[Senate Hearing 117-267]
[From the U.S. Government Publishing Office]


                                                      S. Hrg. 117-267

                  VOTING MATTERS IN NATIVE COMMUNITIES

=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 27, 2021

                               __________

         Printed for the use of the Committee on Indian Affairs
         
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                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
47-639 PDF                 WASHINGTON : 2022                     
          
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                      COMMITTEE ON INDIAN AFFAIRS

                     BRIAN SCHATZ, Hawaii, Chairman
                 LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington           JOHN HOEVEN, North Dakota
JON TESTER, Montana                  JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada       STEVE DAINES, Montana
TINA SMITH, Minnesota                MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico            JERRY MORAN, Kansas
       Jennifer Romero, Majority Staff Director and Chief Counsel
        K. Williams, Minority Staff Director and General Counsel
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on October 27, 2021.................................     1
Statement of Senator Cantwell....................................     4
Statement of Senator Cortez Masto................................     3
Statement of Senator Daines......................................    69
Statement of Senator Lankford....................................    78
Statement of Senator Lujan.......................................    73
Statement of Senator Murkowski...................................     2
Statement of Senator Schatz......................................     1
Statement of Senator Smith.......................................    67

                               Witnesses

Anthony, Na'alehu, Communicate Advocate and Principal, Paliku 
  Films..........................................................    62
    Prepared statement...........................................    64
De Leon, Jacqueline, Staff Attorney, Native American Rights Fund.    32
    Prepared statement...........................................    33
Davis, Hon. Janet, Chairwoman, Pyramid Lake Paiute Tribe.........     5
    Prepared statement...........................................     7
Ferguson-Bohnee, Patty, Director/Professor, Indian Legal Clinic, 
  Arizona State University.......................................    46
    Prepared statement...........................................    48
Kitka, Hon. Julie, President, Alaska Federation of Natives.......     8
    Prepared statement...........................................    11
Payment, Hon. Aaron, Secretary, National Congress of American 
  Indians........................................................    45

                                Appendix

Batton, Hon. Gary, Chief, Choctaw Nation of Oklahoma, prepared 
  statement......................................................    87
Nez, Jonathan M., President of the Navajo Nation, prepared 
  statement......................................................    83
Response to written questions submitted by Hon. John Hoeven to 
  Hon. Aaron Payment.............................................   102
Response to written questions submitted by Hon. Ben Ray Lujan to:
    Patty Ferguson-Bohnee........................................    94
    Hon. Aaron Payment...........................................   103
Response to written questions submitted by Hon. Brian Schatz to:
    Jacqueline De Leon...........................................    87
    Patty Ferguson-Bohnee........................................    99
Sharp, Fawn, President, National Congress of American Indians, 
  prepared statement.............................................    81

 
                  VOTING MATTERS IN NATIVE COMMUNITIES

                              ----------                              


                      WEDNESDAY, OCTOBER 27, 2021


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:09 p.m. in room 
628, Dirksen Senate Office Building, Hon. Brian Schatz, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. BRIAN SCHATZ, 
                    U.S. SENATOR FROM HAWAII

    The Chairman. Good afternoon. During today's oversight 
hearing entitled Voting Matters in Native Communities, we will 
examine the American Indian and Alaska voter experience, 
including ongoing challenges to exercising the right to vote in 
Indian Country. We will also examine the less formally 
documented Native Hawaiian voter experience for the first time 
in this Committee's history.
    The legacy of Native American voter suppression is a stain 
on our Country's democracy. Even after gaining citizenship in 
1924, American Indians and Alaska Natives did not have full 
access to the ballot box. In fact, it wasn't until 1962, not 
until 1962, that all States fully guaranteed voting rights for 
Native Americans. The 1965 Voting Rights Act strengthened these 
rights, and the 1975 amendments to the Act included further 
protections for language assistance and translation of voting 
materials. And yet 50 years later, Native Americans continue to 
experience voter discrimination and unjust behavior at the 
ballot box.
    In his testimony before the Judiciary Committee hearing on 
Native voting rights last week, which I will enter into the 
record, Navajo Nation President Nez described barriers like the 
elimination of in-person polling locations on the reservation, 
distant voter registration voting sites, all-mail voting 
systems, lack of language assistance for Navajo-only speakers, 
and racial jerrymandering.
    Unfortunately, Navajo's case is not unique in Indian 
Country. Native voters in States across the Country continue to 
be disproportionately affected by these types of voter 
suppression efforts. That simply cannot stand. Congress must 
take action to counterbalance this historical and ongoing 
discrimination. We cannot allow our most fundamental right, the 
right to vote, to be stripped from Native Americans.
    Last week, the Senate had the opportunity to take action by 
passing the Freedom to Vote Act, which contains key reforms in 
the Native American Voting Rights Act of 2021, but that bill 
was blocked. We in Congress must stay vigilant and keep up the 
fight to protect the franchise, especially for communities of 
color.
    As members of the Indian Affairs Committee, we owe a 
particular duty to American Indians, Alaska Natives, and Native 
Hawaiians, to ensure that their votes are counted, not 
discounted. Voting is sacred and Native votes matter.
    Before I turn to the Vice Chair, I would like to welcome 
and extend my aloha to Mr. Naalehu Anthony, and thank our 
witnesses for joining us today. I look forward to hearing the 
unique perspectives that each of you bring to this 
conversation.
    Vice Chair Murkowski.
    Senator Cantwell. Mr. Chairman, before that, could I ask to 
be recorded present for the vote?
    The Chairman. Without objection.
    Vice Chair Murkowski.

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman, and thank you 
for convening this hearing at this time on this important 
matter.
    When we think about the right to vote, it is clear, this is 
a freedom, this is one that is critical and important to 
American democracy. The right to vote, we know, has evolved 
tremendously over time, including with respect to the voting 
rights of our First Peoples.
    American Indians, Alaska Natives, Native Hawaiians deserve 
an equal opportunity to participate in our American electoral 
system and political process, period. There has to be that 
equal opportunity.
    I have been inspired by the long and storied history of how 
Native Americans have fought to participate in and improve our 
Nation through the democratic processes. This is a part of what 
we have seen in Alaska, where we are proud to share the legacy 
and the contributions of early Alaska Native civil and voting 
rights leaders, including Elizabeth Peratrovich. You may have 
seen her honored on dollar coins in our currency. She is 
getting that recognition that is due.
    But our Nation has not always supported or honored such 
leaders. As our witnesses will note in their testimony, in 
Alaska's 1915 Territorial Act, Alaska Natives were denied 
citizenship unless they could prove, through individual 
examinations, that they had abandoned ``any tribal customs or 
relationship,'' and had adopted the habits of a civilized life.
    Alaska's Territorial Legislature passed a literacy test, 
which disenfranchised Alaska Natives who had gained citizenship 
in 1924. They adopted this literacy test in our State's 
constitution. Not a good part of our State's history.
    Native civil rights leaders have worked to overcome 
obstacles to participation including deliberate efforts by 
State legislatures to deny Native Americans the right to vote 
through policies, such as the literacy test, or sometimes even 
forcing Native peoples to abandon their cultures.
    The Voting Rights Act of 1965 finally made the promise to 
Native Americans that they would have full legal access to 
voting. The Voting Rights Act was pivotal in moving our Country 
out of the dark Jim Crow era of American history. But the 
voting rights legislation, we know, has expanded several times, 
including back in 1975, to protect language minorities.
    So with this hearing today, we have an opportunity, and you 
note, Mr. Chairman, that this follows on the hearing that they 
had last week in Senate Judiciary, but this is our opportunity 
as a committee to hear from Native people about the issues that 
continue to pose barriers to voting. These can include things 
like distance from government offices, geographical isolation, 
lack of roads, the digital divide, lower educational 
attachment, socioeconomic conditions, and certainly 
discrimination.
    Some of the barriers relate to a lack of basic 
infrastructure in our Native communities. I know we are trying 
to get through the process, the bipartisan infrastructure bill, 
that will help us in our rural communities, most certainly. But 
existing disparities continue to affect access to services, and 
can pose obstacles to voting.
    Several of my colleagues, including Senator Lujan, who just 
spoke previously, have introduced specific legislation on 
Native American voting rights that I think attempts to address 
some of the issues that are affecting Native voting access. I 
hope that through this oversight hearing today, we are able to 
more closely examine that bill through the lens of the Indian 
Affairs Committee.
    I am specifically looking forward to hearing about how the 
Native Voting Rights legislation might be implemented, funded, 
and actually work on the ground. We have a good panel in front 
of us today, and we thank them for joining us. I want to give a 
particular welcome to Julie Kitka, who is the President of the 
Alaska Federation of Natives, who is going to be providing 
testimony on this very important matter today. She is no 
stranger to this Committee, and she is clearly one that we will 
want to listen to in this very important discussion.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Vice Chair Murkowski.
    Are there any other members wishing to make an opening 
statement?
    We are going to introduce all of the testifiers in order, 
but I would like Senator Cortez Masto to introduce her guest.

           STATEMENT OF HON. CATHERINE CORTEZ MASTO, 
                    U.S. SENATOR FROM NEVADA

    Senator Cortez Masto. Thank you, Chairman Schatz, Ranking 
Member Murkowski, for holding this important hearing today. I 
am so excited to be able to introduce one of today's witnesses, 
Pyramid Lake Paiute Tribal Chairwoman Janet Davis. She is an 
elected leader, she is a community advocate, a former 
elementary school teacher. Chairwoman Davis has been an active 
member of the Native community in Nevada for decades.
    She has been a particularly strong champion for voting 
rights for Native American voters located in Nevada. During the 
2016 Presidential election, Chairwoman Davis advocated for the 
Pyramid Lake Paiute Tribe in Federal court and in doing so, 
successfully helped establish a new polling place on the 
reservation. Last year during the height of the coronavirus 
pandemic, Chairwoman Davis did all she could to encourage 
Native Americans in Nevada to participate in the election. She 
canvassed for her local community, she helped fellow tribal 
members register to vote, and she ensured that tribal members 
worked the polls during the election.
    As members of Congress, we should be doing everything 
possible to encourage participation in the democratic process 
and ensure that all eligible voters, including Native American 
voters, are able to exercise the right to cast a ballot, just 
as Chairwoman Davis has done for her community.
    So I hope my colleagues join me in welcoming Chairwoman 
Davis. Thank you.
    The Chairman. Thank you, Senator Cortez Masto.
    Senator Cantwell has an opening statement as well.

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman. I want to than 
you and Vice Chair Murkowski for holding this important hearing 
and thank all our witnesses for participating. I originally 
thought that Fawn Sharp from our State, former chair of the 
National Congress of American Indians, former chair of the 
Quinault Tribe, was going to be with us. But I am sure she will 
be submitting information.
    Washington State has been a leader in the accessibility and 
security of elections. We have had record turnouts, sometimes 
as high as 83 or 84 percent. So it is imperative, I believe, 
that legislation like the Freedom to Vote Act, or the Native 
American Voting Rights Act that Senator Lujan recently 
introduced, are important proposals. Tribal communities not 
only need easier access to voting, but they need to feel that 
their ballots are secure.
    The State of Washington has comprehensive voting rights and 
much of that has been possible because of the tireless work and 
advocacy on these issues by tribal leaders in my State. I want 
to thank them for that.
    In 2019, the Washington legislature passed a similar bill 
to the one we are discussing today, the Native American Voting 
Rights Act of Washington. This bill helped increase voter 
registration and turnout in Native communities by expanding 
voter services, improving accessibility on tribal lands, and 
maintaining an incredibly safe and secure system. Just 
yesterday, we were excited to know that now former, as of 
yesterday, Republican Secretary of State Kim Wyman may be 
joining the Biden Administration to lead Election Security's 
and Department of Homeland Security's cybersecurity 
infrastructure security agency. I hope if this is the case, 
that Kim will bridge the gap in other States for some of the 
things that we have been able to do in the State of Washington, 
and help with these issues.
    There is nothing more important than giving people the 
right to vote, making sure those votes are secure and 
increasing voter participation. I am so happy that this focus 
should be not a partisan issue but really one that is important 
to the geography of all Americans, but some who live in some of 
the most remote parts of the United States.
    So I hope that we will work with all of our colleagues to 
make sure that this kind of improvement to our system is 
implemented.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    I will now turn to our witnesses. Senator Cortez Masto 
introduced Ms. Janet Davis. Senator Murkowski introduced Ms. 
Julie Kitka. And Senator Lujan had introduced Ms. Jacqueline De 
Leon.
    We also have the Honorable Aaron Payment, Secretary of the 
National Congress of American Indians. We have Professor Patty 
Ferguson-Bohnee, Director of Indian Legal Clinic, Arizona State 
University, and Mr. Naalehu Anthony, Community Advocate and 
Principal of Paliku Films, in Honolulu, Hawaii.
    We will start with Ms. Davis. Please proceed with your 
testimony. And since we have six of us, please try to confine 
your remarks to five minutes or less. Thank you very much.

STATEMENT OF HON. JANET DAVIS, CHAIRWOMAN, PYRAMID LAKE PAIUTE 
                             TRIBE

    Ms. Davis. Thank you, Senator, for the introduction. Nu 
Janet Davis mee nanea'a. Nu cui ui dicutta. Good afternoon. 
Chairwoman Janet Davis here from the Pyramid Lake Paiute Tribe 
in Nevada.
    I know how important it is for the Native people to vote, 
for the following reasons: to represent our Native views, to 
build a diversified road to elections, to honor our ancestors 
and those fighting to have our right to vote recognized. We as 
Native people, we take political action by casting our vote 
through those who make sure Federal Government fulfills its 
trust obligation to us.
    Tribes across the Nation have some of the greatest needs 
for health care, housing, employment, education, and human 
services. We can address these issues. We make changes possible 
through voting and political action. We let the politicians 
know that we are here, we vote, and we count.
    Voting restrictions and discriminatory laws discourage 
potential voters from wanting to vote. Historically, tribes and 
voters have been blocked from voting. The Natives were the last 
class of people to get the right to vote. Old people know what 
the battles were to earn that right. They are our biggest 
voting group on the reservation. Young people don't know the 
battles. It has been a challenge to get them educated on the 
importance to voting.
    Native voters face limitations to polling locations; most 
are located off reservation and usually great distances from 
our reservations. The poll workers are usually non-Native and 
sometimes not very welcoming.
    County clerks do not reach out to tribes to employ poll 
workers. We as tribal people need to get our Native people 
interested and get them to apply.
    There is a great need for voting rights protections to 
provide for equal access to voting. Our tribe, along with the 
Walker River Paiute Tribe, filed a Federal lawsuit in 2016 
requesting that we have a polling location on our reservation 
as well as early voting on our reservation. If there were 
Federal voting rights protections that allowed for equal voting 
rights, it would be so much easier for all to vote.
    Here in Nevada voters are allowed to vote via mail or at 
the polling location. The State legislature also passed 
legislation that will allow for all reservations to request a 
voting location on their reservations. We are still working to 
educate tribes on what that will take.
    In last year's general election, a number of tribes did 
have drop boxes located on tribal lands. What we are finding 
out is that county clerks are not familiar with the laws or 
their responsibilities to assist tribes. What I see is that 
Tribes need legal assistance in dealing with voting rights. 
Each tribe should not have to threaten a lawsuit for equal 
voting rights.
    We were lucky to have Four Directions assist our tribes 
with the 2016 lawsuit. It also took time to gather information 
from our voters and compile statistics. This takes time and 
money that tribes don't have. With States passing laws to limit 
and hinder voting by Natives there is a great need for 
Congressional action.
    The State legislatures are seeing the strength in the 
Native vote, which they haven't seen before. Native grassroots 
groups are banding together and are becoming voting blocks. Our 
reservation people are voters and that is mainly due to us 
having our own polling location on our reservation and all of 
our Native people are poll workers. We now have a good working 
relationship with our county clerk.
    True representation for Native voters and communities means 
that tribal voters find it easy to register to vote and have 
easy access to a voting location. It means that Native people 
are working the polls and are welcoming to Native voters.
    What would the protections in the Native American Voting 
Rights Act of 2021 mean to us as Native voters? It would mean 
that the Federal Government is meeting its trust responsibility 
to protect and promote Native-Americans' exercise of their 
constitutionally guaranteed right to vote, including the right 
to register to vote and the ability to access all mechanisms 
for voting; to establish tribal administrative review 
procedures for a specific subset of State actions that have 
been used to restrict access to the polls on Indian lands; to 
expand voter registration under the National Voter Registration 
Act of 1993 to cover Federal facilities; to afford equal 
treatment to forms of identification unique to Indian Tribes 
and their members; to ensure Indians and Alaska Natives 
experiencing homelessness, housing insecurity, or lacking 
residential mail pickup and delivery can pool resources to pick 
up and return ballots; to clarify the obligations of States and 
political subdivisions regarding the provision of translated 
voting materials for American Indians and Alaska Natives under 
Section 203 of the Voting Rights Act of 1965, 52 U.S.C. 10503; 
to provide Tribal leaders with a direct pathway to request 
Federal election observers and to allow public access to the 
reports of those election observers; to study the prevalence of 
nontraditional or nonexistent mailing addresses in Native 
communities and identify solutions to voter access that arise 
from the lack of an address; and to direct the Department of 
Justice to consult on an annual basis with Indian Tribes on 
issues related to voting.
    This is an act that needs to be passed before the next 
election. Tribes also need funding to help enforce the 
initiatives set forth in this act.
    In Nevada we are working to be proactive in making sure 
that all of our people have fair and easy access to the polls. 
We want our people working the polls, on and off the 
reservation.
    There are so many opportunities that we have once we vote. 
Our voices become stronger when working to pass State 
legislation. An example of this is, and we are proud to say 
that we worked to pass AB262, a tuition waiver bill that allows 
our Native Nevadan students to attend State colleges and 
universities tuition free. We also become more involved at all 
levels of State government as voters are listened to.
    Also, the Nevada State Legislature passed Senate Bill 492 
to provide Indian Tribes the ability to request a polling 
location either for early voting or election day on Indian 
reservations or colonies to improve access to elections. 
Furthermore, Assembly Bill 137 established once a polling 
location is established, it must continue to serve as a polling 
location for future elections. That is the power of Native 
voting.
    Thank you all for listening today.
    [The prepared statement of Ms. Davis follows:]

Prepared Statement of Hon. Janet Davis, Chairwoman, Pyramid Lake Paiute 
                                 Tribe
    Nu Janet Davis mee nanea'a. Nu cui ui dicutta.
    Voting restrictions and discriminatory laws discourage potential 
voters from wanting to vote. Historically, tribes and voters have been 
blocked from voting. The natives were the last class of people to get 
the right to vote. Old people know what the battles were to earn that 
right. They are our biggest voting group on the reservation. Young 
people don't know the battles. It's been a challenge to get them 
educated on the importance to voting.
    Native voters face limitations to polling locations; most are 
located off reservation and usually great distances from reservations. 
The poll workers are usually non-native and sometimes not very 
welcoming. County clerks do not reach out to tribes to employ poll 
workers; we as tribal people need to get out native people interested 
and get them to apply.
    There is a great need for voting rights protections to provide for 
equal access to voting. Our tribe, along with the Walker River Paiute 
Tribe filed a federal lawsuit in 2016 requesting that we have polling 
location on our reservation as well as early voting on our reservation.
    If there were federal voting rights protections that allowed for 
equal voting rights, it would be so much easier for ALL to vote. Here 
in Nevada voters are allowed to vote via of mail or at the polling 
location. The State legislature also passed legislation that will allow 
for all reservations to request a voting location on their 
reservations; we are still working to educate tribes on what that will 
take. In last year's general election, a number of tribes did have drop 
boxes located on tribal lands. What we're finding out is that county 
clerks are not familiar with the laws or their responsibilities to 
assist tribes.
    What I see is that Tribes need legal assistance in dealing with 
voting rights. Each tribe should not have to threaten a law suit for 
equal voting rights. We were lucky to have Four Directions assist our 
tribes with the 2016 lawsuit. It also took time to gather information 
from our voters and compile statistics. This takes time and money that 
tribes don't have. With states passing laws to limit and hinder voting 
by natives there is a great need for Congressional action.
    The state legislatures are seeing the strength in the native vote, 
which they haven't seen before. Native grassroots groups are banning 
together and are becoming voting blocks. Our reservation people are 
voters and that's mainly due to us having our own polling location on 
our reservation and all of our native people are poll workers. We now 
have a good working relationship with our county clerk.
    True representation for Native Voters and communities means that 
tribal voters find it easy to register to vote and have easy access to 
a voting location. It means that native people are working the polls 
and are welcoming to native voters.
    What would the protections in the Native American Voting Rights Act 
of 2021 mean to us as Native voters?
    It would mean that:

        (1) the Federal Government is meeting its trust responsibility 
        to protect and promote Native-Americans' exercise of their 
        constitutionally guaranteed right to vote, including the right 
        to register to vote and the ability to access all mechanisms 
        for voting;

        (2) to establish Tribal administrative review procedures for a 
        specific subset of State actions that have been used to 
        restrict access to the polls on Indian lands;

        (3) to expand voter registration under the National Voter 
        Registration Act of 1993 to cover Federal facilities;

        (4) to afford equal treatment to forms of identification unique 
        to Indian Tribes and their members;

        (5) to ensure American Indians and Alaska Natives experiencing 
        homelessness, housing insecurity, or lacking residential mail 
        pickup and delivery can pool resources to pick up and return 
        ballots;

        (6) to clarify the obligations of States and political 
        subdivisions regarding the provision of translated voting 
        materials for American Indians and Alaska Natives under section 
        203 of the Voting Rights Act of 1965 (52 U.S.C. 10503);

        (7) to provide Tribal leaders with a direct pathway to request 
        Federal election observers and to allow public access to the 
        reports of those election observers;

        (8) to study the prevalence of nontraditional or nonexistent 
        mailing addresses in Native communities and identify solutions 
        to voter access that arise from the lack of an address; and

        (9) to direct the Department of Justice to consult on an annual 
        basis with Indian Tribes on issues related to voting.

    This is an act that needs to be passed before the next election. 
Tribes also need funding to help enforce the initiatives set forth in 
this act.
    In Nevada we are working to be proactive in making sure that all of 
our people have fair and easy access to the polls. We want our people 
working the polls, on and off reservation.
    There are so many opportunities that we have once we vote. Our 
voices become stronger when working to pass state legislation. We are 
proud to say that we worked to pass AB262 a tuition waiver bill that 
allows our Native Nevadan students to attend state colleges and 
universities tuition free. We also become more involved at all levels 
of state government as voters are listened to.

    The Chairman. Thank you very much, Ms. Davis.
    Now we have Julie Kitka, the President of AFN.

