drafting.

Federal law granted Native Americans citizenship and in turn the right to vote in 1924, but many states — including Montana — continued to actively prevent Native Americans from voting. For example, in 1937 Montana passed a law requiring that all voters be taxpayers. Because Native Americans living on reservations were exempt from some local taxes, they could not register to vote. These laws remained on the books until 1975.

What it’s like to vote on a reservation in Montana

Suppression of the Native American vote is not merely a chapter from our history books. Native Americans continue to face barriers to voting, including in Montana.

Throughout much of the United States, absentee ballots are provided as an alternative method of voting, but in Montana, there’s often no other option. The state conducts local elections by mail only, and even in elections that allow voting in person, the vast majority of Montanans vote by absentee ballot. That’s because in-person voting is logistically challenging for many people who live in remote, rural areas of the state.

In Montana, voting by absentee ballot is often the only option.

Few areas are as remote as Native American reservations. Many reservations lack access to public transportation, which makes it difficult to reach distant county election offices, and those who are able to get there have experienced discrimination. But transportation is by no means a guarantee of accessibility. In Montana, blizzards can begin as early as the fall. During last election season much of the state was covered with up to 40 inches of snow. Nor have satellite polling locations been sufficient to provide equal access to the ballots. These locations are open for only a few days within the 30-day early voting period, whereas election county offices are open for the full 30 days.

It’s not always possible to vote without assistance using an absentee ballot. Many Native Americans living in rural Montana lack home mail service. Non-traditional and informal mailing addresses along with the scarcity of post offices, post office boxes, P.O. boxes, and drop-off mail boxes result in limited access to regular mail. Many people rely on P.O. boxes, but these boxes can be as far as 40 miles away, are irregularly checked, and are often shared between large extended families who pool their mail.

Further, sizable numbers of Native Americans on reservations live in poverty which impedes access to transportation, money for gasoline, and car insurance.

Organized get-out-the-vote ballot collection efforts developed under this backdrop. As part of these efforts, ballot collectors distribute absentee ballots, collect them, and transport them to county election offices.

The impact of BIPA

BIPA imposes severe restrictions on who can collect ballots and how many ballots can be collected, effectively ending organized ballot collection in rural tribal communities across Montana. Under BIPA, ballot collectors are limited to just six ballots per collector. Organizers would previously collect up to 100 ballots each.

A violation of BIPA is subject to penalties ranging from $500 per ballot collected to perjury penalties of up to 10 years in prison and $50,000 in fines. These penalties will have a very real and foreseeable chilling effect on ballot collection efforts, and as a result many people on reservations will be unable to vote.

Chilling the Native vote will significantly impact the electorate.

Compliance with BIPA is complicated by unclear definitions about who exactly can collect a ballot. Organizers may or may not fit into its provisions, depending on which interpretation law enforcement officials adopt.

BIPA’s provisions are also incompatible with Native family structures and relationships. BIPA defines a “family member” as “an individual who is related to the voter by blood, marriage, adoption, or legal guardianship.” But that definition does not reflect family relationships in tribal communities, where family includes members of the extended community.

Chilling the Native American vote will significantly impact the electorate in Montana. Nearly 70,000 Native Americans live in the state, from tribes including the Blackfeet Nation, Crow, Flathead, Fort Belknap, Fort Peck, Northern Cheyenne, and Rocky Boy. Montana’s last Senate race was decided by only 17,913 votes and notably, one of BIPA’s sponsors is running for election as governor in 2020.

Why we’re suing

The ACLU, the ACLU of Montana, and the Native American Rights Fund (NARF) are suing the state of Montana on behalf of the Native American led get-out-the-vote grassroots activist group Western Native Voice, whose ballot collection initiatives would no longer be possible under BIPA, and five tribes. The new law violates the state constitutional right to vote,  freedom of speech and freedom of association, and its vague and over-broad restrictions violate due process.

Today, Native communities in Montana aren’t alone in their struggle to vote. Reservations throughout the country lack access to polls and election resources, and the federal government still fails to accommodate nontraditional addresses. And after the U.S. Supreme Court gutted protections in the Voting Rights Act, states with a history of racial discrimination are no longer required to get federal clearance before enacting discriminatory legislation like BIPA.

Voter suppression disproportionately affects minority groups across the country. As a result, minority groups overall have lower turnout rates than whites. Native Americans face unique barriers that impede having a voice in our government.

Our lawsuit seeks to change that by dismantling the additional barriers that BIPA creates — barriers that are unfair, unconstitutional, and hinder the ability of groups like Western Native Voice to reach the communities they serve. Their work is vital as we head into the 2020 election cycle. Every vote should count, and everybody should have a voice.