STATEMENT OF HON. JULIE KITKA, PRESIDENT, ALASKA FEDERATION OF 
                            NATIVES

    Ms. Kitka. Good afternoon. Aloha, Chairman Schatz, and Vice 
Chairman Murkowski and members of the U.S. Senate Committee on 
Indian Affairs.
    Thank you for the opportunity to testify today. My name is 
Julie Kitka and I have the honor of serving as the President of 
the Alaska Federation of Natives, or AFN.
    Established in 1966 by our early leaders to achieve a fair 
and just settlement of aboriginal land claims, AFN is the 
oldest and largest statewide Native organization in Alaska. It 
counts as our members nearly half the federally recognized 
tribes in our Country and regional and village Native 
corporations formed under our land claims, and all of the 
regional nonprofit tribal consortia and nonprofits 
administering programs under the Indian Self-Determination Act.
    Having worked to overcome the decades-long 
disenfranchisement of Alaska Native voters, AFN is well 
positioned to help the Committee understand the continuing need 
to protect the foundational rights of Alaska Natives to express 
their decisions in voting.
    Before turning to the topic of today's hearing, I want to 
remind the Committee that we are still dealing with 
unprecedented change going on in our lives. Rapid change has 
been a key part of our lives for a number of decades and this 
change and disruption continues. Working together with our 
Congressional delegation and others, we have made lasting 
improvements: extending life expectancy, reducing poverty, 
increasing access to life-saving health care, and building the 
capacity to stand on our own two feet.
    I want to express my deepest appreciation for the Federal 
help we have received to try and combat the pandemic and the 
economic collapse which affects us all. The acceleration of 
technological change, while with many benefits, still 
exasperates inequities, especially in our rural remote 
communities. Your willingness to craft solutions with this 
understanding would be greatly appreciated.
    Further, I take to heart the national policy reinvigorating 
our Country and strengthening our infrastructure and democracy 
to deal with increasing competition across the world. Voting 
rights legislation to me is a foundation to strengthen 
democracy and the rule of law.
    I also want to thank Senator Murkowski for recognizing 
Elizabeth Peratrovich. She and her husband Roy were a team, and 
they are icons in our State on overcoming discrimination in 
voting rights. We sometimes think about Elizabeth Peratrovich 
as part of our history, but I can remember meeting her husband 
Roy when he was a superintendent at the Bureau of Indian 
Affairs, and he would have behind his desk pictures of his 
grandkids, and he even put my daughter up there with his 
grandkids.
    Elizabeth Peratrovich and her impacts, and her husband, and 
all the other people who supported her and helped her, is our 
current history. It is not old.
    Today I want to focus in my testimony on four issues. 
First, I want to dispel the false narrative that voting rights 
violations are a thing of the past in Alaska, and attributable 
to previous administrations. The facts, evidence and judicial 
decisions say otherwise and point to the role of current 
election officials in those violations.
    Every successful enforcement action on behalf of Alaska 
Natives under the Voting Rights Act in the past quarter-century 
has occurred because of violations which occurred, in whole or 
in part, while the current leadership of the Alaska Division of 
Elections has been in place. This includes the Nick litigation 
on behalf of the Yup'ik-speaking villages in the Bethel area as 
well as the Yup'ik-speaking villages in Dillingham and other 
regions, and the Gwich'in-speaking villages in the Yukon-
Koyukuk region. More regions of Alaska are currently designated 
for Federal observers under the Voting Rights Act than the 
remainder of the United States, because of those violations.
    Second, I want to briefly explain how Alaska's Election 
Director has exercised discretionary authority under Alaska law 
to impede equal access to Alaska Natives to voting 
opportunities. Those discretionary acts have included seeking 
to close in-person voting locations in Alaska Native villages, 
such as designating some villages permanent absentee voting 
sites, proposing vote by mail despite language and illiteracy 
barriers that require in-person bilingual assistance for elders 
to cast effective ballots.
    Under the current Director's watch, Federal Help America 
Vote Act funds designated for uses including language 
assistance languished in interest-bearing accounts, while the 
Director prioritized opening a new elections office in the 
small non-Native community of Wasilla, just outside of 
Anchorage. Rural election workers were required to be 
volunteers and paid a stipend of $100, or about 15 cents an 
hour, versus urban election workers who were hired and paid $15 
an hour.
    For years, the Director rejected requests by Alaska Native 
villages for early voting sites; at the same time early voting 
locations proliferated in the predominately non-Native urban 
areas. Only after AFN intervened on behalf of these villages 
and engaged in self-help to open those locations did the 
Director acquiesce.
    Third, I want to emphasize that the pre-clearance 
requirements of Section 5 stopped voting discrimination before 
it occurred in Alaska. The straightforward, cost-effective, and 
timely pre-clearance mechanism has been replaced by years of 
disenfranchisement of Alaska Native voters, while 
discriminatory practices have been challenged in the courts.
    Alaska has incurred a monetary price in the millions of 
dollars it has had to pay for these discriminatory practices. 
But the far greater cost has been to the thousands of Alaska 
Natives disenfranchised while voting cases wound their way 
through the courts.
    Fourth, I want to emphasize that these bills are needed to 
address Alaska's present and ongoing discrimination against 
Alaska Natives. This is not the time for half-measures that 
will leave Alaska Native voters without the full protections 
guaranteed by the Constitution and the broad plenary powers 
that Congress has to regulate its relations with federally 
recognized tribes through free and equal access to the 
political process. These bills are complementary provisions 
that the Senate must pass immediately. Anything short of 
passage of both would reflect a lack of commitment to 
eradicating, once and for all, the first-generation voting 
barriers that Alaska Native voters face every day.
    Protecting the right to vote is not a partisan issue. It is 
a fundamental civil rights issue for Alaska Natives. Everyone 
suffers and elected government has less legitimacy each time an 
Alaska native is prevented from registering to vote or is 
turned away at the polls. Now is the time to act, now is the 
time to pass S. 4, the John R. Lewis Voting Rights Advancement 
Act of 2021, and Title III of that bill, NAVRA, which is code 
named after a great Alaska Native civil rights leader, 
Elizabeth Peratrovich.
    Thank you for your attention and your commitment to making 
voting fully accessible to Alaska Natives and other voters in 
Indian Country. I welcome the opportunity to answer any 
questions you may have now or in writing following the hearing.
    Thank you.
    [The prepared statement of Ms. Kitka follows:]
    The Chairman. Thank you, Ms. Kitka.

Prepared Statement of Hon. Julie Kitka, President, Alaska Federation of 
                                Natives
Introduction
    Chairman Schatz, Vice Chairwoman Murkowski, and Members of the U.S. 
Senate Committee on Indian Affairs, thank you for the opportunity to 
testify today on ``Voting Matters in Native Communities.'' My name is 
Julie Kitka, and I am the President of the Alaska Federation of Natives 
(AFN). \1\
    Established in 1966 to achieve a fair and just settlement of 
aboriginal land claims, AFN is the oldest and largest statewide Native 
membership organization in Alaska. Our members include most of the 
federally recognized Alaska Native tribes; most of the regional and 
village Native corporations (ANCs) established under the Alaska Native 
Claims Settlement Act of 1971 (ANCSA); \2\ and all of the regional 
nonprofit tribal consortia that contract or compact to administer 
federal programs pursuant to the Indian Self-Determination and 
Education Assistance Act of 1975 (ISDEAA). \3\
    Having worked to overcome the decades-long disenfranchisement of 
Alaska Native voters, and counting as members nearly 500 federally-
recognized tribes and ANCSAs, AFN is well positioned to help the 
Committee understand the continuing need to protect the Alaska Native 
vote. The provisions in S.4, The John R. Lewis Voting Rights 
Advancement Act of 2021 (VRAA), and Title III of that bill, The Frank 
Harrison, Elizabeth Peratrovich, and Miguel Trujillo Native American 
Voting Rights Act of 2021 (NAVRA), are essential to address the 
obstacles that continue to impede the political participation of Alaska 
Natives.
    I want to begin by acknowledging the Committee's important work on 
H.R.1688, the Native American Child Protection Act, a bipartisan bill 
that Representative Don Young of Alaska supports as an original co-
sponsor. H.R. 1688 strengthens programs related to the prevention, 
investigation, treatment, and prosecution of family violence, child 
abuse, and child neglect involving Native children and families. These 
are critical issues for Alaska Natives, and I commend the Committee for 
moving forward with their discussion of the House legislation.
    Before turning to the topic of today's hearing, I want to remind 
the Committee that we are still dealing with unprecedented change going 
on in our lives. Rapid change has been a key part of our lives for a 
number of decades and this change and disruption continues. Working 
together with our Congressional Delegation, we have made lasting 
improvements--extending life expectancy, reducing poverty, increasing 
access to life-saving health care, and building the capacity to stand 
on our own two feet. I want to express my deepest appreciation for the 
federal help we have received to try and combat the pandemic and 
economic collapse which affects us all. The acceleration of 
technological change while with many benefits still exasperates 
inequities, especially in our rural remote communities. Your 
willingness to craft solutions with this understanding would be greatly 
appreciated.
    Today, I will be focusing on four issues.
    First, I will dispel the false narrative that voting rights 
violations are a thing of the past in Alaska, attributable to previous 
administrations. The facts, evidence and judicial decisions say 
otherwise and point to the role of the current Director of the Division 
of Elections in those violations. It is very uncomfortable to point to 
an individual, and may reflect the systems in place more than a single 
person. Every successful enforcement action on behalf of Alaska Natives 
under the Voting Rights Act in the past quarter-century has occurred 
because of violations which occurred, in whole or in part, during the 
tenure of Alaska's current Director of the Divisions of Elections 
(DOE). Under Alaska law, DOE's Director is responsible for the conduct 
of all state elections including compliance with requirements under 
federal law. \4\ Internal documents from DOE show that the current 
Director issued policy decisions that were knowing violations of 
federal law. Those violations have continued to the present, resulting 
in ongoing federal court oversight of Alaska. More regions of Alaska 
are currently designated for federal observers under the Voting Rights 
Act than in the remainder of the United States.
    Second, I will explain how the current Director of DOE has 
exercised discretionary authority under Alaska law to impede equal 
access of Alaska Natives to voting opportunities. The current Director 
has pushed for closing in-person voting locations in Alaska Native 
villages, whether through designating some villages as Permanent 
Absentee Voting (PAV) sites or proposing vote-bymail despite large 
numbers of Limited-English Proficient (LEP) Alaska Native Elders whose 
language and illiteracy barriers require in-person bilingual assistance 
to cast effective ballots. Under the current Director's watch, federal 
Help America Vote Act (HAVA) \5\ funds designated for uses including 
language assistance languished in interest-bearing accounts, while the 
Director prioritized opening a new elections office in the small non-
Native community of Wasilla, just outside of Anchorage. Rural election 
workers were required to be volunteers and paid a stipend of $100 (or $ 
.15/hr) vs urban election workers were hired and paid $15.00/hr. For 
years, the Director rejected requests by Alaska Native villages for 
early voting sites at the same time early voting locations proliferated 
in the predominately non-Native urban areas. Only after AFN intervened 
on behalf of those villages and engaged in self-help to open those 
locations did the Director acquiesce.
    Third, I will briefly describe how the preclearance requirements of 
Section 5 stopped voting discrimination before it occurred in Alaska. 
In the absence of Section 5 coverage following the Shelby County 
decision, voting rights violations have flourished. Elections 
officials, led by the Director of DOE, consistently have provided 
unequal opportunities for Alaska Natives to register to vote, to cast a 
ballot and to have their ballot counted, compared to non-Natives living 
in urban areas. The unfettered discretion of state officials has 
directly led to a decade of successful voting rights cases brought by 
Alaska Natives. The straight-forward, cost-effective and timely 
preclearance mechanism has been replaced by years of disenfranchisement 
of Alaska Native voters while discriminatory practices have been 
challenged in the courts. Alaska has incurred a monetary price in the 
millions of dollars it has had to pay Alaska Natives for their 
attorneys' fees and costs. But the far greater cost has been to the 
thousands of Alaska Natives disenfranchised during the pendency of the 
litigation.
    Fourth, I will conclude with an explanation of why both the VRAA 
and NAVRA are needed to address Alaska's present and ongoing 
discrimination against Alaska Natives. This is not the time for half-
measures that will leave Alaska Native voters without the full 
protections guaranteed by the Fourteenth and Fifteenth Amendments, the 
Elections Clause to the United States Constitution and the broad 
plenary powers that Congress has to regulate its relations with 
federally recognized tribes through free and equal access to the 
political process. The VRAA and NAVRA are complimentary provisions that 
the Senate must pass immediately. Anything short of passage of both the 
VRAA and NAVRA would reflect a lack of commitment to eradicating, once 
and for all, the firstgeneration voting barriers that Alaska Native 
voters face every day.
The Prevalence of Voting Discrimination Against Alaska Natives
    Alaska Natives were the last of the ingenuous peoples in this 
country to obtain our fundamental right to vote. I will only briefly 
describe some of the voting discrimination against Alaska Natives, 
summarizing some of the details that are presented in Attachments A and 
B of my written testimony. \6\
    Alaska Natives, like all of the First Peoples, were disenfranchised 
for much of our history. In Alaska's 1915 Territorial Act, Alaska 
Natives were denied citizenship unless they could prove through 
individual examination, conducted by non-Native examiners, that they 
had abandoned ``any tribal customs or relationship'' and adopted ``the 
habits of a civilized life.'' \7\ Thus, Alaska Natives could only 
become eligible to become citizens, based upon the subjective and often 
racist whims of non-Native decisionmakers, and only if the Alaska 
Natives gave up their cultural identity. The Indian Citizenship Act of 
1924, which formally made all American Indians and Alaska Natives 
citizens of the United States who had not already become so, did little 
to improve the access of Alaska Natives to the ballot.
    In 1925, Alaska's Territorial Legislature responded to the Indian 
Citizenship Act of 1924 by passing a literacy test requirement for 
voting. Two of Alaska's leading newspapers at the time laid bare what 
was behind the new law:

        The Alaska Daily Empire stated that Alaska Natives ``cannot be 
        even remotely considered as possessing proper qualifications'' 
        for voting, and the Fairbanks Daily News-Miner warned of Native 
        voters of a ``lower order of intelligence.'' Supporters of the 
        literacy test ran an advertisement in the Juneau newspaper 
        stating that its purpose was ``to prevent the mass voting of 
        illiterate Indians'' and that the test was an ``opportunity to 
        keep the Indian in his place.'' \8\

    The literacy test was designed to exploit the illiteracy of most 
Alaska Natives, who were denied schooling opportunities by educational 
discrimination that failed to provide any public schools in Alaska 
Native villages regardless of population. \9\ Compounding that 
discrimination, courts in Alaska upheld state efforts to maintain 
segregated schooling that denied admission to any Alaska Natives that 
non-Native officials deemed to be ``uncivilized'' through application 
of offensive cultural and racial stereotypes. \10\
    The discriminatory purpose of the 1925 Literacy Test was evident, 
much like what is motivating modern day violations: to prevent Alaska 
Natives from being part of the body politic and to elect 
representatives responsive to their needs.
    Figure 1. Advertisement with a racial appeal by non-Native 
candidates for the legislature. *
---------------------------------------------------------------------------
    * The Figures and attachments to this prepared statement have been 
retained in the Committee files.
---------------------------------------------------------------------------
    Non-Natives feared the political power that Alaska Native voters 
could wield if they were allowed to register to vote and cast ballots 
on an equal footing. The same motivations remain present today, as I 
will show in some of the internal correspondence from Alaska's Division 
of Elections.
    Alaska Natives also faced discrimination paralleling much of what 
was directed against Black citizens in the South. They were denied 
access to housing through race based restrictive covenants that barred 
Alaska Natives and persons of color from owning homes in many 
communities. Native families attempting to dine out or show encountered 
signs in businesses that read, ``No Natives, No Dogs'' or advertised 
``All White Help.'' Movie theaters and other places of public 
accommodation were segregated, with Alaska Natives and non-White 
patrons confined to balcony areas with derogatory references such as 
``N___er Heaven.'' \11\
    Through their work with the Alaska Native Sisterhood and the Alaska 
Native Brotherhood, Elizabeth and Roy Peratrovich began lobbying in 
1941 for an anti-discrimination bill in Alaska's Territorial 
Legislature. Four years later, the bill had not moved. A Territorial 
Senator spoke out against the bill, denouncing efforts to desegregate 
Alaska's social and economic life by arguing, ``Who are these people, 
barely out of savagery, who want to associate with us whites, with 
5,000 years of recorded civilization behind us?'' \12\ Elizabeth 
Peratrovich responded forcefully, decrying Alaska's Jim Crow practices 
fostered by non-Natives who ``believe[d] in the superiority of the 
white race.'' \13\ She continued, ``I would not have expected that I, 
who am barely out of savagery, would have to remind gentlemen with five 
thousand years of recorded civilization behind them, of our Bill of 
Rights.'' \14\
    Alaska's Territorial Legislature took action by enacting the Alaska 
Equal Rights Act of 1945. The Act protected equal access to public 
accommodations to Alaska Natives and all non-Whites, providing that 
``All citizens shall be entitled to the full and equal enjoyment of 
accommodations, advantages, facilities, and privileges'' of public 
places. \15\ Sadly, although Elizabeth Peratrovich lived to see the 
Alaska Equal Rights Act signed into law, she passed away in 1958, long 
before other discriminatory laws in Alaska, such as the Territorial and 
State literacy tests, were nullified by the federal Voting Rights Act 
(VRA). \16\ I can think of no greater honor to bestow upon the first 
lady of civil rights for Alaska Natives, Elizabeth Peratrovich, than 
including her name on NAVRA.
    When schooling began to become available after statehood in 1959, 
it was provided to Alaska Native children by requiring them to fly 
thousands of miles from their homes to attend boarding schools, 
including some as far away as the east coast of the United States. 
Another alternative was for Alaska Native children to effectively 
become laborers for non-Native households who took them in to allegedly 
provide them with access to public schooling in Alaska's urban centers. 
Alaska Native students were largely girls, with Alaska Native boys 
mostly staying home to assist their families with subsistence hunting 
and fishing.
    Girls sent away to schooling frequently were sexually assaulted, 
subjected to mental and physical abuse, targeted with racial slurs, and 
segregated among student populations to make it difficult (and for some 
students impossible) to learn anything. Boys left behind in their 
villages then are today's male Elders who suffer the highest rates of 
limited-English proficiency and illiteracy. ``By 1972, only 2,200 out 
of over 51,000 Alaska Natives had a high school education,'' \17\ with 
illiteracy rates exceeding those of Black voters in every southern 
state covered by Section 5 of the Voting Rights Act.
    Alaska Natives today bear the scars of educational discrimination, 
which can limit our ability to participate effectively in the voting 
process. ``In 2002, the Alaska Advisory Committee to the U.S. 
Commission on Civil Rights found that Alaska Native students `score 
lower on achievement tests than any other minority group, and 
considerably lower than White students.' Over 80 percent of Alaska 
Native graduating seniors were not proficient in reading 
comprehension.'' \18\
    Language and literacy barriers were prevalent in Senator 
Murkowski's successful effort to become the first United States Senate 
candidate in more than 50 years to win electoral office in a write-in 
campaign in 2010. In that case, a federal court rejected efforts to 
throw out write-in votes that clearly expressed the voter's intent for 
Senator Murkowski, but misspelled her last name. \19\ One can imagine 
how a different electoral result would have occurred in the absence of 
substantial efforts by Alaska Native villages to assist LEP and 
illiterate Elders in identifying their candidate of choice by writing 
it out as best they could.
    Alaska's well-documented history of voting discrimination has been 
prevalent throughout recent years, in a series of decisions by both the 
U.S. Department of Justice and federal courts examining claims against 
the State's two election officials responsible for administering the 
state's elections: the Lieutenant Governor and the Director of the 
Division of Elections. As described in the attached article, 
contemporary discrimination by those election officials has included, 
among other things:

  Retrogression, or backsliding, by failing to provide language 
        assistance according to the plan that the State of Alaska 
        precleared with the U.S. Department of Justice;

  Unequal compensation for poll workers in many Alaska Native 
        villages, compared to the compensation received by poll workers 
        in urban polling locations;

  Disparate use of federal Help America Vote Act of 2002 (HAVA) 
        funding, including use of funds to open a new elections office 
        and voter registration site in the predominately non-Native 
        community of Wasilla, while failing to use funds for language 
        assistance until the State was sued in federal court;

  Widespread designation of rural Alaska Native villages as 
        Permanent Absentee Voting (PAV) sites, in which all voting 
        materials and information was sent by mail in English, 
        providing no in-person language assistance for LEP Alaska 
        Native voters who were unable to read voting materials or to 
        vote effectively without assistance;

  Shirking responsibility to provide language assistance to 
        Alaska Native voters by sending English-only materials to radio 
        stations and villages asking them to provide translations ``if 
        available;''

  Attempting to ``realign'' (a euphemism for ``close'') polling 
        places in Alaska Native villages and consolidating them with 
        other Native villages accessible only by air travel, weather 
        permitting, a practice the U.S. Department of Justice stopped 
        through its Section 5 review process;

  Declining to provide early voting sites in Alaska Native 
        villages, instead only authorizing some sites after AFN, 
        through my staff's efforts, to recruit workers in 128 villages 
        to provide early voting services in just eleven days (due to an 
        arbitrary deadline set by the State), only to be followed by 
        the Director of the Division of Elections falsely claiming 
        credit in her public statements for the work that AFN did;

  Failing to implement any meaningful efforts at Yup'ik 
        language assistance in Alaska Native villages in the Bethel 
        Census Area until State officials were sued in Nick v. Bethel, 
        \20\ and even then the efforts by those officials was so poor 
        that a federal judge entered a preliminary injunction against 
        them after finding a substantial likelihood of success on the 
        merits that the State had violated Sections 203 and 208 (the 
        voter assistance provision) of the Voting Rights Act in 2008;

  Engaging in intentional discrimination against Alaska Native 
        voters, with State officials including the Director of the 
        Division of Elections, directing election staff to limit all 
        Yup'ik language materials and information to the ``Bethel 
        Census Area only'' in repeated written correspondence;

  Ending the employment of the one Yup'ik language coordinator 
        on the last day that the Nick v. Bethel settlement agreement 
        was in effect, and not replacing her until after the State 
        officials were sued a second time for violating Section 203 in 
        three other census areas in Toyukak v. Treadwell in 2013;

  Directing the one permanent bilingual Yup'ik bilingual 
        coordinator hired after the Toyukak litigation was filed to 
        spend most of his time doing data entry of voter registration 
        records and voting history, instead of the language assistance 
        needed throughout Alaska;

  Arguing in the Toyukak litigation that the Fifteenth 
        Amendment did not apply to Alaska Natives because they were 
        Alaska Natives;

  Maintaining that the State could paternalistically decide 
        what election information Alaska Natives were entitled to know, 
        with the State contending that Alaska Natives could receive 
        less information than non-Native voters received in English 
        simply because they were Natives;

  Failing to translate most ballot measures and materials in 
        the Gwich'in language, even after being warned by the U.S. 
        Department of Justice of the need to translate voting 
        information provided on electronic voting machines;

  Failing to provide effective language assistance in three 
        regions of Alaska, the Dillingham, Kusilvak (formerly known as 
        Wade Hampton, named after a Confederate General who advocated 
        forced segregation of the races), and Yukon-Koyukuk Census 
        Areas, as determined by a federal judge in Toyukak v. 
        Treadwell, the first Section 203 language assistance case fully 
        litigated through trial to a decision since 1980;

  Falling short of compliance with the requirements of the 
        Toyukak order, as documented by federal observers in several 
        elections since 2014; \21\ and

  Most recently, in 2020, a state court suspended Alaska's 
        witness signature requirement (which mandated a witness outside 
        of the voter's household verify the signature was the voter's), 
        which would have prevented Alaska Native voters subject to 
        village lock-down orders to limit the spread of COVID-19 from 
        being able to vote. \22\

    Many of these practices which I have described, as well as other 
examples in a comprehensive report by NARF, \23\ are the very ones that 
would be stopped by the amendments to the Voting Rights Act included in 
S.4 and Title III of the bill, NAVRA.
All Judicial Findings of Voting Rights Violations in the State of 
        Alaska Have Occurred under the Current Director of the Division 
        of 
        Elections. \24\
    Prior to the reauthorization of the VRA in 2006, Alaska had done 
little to comply with federal requirements under Section 203 of the 
Act. As the Alaska report included in the congressional record 
observed, ``[s]ince its inclusion in the VRA in 1975, Alaska appears to 
have not complied with its obligation to provide voting assistance in 
Alaska Native languages.'' \25\ This record of deliberate inaction and 
indifference by Alaska came despite clear evidence that Alaska's 
election officials knew about their responsibilities under the VRA but 
chose to ignore them, including:

  Correspondence from the U.S. Department of Justice informing 
        Alaska of its coverage under Section 4(f)(4) of the Act in 
        1975;

  Correspondence from the U.S. Department of Justice 
        information Alaska of its coverage under Section 203 of the 
        Act, following each determination made under that Section in 
        1975, 1982, 1992, 2002, 2006, and 2011;

  In 1981, Alaska submitted its language assistance plan to the 
        U.S. Department of Justice for preclearance, which it received 
        based upon its assurances that it would provide bilingual 
        translations for voting information in all Alaska Native 
        languages covered by Sections 4(f)(4) and 203 of the VRA;

  Correspondence from the U.S. Department of Justice 
        periodically informed Alaska of its concerns that the State was 
        not providing language assistance contrary to its precleared 
        language plan and the requirements of Sections 4(f)(4) and 203 
        of the VRA;

  Alaska election officials acknowledged receipt of the Alaska 
        report in 2006, which documented their violations of the VRA, 
        with those officials denying that there were any violations.

    At the same time that Division of Elections officials denied they 
were violating the VRA, they acknowledged their awareness of those 
violations and their plans to address them. But all of those plans were 
put on hold by what they considered higher priorities: the 2006 and 
2007 elections. Admissions by DOE officials made clear that they did 
not consider the State's failure to provide bilingual outreach, 
information and assistance to Alaska Natives as important as running 
Englishonly elections that facilitated voting by non-Natives:

  Whitney Brewster, who was the predecessor of the current DOE 
        Director, \26\ admitted under oath that DOE ``started looking 
        in April 2006'' at improving its language plan, but ``put it 
        aside as we were conducting our major statewide election as 
        well as our REAA/CSRA election . and we picked it back up after 
        the election and then we were hit with another statewide 
        special election in April of 2007'';

  Shelly Growden, a supervisor who reported to Ms. Brewster and 
        the current DOE Director until her retirement, acknowledged 
        that Alaska had done little to provide language assistance 
        until approximately when Alaska was sued in the Nick 
        litigation. ``We started working on updating the plan in 2007. 
        The Division was hit with a statewide special election. After 
        that special election in April, we started making updates to 
        our language assistance plan.''

  Ms. Brewster crystallized the priorities of DOE officials by 
        making clear that language assistance for Alaska Native voters 
        simply was not on par with other legal requirements for 
        Alaska's elections: ``Language assistance is not the only 
        assistance that the Division of Elections provides . We have . 
        the demands of every voter in the state.''

    When the current Director of DOE took over supervision of Alaska's 
elections, she admitted that her office was not performing most of the 
tasks required by Alaska's precleared 1981 language assistance plan. 
Specifically, contrary to the plan that Alaska told the U.S. Department 
of Justice it used for its elections:

  The State did not track the language abilities of its voting 
        registrars and prior to May 2008 had never translated any voter 
        registration information into Yup'ik;

  Alaska election officials had never produced and used Yup'ik 
        video recordings for elections information, which according to 
        Whitney Brewster, ``based on precedent, it hadn't been done'';

  With the exception of two incomplete and poorly translated 
        30-second radio ads aired by the State in 2006, the DOE had 
        never produced and used Yup'ik audio recordings for elections 
        information. Instead, the State tried to place its legal duty 
        to translate on radio stations, asking station personnel to 
        translate English-only voting information ``if available'';

  Alaska election officials never traveled to Yup'ik villages 
        to work with interpreters in preparing audio recorded 
        translations because according to the Director, ``We do not'' 
        do that;

  State officials never confirmed the English and Yup'ik 
        language skills and literacy abilities of election workers 
        designated as their Yup'ik translators and often had had no 
        translators in the polls; and

  All Yup'ik translators required to translate ``on the spot'' 
        without uniform Yup'ik translations; in 2008, no uniform 
        translations for offices on ballot, instructions, and other key 
        information.

    Although Section 203 of the VRA placed the duty to provide language 
assistance on the State of Alaska, the State's Director of DOE 
responsible for administering elections, admitted that Yup'ik 
translations were only available if voters engaged in self-help: ``They 
would have to have an individual translate the . English version for 
them.'' As Regional supervisor Becka Baker explained, oral Yup'ik 
translations were not provided because ``All our communications are 
done in English.''
    Division of Elections officials conceded that most voting 
announcements communicated to voters in English was not offered in any 
Alaska Native language, including critical information such as:

  The right of voters to receive language assistance in Alaska 
        Native languages during the registration and voting process;

  How to complete a questioned ballot;

  Polling place information and how to get that information in 
        Alaska Native languages;

  Absentee voting information;

  Information that tribal ID cards, which the State admits are 
        an acceptable form of voter identification, can be presented at 
        the polls to vote;

  Information about the petition process and status reports 
        about petitions;

  Candidate statements provided to voters in English;

  Maps of election districts, boundary lines, & explanatory 
        information;

  Information about becoming an election worker;

  Polling place information;

  How to contact an elections office by phone;

  Voter purges and notices;

  Polling place notices and forms;

  Notices requesting public comments about changes such as 
        polling place closures;

  Vote-by-mail notices;

  Information about new voting equipment;

  Voting machine instructions;

  And all other voting information included in Alaska's 100+ 
        page Official Election Pamphlet (OEP).

    Alaska officials similarly failed to provide any audio translations 
into the Yup'ik language, even after acquiring voting machines in 2005 
that were capable of accommodating up to nine languages. The State took 
no further action, and only started considering the use of audio 
ballots after the U.S. Department of Justice contacted state officials 
in Fall 2007 to inform Alaska its failure to provide audio translations 
in Yup'ik violated the VRA. Even then, Alaska failed to provide any 
audio translations until State election officials were sued.
    In the summer of 2007, Yup'ik-speaking Alaska Native voters and 
villages sued the State of Alaska for failing to provide language 
assistance in violation of Section 203 of the VRA and denying voter 
assistance in violation of Section 208 of the VRA. The State of Alaska 
denied their violations, claiming that contrary to the evidence that 
they had ignored the 1981 language play it had ``been providing 
minority language assistance under a plan precleared by the United 
States Department of Justice for over 26 years.''
    A federal judge found otherwise. On July 30, 2008, the Nick court 
issued an injunction that determined based upon the evidence that 
Alaska election officials had violated the language assistance and 
voter assistance provisions of the VRA:

        Based on the evidence presented, the Court finds that the 
        Plaintiffs have met their burden and established that they are 
        likely to succeed on the merits on the language assistance 
        claims brought under sections 203 and 4(f)(4) of the VRA, and 
        the voter assistance claims brought under section 208 of the 
        VRA In reaching this conclusion, the Court relies on 
        affidavits, depositions and other evidence showing that the 
        State has failed to: provide print and broadcast public service 
        announcements (PSA's) in Yup'ik, or to track whether PSA's 
        originally provided to a Bethel radio station in English were 
        translated and broadcast in Yup'ik; ensure that at least one 
        poll worker at each precinct is fluent in Yup'ik and capable of 
        translating ballot questions from English into Yup'ik; ensure 
        that ``on the spot'' oral translations of ballot questions are 
        comprehensive and accurate;'' require mandatory training of 
        poll workers in the Bethel census area, with specific 
        instructions on translating ballot materials for Yup'ik-
        speaking voters with limited English proficiency. \27\

    In issuing the injunction, the Nick court rejected the argument 
made by Alaska officials, including the current Director of the DOE, 
that Alaska Native voters were not entitled to relief because Alaska 
was taking steps in 2008, for the first time since becoming covered by 
Sections 4(f)(4) and 203 in 1975, to begin to provide a nascent form of 
language assistance. The Court reasoned:

        Therefore, while the State contends that an injunction is 
        unnecessary, the court disagrees in light of the fact that: 1) 
        the State has been covered by Sections 203 and 4(f)4 for many 
        years now; 2) the State lacks adequate records to document past 
        efforts to provide language assistance to Alaska Native voters; 
        and 3) the revisions to the State's [language program], which 
        are designed to bring it into compliance, are relatively new 
        and untested. For all these reasons, the court concludes that 
        injunctive relief is both appropriate and necessary. \28\

    The Nick court also found that Alaska election officials violated 
the voter assistance provisions in Section 208 of the VRA:

        Plaintiffs have demonstrated that they are likely to prevail on 
        their section 208 voter assistance claim as well. That claim 
        asserts that poll workers have regularly failed to allow voters 
        (or apprise voters of their right) to bring an individual of 
        their choice into the voting booth to assist them in the voting 
        process. While the evidence on this claim is more anecdotal, it 
        nonetheless satisfies the Plaintiffs' burden for injunctive 
        relief. This evidence primarily consists of affidavits and 
        deposition testimony showing that some poll workers in the 
        Bethel census area do not understand that blind, disabled or 
        illiterate voters have the right to receive assistance from a 
        ``helper'' of their choosing. For example, Plaintiff Anna Nick 
        has heard poll workers in Akiachak tell other voters that they 
        ``cannot bring anyone with them into the booth because their 
        vote must remain private.'' Similarly, Elena Gregory, a 
        resident of the village of Tuluksak, reports being told by a 
        poll worker that she ``could not help the others vote if they 
        did not understand'' the ballots written in English. In her 
        declaration, she states: ``I have voted in an election where 
        the poll worker told me that elders could not have help 
        interpreting or reading the ballots, and that everyone had to 
        be 50 feet away from the person voting.'' And in the city of 
        Bethel of the village of Kwigillingok, election workers have 
        failed to offer assistance to voters who needed it, and who 
        were entitled to it under section 208. \29\

    In short, the federal court in Nick found that Alaska election 
officials had taken no steps to comply with the VRA in 2006, placed 
their beginning efforts on hold and only resumed those efforts after 
being sued by Alaska Native voters and villages.
    If the Nick case was the only successful litigation brought against 
Alaska's election officials, it would provide powerful evidence 
sufficient to establish the need for the remedies in the VRAA and NAVRA 
to voting discrimination against Alaska Natives. But it is not the only 
example. After Nick, the current Director of the Division of Elections 
appeared to engage in intentional discrimination to deny the language 
assistance to Alaska Native voters in other regions of Alaska. 
Following the 2011 coverage determinations, Alaska was notified it has 
to provide language assistance to Alaska Native voters, including those 
residing in the Dillingham, Kuslivak (Wade Hampton \30\ at the time), 
and the Yukon-Koyukuk regions. \31\ In addition, the U.S. Department of 
Justice sent the Director of the Division of Elections, in this 
instance the Director, a notice letter of its coverage and a reminder 
of the need to comply fully with the requirements of Section 203 of the 
VRA. A copy of the letter is included as Figure 2.
    Figure 2. Department of Justice Notice Letter to Gail Fenumiai, 
Director of DOE.
    These notices made it clear to Alaska and the Director of their 
legal duties to provide language assistance in all areas covered by 
Section 203 of the VRA, including the three regions noted above. In 
2012, a year after receiving that letter, the Director was contacted by 
the U.S. Department of Justice and notified of its concern that Alaska 
was failing to translate voting information. See Figure 3.
    Figure 3. Internal DOE e-mail regarding lack of information in 
Alaska Native languages. Like the Director, Alaska's regional elections 
supervisors also knew where language Assistance in Alaska Native 
villages was required. For example, Becka Baker, who supervised 
elections in two Yup'ik-speaking regions, admitted that Yup'ik language 
assistance was required in all of the villages in those regions:

        Q: Are there any communities in Dillingham that you're aware of 
        that have LEP rates that would be less than 5 percent?

        A: Right off the top of my head, no.

        Q: Okay. What about Wade Hampton?

        A: No. \32\

    Alaska's Director of DOE and her staff plainly knew about the 
requirements of language assistance from several sources: notification 
and requests for language assistance from the Native American Rights 
Fund (NARF) and AFN; the court order in the Nick litigation; official 
notices from the U.S. Department of Justice, which included a copy of 
Section 203 of the VRA; and communications from the Department of 
Justice informing the Director and her staff that Alaska was violating 
Section 203. Despite that information, Alaska's Yup'ik language 
coordinators admitted they had no duties to provide language 
information in the Dillingham and Wade Hampton Census Areas. \33\
    Between 2008 and 2012, DOE's own records showed that few Alaska 
Natives received any information in their covered languages before 
Election Day, despite the distribution of an Official Election Pamphlet 
to voters in English that had more than 100 pages of information about 
registration and voting. \34\ In the Dillingham Census Area, Alaska 
provided Yup'ik translators for pre-election materials and information 
only 25 percent of the time, while Yup'ik translators were provided in 
the Wade Hampton (Kusilvak) Census Area just 37 percent of the time. In 
the Gwich'in-speaking communities of Artic Village and Venetie, Gwich-
in speaking translators were only provided by DOE 31 percent of the 
time.
    Alaska's record on providing language assistance on Election Day 
was not much better. For that same 2008 to 2012 period, the Director's 
office failed to have an in-person bilingual translator for all 
election hours 48 percent of the time in the Dillingham Census Area and 
22 percent for the Wade Hampton (Kusilvak) Census Area. No sample 
ballots were translated into the Gwich'in language. \35\
    The reason language assistance was not provided in regions of 
Alaska outside of the Bethel Census Area is apparent, and is confirmed 
by the internal documents and communications of the Director's office: 
intentional discrimination. The Director made a ``policy decision'' to 
limit Yup'ik language assistance to the only region covered by the Nick 
order and settlement agreement: the Bethel Census Area. Internal 
documents, such as those below, included limitations on Yup'ik to ``BCA 
only,'' referring to the Bethel region. Thousands of other LEP Yup'ik-
speaking voters were denied language assistance in violation of Section 
203.
    Figure 4. DOE documentation directing that language assistance be 
limited to Bethel region.
    Even more disturbing, Alaska election officials treated the 
availability of language assistance in the Bethel region following the 
Nick litigation as a secret that should not be shared with LEP voters 
in other areas of the state. The following e-mail, in which the 
Director was copied, is illustrative of their discriminatory intent. In 
the e-mail, the Yup'ik language coordinator informed the Director that 
a Yup'ik-speaking tribal administrator from Emmonak, located in the 
Wade Hampton (Kusilvak) Census Area asked why LEP voters in her region 
were not receiving election information in Yup'ik.
    Instead of addressing the complaint, DOE staff acknowledged that 
Emmonak had told them ``they need language assistance'' in a 2012 
survey, but questioned how the Tribal Council ``would know we have 
Yup'ik materials.'' The state's Yup'ik language coordinator confirmed 
that she did not send translations, noting ``I'm pretty sure that I 
only sent the Yup'ik ads and sample [ballots] to the BCA [Bethel Census 
Area] outreach workers.'' See Figure 5.
    Figure 5. Director Fenumiai's DOE staff discussing intent to 
restrict language assistance.
    Voters in the Gwich'in-speaking villages in the Yukon-Koyukak 
region fared little better. One of the Director's staff members told a 
Gwich'in translator that it ``would be fine'' if only two out of four 
2008 ballot measures were translated into the Gwich'in language, 
providing LEP voters with no information in their language about the 
other two. See Figure 6.
    Figure 6. DOE communication indicating only two out of four ballot 
measures to be translated. DOE provided no Gwich'in translations at all 
following the 2008 election, until DOE staff reached out to a 
translator over five years later in December 2013. The Director 's 
office only did so after the State of Alaska was sued again for failing 
to provide language assistance in the Yukon-Koyukak Census Area. At 
that time, not only were no voting materials translated into Gwich'in, 
the State also failed to provide audio translations on the voting 
machines in Gwich'in. \36\
    Even when the Director's office provided translations in Alaska 
Native languages, they were unconcerned about whether the translations 
accurately translated what was on the ballot and whether those 
translations allowed LEP Elders to cast an informed vote. I will give 
two examples.
    In 2009, there was a ballot measure that ``would change the law to 
require notice to the parent or guardian of a female under the age of 
18 before she has an abortion.'' \37\ Although Alaska's DOE translated 
the ballot measure into Yup'ik, the translation completely altered the 
meaning of the ballot measure so it bore no resemblance to the actual 
measure written in English. As Figure 7 shows, Professor Walkie 
Charles, the preeminent expert on the Yup'ik language, determined that 
the State's actual translation was that the ballot measure ``would 
change the law to require notice to the parent or guardian of a female 
under the age of 18 before she gets pregnant.'' An LEP Yup'ik voter 
would think that they were being asked to vote on a measure requiring 
parental permission for minor females to get permission to get 
pregnant, not to get an abortion.
    Figure 7. DOE's erroneous translation of abortion consent ballot 
measure.
    In a second example, Alaska's DOE knew that their Yup'ik 
translation was incorrect, but proceeded using it anyway. As Figure 8 
shows, Alaska's Yup'ik translator explained that the translation for 
absentee voting in the information being provided to LEP Yup'ik voters 
was mistranslated to mean ``to vote for a long time.''
    Figure 8. DOE e-mail identifying an incorrect Yup'ik translation.
    When Alaska's Yup'ik language coordinator told her supervisor about 
the mistake, the supervisor agreed that the translation should be used 
as-is. The language coordinator minimized its impact by arguing, ``I 
don't think it will cause too much confusion.'' Referring to the Nick 
plaintiffs, the coordinator explained, ``We'll be criticized by the 
plaintiffs if they catch it, but what the heck, it's a similar word and 
hope that it goes right over their heads!'' The language coordinator's 
supervisor agreed to use the inaccurate translation.
    Figure 9. Alaska Elections Supervisor approving use of inaccurate 
translation. In Toyukak v. Treadwell, Alaska Native voters and villages 
from three additional regions of Alaska (Dillingham, Wade Hampton/
Kusilvak, and Yukon-Koyukak) sued the State of Alaska, the Director and 
other elections staff in 2013. They alleged violations of Section 203 
of the VRA and the Fourteenth and Fifteenth Amendments. In opposing the 
litigation, the Director's office argued through its counsel that the 
Fifteenth Amendment was inapplicable to Alaska Natives. The federal 
court rejected Alaska's argument:
    I've considered the position of the State that the Fifteenth 
Amendment does not apply in this case because this is a case that is 
focused primarily on limited-English proficiency and yet, given that 
specific language that is at issue here, the one that the addressed 
solely to Native Alaskans and American Indians, I do see that the 
strictures of the Fifteenth Amendment do apply. \38\
    Following a two week trial in the summer of 2014, the federal court 
found that Alaska officials, including the Director, had violated 
Section 203 of the VRA. A copy of the decision is included as 
Attachment D.
    In September 2015, the federal court entered a Stipulation and 
Order to impose remedies for Alaska's violations of Section 203. That 
relief included, among other things: mandatory poll worker training; 
pre-election outreach in Gwich'in and Yup'ik in all of the covered 
Alaska Native villages in the three regions; bilingual voting 
information, materials and public service announcements; use of 
translation panels to provide accurate translations; translations into 
several dialects of Yup'ik to ensure that the translations were 
understandable to all LEP voters; and trained bilingual poll workers in 
all covered Alaska Native villages in the three regions. To ensure that 
these remedies were implemented, the federal court retained 
jurisdiction over the case through the end of 2020. In addition, the 
court authorized the appointment of federal observers under Section 
3(a) of the VRA to act as the court's eyes and ears in the polling 
places to monitor the State's progress. \39\
    By the end of 2020, over six years after the federal court first 
granted relief in Toyukak, the Director's office was still not in 
compliance with Section 203 in the Dillingham, Kusilvak and Yukon-
Koyukak regions. Federal observer reports and Alaska's own records 
documented the continued failure to meet the requirements in the 
court's order. Despite mandating training for all poll workers, more 
than one-third have never been trained. Of those who were trained, many 
received no instruction on providing bilingual assistance. Alaska does 
not provide pre-election outreach in many of the covered Alaska Native 
villages, failing to offer translations of critical information, such 
as ballot measures, that will allow Native voters to cast effective 
ballots. In the 2016 Primary election, outreach was offered in just six 
of the more than three dozen Alaska Native villages. In the 2018 
statewide election, no outreach was offered in any of the villages in 
the Yukon-Koyukak region. Bilingual translators were not provided in 
many villages on Election Day for every election since 2014. In the 
2018 election, DOE failed to provide translated sample ballots in 53 
percent of all covered villages. In that same election, 60 percent of 
village precincts lacked voting machines with audio translations. \40\
    As a result of these violations, the Toyukak plaintiffs filed a 
motion to extend the terms of the court's order for the three regions 
of Alaska. State officials agreed to the extension. Court oversight 
remains in place through December 31, 2022. In addition, the three 
regions of Alaska remain certified for federal observers for all 
elections through the end of 2022. Notably, today there is more federal 
observer coverage in Alaska than the rest of the United States 
combined.
    To summarize, every violation of the VRA that has been found by a 
federal court has occurred under the supervision of the current 
Director of the Division of Elections. Far from being attributable to 
previous administrations, Alaska's violations have been under the same 
Director of DOE and have continued to the present. Those violations 
have necessitated federal court oversight through at least the end of 
next year. The violations provide powerful evidence of the need to 
strengthen protections for Alaska Natives through passage of the VRAA 
and NAVRA.
    The current Director of the Division of Elections exercises 
discretionary authority to deny Alaska Natives equal voting 
opportunities, necessitating passage of the VRAA and NAVRA.
    Alaska's expenditure of federal Help America Vote Act (HAVA) funds 
likewise makes clear that the Director and DOE staff made Alaska Native 
language assistance a priority only when required to do so by a federal 
court through an action to enforce Section 203 of the VRA. Although 
HAVA funds were provided by the federal government to improve language 
accessibility in elections, the Director chose two paths outside of 
litigation: to use the funds to expand access of non- Natives to the 
voting process, such as by opening a new DOE office in the non-Native 
community of Wassila; and holding the balance of the funds in interest-
bearing accounts. Figure 10 shows that DOE's use of HAVA funds for 
language assistance was directly tied to the Nick litigation:
    Figure 10. Alaska's use of HAVA funds and relationship to timing of 
the Nick litigation.
    The Director of the Division of Elections also has exercised her 
discretion to deny Alaska Native voters equal early voting 
opportunities. \41\ Like over two-thirds of all states, \42\ Alaska 
offers early voting (also called absentee in-person voting) for 
statewide elections. \43\ State law provides that ``[f]or 15 days 
before an election and on election day, a qualified voter . may vote in 
locations designated by the director.'' \44\ Early voting allows 
eligible voters to cast ballots in person, just as they can do on the 
day of the election. \45\ However, the location of early voting sites 
can effectively discriminate against Native voters by denying them in-
person early voting opportunities equal to that of non-Natives. \46\ 
Prior to 2014, Alaska's early voting sites were in predominately urban 
non-Native areas and a few rural ``hub-communities.'' \47\
    The disparity becomes readily apparent by looking at the census 
data for the locations where in-person early voting was provided. For 
example, in the November 2012 election, the City of Anchorage, where 
non-Natives comprise about 92 percent of the total population, \48\ had 
four absentee voting locations open during the entire fifteen-day early 
voting period. \49\ The Matanuska-Susitna Borough, where non-Natives 
comprise about 94 percent of the total population and which has less 
than one-third the population of Anchorage, \50\ had five absentee 
voting locations open during the entire early voting period. \51\
    In sharp contrast, three of the regions with the largest percentage 
of Native voters were limited to just a handful of in-person early 
voting locations. The Bethel Census Area, home to at least 39 villages 
\52\ and where Natives comprise about 83 percent of the total 
population, \53\ had only three early voting locations: Bethel, Aniak 
and Kasigluk. \54\ Of those, only Kasigluk is a predominantly Native 
community. The other 36 Native villages had no early voting. 
Furthermore, these voters did not have the option of flying to one of 
the three early voting locations (if anyone would fly to vote), because 
voters must vote in their assigned precinct in order to ensure their 
vote counts; if a voter from Chefornak went to Kasigluk for example, he 
or she would have to vote a questioned ballot. Even worse, the Kusilvak 
Census Area, which has at least fifteen villages and in which 95 
percent of the total population is Native, \55\ had only a single early 
voting location at St. Mary's. \56\ The Dillingham Census Area, with 
more than one dozen villages \57\ and Natives comprising nearly three-
quarters of the total population, \58\ had just one early voting site 
in Dillingham. \59\ With a handful of exceptions, early voting was 
nearly universally unavailable in Native villages.
    Beginning in at least 2011, AFN, other organizations, corporations, 
tribal councils, and voters, began requesting that DOE establish early-
voting locations in Native villages. \60\ The ANCSA Regional 
Corporation CEO's explained why in-person absentee voting in advance of 
the scheduled elections was necessary:

        This is very important to people in our communities because, in 
        August especially [during the primary election], subsistence 
        fishermen and those who are berry picking are likely to be gone 
        for significant periods of time. They often cannot be at voting 
        locations on the exact date of the election. Similar problems 
        often arise in November as well [during the general election], 
        when the weather adds to travel problems. Moreover, given how 
        slow and unpredictable absentee by mail voting can be, many 
        people in our community do not trust this option. Voting by fax 
        is also not considered an option because almost no one has 
        their own personal fax machine, and to fax from the tribal or 
        municipal office costs the voter between $1 to $3 per page; 
        there should be no cost associated with voting. The lack of 
        personal fax machines also eliminates private voting rights, 
        forcing individuals to share their choices if they want to 
        participate in the election. \61\

    Moreover, the Native corporations emphasized the inequality of 
offering early voting to those ``who live in urban areas like 
Fairbanks, Anchorage, and Juneau,'' asserting ``that our rural 
residents should have the same access to the polls as urban Alaskans.'' 
\62\ DOE acknowledged receiving several letters from Native groups 
raising similar concerns. \63\ Nevertheless, the DOE's response ignored 
the obvious unequal treatment, even questioning why in-person early 
voting was needed there. Instead, the Director of DOE maintained that 
``there are several ways other than early in-person voting that 
residents of your community can vote prior to Election Day'' that she 
argued ``will be effective and will not result in disenfranchisement.'' 
\64\ The Director also blamed the Section 5 preclearance requirement 
for the discriminatory treatment of Natives, contending that it 
precluded the DOE from making ``further adjustments or changes for the 
2012 elections.'' \65\
    In August 2013, following the Shelby County decision removing 
Alaska from coverage for the Section 5 preclearance requirements, at 
least half a dozen Native organizations and three tribal councils again 
requested early voting in the villages with the hope that it could 
easily be done since the preclearance the DOE complained about was no 
longer required. \66\ In response to those requests, DOE conceded that 
preclearance was ``no longer required.'' \67\ Nevertheless, instead of 
granting the repeated request, DOE's Director devised a new three-step 
process as a condition for adding locations in Native villages. First, 
regardless of any previous requests they had made, tribal councils were 
required to respond to a survey. \68\ There were several different 
versions of the survey, with the questions worded slightly differently 
for no clear reason. All surveys were in English and the key question 
was often buried in a lengthy and sometimes incomprehensible paragraph 
describing all the various ways to cast a ballot. Each did ask the 
village to opt-in by indicating ``if they would like an absentee in-
person voting location'' as well as requiring the tribal council to 
state that ``it is willing to serve as the absentee voting location.'' 
\69\ If the tribal council did not respond, DOE took no further action. 
\70\ Second, if the tribal council responded to the survey, DOE sent 
out a second letter asking them to reaffirm their earlier response on 
``whether the tribal council office would agree to serve as the 
absentee voting location.'' \71\ Third, the tribal council, not the 
DOE, was required to ``designate an individual to serve as the absentee 
voting official.'' \72\ Only then would DOE consider establishing an 
in-person early voting location in a Native village. \73\ Despite the 
many requests already made from organizations representing dozens of 
tribes, the Director noted that only two, Chevak and Larsen Bay, had 
succeeded in negotiating these confusing bureaucratic requirements. 
\74\
    In early 2014, in the months leading up to the primary and general 
elections, the DOE had still taken no steps to establish in-person 
early voting locations in Native villages. These stalling tactics 
prompted Native organizations to again request that rural villages be 
treated equally to non- Native urban areas. Specifically, they asked 
for the provision of ``early voting in every village without requiring 
villages to `opt-in' by survey or otherwise. Urban communities are not 
required to opt-in to early voting, and . rural Alaska should have as 
equal access to voting as urban Alaska.'' \75\ They likewise requested 
that DOE provide an additional early voting station during the three-
day Alaska Federation of Natives conference to make it more accessible 
to the thousands of voters who attend that conference. \76\ DOE waited 
more than one month to respond, rejecting both requests. \77\ The 
Director rationalized the disparate treatment to Native villages by 
asserting that adequate voting locations and absentee voting officials 
``have historically been more easily found in more populated and/or 
urban areas.'' \78\
    Ultimately, in-person early voting locations were only established 
in Native villages after AFN, the ANCSA CEO's Association, and Get Out 
The Native Vote agreed to engage in self-help and pay the costs. \79\ 
In June 2014, the Native groups took on a burden not required for non-
Native groups or voters living in urban areas of Alaska. They performed 
DOE's statutory duty \80\ by identifying voting locations and 
recruiting absentee voting officials. \81\ A total of 128 villages 
throughout rural Alaska were designated by the Native groups and 
approved by DOE for in-person early voting locations. \82\
    Afterwards, DOE's director attempted to claim credit for making 
early voting accessible in the villages. \83\ AFN sharply rebuked her 
efforts, explaining that Native organizations were ``[t]ired of having 
our repeated requests rejected'' and ``offered to do the work for the 
DOE and organize new early voting locations ourselves . The DOE did not 
do this-we did.'' \84\ DOE then attempted to limit the number of 
ballots sent to the Native early voting locations to between 25 and 50, 
even though most of locations had hundreds of voters. \85\
    While Alaska Native voters finally secured early voting 
opportunities, they did so only after substantial struggles and 
requirements not imposed on non-Natives. The examples of the use of 
HAVA funds and the creation of early voting sites highlights the 
importance of strong federal legislation to protect the voting rights 
of Alaska Native voters.
    While some critics of the VRAA and NAVRA have maintained that 
voting rights should be ``left to the states,'' the Alaska experience 
has shown why that argument is specious. Left to her own devices, the 
current Director of the Division of Elections repeatedly has exercised 
her discretion to expand registration and voting opportunities for non-
Natives, while denying those opportunities to Alaska Native voters. The 
VRAA and NAVRA are strong medicine needed to address the discrimination 
of Alaska's election officials.
    Before Shelby County, the preclearance requirements of Section 5 
stopped discrimination by the current Director of the Division of 
Elections against Alaska Natives before it occurred.
    AFN filed an amicus curiae brief in Shelby County in support of the 
Section 5 coverage formula and the coverage of Alaska under it. In that 
brief, AFN cited several examples of how preclearance stopped voting 
discrimination against Alaska Natives. For example, in 1993, the U.S. 
Department of Justice objected to Alaska's statewide legislative 
redistricting plan because it reduced the Alaska Native voting age 
population in House District 36, despite the presence of highly 
racially polarized voting. Similarly, Section 5 prevented Alaska from 
implementing a newly proposed language assistance plan in 2008, which 
Alaska officials designed to reduce language assistance provided under 
its precleared 1981 language plan in an effort to undermine the Nick 
litigation.
    Section 5 also was an effective means of blocking discrimination 
that occurred under the supervision of the current Director of the 
Division of Elections.
    In May 2008, within weeks of when the Director assumed her 
position, Alaska submitted for preclearance a plan to eliminate 
precincts in several Native villages. \86\ State officials proposed to 
(1) ``realign'' Tatitlek, a community in which about 85 percent of the 
residents are Alaska Native, to the predominately white community 
Cordova, located over 33 miles away and not connected by road; (2) 
consolidate Pedro Bay, where a majority of residents are Alaska Native, 
with Iliamna and Newhalen, located approximately 28 miles away, are not 
connected by road, and were the subject of a critical initiative on the 
August 2008 ballot; and (3) consolidate Levelock, in which about 95 
percent of residents are Alaska Native, with Kokhanok, approximately 77 
miles apart and not connected by road. In other words, the DOE was 
attempting to combine precincts accessible to one another only by air 
or boat with high concentrations of Alaska Native voters.
    The Department of Justice responded with a More Information Request 
(MIR) letter requesting information about reasons for the voting 
changes, distances between the polling places, and their accessibility 
to Alaska Native voters. The Department inquired about ``the methods of 
transportation available to voters traveling from the old precinct to 
the new consolidated precinct'' asking that if there were no roadways 
connecting them that the State ``indicate how voters will get to the 
consolidated location.'' The MIR suggested that Alaska's election 
officials had not consulted with Native voters about the changes and 
requested a ``detailed description'' of efforts ``to secure the views 
of the public, including members of the minority community, regarding 
these changes.'' Finally, the MIR documented that when Department of 
Justice personnel communicated with State officials, they learned that 
Alaska also was taking steps to implement an unsubmitted voting change 
designating ``specified voting precincts'' as ``permanent absentee by-
mail precincts.''
    Rather than responding and submitting the additional voting changes 
for Section 5 review, the Director abruptly withdrew the submission two 
weeks later. \87\
    Alaska's election officials, including their current Director of 
the Division of Elections, have shown that time and again, they cannot 
be trusted to exercise their discretion to provide equal registration 
and voting opportunities to Alaska Natives. The VRAA and NAVRA are 
needed to provide a failsafe against the discriminatory actions of the 
Director and other Alaska election officials. In the absence of Section 
5 coverage, which stopped discrimination in its tracks before it could 
disenfranchise Alaska Native voters, those same voters and 
organizations like AFN that represent them are left with pursuing 
relief through the federal courts. As I will explain in the next 
section, the VRAA and NAVRA both add important weapons to the arsenal 
available to fight discrimination.
    Without the protections in both bills, Alaska Native voters will be 
left to have their fundamental right to vote rise or fall at the whims 
of election officials, such as the Director of DOE, who have proven 
they will not exercise their statutory discretion in a 
nondiscriminatory manner.
    Enactment of both the VRAA and NAVRA is necessary to protect Alaska 
Native voters from current discrimination that impedes their equal 
access to registration, voting, and having their ballots count.
    In Shelby County v. Holder, \88\ the D.C. Circuit Court of Appeals 
showed the dangers of the Third Branch engaging in dictum. The question 
of Alaska's coverage under Section 5's preclearance provisions was not 
before the Court. No evidence was taken by the court from Alaska 
Natives who have experienced Alaska's long history of past and present 
voting discrimination first-hand. Nevertheless, the appellate court 
speculated that the Section 5 coverage formula might be imprecise 
because some jurisdictions, such as Alaska, were ``swept in'' under 
preclearance despite ``little or no evidence of current problems.'' 
\89\
    The record I have described demonstrates the dangers of federal 
courts ruling on factual questions that are not before them. The ``case 
or controversy'' requirement necessitates that judicial rulings be 
limited to only those facts and legal questions before the court. The 
continued need for coverage of Alaska was not one of those questions 
that the appellate court could consider properly in Shelby County. 
Nevertheless, at least the appellate court's non-binding dictum had no 
effect on the continued--and necessary--coverage of Alaska under 
Section 5.
    The same cannot be said of the Supreme Court's 2013 decision. In 
Shelby County, a narrow 5-4 majority of the Court ignored the broad 
enforcement powers that the Constitution conferred on Congress to 
remedy voting discrimination \90\ by usurping that authority to 
overrule the sound judgments that the Senate and House made in the 2006 
reauthorization of Section 5 of the Voting Rights Act. Although the 
case involved a single county in Alabama covered under a different 
provision of the Voting Rights Act, Section 4(b) of the Act, the 
Supreme Court broadly intruded on powers reserved to Congress to expand 
its decision to include all states and political subdivisions covered 
by Section 5, including those like Alaska that were covered under 
Section 4(f)(4) of the Act. With the issue of the continued need for 
coverage of Alaska not properly before the Court, five Justices struck 
down all of Section 5's coverage formulas, including the one covering 
Alaska. \91\
    The impact that the loss of Section 5 coverage has had on Alaska 
Natives cannot be overstated. AFN's members and the Alaska Native 
voters they represent saw critical protection for their voting rights 
disappear overnight. Preclearance effectively stopped discrimination 
before it occurred, whether it was through the intentional 
discrimination of Alaska's Division of Elections to willfully ignore 
the language assistance requirements for Alaska's indigenous peoples or 
to limit efforts to disenfranchise Alaska Native voters by eliminating 
in-person voting opportunities or consolidating polling places with 
far-flung communities that voters could not reach.
    As explained in the previous section, in the absence of Section 5, 
Alaska's election officials have accelerated efforts to replace in-
person voting with mail-in Permanent Absentee Voting (PAV) voting that 
denies LEP voters with much-needed language assistance. Often, mail-in 
voting simply is not feasible in villages where mail service is too 
unpredictable and unreliable to allow Alaska Natives to exercise their 
fundamental right to vote. Unequal opportunities for in-person early 
voting are provided to Alaska Natives, who are compelled to engage in 
self-help for services that the Division of Elections prioritizes for 
non-Native communities where registration and voting already is much 
more accessible.
    The expensive and time-consuming Toyukak litigation itself was a 
byproduct of Shelby County's assault on the voting rights of Alaska 
Natives. Immediately after that decision, when Division of Elections 
personnel, including the current Director, were informed of widespread 
violations of language assistance requirements for Gwich'in and Yup'ik 
speaking villages in three regions of Alaska, they demurred. Rather 
than taking efforts to correct their violations of Section 203 of the 
Voting Rights Act, Alaska's election officials rejected their legal 
duties and forced Alaska Native voters and villages to sue them. 
Despite being fast-tracked to secure relief before the 2014 election, 
it was a year before the case went to trial. The case was marred by the 
State of Alaska's racially discriminatory argument that the Fifteenth 
Amendment did not apply to Alaska Natives. Following a two-week bench 
trial, which cost the plaintiffs and the State of Alaska over $2 
million, the federal court issued a decision several months later, in 
September 2014, holding that election officials violated Section 203 of 
the Voting Rights Act. \92\
    Other decisions by the Supreme Court have exacerbated Shelby 
County's impact on ensuring that Alaska Natives, like all Americans, 
have equal opportunities to exercise their most fundamental right, the 
right to vote. Those decisions, which have been discussed in detail by 
other witnesses during the hearings on S.4 and its House counterpart, 
H.4, include:

  Buckhannon Board and Care Home, Inc. v. West Virginia 
        Department of Health and Human Resources, in which the Court 
        diminished the ability of organizations and individuals seeking 
        relief from voting discrimination to recover their reasonable 
        attorneys' fees and costs under the Voting Rights Act, by 
        rejecting the well-accepted catalyst theory to determine 
        litigants who qualified as ``prevailing parties''; \93\

  Purcell v. Gonzalez, a decision that gave rise to the so-
        called ``Purcell Principle,'' which discourages federal courts 
        from providing substantive relief from voting discrimination if 
        it would potentially disrupt administration of elections, even 
        where a voting rule, procedure or practice was adopted by 
        election administrators close to an election; \94\ and

  Brnovich v. Democratic National Committee, decided on July 1 
        of this year, in which the Supreme Court substantially narrowed 
        the scope of vote denial or abridgment claims by rewriting 
        Section 2 of the Voting Rights Act to use a new ``totality of 
        the circumstances'' test inconsistent with the plain language 
        of the Act and over a half century of jurisprudence 
        interpreting the Act's general nondiscrimination provision. 
        \95\

    Current discrimination against Alaska Natives is neither 
sophisticated nor covert. The examples I have described show that 
intentional discrimination by Alaska's election officials are done 
openly and comprise the most basic efforts to reduce opportunities by 
Alaska Natives to register to vote, cast ballots, and to have their 
votes counted. Each of these four Supreme Court decisions makes it more 
difficult for Alaska Natives to eliminate these barriers to their 
political participation. S.4 includes critically needed fixes that will 
clarify congressional intent on the proper scope of protections under 
the Voting Rights Act.
AFN joins NARF in its support for passage of the VRAA
    NARF and other civil rights organizations have described in detail 
the reasons why the provisions in the VRAA are needed to ensure that 
all minority voters, including Alaska Native voters, have equal access 
to the political process.
    I am going to limit my comments on the VRAA to one provision that 
is important for protecting the voting rights of Alaska Natives: the 
Brnovich fix. Brnovich is an especially pernicious decision not just 
for the impact it has on Alaska Native voters but because a judicially 
active majority wrongfully usurped the role of Congress to write 
legislation. In the 1982 amendments to the Voting Rights Act, Congress 
made clear its intent on the broad scope that vote denial or abridgment 
claims were to be given under Section 2 of the Act. Despite four 
decades of jurisprudence respecting that broad scope, Justice Alito's 
opinion in Brnovich purports to rewrite the statute to add a gloss of 
several new ``factors'' to be considered for the first time in voting 
rights enforcement actions.
    Brnovich itself involved challenges to two voting procedures in 
Arizona that substantially restricted the ability of Native voters to 
cast ballots that were counted: a prohibition of out-of-precinct voting 
and making it unlawful for the ballots of Native voters lacking access 
to reliable mail service or transportation to be collected and 
delivered to drop boxes or election offices at the voter's request.
    I will focus my remarks on the second prohibition on ballot 
collection.
    In the face of strong evidence that Arizona's ballot collection ban 
had a disproportionately great impact on Native voters with 
nontraditional addresses and lack of access to mailing facilities, 
Justice Alito contrived several factors to reject such claims. In 
particular, he wrote that ``the size of the burden imposed by a 
challenged voting rule is highly relevant . Mere inconvenience cannot 
be enough to demonstrate a violation of  2.'' \96\ In addition, 
Justice Alito contended:

        The size of any disparities in a rule's impact on members of 
        different racial or ethnic groups is also an important factor 
        to consider. Small disparities are less likely than large ones 
        to indicate that a system is not equally open. To the extent 
        that minority and non-minority groups differ with respect to 
        employment, wealth, and education, even neutral regulations, no 
        matter how crafted, may result in some predictable disparities 
        in rates of voting and noncompliance with voting rules. The 
        size of any disparity matters. What are at bottom very small 
        differences should not be artificially magnified. \97\

    In Brnovich, the majority found that even though the ballot 
collection ban disenfranchised thousands of Native voters, that number 
was small because it constituted a very small fraction of all voters in 
Arizona.
    The exception for so-called ``de minimis'' violations of the Voting 
Rights Act could have a similar effect in Alaska. Most Alaska Native 
villages have populations of less than 350, with an even smaller number 
of registered voters. Application of so-called ``neutral'' election 
procedures that required a certain threshold of voters for in-person 
registration, early voting and Election Day voting, could effectively 
deny those same opportunities to most, if not all, Alaska Native 
villages. That would further cement the practices in which the current 
Director of the DOE has engaged, by establishing two tiers of voting 
citizens in Alaska: those living in urban areas that are predominately 
non-Native and are entitled to a multitude of voting opportunities; and 
those living in rural areas that are predominately Alaska Native and 
receive only a fraction of the registration and voting access.
    As a result, AFN strongly supports the VRAA and the fixes it 
provides to decisions such as Justice Alito's in Brnovich, which is a 
clear example of legislating from the bench in a manner that would 
disenfranchise thousands of Alaska Natives.
NAVRA offers complimentary protections for Alaska Natives needed to 
        strengthen the protections offered to all minority voters in 
        the VRAA.
    NAVRA is an especially important part of S.4 because it targets the 
unique barriers that Alaska Native and American Indian voters 
experience when they attempt to register to vote, to cast a ballot and 
to have that ballot counted. Equally important, Congress has broad 
authority to enact NAVRA to remedy voting discrimination not just 
through its Enforcement Clause powers under the Reconstruction 
Amendments, but also through its constitutional abilities to regulate 
relations with Tribes and their citizens in the Government-To-
Government relationship the United States has with federally recognized 
Tribes. NAVRA spells out that authority very clearly in its 
introductory section.
    I am going to concentrate on some of NAVRA's provisions next to 
explain why they are needed to protect Alaska Native voters.
A Native American Voting Task Force Grant Program is needed.
    As an initial matter, Section 304 of NAVRA establishes a Native 
American Voting Task Force Grant Program, seeking to improve voter 
registration and ballot access in Native American communities through 
many methods. A fully funded grant program purposed to expand 
registration and voting opportunities for rural Alaska and the rest of 
Indian Country is critical to securing equal access for Native voters.
    Far too often, Tribes, Native organizations or individuals, like 
AFN, are compelled to engage in self-help to secure the most basic 
services that are provided on a routine basis at no-cost to non- 
Natives. That is apparent in some of the actions Alaska's election 
officials have taken in registration and voting opportunities in Alaska 
Native villages.
    Passage, implementation and funding of a Grant Program would go a 
long way to providing resources for efforts in the future, as well as 
others like: outreach; establishing early voting sites; improving 
bilingual materials and assistance; enhancing election official 
training; and encouraging greater cooperation by election officials 
with Alaska Native governments and organizations such as AFN.
    I want to emphasize the importance of ensuring that funds for the 
Grant Program actually are used for their designated purposes, and are 
not simply a means for a state to earn interest or use funds to 
subsidize programs election officials are required to provide already. 
That is precisely what happened in Alaska. For years, Alaska left 
federal HAVA funds untouched, accruing interest on the funds. When 
Alaska officials began using the funds in earnest, they did so to 
improve registration and voting of non-Natives for whom both already 
were accessible, at the expense of neglecting Alaska Native 
communities. There must be accountability for how those funds are used.
NAVRA makes registration and voting more accessible in Alaska Native 
        communities
    Section 305 of NAVRA amends  7 of the National Voter Registration 
Act of 1993 \98\ by adding as designated voter registration sites those 
federally funded facilities located on Indian land or primarily engaged 
in providing services to Native Americans. This provision is important 
for two reasons. First, many Alaska Native villages have federally 
funded offices that help service programs that are essential to the 
social, economic and health needs of residents. Second, those offices 
are not currently required to offer voter registration services. 
Section 305 would cure that deficiency through the common-sense measure 
of requiring existing federal service centers in rural Alaska to simply 
add voter registration to the mandated services they provide already.
    Section 306 would allow Tribal Governments to designate at least 
one in-person polling site on the Tribe's Indian lands, which includes 
ANCSA lands, to prevent the reduction of polling places on those lands, 
and provide additional polling sites based upon several criteria such 
as the number of voters assigned to polling places, travel distances 
and time to reach polling sites, transportation barriers, waiting 
times, and other factors. This measure responds to a growing problem in 
Alaska. Far too often, citing expense and inconvenience to their 
office, Division of Elections staff have sought to avoid federal 
language assistance mandates by designating Alaska Native villages as 
Permanent Absentee Voting sites. Such designations effectively can 
disenfranchise all voters in villages that receive that designation. 
NAVRA would stop that discriminatory practice. In its place, it would 
leave the authority for determining the polling place for Alaska Native 
villages where it properly belongs: in the hands of the Tribal 
Government for that village. In the process, this measure helps 
preserve the right to vote of all Alaska Natives through the simple act 
of allowing sovereign Tribal Governments to decide the best interests 
of their voters, and not be subject to the discriminatory whims of non-
Native officials located hundreds of miles away.
    Voting during the COVID-19 pandemic increasingly has relied upon 
alternatives to in-person voting, such as mail-in voting. When such 
alternatives are appropriate (that is, for voters other than LEP Tribal 
Elders who need in-person language assistance and those voters lacking 
reliable mail service), NAVRA facilitates their use in Alaska Native 
communities. Tribal Governments may designate at least one building per 
voting precinct as ballot pickup and collection sites. At the request 
of Tribes, mail-in and absentee ballots are to be provided to 
registered Native voters without requiring a residential address or 
completed application for the ballot. Tribally designated buildings may 
be substituted for required residential or mailing addresses. At least 
one ballot drop box must be provided for each Tribal Nation's lands, 
with additional drop boxes provided if the totality of the 
circumstances demonstrates their need. In-person early voting 
opportunities must be offered on Tribal lands if a State or political 
subdivision offers them elsewhere, which must provide at least a 10-
hour period to vote for each day early voting sites are open.
    Provisional ballots have impaired the ability of many Alaska Native 
voters to cast effective ballots. Section 306 of NAVRA addresses the 
problems of forcing Native voters to travel extensive distances to 
resolve any deficiencies preventing the counting of their ballot. Under 
NAVRA, Native voters must be provided clear notice of any errors or 
issues with their ballots, and be allowed to resolve those issues at 
any polling place on Indian lands or through alternative means such as 
facsimile. The bill also resolves a barrier created by the Help America 
Vote Act by creating a private cause of action for Native voters to 
enforce the provisional ballot requirements in NAVRA. That fix will 
ensure that Native voters, or their Tribal Governments, are able to 
take legal action against any recalcitrant election officials who fail 
to comply with provisional ballot mandates.
    Section 307 of NAVRA offers an important recognition of Tribal 
Sovereignty in the voting process. It requires that any State or 
political subdivision seeking to remove a voter registration or polling 
site on Indian lands must either obtain the consent of the Tribal 
Government or institute a declaratory judgment action in the U.S. 
District Court for the District of Columbia. Alternatively, the change 
may be submitted for review and approval by the Attorney General after 
consultation with the Tribal Government. This provision ensures that 
approval authority for changes in voting locations affecting Alaska 
Native voters comes from Tribal Governments, not non-Native election 
officials.
Acceptance of Tribal identification to confirm Native voters' 
        identities
    Voter identification problems faced by Native voters are the focus 
of Section 308 of NAVRA. Under that provision, if a state or political 
subdivision requires identification to register to vote or to cast a 
ballot, they must accept an identification card issued by a federally 
recognized Tribe, the Bureau of Indian Affairs, the Indian Health 
Service, or any other Tribal or Federal agency that issues 
identification cards to eligible Native voters. This remedy cannot be 
circumvented by requiring multiple forms of identification. Election 
officials also must consult with Tribes to ensure that any 
identification that must be submitted online is accessible to Native 
voters.
    Like the other provisions of NAVRA, this is a much-needed common-
sense measure. Because so many Alaska Native villages are located off 
the state road system in places where ATVs or snowmobiles--not cars--
are used, thousands of Alaska Native voters lack a Real ID driver's 
license issued by the State Department of Motor Vehicles. Instead, they 
use identification issued by Federal agencies, the ANCs or their 
village corporations, including when they use public transportation.
    Section 308 of NAVRA recognizes this common usage of identification 
cards that are not issued by state governments. It ensures that the 
unique circumstances of Alaska Native voters, which range from 
inability to get a state identification card because they lack a birth 
certificate or other required documentation, or they simply do not need 
one because of where they live, is not a means to disenfranchise them.
Ballot collection procedures can resolve some transportation issues
    NAVRA also facilitates ballot collection from Native voters who 
often lack access to reliable and affordable transportation to get to 
voting locations, post offices or drop boxes. Section 309 permits any 
person to return a sealed ballot of a voter residing on Indian lands, 
as long as the person returning the ballot receives no compensation. 
There is no limit placed on the number of ballots that may be returned. 
Organizations collecting and returning sealed ballots are required to 
keep a record of the materials collected and the location and date the 
ballot materials were submitted.
Section 203 of the VRA is amended to fix a proviso used to 
        disenfranchise Native voters
    Section 310 of NAVRA includes a simple, but important, fix to the 
language assistance provisions of the Voting Rights Act. As currently 
written Section 203 provides that covered jurisdictions do not have to 
provide written translations for languages that are ``historically 
unwritten.'' \99\ For decades, Alaska election officials used this 
proviso to deny all language assistance to Alaska Native voters.
    In the Nick litigation, Alaska election officials argued that no 
written translations of voting materials and information were required 
because they claimed that all Alaska Native languages are 
``historically unwritten.'' They made that argument even though several 
Alaska Native languages including but not limited to Gwich'in, Inupiaq 
and Yup'ik, are written and widely used by Native voters and even 
Alaska's own poll workers. \100\ The federal court in Nick ultimately 
found that even where a language is ``historically unwritten'' 
bilingual written translations might be needed to ensure that oral 
language translations were accurate and effective. \101\ However, that 
narrow construction of Section 203's requirements leaves all LEP Alaska 
Native voters vulnerable to a contrary interpretation that may revert 
back to placing the entire burden of translations on bilingual workers 
to interpret complex ballot measures on-the-spot.
    This section of NAVRA cures this problem by providing that Native 
voters in jurisdictions covered by Section 203 for their language may 
receive written translations in their language if their Tribal 
Government determines that written translations are needed. Again, that 
ensures that Tribal Governments, not non-Native election officials or 
federal judges, are the ones who decide whether written translations 
are to be provided in the covered Alaska Native language.
NAVRA's remaining provisions facilitate Alaska Native voting
    Section 311 of NAVRA allows Tribes to request that the Attorney 
General send federal observers by identifying one or more instances in 
which a voting rights violation is expected to occur in an election. 
That provides Tribal Governments in Alaska a means to request early 
intervention by the U.S. Department of Justice if it appears that 
Alaska's election officials are failing to comply with one or more 
provisions of federal voting rights law.
    Section 312 recognizes Tribal jurisdiction to detain or remove any 
non-Indian unaffiliated with the Federal or a State or local government 
who intimidates, harasses or impedes the conduct of an election or 
voting. This provision acknowledges authority that Tribal Governments 
have already. In Alaska, this section is especially important because 
most Alaska Native villages lack any access to or coverage by state law 
enforcement officials. If Tribal Government officials do not have that 
authority, which NAVRA provides, it would leave unaddressed efforts to 
disenfranchise Alaska Native voters through direct suppression.
    Section 313 requires the Attorney General annually consult with 
Tribal Nations regarding Federal elections. While this is something 
that should occur without legislation, far too often it does not.
    Section 314 provides for recovery of attorneys' fees, litigation 
expenses and expert fees to a prevailing party in any enforcement 
action brought under NAVRA. As I have explained briefly in my 
discussion of the Buckhannon decision, more restrictive attorneys' fees 
provisions can significantly hamper enforcement of federal voting 
rights protections for Alaska Natives.
    Section 315 directs the Government Accounting Office (GAO) to 
conduct a study and report on the prevalence of nontraditional or 
nonexistent mailing addresses for Native voters and to identify 
alternatives to resolve those barriers. Finally, Section 316 requires 
consultation with the U.S. Postal Service to resolve addressing 
problems. Both of these are significant issues in Alaska.
    AFN applauds the Senate for including NAVRA in the bill, to help 
ensure that all Alaska Natives have equal access to the voting process.
The Senate should pass S.4, including both the VRAA and NAVRA, to 
        protect voting by Alaska Natives from discrimination by 
        Alaska's election officials
    Protecting the right to vote is not a partisan issue. It is a 
fundamental civil rights issue for Alaska Natives. Everyone suffers, 
and elected government has less legitimacy, each time an Alaska Native 
is prevented from registering to vote or is turned away at the polls. 
Now is the time to act. Now is the time to pass S.4, the John R. Lewis 
Voting Rights Advancement Act of 2021, and Title III of that bill, The 
Frank Harrison, Elizabeth Peratrovich, and Miguel Trujillo Native 
American Voting Rights Act of 2021.
    Thank you very much for your attention and your commitment to 
making voting fully accessible for Alaska Natives and other voters in 
Indian Country. I welcome the opportunity to answer any questions you 
may have.

    ENDNOTES

    1 I have served as AFN's President for 30 years. For nearly 15 
years, I have been a Director for Chugach Alaska Corporation (CAC), the 
Alaska Native regional corporation for the Chugach region. I also serve 
as a Commissioner for the Denali Commission (DC), an independent 
federal agency designed to provide critical utilities, infrastructure, 
and economic support throughout Alaska, including remote tribal 
communities. Two of my proudest accomplishments as a DC Commissioner 
have been overseeing the build out of 120 rural village-based clinics, 
supporting the establishment of rural regional hospitals and the 
replacement of leaking fuel farm tanks throughout the state.. I hold a 
B.A. degree in Business Administration from Alaska Pacific University; 
an Honorary Doctorate in Humane Letters from the University of Alaska, 
Anchorage (2004) and an Honorary Doctorate in Law from the University 
of Alaska, Fairbanks (2014)
    2 43 U.S.C.  1601 et seq.
    3 25 U.S.C.  5301 et seq.
    4 See generally ALASKA STAT.  15.10.105 (2006) (director of 
elections division is responsible for ``the supervision of central and 
regional election offices, the hiring, performance evaluation, 
promotion, termination, and all other matters relating to the 
employment and training of election personnel, and the administration 
of all state elections'' and activities under the National Voter 
Registration Act of 1993).
    5 Pub. L. No. 107-252, 116 Stat. 1666 (2002).
    6 Attachment A, James Thomas Tucker, Natalie Landreth & Erin 
Dougherty-Lynch, ``Why Should I Go Vote Without Understanding What I Am 
Going to Vote For?'' The Impact of First Generation Voting Barriers on 
Alaska Natives, 22 MICH. J. RACE & LAW 327 (2017); Attachment B, Alaska 
Advisory Comm. to the U.S. Comm'n on Civil Rights, Advisory Mem. on 
Alaska Native Voting Rights (Mar. 27, 2018).
    7 Tucker, Landreth & Dougherty-Lynch, supra, at 330.
    8 Id.
    9 Id. at 330-31.
    10 See id. at 331-32 (quoting Davis v. Sitka School Board, 3 Alaska 
481, 489-90 (D. Alaska Terr. 1908)).
    11 JAMES THOMAS TUCKER, THE BATTLE OVER BILINGUAL BALLOTS: LANGUAGE 
MINORITIES AND POLITICAL ACCESS UNDER THE VOTING RIGHTS ACT 235-48 
(2009).
    12 Id. at 237.
    13 Id.
    14 Fran Ulmer, Honoring Elizabeth Wanamaker Peratrovich, Alaska 
House of Representatives (May 1, 1992).
    15 TUCKER, supra, at 237.
    16 42 U.S.C.   1973 to 1973aa-6.
    17 Id.
    18 Id. at 332-33.
    19 See Federal judge dismisses challenge to Murkowski's re-
election, CNN (Dec. 28, 2010), available at http://www.cnn.com/2010/
POLITICS/12/28/alaska.senate.race/index.html. 
    20 Nick v. Bethel, No. 3:07-cv-00098-TMB (D. Alaska filed June 11, 
2007); see also Tucker, Landreth & Dougherty-Lynch, supra, at 350-58 
(discussing the Nick litigation).
    21 Tucker, Landreth & Dougherty-Lynch, supra; Alaska Advisory Comm. 
to the U.S. Comm'n on Civil Rts., supra.
    22 Arctic Village Council vs. Meyer, No. 3AN-20-7858 CIL, 2020 WL 
6120133 (Alaska Oct. 5, 2020).
    23 See James Thomas Tucker, Jacqueline De Leon & Dan McCool, 
Obstacles at Every Turn: Barriers to Political Participation Faced by 
Native American Voters (NARF June 2020) .
    24 Prior to the Nick case filed in 2007, a lawsuit was filed by the 
Native Village of Barrow against the municipal government for failing 
to provide translations of a ballot measure into the Inupiaq language. 
The case was settled before any judicial finding was made. See Natalie 
Landreth & Moira Smith, Voting Rights in Alaska: 1982-2006, 17 S. CAL. 
REV. LAW & SOC. JUST. 79, 116-17 (2007).
    25 Landreth & Smith, supra, at 110 (reprinting the Alaska report 
included in the record supporting passage of the Voting Rights Act 
Reauthorization Act of 2006).
    26 Ms. Brewster was removed from her position as Director of DOE 
and reassigned to direct Alaska's Department of Motor Vehicles just 
days after her deposition in the Nick case.
    27 Preliminary Injunction in Nick, supra, Docket No. 327, at 7-8. A 
copy of the injunction is included as Attachment C to my testimony.
    28 Id. at 8.
    29 Id. at 9.
    30 Wade Hampton was a Confederate general and an ardent 
segregationist. Naming a predominately Alaska Native region after a 
racist leader of the Confederacy offers a good window into the hearts 
of Alaska's elected officials responsible for naming it.
    31 See U.S. Dep't of Commerce, Bureau of the Census, Voting Rights 
Act Amendments of 2006, Determinations under Section 203, 76 Fed. Reg. 
63602 (Oct. 13, 2011).
    32 Deposition of Becka Baker, 55:18-23.
    33 Deposition of Dorie Wassilie, 134:13-19; Deposition of Bryan 
Jackson, 27:23-28:12.
    34 Alaska law requires that the Official Election Pamphlet be sent 
to every Alaska household with at least one registered voter at least 
22 days before any statewide general election or an election with a 
ballot measure. See ALASKA STAT.   15.58.010 (2014), 15.58.080 
(2000).
    35 Deposition of Mickey Speegle, 24:21-23.
    36 Deposition of Mickey Speegle, 24:15-19.
    37 Ballot measure No. 2--09PIMA, Abortion for Minor Requires Notice 
to or Consent from Parent or Guardian or Through Judicial Bypass 38 
Toyukak, Transcript of Decision on the Record, at 6:19-25 (June 4, 
2014).
    39 Tucker, Landreth & Dougherty-Lynch, supra, at 374-77.
    40 See Attachment E, Expert Witness Report of Professor Dan McCool 
(Dec. 22, 2020).
    41 The discussion of early voting is from Tucker, Landreth & 
Dougherty-Lynch, supra, at 344-50.
    42 Currently, in ``37 states . and the District of Columbia, any 
qualified voter may cast a ballot in person during a designated period 
prior to Election Day. No excuse or justification is required.'' Nat'l 
Conf. of State Legis., Absentee and Early Voting (Jan. 5, 2016), http:/
/www.ncsl.org/research/elections-and-campaigns/absentee-and-
earlyvoting.aspx#early. Eleven percent of all ballots cast nationwide 
in the 2014 elections did so through early voting. See U.S. Election 
Assistance Comm'n, 2014 Election Administration and Voting Survey (June 
2015),http://www.eac.gov/assets/1/Page/How-Voters-Voted-2014.jpg. 
    43 Use of Alaska's early voting locations (those other than the 
state's five permanent elections offices) is limited to statewide 
primary, general and special elections. See 6 ALASKA ADMIN. CODE  
25.500(b) (2008). Ballots for local elections conducted by the state 
are only available during the early voting period at the five permanent 
election offices. See id. at  25.500(c).
    44 ALASKA STAT.  15.20.064(a) (2005); see also 6 ALASKA ADMIN. 
CODE  25.500(a) (2008) (``Absentee voting stations will be established 
through the direction and approval of the director'' of the DOE).
    45 See generally ALASKA STAT.  15.20.064(b)-(c) (2005) (describing 
early voting procedures). 46 See Black Bull v. Dupree Sch. Dist., case 
no. 3:86-cv-03012 (D.S.D. 1986) (granting temporary and permanent 
relief to address 150 mile travel distance of Native voters to the 
closest polling place).
    47 ``Hub-communities'' are larger villages in rural areas of Alaska 
with airports that typically have jet service to urban areas such as 
Anchorage and Fairbanks. Residents of smaller villages in an area 
serviced by a hub-community will travel to that hub by bush plane, 
boat, or snow-mobile (when winter conditions permit) for basic shopping 
needs and for air transportation to larger cities, often to obtain 
health care services. Examples of hub-communities include Bethel in the 
Bethel Census Area and Dillingham in the Dillingham Census Area.
    48 See U.S. Census Bureau, Quickfacts: Anchorage Municipality, 
Alaska (County), available at http://www.census.gov/quickfacts/ (enter 
``Anchorage, Alaska'' in field that says ``Enter state, county, city, 
town, or zip code'').
    49 See STATE OF ALASKA, OFFICIAL ELECTION PAMPHLET: REGION II 
(MUNICIPALITY OF ANCHORAGE & MATANUSKASUSITNA BOROUGH) 9-11 (Nov. 6, 
2012) [''2012 OEP REGION II''], https://www.elections.alaska.gov/doc/
oep/2012/Region-2-Book-Final-2012.pdf. 
    50 Compare U.S. Census Bureau, Quickfacts: Matanuska-Susitna 
Borough, Alaska, available at http://www.census.gov/quickfacts/ (enter 
``Matanuska-Susitna Borough, Alaska'' in the field that says ``Enter 
state, county, city, town, or zip code'') with supra note 47.
    51 See 2012 OEP REGION II, supra, at 9-11.
    52 See Bethel Census Area, Communities, https://en.wikipedia.org/
wiki/Bethel_Census_Area,_Alaska (last visited Jan. 4, 2016).
    53 See U.S. Census Bureau, Quickfacts: Bethel Census Area, Alaska, 
available at http://www.census.gov/quickfacts/ (enter ``Bethel Census 
Area, Alaska'' in field that says ``Enter state, county, city, town, or 
zip code'').54 See STATE OF ALASKA, OFFICIAL ELECTION PAMPHLET: REGION 
IV (NORTHERN AND SOUTHWEST ALASKA, ALEUTIAN CHAIN, WESTERN COOK INLET) 
9-11 (Nov. 6, 2012) [''2012 OEP REGION IV''], https://
www.elections.alaska.gov/doc/oep/2012/Region-4-Book-Final-2012.pdf.
    55 See U.S. Census Bureau, Quickfacts: Wade Hampton Census Area, 
Alaska, available at http://www.census.gov/quickfacts/ (enter ``Wade 
Hampton Census Area, Alaska'' in field that says ``Enter state, county, 
city, town, or zip code'').56 See OEP, supra.
    57 See Dillingham Census Area, Communities, https://
en.wikipedia.org/wiki/Dillingham_Census_Area,_Alaska (last visited Jan. 
4, 2016).
    58 See U.S. Census Bureau, Quickfacts: Dillingham Census Area, 
Alaska, available at http://www.census.gov/quickfacts/ (enter 
``Dillingham Census Area, Alaska'' in field that says ``Enter state, 
county, city, town, or zip code'').
    59 See 2012 OEP REGION IV, supra note 56, at 9-11.
    60 See generally Stmt, of Interest of the Alaska Fed'n of Natives 
at 2, Toyukak v. Treadwell, case no. 3:13-cv-00137- SLG (D. Alaska 
filed July 3, 2014) [AFN Stmt. of Interest] (referring to requests for 
the preceding three years ``that the DOE automatically provide early 
(absentee-in-person) voting locations throughout rural Alaska'').
    61 Letter from Kim Reitmeier, Exec. Dir. of ANCSA Regional Ass'n, 
to Gail Fenumiai, Dir., Div. of Elections (July 26, 2012).
    62 Id.
    63 See Letter from Gail Fenumiai, Dir., Div. of Elections, to Kim 
Reitmeier, Exec. Dir. of ANCSA Regional Ass'n 1 (Aug. 1, 2012).
    64 Id. at 1-2.
    65 Letter from Gail Fenumiai, Dir., Div. of Elections, to Kim 
Reitmeier, Exec. Dir. of ANCSA Regional Ass'n 2 (Aug. 1, 2012).
    66 See Letter from Gail Fenumiai, Dir., Div. of Elections, to Myron 
Naneng, President of Ass'n of Village Council Presidents 1 (Aug. 1, 
2012) (listing the organizations). Some of the organizations 
represented several tribal councils. For example, the letter sent by 
Mr. Naneng was on behalf of the ``56 federally recognized Tribes on the 
Yukon- Kuskokwim Delta'' seeking early voting ``in all villages in 
rural Alaska for the 2014 election cycle.'' Letter from Myron Naneng, 
President of Ass'n of Village Council Presidents, to Gail Fenumiai, 
Dir., Div. of Elections 1 (Aug. 15, 2013).
    67 See Letter from Gail Fenumiai, Dir., Div. of Elections, to Myron 
Naneng, President of Ass'n of Village Council Presidents 1 (Aug. 1, 
2012).
    68 Id. at 2.
    69 Id.
    70 See id.
    71 Id.
    72 Id.
    73 See id.
    74 Id.
    75 See Letter from Jason Metrokin, Chair of ANCSA Regional Ass'n, 
to Gail Fenumiai, Dir., Div. of Elections 1 (Apr. 7, 2014).
    76 Id. at 2.
    77 See Letter from Gail Fenumiai, Dir., Div. of Elections, to Jason 
Metrokin, Chair of ANCSA Regional Ass'n 1-2, 4 (May 9, 2014).
    78 Id. at 2.
    79 See Alaska Fed'n of Natives, AFN and ANCSA Regional Ass'n 
Release Final List of New Absentee Early Voting Sites in Rural Alaska 
(July 16, 2014) [Rural Alaska Early Voting], http://
www.nativefederation.org/afn-and-ancsa-regional-association-release-
final-list-of-new-absentee-early-voting-sites-in-rural-alaska/. 
    80 See generally ALASKA STAT.   15.15.060 (2000) (DOE's director 
``shall pay the cost of necessary election expenses incurred in 
securing a place for holding the election.'') (emphasis added); 
15.20.045 (2014) (``The director or election supervisor may designate 
persons to act as absentee voting officials'' and the ``director may 
designate . locations at which absentee voting stations will be 
operated on or after the 15th day before an election up to and 
including the date of the election'') (emphasis added); see also 6 
ALASKA ADMIN. CODE  25.500(a) (2008) (``Absentee voting stations will 
be established through the direction and approval of the director'' of 
the DOE) (emphasis added).
    81 See Rural Alaska Early Voting, supra.
    82 See id.
    83 See Trial Tr. 1714:5-17, Toyukak v. Treadwell, case no. 3:13-cv-
00137-SLG (D. Alaska July 2, 2014) (Gail Fenumiai Test.).
    84 AFN Stmt. of Interest, supra, at 2-3.
    85 See Letter from Andrew Guy, President & CEO of Calista Corp., to 
Lt. Gov. Mead Treadwell, Gail Fenumiai, Dir., Div. of Elections, & 
Becka Baker, Region IV Super. (July 31, 2014).
    86 See Letter from Christopher Coates, Chief, Voting Section, to 
Gail Fenumiai, Director, Division of Elections, dated July 14, 2008.
    87 See Letter from Christopher Coates, Chief, Voting Section, to 
Gail Fenumiai, Director, Division of Elections, dated Sept. 10, 2008.
    88 570 U.S. 529 (2013).
    89 679 F.3d 848, 880-81 (D.C. Cir. 2012).
    90 See U.S. CONST. amend. XIV  5; U.S. CONST. amend. XV  2.
    91 See 570 U.S. 529 (2013). 92 See Tucker, Landreth & Dougherty-
Lynch, supra, at 358-82. 93 532 U.S. 598 (2001).
    94 549 U.S. 1 (2006) (per curiam).
    95 141 S.Ct. 2321 (2001).
    96 Brnovich, 141 S.Ct. at 2338.
    97 Id. at
    98 52 U.S.C.  20506(a).
    99 See generally 52 U.S.C.  10503(c) (''. Provided, That where the 
language of the applicable minority group is oral or unwritten or in 
the case of Alaskan natives and American Indians, if the predominant 
language is historically unwritten, the State or political subdivision 
is only required to furnish oral instructions, assistance, or other 
information relating to registration and voting.).
    100 See generally TUCKER, supra, at 91-98, 280-85; see also Tucker, 
Landreth & Dougherty-Lynch, supra, at 354-55.
    101 See Tucker, Landreth & Dougherty-Lynch, supra, at 355-57.

    Now we have Jacqueline De Leon, Staff Attorney at the 
Native American Rights Fund in Boulder, Colorado.

   STATEMENT OF JACKQUELINE DE LEON, STAFF ATTORNEY, NATIVE 
                      AMERICAN RIGHTS FUND

    Ms. De Leon. Thank you, Senator Lujan, for that kind 
introduction, and for championing NAVRA. And thank you, 
Chairman Schatz and Vice Chair Murkowski, for the opportunity 
to testify.
    My name is Jacqueline De Leon. I am a member of the Isleta 
Pueblo, and I am a staff attorney with the Native American 
Rights Fund, known as NARF, the Nation's largest and oldest 
non-profit dedicated to advancing the rights of Native 
Americans.
    My testimony will focus on the need to pass the Native 
American Voting Rights Act, and to fully restore the Voting 
Rights Act, due to ongoing present-day neglect and racial 
discrimination that is stripping Native Americans of their 
political power.
    In 2018, the Native American Voting Rights Coalition 
completed field hearings across Indian Country which I co-led. 
We heard from approximately 125 witnesses about voting in 
Federal and State elections. Our findings are extensively 
documented in a report which I have submitted to this 
Committee. I am humbled to be carrying their stories, tears, 
and demand for action with me today.
    Today, many Native American reservations are rural, distant 
from the nearest off reservation border town, because of 
official policies to forcibly remove and segregate Natives on 
remote and undesirable land. Travel to voting services, DMVs 
and post offices can be over 100 miles away. Due to ongoing 
discrimination and governmental neglect, many Native Americans 
live in overcrowded homes that do not have addresses, do not 
receive mail, and are located on dirt roads that can be 
impassable in wintry November.
    The Native American Voting Rights Act championed in the 
House by two Native members, Republican Tom Cole and Democrat 
Sharice Davids, would address the glaring structural 
deficiencies facing Native communities by mandating on-
reservation voting services and accommodations for homes that 
do not receive mail delivery and do not have residential 
addresses.
    It would also ensure access by requiring services be 
equitable of and off reservations.
    NARF has also successfully brought Native American voting 
rights cases in the last four years including challenges to 
North Dakota's voter ID law that required a residential address 
on IDs when the State knew that there were homes on the Native 
American reservations that did not have addresses on them, a 
challenge to Montana's ballot collection ban, where tribes in 
Montana do not have residential mail delivery, a challenge to 
Alaska's witness signature requirement during the pandemic, 
when elderly and single mothers would have had to break 
quarantine in order to comply, and a 2020 lawsuit challenging 
the refusal to open an in-person polling location on the 
Blackfeet Reservation.
    I would like to pause on that last case. Pondera County 
chose to keep in-person voting at their county seat, which 
ensured access for the over 90 percent white residents, but 
attempted to deny in-person voting to Blackfeet tribal members 
who do not get mail delivered to their homes and would have had 
to travel 120 miles to vote.
    Indeed, relying upon the 14th and 15th amendments and the 
VRA, Native Americans have filed nearly 100 lawsuits with a 
success rate of over 90 percent. The cases have been litigated 
in front of judges appointed by Republican and Democratic 
Presidents. In short, the facts are so bad, we nearly always 
win. Yet the Supreme Court's hostility toward voting rights 
imperils the ability of Native litigants to get the relief they 
deserve. In Shelby County v. Holder, the court suspended 
Section 5, robbing Native voters in Arizona, Alaska, parts of 
South Dakota and North Carolina from pre-clearance protections. 
And in Brnovich v. DNC, the Supreme Court upheld two voting 
restrictions that have a disparate impact on Native American 
voters, contrary to the express purpose of Section 2.
    The need for action is urgent and compelling. For example, 
just last year, tribes and GOTV organizations successfully 
challenged a ballot collection ban in Montana under the State's 
right to vote provision. Yet the legislature passed another 
ballot collection ban this year, in a move that the Montana 
Advisory Committee to the U.S. Commission on Civil Rights 
described as intentional discrimination that will increase 
barriers to voters for Native Americans on reservations in 
Montana.
    NARF has collected extensive evidence of the racism faced 
by Native American voters in recent years by voting officials. 
In 2018, a San Juan County clerk in Utah committed fraud and 
backdated a false complaint against a Native American 
candidate. Less than ten years ago, Native American voters were 
humiliated and forced to vote out of a chicken coop. This year, 
county officials spent $180,000 fighting against providing 
early voting on the Pascua Yaqui Reservation.
    I urge this Committee to do the necessary work of 
investigating and recording these injustices to fully restore 
the Voting Rights Act and to pass the Native American Voting 
Rights Act. Thank you.
    [The prepared statement of Ms. De Leon follows:]

   Prepared Statement of Jacqueline De Leon, Staff Attorney, Native 
                          American Rights Fund
I. Introduction
    Thank you Chairman Schatz, Ranking Member Murkowski, and Members of 
the Committee for having me testify today on the urgent need to protect 
the Native American vote. My name is Jacqueline De Leon, I am a member 
of the Isleta Pueblo in New Mexico, and I am a staff attorney with the 
Native American Rights Fund (NARF). My testimony focuses on the state 
of Native American voting rights and the pressing need to pass Senator 
Lujan's Native American Voting Rights Act and the John Lewis Voting 
Rights Advancement Act.
    Since 1970, NARF has provided legal assistance to tribes, 
organizations, and individuals nationwide who might otherwise have gone 
without adequate representation. NARF has successfully asserted and 
defended the most important rights of Native Americans \1\ and tribes 
in hundreds of major cases, and has achieved significant results in 
such critical areas as tribal sovereignty, treaty rights, natural 
resource protection, Indian education, and voting rights. NARF is a 
non-profit 501(c)(3) organization that focuses on applying existing 
laws and treaties to ensure that the Federal and state governments live 
up to their legal obligations to tribes and Native Americans.
    NARF is headquartered in Boulder, Colorado, with branch offices in 
Washington, D.C., and Anchorage, Alaska. NARF is governed by a 
volunteer board of directors composed of thirteen Native Americans from 
different tribes throughout the country with a variety of expertise in 
Native American matters. A staff of seventeen attorneys handle over 
fifty major cases at any given time, with most of the cases taking 
several years to resolve. Cases are accepted on the basis of their 
breadth and potential importance in setting legal precedents and 
establishing important principles of Indian law. Voting rights cases 
fall under NARF's priority area of promoting Native American human 
rights. Unfortunately, there remains much work to be done.
II. Legal and Historical Background of Native American 
        Disenfranchisement
    Throughout history, states have actively resisted Native American 
participation in American democracy. Even after the passage of the 
Fifteenth Amendment, Minnesota's Constitution prohibited Native 
Americans from voting unless they ``adopted the language, customs and 
habits of civilization.'' \2\ South Dakota passed a law in 1903 that 
prevented Native Americans from voting while ``maintaining tribal 
relations.'' \3\ In North Dakota, the State Supreme Court in 1920 
granted only those Native Americans who had assimilated the right to 
vote because they ``live the same as white people . . . [and required] 
that they have severed their tribal relations.'' \4\
    Even after the passage of the Indian Citizenship Act in 1924, 
states and local jurisdictions prevented Native Americans from 
registering to vote and voting. \5\ In 1928, the Arizona Supreme Court 
held that Native Americans, despite being United States citizens, were 
excluded from registering to vote because they were wards of the 
Federal government. \6\ That decision equated Native Americans with 
incompetents and stood for twenty years. Montana excluded Native 
Americans from voting and holding office from its territorial 
establishment, and took measures to prevent Native Americans from 
voting. \7\ South Dakota had a law in effect until 1939 that prevented 
Native Americans from holding public office. \8\ And many states 
alleged that Native Americans living on reservations were not state 
citizens in an effort to prevent them from voting.
    In 1948, Native Americans in New Mexico and Arizona successfully 
litigated their right to vote. \9\ Utah and North Dakota became the 
last states to afford on-reservation Native Americans the right to vote 
in 1957 and 1958, respectively \10\ When the right to vote was finally 
secured, steps were then taken to prevent Native Americans from 
participating in elections and being elected to office. \11\
    Language barriers have also historically been exploited to deny the 
right to vote. Like African Americans, Native Americans who were fluent 
only in their Native languages and unable to read or write in English 
because they were denied equal educational opportunities, were 
disenfranchised by literacy tests designed to keep them from voting. An 
Arizona statute stipulated that only individuals who could read the 
United States Constitution in English could vote. \12\ When Alaska 
became a state in 1959, the state's new constitution required that a 
voter ``shall be able to read or speak the English language as 
prescribed by law.'' \13\
    Whether through state constitutional provisions, residency 
requirements, requirements to abandon tribal culture, taxation, 
guardianship, or literacy tests, states and local jurisdictions with 
substantial Native populations have, like states in the South in the 
Jim Crow era, been creative in crafting various stratagems and legal 
devices that denied the right to vote to Native Americans. It was not 
until the passage of the Voting Rights Act (VRA) that Native Americans 
were promised full legal access to the franchise. However, that promise 
has not yet been realized for Native Americans.
III. Obstacles to Voting for Native Americans
    Native Americans face many obstacles to voting. Obstacles can 
include isolating conditions that reduce opportunities and 
participation, structural or institutional barriers that limit voter 
participation through the passage of laws or policies that reduce voter 
participation, and election administration issues.
    Today, many Native American reservations are located in extremely 
rural areas, distant from the nearest off-reservation border town. This 
was by design, as official government policies forcibly removed Native 
Americans and segregated them onto the most remote and undesirable 
land. As a result of these policies, travel to county seats for voting 
services can astoundingly be hundreds of miles away. Services such as 
DMVs and post offices can also require hours of travel. As detailed 
extensively below, the impacts of discrimination are not only in the 
past. Due to ongoing discrimination and governmental neglect, many 
Native Americans live in overcrowded homes that do not have addresses, 
do not receive mail, and are located on dirt roads that become 
impassable with inclement weather. Lack of broadband Internet, cell 
phone coverage, or the economic means for transportation to in-person 
assistance means there are Native Americans that cannot access basic 
government services. \14\
    Too often, these vulnerabilities are exploited by state laws and 
county rules that undermine the ability for Native Americans to cast 
their ballot. As a result, voting in Native communities is difficult 
and can even be impossible. The exploitation of these vulnerabilities 
is at times intentional and the result of overt racist discrimination. 
Federal action is needed to protect Native Americans from this abuse. 
Passage of the Native American Voting Rights Act would help overcome 
the structural deficiencies present in Native American communities that 
too often make voting unreasonably difficult. A fully functioning and 
restored Voting Rights Act would provide a backstop against 
discrimination.
Field Hearings
    To better understand the barriers preventing Native American access 
to the ballot, in 2015, NARF founded the Native American Voting Rights 
Coalition (NAVRC), a coalition of national and regional grassroots 
organizations, academics, and attorneys advocating for Native 
Americans' equal access to the political process. NAVRC was founded to 
facilitate collaboration between its members on coordinated approaches 
to the many barriers that Native Americans face in registering to vote, 
casting their ballot, and having an equal voice in elections. Led by 
NARF, in April 2018, NAVRC completed a series of nine field hearings in 
seven states on the state of voting rights in Indian Country. I, along 
with former NARF pro bono counsel, Dr. James Tucker, Ph.D., had the 
honor of attending all of these hearings. We heard from approximately 
125 witnesses from dozens of tribes around the country, generated 
thousands of pages of transcripts with their testimony about the 
progress of Native Americans in non-tribal elections, and documented 
the work that remains to be done.
    The field hearings were conducted at the following locations: 
Bismarck, North Dakota, on September 5, 2017; Milwaukee, Wisconsin, on 
October 16, 2017; Phoenix, Arizona, on January 11, 2018; Portland, 
Oregon, on January 23, 2018; on the tribal lands of the Rincon Band of 
Luiseno Indians north of San Diego, California, on February 5, 2018; 
Tulsa, Oklahoma, on February 23, 2018; on the tribal lands of the 
Isleta Pueblo just outside of Albuquerque, New Mexico, on March 8, 
2018; Sacramento, California, on April 5, 2018; and on the tribal lands 
of the Navajo Nation in Tuba City, Arizona, on April 25, 2018. Field 
hearings were not conducted in Alaska because the Alaska Advisory 
Committee to the U.S. Commission on Civil Rights already had a similar 
effort underway. Coalition members also were familiar with Alaska's 
barriers after several years of voting rights litigation there.
    Witnesses included tribal leaders, community organizers, academics, 
politicians, and Native voters. They shared their experiences in voter 
registration and voting in Federal, state, and local (non-tribal) 
elections. I am humbled to be carrying their stories with me here 
today.
    The field hearings made clear that across this country Native 
Americans face unjust barriers that prevent them from having equal 
access to the ballot box. We were able to identify common factors 
discouraging political participation, including: (1) geographical 
isolation; (2) physical and natural barriers; (3) poorly maintained or 
non-existent roads; (4) distance and limited hours of government 
offices; (5) technological barriers and the digital divide; (6) low 
levels of educational attainment; (7) depressed socio-economic 
conditions; (8) homelessness and housing insecurity; (9) non-
traditional mailing addresses such as post office boxes; (10) lack of 
funding for elections; and (11) overt and intentional racial 
discrimination against Native Americans.
    In addition to this daunting list of factors, language access also 
remains an obstacle for some Native American voters. Under the 2011 
determinations of jurisdictions that required language assistance, 
Native American languages were the second most common language group 
after Spanish. Section 203 of the Voting Rights Act helps Limited-
English Proficient (LEP) American Indian and Alaska Native voters 
overcome barriers to political participation by requiring 35 political 
subdivisions in nine states to provide bilingual written materials and 
oral language assistance. \15\ Despite these broad protections, 
jurisdictions have often failed to provide the required translations, 
forcing Native voters to file costly lawsuits.
    Even if Native American voters can overcome these barriers and 
register to vote, the field hearings showed that they face an 
additional set of barriers to cast their ballot. Such barriers include: 
(1) unequal funding for voting activities in Native communities; (2) 
lack of pre-election information and outreach; (3) cultural and 
political isolation; (4) unequal access to in-person and early voting; 
(5) barriers caused by vote-by-mail; (5) state laws that create 
arbitrary population thresholds to establish polling places; (6) the 
use of the Americans with Disabilities Act to deny polling places on 
reservation lands; and (7) the lack of Native American poll workers.
    These barriers are extensively documented in a report that I co-
authored with Dr. Tucker and Professor Daniel McCool, released in June 
of 2020, Obstacles at Every Turn: Barriers to Political Participation 
Faced by Native American Voters. \16\ We have added an addendum to that 
report reflecting on the 2020 election cycle and the outcome of the 
2021 legislative session, which I have submitted to this Committee.
    While additional evidence is found in the Obstacles report, here is 
a sampling of some of the physical barriers faced by Native voters:

  Voters surveyed from the Duck Valley, Pyramid Lake, Walker 
        River, and Yerington Tribes in Nevada identified travel 
        distance as ``the single biggest obstacle to registering. Among 
        those who were registered to vote, 10 percent stated that it 
        was difficult for them to travel to register. Among [those]. . 
        . not registered, a whopping 34 percent said that it would be 
        difficult for them to travel to a place to register.. . . But 
        travel distance was also identified by the. . . respondents as 
        a major factor that inhibited voting. . . '' \17\

  In Nye County, Nevada, the combined effects of geographical 
        isolation and mountainous terrain results in lengthy travel 
        times to get to either of the County's two election offices. 
        The closest elections office is in Tonopah, 140 miles each way 
        by road from the Duckwater Reservation. The Pahrump elections 
        office is 303 miles away each way by road. Travel time is at 
        least five or ten hours, respectively, if the weather 
        conditions permit.

  Navajos in San Juan County, Utah, living on tribal lands have 
        to drive to Blanding or Monticello for any government services. 
        From Navajo Mountain, Utah, which is near Lake Powell, it is 
        about 200 miles (a four or five-hour drive) each way, weather 
        conditions permitting. It requires driving south into northern 
        Arizona on U.S. Highway 98 to U.S. Highway 160 in Navajo 
        County, Arizona, to U.S. Highway 191 north back into Utah.

  In Arizona, the nearest polling place for some tribes is off 
        reservation. \10\ The closest polling station to the Kaibab 
        Paiute Tribe is about 30 miles away. One community is located 
        on the east side of the reservation 15 miles farther away, 
        which means they must travel about 90 miles roundtrip to vote 
        at their polling place. \11\

  The Goshute voters in Utah have to drive over an hour each 
        way to get to their polling place. Citizens of the Ute Nation 
        must drive about 45 minutes each way to their polling place. 
        Many lack access to transportation, and no public 
        transportation is available. \22\

    These distances are not only objectively unreasonable, but the 
burden imposed by them is compounded by the extreme poverty, poor 
roads, and lack of access to transportation faced by Native Americans. 
Vote by mail is often no solution, since across Indian Country many 
Native communities do not have residential mail delivery and homes are 
unaddressed. \18\ As a result, across Indian Country, it is simply too 
costly to vote.
    What these distances and conditions communicate to Native Americans 
is that the American electoral system is not designed for their lives, 
and, by extension, is not for them. The Federal trust responsibility 
between the Federal government and tribes compels Congress to act to 
ensure Native Americans enjoy the same rights, benefits, and privileges 
as all Americans. This does not mean a diminishment of tribal 
sovereignty. Rather, in the Federalist system, there is room for robust 
Federal, state, and tribal governments. Native Americans are Americans. 
We deserve a fair opportunity to participate in all levels of America's 
electoral system, to make choices, and to vote and advocate for 
representatives and policies that are responsive to our needs and that 
shape American society.
    The Native American Voting Rights Act faces these structural 
deficiencies head on by mandating on reservation election services and 
making accommodations for the lack of residential addressing and mail 
delivery. Congress must act expeditiously to remedy these structural 
deficiencies that continue to unjustly hinder Native American 
participation in American political life.
Litigation
    Besides leading the NAVRC, NARF has also successfully brought a 
number of seminal Native American voting rights lawsuits in the last 
four years, including challenges to North Dakota's voter ID law, \19\ a 
challenge to Montana's absentee ballot collection ban, \20\ a challenge 
to Alaska's witness signature requirement during the COVID-19 pandemic, 
\21\ and a lawsuit challenging the refusal of Pondera County, Montana, 
to open an in person polling location on the Blackfeet Reservation for 
the 2020 General Election.
    This recent successful litigation aligns with the longstanding 
trend of successful outcomes in Native American voting rights cases. 
Relying upon the Fourteenth and Fifteenth Amendments, and various 
sections of the VRA, Native American voters have filed nearly a hundred 
lawsuits in an effort to gain equal access to election procedures and 
to have an equal opportunity to elect candidates of their choice. Prior 
to the last election cycle, out of the known 94 Native American voting 
rights cases, there have been victories or successful settlements in 86 
cases, and partial victories in two others. That is a success rate of 
over 90 percent. \23\ These cases have been litigated in front of 
judges appointed by Republican and Democratic Presidents, and yet the 
overwhelming factual patterns established in Native American voting 
rights cases compel relief. In short, the facts are so bad that Native 
Americans nearly always win.
    It is worth pausing to reflect on the egregious facts underlying 
the refusal to provide a polling place in Pondera County, Montana, this 
past election. In Montana, in response to the global pandemic, county 
officials were given the option of conducting their elections by mail. 
Yet, Pondera County chose to maintain its in-person polling location at 
its county seat, ensuring access for the over 90 percent White 
residents. Blackfeet tribal members requested in-person access as well. 
After all, the homes on the Blackfeet Reservation do not receive 
residential mail delivery and so Native Americans are forced to travel 
to their rural post office a significant distance away and that is only 
open limited hours to get their mail and ballots. County officials 
refused, instead insisting that Blackfeet tribal members travel 120 
miles round trip to the county office in Conrad, Montana, to vote. NARF 
was forced to bring a suit on behalf of the Blackfeet in Federal court 
alleging violations of the Constitution and VRA. Only after suit was 
filed did Pondera County agree to provide on-reservation access.
    Bringing a lawsuit alleging discrimination is an arduous process 
that NARF does not undertake lightly. Indeed, in the lead up to the 
2020 General Election in Montana, NARF negotiated with two other 
counties that refused to provide on-reservation access, despite 
providing access to their majority non-Native communities, ultimately 
reaching a resolution without the need for litigation. Indeed, despite 
widespread voter suppression and discrimination in Indian Country, NARF 
does not have the resources to bring every case. Litigation is costly 
and time consuming, and voters are often disenfranchised while 
litigation is pending.
    For example, the effort and resources necessary to mount a legal 
challenge to North Dakota's voter ID law were significant. In North 
Dakota, the state required IDs with addresses on them despite knowing 
that Native Americans throughout North Dakota lacked addresses at their 
homes. \24\ This led to widespread disenfranchisement of Native 
Americans. This discrimination was deeply felt. As our Plaintiff, 
United States Marine Corp. veteran Elvis Norquay, explained in his 
testimony before the House Administration Subcommittee on Elections 
last year, ``In November of 2014 I went to the KC hall to vote but was 
turned away. I voted many times for years before being turned away. I 
was always happy to go vote. Being turned away brought me down.'' \25\
    The Federal court found that the state violated the Fourteenth 
Amendment, holding that ``it is clear that a safety net is needed for 
those voters who simply cannot obtain a qualifying ID with reasonable 
effort.'' \26\ The total sought for Plaintiffs' attorneys' fees and 
litigation expenses was $1,132,459.41. This sum represents $832,977 in 
attorneys' fees and $299,482.41 in litigation expenses, including 
expert reports. Thousands of attorney hours over almost two years were 
expended in order to build a legal record and respond to numerous 
motions filed by the state in defense of the law. After the successful 
outcome in that case, the North Dakota legislature again enacted a 
voter ID law that had the same disenfranchising effects. NARF was again 
forced to bring litigation. Eventually, NARF waived its attorney fee 
motion for the second half of the case in order to help secure a 
successful settlement.
    This whack-a-mole pattern of repeated violations of Native American 
voting rights is common across Indian Country. For example, numerous 
lawsuits alleging voting rights violations have been filed in South 
Dakota, including the only Section 2 case brought on behalf of 
plaintiffs under the U.S. Department of Justice during the Trump 
Administration. \27\ In Montana, repeated successful litigation has 
challenged the disenfranchisement of Native Americans. \28\ In Utah, 
San Juan County has had near constant, successful, voting rights 
litigation brought against it since the United States first brought 
suit on behalf of the Navajo in 1983. \29\
    Given this influx of contemporary discrimination and disparate 
impacts necessitating relief, a robust Voting Rights Act is even more 
critical. Restoration of Section 2 is especially important to Indian 
Country.
Brnovich and Shelby County
    The Supreme Court's recent decision in Brnovich v. DNC, was 
especially devastating to Native American voters. The decision was 
notable not only because the decision upheld two voting restrictions 
while disregarding the disparate impacts on thousands of Native 
Americans, but also because it undermined Section 2 in the wake of the 
Supreme Court's suspension of Section 5.
    The suspension of Section 5 following the invalidation of the 
coverage formula in Shelby County v. Holder \30\ negatively impacted 
Indian Country. Arizona and Alaska, both with substantial Native 
American populations, were previously covered under Section 5, 
resulting in protection for those groups.
    In 2008, Alaska attempted to eliminate polling locations in the 
Alaska Native communities of Tatitlek, Pedro Bay, and Levelock and 
force Native voters to travel to predominately white communities to 
cast their ballots. These non-Native communities were not only a 
significant distance but also can only be accessed by boat or plane 
during fair weather. Under Section 5, the United States responded to 
Alaska with several detailed More Information Requests about the impact 
the move would have on Native American voters. In response, Alaska 
withdrew its discriminatory proposals. \31\
    When Section 5 was still in effect in 2011, Arizona attempted to 
preclear restrictive ballot collection regulations that were eventually 
at issue in Brnovich. Bans on ballot collection, also disparagingly 
referred to as ``ballot harvesting,'' can disproportionately and 
severely impact Native communities. Because of high poverty rates, lack 
of access to transportation, and lack of mail delivery, Native 
Americans often pick up and drop off mail for each other. When the DOJ 
requested more information on the impact of a ballot collection ban on 
minorities in Arizona, the legislature withdrew its request. 
Immediately post-Shelby, the ballot collection ban went into effect. 
Distressingly, the Supreme Court has since upheld the ballot collection 
ban despite the clearly documented disparate impact on Native 
Americans. The Court also upheld a ban on out of precinct voting that 
also disproportionately impacts Native Americans whose lack of 
residential addresses results in them being placed in the wrong 
precinct through no fault of their own. When these Native Americans 
show up to vote, they are in the wrong precinct according to the state 
records and no part of their ballot will be counted.
    The very upholding of these discriminatory laws demonstrates that 
the reasoning employed by the Supreme Court was flawed. However, three 
of the Court's new Brnovich factors are particularly worrisome for 
Native American litigants. First, the Brnovich decision abrogated 
Section 2's promise of ``equal opportunity'' for all voters under its 
Factor #3 by instructing lower courts that, in evaluating whether a 
voting rule violated the VRA, ``the size of any disparities in a rule's 
impact on members of different racial or ethnic groups is also an 
important factor to consider.'' \32\ The Court thus upheld the 
challenged out-of-precinct policy despite the District Court's finding 
that 1 percent of Native voters, compared to just 0.5 percent of white 
voters voted in the wrong precinct. It reasoned that--in either case--
99 percent or more of voters in each racial category were unaffected by 
the rule. \33\
    The Supreme Court's cramped understanding of disparate impact under 
the VRA led it to uphold a law flatly inconsistent with the statute's 
purpose: to ensure all voters have an equal opportunity to participate 
in elections regardless of their race. \34\ The Ninth Circuit panel 
below, reviewing en banc the district court's findings of fact 
concerning rates of out-of-precinct voting by white and minority 
voters, found a violation of Section 2 based in part on the evidence 
that minority voters voted out of precinct at ``twice the rate of 
whites.'' \35\ This method of analyzing the quantitative data by 
focusing on whether and how minority voters are affected differently 
than their white counterparts comports with the VRA's text and purpose. 
The Supreme Court's analysis focuses instead on the proportion of 
unaffected voters and thus misses the point entirely.
    Furthermore, this reading of Section 2 led it to uphold a law that 
concededly disenfranchises a full percent of a state's Native voters. 
Such a rule has deeply troubling implications for many Tribes. Many of 
Arizona's nearly 320,000 Native American people \36\ live on remote 
reservations each comprising far less than 1 percent of the state's 
total Native population. And a law that disenfranchises a percentage of 
Native voters translates to thousands of disenfranchised voters. A 
voting rule or policy which prevents every eligible Native voter living 
on the Kaibab Paiute reservation (along the remote Arizona Strip) or 
Havasupai reservation (in the Grand Canyon) from voting could be 
permitted under this test. \37\ So too could a law disenfranchising all 
Native Americans living on Moapa River Indian Reservation, Duckwater 
Reservation, or Carson Colony in Nevada. \38\ Such a perverse outcome 
demonstrates the urgent need for legislative action to address the 
Court's hollowing of Section 2.
    Second, Brnovich Factor #4 Court declares that, ``[w]here a State 
provides multiple ways to vote, any burden imposed on voters who choose 
one of the available options cannot be evaluated without also taking 
into account the other available means.'' \39\ This novel limitation on 
Section 2 vote denial claims invites state legislatures to provide 
voters with more options, regardless of whether the quantity of options 
actually resonates with the communities that find it difficult to vote.
    The structural deficiencies found in reservations--poor roads, lack 
of vehicles, distant polling places, lack of residential mail delivery, 
lack of addressing, high homeless rates, for example--make it more 
difficult for Native Americans to take advantage of the myriad of 
voting options that may or may not be available. In a 2020 lawsuit 
brought by Native plaintiffs seeking to invalidate a ballot collection 
law similar to Arizona's ballot collection ban, a Montana district 
court determined that ``Montana's elections overall are very 
accessible'' and outlined the various options voters had to register 
and cast their ballots. \40\ Nevertheless, it struck down the ballot 
collection limitation because it found that ``while the majority of 
Montanans can easily access the vote by mail process by either mailing 
in their ballots or dropping their ballots off at election offices, 
Native Americans living on reservations rely heavily on ballot 
collection efforts in order to vote in elections.'' \41\ Were that case 
brought in Federal courts today, the court may have felt compelled to 
uphold a demonstrably burdensome voting rule. Section 2 should not be 
so weakened.
    Finally, Brnovich factor #5 that the ``strong and entirely 
legitimate state interest [in] the prevention of fraud'' is an 
``important factor that must be taken into account'' in evaluating 
whether a rule violates Section 2'' \42\ is especially concerning in 
Native American communities. \43\ Invoking the fear of fraud without 
requiring the contested voting procedure to demonstrably prevent fraud 
that is actually occurring or likely to occur provides an unjustified 
blanket cover for laws that have discriminatory effects. For example, 
in this past election, the state of Alaska asserted that it needed 
signatures on ballots to be witnessed to prevent fraud. During the 
pandemic this would have meant that elders and single mothers that do 
not live with another eligible adult would have had to break quarantine 
in order to get their ballot witnessed. Yet, the state was unable to 
provide any instance in which a witness signature prevented fraud. And 
the state admitted that it does not even use the witness signatures 
when it is conducting fraud investigations. Consequently, the Alaska 
Supreme Court upheld an injunction against the witness signature 
requirement prior to the 2020 election. \44\ Federal courts should 
likewise be required to evaluate whether the voting rule at issue in 
fact prevents fraud that is in fact a problem.
    Even more concerning, Native voters, tribes, and Native voting 
rights organizations have been targets of exaggerated, if not outright 
fabricated, accusations of voter fraud. These charges are directed at 
Native voters after Native Americans assert their political power. For 
example, in 2002, unusually high turnout on South Dakota's Indian 
reservations led to a narrow victory for a Democratic Congressional 
candidate. \45\ Opponents responded with repeated accusations that the 
win was due to rampant voter fraud on reservations and fifty affidavits 
were submitted to that effect; the state attorney general's office 
performed a thorough review and found only one alleged case that $10 
was paid to Native voters that even merited further investigation. \46\ 
The backlash to these exaggerated and false claims subjected Native 
voters to racist abuse and spurred opinion pieces such as ``Don't Let 
Illiterate Indians Vote.'' \47\ These false allegations of voter fraud 
among Native Americans carried over into the 2004 elections, when the 
New York Times reported another ``wave of false voter fraud charges 
that have been made against [tribal members in South Dakota].'' \48\
    In 2006, an organization called the Citizens' Equal Rights Alliance 
(CERA) filed a lawsuit ``contending that widespread `election fraud 
and/or voting rights abuses' took place on the Crow Indian Reservation 
in Big Horn County, Montana'' during that year's November election, 
without evidence. One of the ``remedies'' CERA sought was that 
``polling places for Federal, state, county, and local district 
elections cannot be located within [the exterior boundaries of any 
particular Indian reservation].'' \49\
    Congress should not allow Section 2 of the VRA to be so tarnished. 
Instead, Section 2 must stand as a beacon against discrimination that 
can be wielded to fend off unjust attacks when Native Americans flex 
their political power.
Legislation
    The need for Federal action is urgent and compelling. This year, 
legislators in states across the country have targeted vulnerable 
Native American voters. NARF monitored bills introduced in states with 
sizeable Native American populations. In just 14 states--Alaska, 
Arizona, California, Michigan, Minnesota, Montana, Nevada, New Mexico, 
North Carolina, North Dakota, Oklahoma, South Dakota, Washington, and 
Wisconsin-legislators introduced over 100 bills that would make it more 
difficult for Native Americans to vote. \50\
    Notably, in Montana, the state legislature passed HB 530 on the 
very last day of its legislative session without debate. HB 530 
prohibits organizations from picking up and dropping off ballots. This 
law was implemented after a Montana court blocked a similar law, the 
Ballot Interference Protection Act (BIPA), which was challenged by the 
Assiniboine & Sioux Tribes of Fort Peck, Blackfeet Nation, Confederate 
Salish and Kootenai Tribes of the Flathead Reservation, Crow Tribe, and 
the Fort Belknap Indian Community as well as GOTV organization Western 
Native Voice. Represented by NARF and the ACLU, BIPA was successfully 
challenged under Montana's Constitutional right to vote provision. In 
September 2020, the court struck down BIPA, finding ``the questions 
presented cannot be viewed through the lens of our own upbringings or 
own life experiences, but through the lens of the cold, hard data that 
was presented at trial about the clear limitations Native American 
communities in Montana face, and how the costs associated with . . 
.(BIPA) are simply too high and too burdensome to remain the law of the 
State of Montana.'' \51\
    Remarkably, despite this finding, the State legislature passed 
another ballot collection ban in the 2021 legislative session. That law 
also faced an immediate legal challenge by tribes and Native get-out-
the-vote organizations, again brought by NARF and the ACLU, \52\ which 
is ongoing. \53\ The Montana Advisory Committee to the U.S. Commission 
on Civil Rights described how ``[t]he passage of a bill that imposes 
the same burdens is intentional discrimination and will increase 
barriers to voting for Native Americans on reservations in Montana.'' 
\54\
    The Arizona legislature likewise passed discriminatory laws in the 
2021 legislative session. \55\ In this session, the state legislature 
overturned a settlement agreement reached by the Secretary of State 
with the Navajo Nation. \56\ Because of confusion around Native 
American names and difficulty reaching Native Americans due to their 
housing insecurity, the Secretary had agreed to allow seven days to 
cure a mismatched signature ballot. However, the Arizona State 
Legislature, through SB 1003, now requires signatures to be cured by 
7:00 PM on Election Day. This law took effect on May 7, 2021. \57\
    Additionally, through HB 2569, the Arizona legislature, despite 
chronic underfunding of elections, banned private entities from 
donating funds to assist with administration of elections. Native 
American communities in Arizona are often told that providing services 
is impracticable because doing so would be too costly. And in the 2020 
election, nine counties used grants to educate people how to safely 
vote during the pandemic. \58\ The majority of the counties that relied 
on grants include substantial Native communities. These counties 
include Apache, Navajo, Coconino, Graham, Pinal, and Pima Counties. The 
legislature removed the ability of underserved communities to rectify 
these inequities.
    Arizona also passed restrictive voting bills that generally make it 
more difficult for Native Americans to vote, including laws making it 
easier to be removed from the voter registration list (SB 1485 and SB 
1819). Given the inequitable access and hurdles to registration faced 
by Native Americans in Arizona, additional restrictions on voter 
registration only make it more difficult for Native Americans to 
ultimately cast a ballot.
Overt Racial Discrimination
    Finally, in case there is any doubt that Native Americans face 
overt discrimination on the basis of race, NARF has collected extensive 
evidence of the racism faced by Native voters. Native Americans 
continue to experience overt discrimination in their everyday lives and 
when they attempt to vote.
    This past election, the weekend before Election Day, a man visited 
several bars in Glasgow, Montana, roughly ten miles from the western 
border of the Fort Peck Indian Reservation, in full KKK attire. None of 
the other bar patrons were phased, and many even supported him. Indeed, 
the ``costume'' was the winner at a local Halloween costume contest. 
\59\ Though mostly associated with the Deep South, the KKK has been 
prominent since at least the 1920s in Glasgow, Plentywood, and 
Bainville, Montana--all locations that border the Fort Peck 
Reservation. A primary goal of the KKK in Glasgow was to undermine 
Native American voting rights. \60\ As the General Counsel to the Fort 
Peck Assiniboine and Sioux Tribes relayed to me following the incident, 
``This is why satellite voting sites are so important for our tribal 
members. Not everyone is comfortable going into places in Glasgow, and 
not everyone in Glasgow is going to make our tribal members feel 
welcome.''
    In Arizona, racial tensions are so fraught between the Kaibab Band 
of Paiute Indians and the border town that the pipes sending water to 
the reservation are regularly blocked by border town residents. \61\ In 
Utah, a Field Hearing witness's Native grandson attempted to play 
baseball and was accosted by a non-Native woman who ``started screaming 
at him, `Who in the hell do you think you are? You think you're that 
good? You damn welfare people are starting to take over.''' \62\
    These racist attitudes do not stop at residents. Voting officials 
also discriminate against Native Americans. For example, the 
registration offices and polling places that primarily service Native 
American communities can be hostile. All of these incidents took place 
within the last 10 years:

  In South Dakota, Native American voters were forced to vote 
        in a repurposed chicken coop with no bathroom facilities and 
        feathers on the floor. \63\

  In Wisconsin, Native American voters were forced to vote 
        where a sheriff's office was located. \64\

  In South Dakota, Native American voters were forced to walk 
        past a sheriff deputy who kept his hand on his gun while 
        standing in the entrance to the only polling place on a 
        reservation.

  In South Dakota, the approximately 1,500 Crow Creek 
        Reservation residents comprise about 90 percent of Buffalo 
        County's population. Nevertheless, to register to vote or run 
        for office, tribal members have to drive 40 miles round trip to 
        Gann Valley, which has a population of about 12, all non-
        Natives. While Gann Valley's 12 residents had full voting 
        access, Buffalo County's Auditor/Register of Deeds refused to 
        provide an on-reservation early polling site to service the 
        Crow Creek Reservation's substantially larger population, even 
        after Help America Vote Act (HAVA) funding was secured to cover 
        the full cost of the voting site. \65\

    And, too often, modern day experiences echo past instances of 
discrimination. In 1986, in a VRA case having to do with an unfair at-
large voting system in Montana, the court also uncovered evidence that 
voter registration was intentionally withheld from Native American 
voters. The Court recounted how ``[an] Indian testified that he was 
given only a few voter registration cards and when he asked for more 
was told that the county was running low. Having driven a long way to 
get the cards, he asked his wife, who is white, to go into the county 
building and request some cards. She did and was given about 50 more 
cards than he was.'' \66\ We heard remarkably similar testimony at the 
2018 Field Hearing. A Native community activist from Montana testified 
how when she went to return voter registration cards the clerk would 
complain and hassle her for the number of voter registration cards 
returned. There was no law, but the clerk stated that only 70 
registration cards could be returned at one time and in 2016 dropped 
that number to 40.
    In Utah, in 2018, the San Juan County clerk committed fraud in an 
attempt to kick the Native American candidate off of the ballot. The 
District Court reinstated the Native candidate to the ballot and found 
the clerk likely violated the Native candidate's constitutional rights. 
\67\ Yet, no charges were brought against the clerk. Even more 
frustratingly, this deception echoes a 1972 case of discrimination in 
the very same county where a clerk misled two Navajo candidates about 
filing deadlines in order to undermine their candidacy. The Federal 
Courts were forced to order those candidates back on the ballot as 
well. \68\
    It is no surprise that experiences like these have provoked a 
widespread distrust of the state and Federal government by Native 
Americans. In the fall of 2016 and spring of 2017, NAVRC oversaw one of 
the most comprehensive in-person surveys ever conducted in Indian 
Country about barriers faced by Native voters. A total of 2,800 Native 
voters in four states completed the in-person survey. In all four 
states, Native voters expressed the greatest trust in their tribal 
governments. Although the Federal government was identified by 
respondents as the most trusted of non-tribal governments (Federal, 
state, local), the level of trust ranged from a high of just 28 percent 
in Nevada to a low of only 16.3 percent in South Dakota. Trust of local 
government in South Dakota was notably bad with only 5.02 percent of 
respondents indicating they most trusted the local government, which is 
especially significant considering that local governments are most 
often responsible for the administration of elections.
IV. Conclusion
    Native Americans need and deserve a Native American Voting Rights 
Act to address the structural deficiencies that are unfairly burdening 
their right to vote. Native Americans also need a fully restored Voting 
Rights Act so they can fight back against discrimination aimed at 
suppressing their participation.
    Thank you for inviting me here today. I am prepared to answer any 
questions.

    ENDNOTES

    1 I use the term Native American, American Indian, and Indian 
interchangeably throughout this statement. These terms include Alaska 
Natives.
    2 Minn. Const., art. VII,  1(4) (1858).
    3 S.D. Codified Laws  26 (1903).
    4 Swift v. Leach, 178 N.W. 437 (N.D. 1920).
    5 For a detailed history of voting rights of Native Americans, see 
generally Daniel McCool et al., Native Vote: American Indians, the 
Voting Rights Act, and the Right to Vote (2007).
    6 Porter v. Hall, 271 P. 411, 417 (Ariz. 1928), overruled in part 
by Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948)
    7 Kaitlyn Schaeffer, The Need for Federal Legislation to Address 
Native Voter Suppression, 43 N.Y.U. REV. L. & SOC. CHANGE 712 (2019).
    8 Id.
    9 Montoya v. Bollack, 372 P.2d 387 (N.M. 1962); Harrison v. Laveen, 
196 P.2d 456 (Ariz. 1948).
    10 Jennifer L. Robinson & Stephen L. Nelson, The Small but Powerful 
Voice in American Elections: A Discussion of Voting Rights Litigation 
on Behalf of American Indians, 70 BAYLOR L. REV. 91, 104 (2018); Allan 
v. Merrell, 305 P.2d 490 (Utah 1956), vacated 353 U.S. 932 (1957); 
Delilah Friedler, The Rise of the Native American Electorate, MOTHER 
JONES (Aug. 27, 2019), available at https://www.motherjones.com/
politics/2019/08/the-rise-of-the-nativeamerican-electorate/. 
    11 See generally Patty Ferguson-Bohnee, The History of Indian 
Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47 
ARIZ. ST. L.J. 1099 (2015).
    12 Ariz. Rev. Stat. Ann.  16-101(A)(4)-(5) (1956)
    13 Alaska Const. art. V,  1 (1959)
    14 A summary of these barriers is provided in testimony I 
previously submitted on February 22, 2020, in support of the Native 
American Voting Rights Act before the House Committee on Administration 
Subcommittee on Elections, available here: https://www.congress.gov/
116/meeting/house/110464/witnesses/HHRG-116-HA08-Wstate-DeLeonJ-
20200211-U1.pdf 
    15 See 52 U.S.C.  10503. Other permanent provisions likewise can 
be used to ensure that LEP voters receive assistance. Section 2, the 
VRA's permanent non-discrimination provision, applies nationwide and 
has been used to secure language assistance for voters who are denied 
equal voting opportunities by English-only election procedures. See 52 
U.S.C.   10301, 10508.
    16 James Thomas Tucker, Jacqueline De Le centsn, Daniel McCool, 
Obstacles at Every Turn: Barriers to Political Participation Faced by 
Native American Voters, NATIVE AM. RIGHTS FUND (2020), https://
vote.narf.org/wp-content/uploads/2020/06/obstacles_at_every_turn.pdf.
    17 Field Hearing Transcripts, Bismarck Tr., Gerald Webster, 250-52.
    18 Vote By Mail, NATIVE AM. RIGHTS FUND, https://www.narf.org/vote-
by-mail/. 
    19 Brakebill v. Jaeger, No. 1:16-cv-008, 2016 WL 7118548, at *1 
(D.N.D. Aug. 1, 2016); Spirit Lake Tribe. v. Jaeger, No. 1:18-cv-00222 
(D.N.D.) (Complaint filed Oct. 30, 2018). My colleague, Matthew 
Campbell, testified to the potential for voter ID laws, including North 
Dakota's voter ID law, to interfere with free and fair access to the 
ballot. Committee on House Administration, Subcommittee on Elections, 
Voting In America: The Potential For Voter ID Laws, Proof-Of-
Citizenship Laws, And Lack Of Multi-Lingual Support To Interfere With 
Free And Fair Access To The Ballot, May 24, 2021, available at https://
docs.house.gov/meetings/HA/HA08/20210524/112670/HHRG-117-HA08-Wstate-
CampbellM-20210524.pdf. 
    20 W. Native Voice v. Stapleton, DV-2020-377 (Mont. Dist. Ct. Sept. 
25, 2020).
    21 Arctic Vill. Council v. Meyer, No. 3AN-20-7858 CI (Alaska Super. 
Ct., Oct. 5, 2020), aff'd sub nom. Alaska v. Arctic Vill. Council, 
__P.3d __, 2021 WL 4234997 (Alaska Sept. 17, 2021).
    22Blackfeet Nation v. Pondera Cty., No. 4:20-cv-00095-DLC (D. Mont. 
Oct. 14, 2020) (ECF No. 9-1).
    23 Obstacles, at 39.
    24 On April 16, 2019, I testified before the House Administration 
Subcommittee on Elections as to the details of North Dakota's voter ID 
law, available at: https://cha.house.gov/sites/democrats.cha.house.gov/
files/documents/JacquelineDeLeonTestimony.pdf. 
    25 February 22, 2020, Testimony of Elvis Norquay, House 
Administration Subcommittee on Elections, available at: HHRG-116-HA08-
Wstate-NorquayE-20200211-U1.pdf (congress.gov).
    26 Brakebill v. Jaeger, No. 1:16-cv-008, 2016 WL 7118548, at *10 
(D.N.D. Aug. 1, 2016) (order granting preliminary injunction)
    27 See Settlement Agreement, Janis v. Nelson, Civ. 5:09-cv-05019-
KES-LLP-RLW(D.S.D. May 25, 2010) (ECF No. 143) (remedying compliance 
issues with HAVA); Brooks v. Gant, No. Civ-12-5003-KES, 2012 WL 871262 
(D.S.D. Mar. 14, 2012) (settlement for closer early voting locations); 
Poor Bear v. Jackson, 2015 WL 1969760 (D.S.D. May 1, 2015) (settlement 
for a satellite office on the reservation); Consent Decree, United 
States v. Chamberlain Sch. Dist., No. 4:20-cv-4084 (D.S.D. June 18, 
2020) (ECF No. 4) (consent decree settling at-large method of election 
for the school board in district with substantial Native population); 
Compl., Rosebud Sioux Tribe v. Barnett, No. 20-cv-5058 (D.S.D. Sept. 
16, 2020) (2020 complaint alleging violations of the National Voter 
Registration Act).
    28 Wandering Medicine v. McCulloch, No. 1:12-cv-135 (D. Mont. Oct. 
10, 2012) (defendants agreed to establish satellite offices on 
reservations); Consent Decree, Jackson v. Bd. of Trs. of Wolf Point, 
No. 4:13-cv-00065-BMM (D. Mont. Apr. 9, 2014) (ECF No. 70) (permanent 
injunction barring a -75.24 percent deviation from ideal population 
size in school board race); W. Native Voice v. Stapleton, DV-2020-377 
(Mont. Dist. Ct. 2020) (ballot collection ban declared 
unconstitutional); Blackfeet Nation v. Pondera Cty., 4:20-cv-00095-DLC 
(D. Mont. Oct. 14, 2020) (ECF No. 9-1) (county agreed to open satellite 
election offices and ballot drop boxes).
    29 Consent Decree, United States v. San Juan Cty., No. 2:12-cv-
00039-RJS (D. Utah Nov. 9, 2015) (ECF No. 261-1); Navajo Nation v. San 
Juan Cty., 929 F.3d 1270, 1274 (10th Cir. 2019) (affirming the District 
Court's resolution of vote-dilution case filed in 2011); Grayeyes v. 
Cox, No. 4:18-CV-00041, 2018 WL 3830073, at *9 (D. Utah Aug. 9, 2018) 
(injunctive relief granted for likely violation of candidates due 
process rights); Order re Stip. Settlement, Navajo Nation Human Rights 
Comm'n v. San Juan Cty., No. 2:16-cv-00154-JNP (D. Utah Feb. 22, 2018) 
(ECF No. 199) (county agreed to maintain polling places and provide 
language assistance).
    30 Shelby Cnty. v. Holder, 570 U.S. 529 (2013)
    31 Brief for the Alaska Federation of Natives, Alaska Native Voters 
and Tribes as Amicus Curiae 35, Shelby County v. Holder, 570 U.S. 529 
(2013), available at: https://narf.org/bloglinks/
shelby_county_brief.pdf.
    32 Brnovich, 594 U.S. at *18.
    33 Id. at *28.
    34 NCAI Brief at 10, citing S. Rep. No. 417, at 2 (1982), reprinted 
in 1982 U.S.C.C.A.N. 177, 179 (''the issue to be decided under the 
results test is whether the political processes are equally open to 
minority voters.''); see also Navajo Nation Brief at 21, citing Chisom 
v. Roemer, 501 U.S. 380, 408 (1991) (Scalia, J., dissenting) (''if `a 
county permitted voter registration for only three hours one day a 
week, and that made it more difficult for blacks to register than 
whites . . . [Section] 2 would therefore be violated-even if the number 
of potential black voters was. . . small.''').
    35 Democratic National Committee v. Hobbs, 948 F.3d 989, 1005 (9th 
Cir. 2020).
    36 United States Census Bureau, Race and Ethnicity in the United 
States: 2010 Census and 2020 Census (Aug. 12, 2021), https://
www.census.gov/library/visualizations/interactive/race-and-ethnicity-
in-the-united-state-2010-and-2020-census.html. 
    37 United States Census Bureau, My Tribal Area: Kaibab Indian 
Reservation, https://www.census.gov/tribal/?aianihh=1720 (listing 206 
residents as Native American or Alaska Native); Inter-Tribal Council of 
Arizona, Member Tribes: Havasupai Tribe, https://itcaonline.com/member-
tribes/havasupai-tribe/ (listing a population of about 639).
    38 United States Census Bureau, supra note 18 (43,932 Nevadans 
identify as American Indian or Alaska Native alone); United States 
Census Bureau, My Tribal Area: Nevada, https://www.census.gov/tribal/
?st=32&aianihh=0975. Moapa Indian Reservation lists 258 residents as 
Native American or Alaska Native; Duckwater Indian Reservation lists 
270; Carson Colony lists 303.
    39 Brnovich, 594 U.S. at *18.
    40 Western Native Voice v. Stapleton, No. DV 20-0377 (Mont. 2020) 
at 3, \\ 5-9, available at https://narf.org/nill/documents/20200925mt-
ballot-order.pdf.
    41 Id. at 48 \ 19; see also 47-48, \\ 14-21. Although the court's 
decision in this case was based primarily on state law, it expressly 
noted that Federal voting rights law would dictate the same result. Id. 
at 47 \19.
    42 Brnovich, 594 U.S. at *19.
    43 Milan Kumar, American Indians and the Right to Vote: Why the 
Courts Are Not Enough, 61 B.C.L. REV. 1111, 1115 (2020), https://
lawdigitalcommons.bc.edu/bclr/vol61/iss3/6  (''While policies that 
negatively affect American Indian voters are usually adopted with the 
said goal of combatting voter fraud, reported cases of voter fraud have 
typically been very low.'').
    44 Arctic Village Council et al vs. Meyer, Kevin, et al, DRC 3AN-
20-7858CI (Alaska Super. Ct., October 5, 2020).
    45 T.R. Reid, New Indian Voters Turned Race in S.D., Washington 
Post (Nov. 8, 2002).
    46 https://www.indianz.com/News/show.asp?ID=2002/12/10/sdvote 
    47 https://www.indianz.com/News/show.asp?ID=2002/10/23/boulet). 
    48 Opinion: Bad New Days for Voting Rights, NEW YORK TIMES (April 
18, 2004), https://www.nytimes.com/2004/04/18/opinion/bad-new-days-for-
voting-rights.html (``Jo Colombe, a Rosebud Sioux tribal council 
member, said that when she worked as a poll watcher in a recent 
election she was accused of fraud simply for taking a bathroom break. 
When she returned, she said, white poll watchers charged her with 
copying the names of Indians who had not yet voted, and taking them out 
to Indians waiting in the parking lot.'').
    49 AMERICAN CIVIL LIBERTIES UNION, VOTING RIGHTS IN INDIAN COUNTRY 
51 (2009).
    50 State Voting Bills Tracker 2021, Brennan Center for Justice, 
available at: https://www.brennancenter.org/our-work/research-reports/
state-voting-bills-tracker-2021. 
    51 W. Native Voice v. Stapleton, No. DV-2020-0377 (D. Mont. Sept. 
25, 2020).
    52 W. Native Voice v. Jacobsen, No. DV-2021-0560 (D. Mont. May 17, 
2021).
    53 W. Native Voice v. Jacobsen, No. DV-2021-0560 (D. Mont. May 17, 
2021).
    54 07-15-Native-American-Voting-Rights-Advisory-Memo.pdf 
(usccr.gov)
    55 With new Arizona voting laws, Native Americans brace for more 
challenges to casting ballots [IN DEPTH]--Rose Law Group Reporter.
    56 https://turtletalk.files.wordpress.com/2019/11/order-and-
secretary-of-state-settlement.pdf. 
    57 https://legiscan.com/AZ/supplement/SB1003/id/135006.
    58 https://apnews.com/article/legislature-arizona-phoenix-
legislation-elections-7f0b8661f5d7b673a3927bf7b4995586.
    59 https://www.greatfallstribune.com/story/news/2020/11/02/montana-
r-man-kkk-costume-reportedly-wins-glasgow-bar-contest/6130962002/.
    60 ``Official Circular'' (6 December 1924), Ku Klux Klan 
collection, MS 131, Box 2, Folder 163 Eastern Washington State 
Historical Society, Spokane, Washington, available at: https://
www.northwestmuseum.org/collections/research-archives/.
    61 Obstacles, at 108
    62 Obstacles, at 44
    63 Obstacles, at 87 (quoting Donita Loudner's testimony, ``You go 
take them in there to vote, and it was a chicken coop. It was an old 
chicken coop. It still had dirt on the floor. You go in there, and it 
had enough for one desk. And you had three people sitting around there, 
and you could barely come in. There was no place to vote. You had to 
take it outside to vote. You could see the--- where the chickens used 
to lay: You know, those little boxes. They would still have those 
around outside. And no bathroom facilities. . . So I went in front of 
the county commission in Hughes County, our county seat or our county 
capital. And I got on the agenda, and I asked them, ``Whatever happened 
with, you know, these funds that they set down for us? You guys got a 
chicken coop.'')
    64 Obstacles, at 45
    65 Obstacles, at fn. 270
    66 Windy Boy v. County of Big Horn, 647 F. Supp. 1002, 1008 (D. 
Montana 1986).
    67 Grayeyes v. Cox, No. 4:18-CV-00041, 2018 WL 3830073, at *9 (D. 
Utah Aug. 9, 2018).
    68 Yanito v. Barber, 348 F. Supp. 587, 593 (D. Utah 1972).

    The Chairman. Thank you very much.
    The Honorable Aaron Payment, Secretary of the National 
Congress of American Indians.

 STATEMENT OF HON. AARON PAYMENT, SECRETARY, NATIONAL CONGRESS 
                      OF AMERICAN INDIANS

    Mr. Payment. Good morning, Chair Schatz, Vice Chair 
Murkowski, and members of the Senate Committee on Indian 
Affairs. National Congress of American Indians President could 
not be with us today, Fawn Sharp. She is getting a COVID test 
in the very narrow window that we have in order to do that for 
her to represent us at COP26. She is on her way there.
    But on behalf of NCAI, I would like to thank you for 
holding this hearing today to discuss the critically important 
issue of voting rights. My name is Dr. Aaron Payment, 
chairperson of the Sault Saint Marie Tribe and the Secretary of 
the National Congress of American Indians.
    In my 20s, I was a county deputy registrar to register 
others to vote and set up voter registration in tribal offices. 
I am also heavily involved in NCAI's partnerships with Native 
Vote and Get Out To Vote in a non-partisan way.
    We greatly appreciate the Committee holding this important 
hearing to protect voting rights for all Native Americans. This 
is timely, with the introduction of the Native American Voting 
Rights Act of 2021 and the new John Lewis Voting Rights 
Advancement Act. Congress has a trust responsibility to enact 
voting rights legislation to protect constitutionally 
guaranteed rights of Natives to vote.
    Despite being indigenous sovereigns in what is now the 
U.S., Natives were the last people to be granted the right to 
vote in 1924. Even then, it was three decades later before all 
Natives were able to fully participate in State elections. 
While some progress has been made, today there are strong 
forces preventing our people from fully participating in the 
political process. These barriers include geographic isolation, 
poorly maintained roads, housing insecurity, depressed economic 
conditions, and discrimination.
    The obstacles are exacerbated by the growing number of laws 
across the Country seeking to purge voter information, limit 
voter registration, create language and residency barriers, and 
other mechanisms to produce discriminatory outcomes. The 
ability to vote is a fundamental right, and a foundational 
principle of any democracy. For many, barriers make it 
impractical or even impossible to vote.
    I am going to use my brief time with you to highlight that 
no matter where we live, what ID cards we have, or what 
language we speak, Native peoples should have fair and equal 
access to voting. Due to the lack of residential mail delivery 
in some communities, poor roads, and a prevalence of homes that 
do not have addresses, it is harder for Natives to register, 
receive an absentee ballot, and reach the polls. The most 
direct way to ensure a more equitable access is a Federal 
mandate providing for on-reservation polling places and 
registration opportunities. Allowing tribes to designate a 
building whose address can be used to register, pick up, and 
drop off a ballot would also help tremendously.
    Protections and provisions of this sort are included in the 
Native American Voting Rights Act, which was introduced by 
Senator Lujan. Thank you, Senator Lujan, for introducing 
legislation that has broad support across Indian Country. The 
same piece of legislation was introduced in a bipartisan 
fashion in the House by Representatives Tom Cole and Sharice 
Davids, who are the co-chairs of the Congressional Native 
Caucus.
    For many of our people, voting participation is not 
possible due to overly restrictive voter ID requirements. 
Studies have shown that photo ID requirements in particular 
have chilling effect on Native voting turnout. Reasons for this 
are varied, but in short, for many Native people, merely 
getting to the DMV or Secretary of State means leaving the 
reservation, and in many cases having to travel up to 100 
miles. These costs are prohibitive for many.
    Even when Native people get registered to vote, get to the 
polls and provide appropriate ID, language barriers remain 
intact for the more than 350,000 speakers of more than 175 
Native languages. Our Native speakers are the keepers of our 
histories, our traditions and our culture, but all too often 
are rejected at the polls. Again, legislation such as the 
Native American Voting Rights Act addresses these ID 
requirements and language barriers with simple, commonsense 
solutions like permitting individuals to vote with their a card 
and allowing tribes to request voter registration and ballot 
materials be available in their own languages.
    I urge this Committee and all Congress to act to ensure 
that the voting rights across the Country are uniformly 
protective for everyone. Please enact legislation with the 
protections and provisions included in the Native American 
Voting Rights Act. We are strongest as a democracy when we are 
all participating by voting.
    Thank you to the Senate Indian Affairs Committee for this 
opportunity to testify. I would be happy to answer any 
questions you have including some statistics, updated 
statistics on the number of Native Americans and those who were 
registered and who could be registered to vote. Thank you.
    The Chairman. Thank you very much.
    Next, we have Professor Patty Ferguson-Bohnee, Director of 
the Indian Legal Clinic at Arizona State University.

         STATEMENT OF PATTY FERGUSON-BOHNEE, DIRECTOR/
         PROFESSOR, INDIAN LEGAL CLINIC, ARIZONA STATE 
                           UNIVERSITY

    Ms. Ferguson-Bohnee. Good afternoon, Mr. Chairman, Vice 
Chair Murkowski, and members of the Committee. Thank you for 
inviting me to testify today.
    The Indian Legal Clinic coordinates the Arizona Native Vote 
Election Protection Project, a non-partisan effort to protect 
Native American voting rights. We have assisted hundreds of 
voters through our election day volunteer program and hotline.
    Our program has been successful because of support from and 
collaboration with local tribes committed to protecting the 
vote, such as the Salt River Pima-Maricopa Indian Community, 
the Fort McDowell Yavapai Nation, the Ak-Chin Indian Community, 
and organizations such as the Inter Tribal Council of Arizona.
    On behalf of tribal clients, I have also litigated Section 
2 cases involving redistricting, restrictive voting laws, early 
voting access, and language compliance under Section 203.
    To understand Native American voting challenges, one must 
recognize the vast differences in experiences, opportunities, 
and realities facing on-reservation voters. Isolating 
conditions, such as language, socioeconomic disparities, lack 
of access to transportation, lack of residential addresses, 
lack of access to mail, the digital divide, and distance are 
just some of the factors that impede access to the polls and 
participation in the political process.
    Arizona in its election policies failed to consider and 
often exploits these realities by suppressing the vote through 
ID requirements, long distances to early and election day 
voting sites, inadequate language assistance, bans on ballot 
assistance, and policies that needlessly discard ballots due to 
strict technicalities. In short, these factors create a 
complicated maze that voters must navigate, with no guarantee 
that reaching the end meets that your vote will be counted.
    Governmental neglect has led to lack of standardized 
addresses, lack of access to mail delivery that further impact 
tribal populations. Vote by mail, for example, is not a simple, 
easy task. Only 18 percent of tribal voters outside of Maricopa 
and Pima Counties have a physical address and receive mail at 
home. Most rely on the limited number of post office boxes in 
Indian Country. Often those boxes are far away and open for 
limited days and hours.
    While most voters in Arizona vote by mail, a method that 
does not require voters to show ID, this method of voting is 
not accessible to Native Americans. Further, non-traditional 
addresses make complying with Arizona's voter ID law more 
difficult. Tribal IDs are wrongly rejected in each election due 
to insufficient poll worker training or because of problems 
with non-standard addresses.
    For example, prior to the 2020 election, 2,000 voters in 
Apache County were placed in suspense due to non-traditional 
addresses. Also, counties failed to place tribal citizens in 
the correct precinct, which results in their ballots being 
discarded or results in them being turned away without voting 
and redirected to a polling location which could be over 30 
minutes away.
    Native Americans also do not have equal access to voter 
registration. Many voters must travel long distances off 
reservation to register to vote, in some cases more than 95 
miles one way. And while online voting registration is possible 
for off-reservation voters, this option is limited for on-
reservation voters.
    Many reservation voters lack telecommunication 
infrastructure to access the internet. Even if the voter has 
internet access, the State does not allow tribal IDs to be used 
to register to vote online.
    We also know in Arizona that Native Americans have an 
unequal access to in-person early voting. While every county 
has in-person early voting off-reservation, there are limited 
opportunities for in-person early voting on-reservation. If 
offered at all, in-person early voting could be limited to a 
few hours on one or two days.
    For example, the Hopi Tribe had a total of four hours of 
in-person early voting, while off-reservation had 162 hours. 
And members of the Kaibab Paiute Tribe had to travel 280 miles 
one way to participate in in-person early voting.
    Post Shelby, Pima County closed the Pascua Yaqui early 
voting location. The tribe repeatedly requested that the county 
reopen this site. Since they closed the site, it required 
voters to travel over two hours by bus to cast an early ballot. 
As you heard Ms. De Leon say, the cost to operate an early 
voting site was only $5,000 but the county spent over $180,000 
to defend its decision to close the polling location.
    Prior to Shelby County, covered jurisdictions would have to 
consider whether a voting law would have a negative impact on 
minority voters. This is no longer the case. Legislation 
affecting voting often appears neutral with a stated goal of 
preventing voter fraud. Yet the effect of these laws it not 
added security; the effect is added layers of suppression.
    Without Section 5's protection and a workable Section 2 
standard, voter laws and practices will continue to be adopted 
that suppress the Native American vote.
    I want to remind the Committee that Congress has a duty to 
fulfill its unique trust obligation, including in matters of 
voting. As Justice Kagan said in her dissent in Brnovich, ``We 
are in an era of voting rights entrenchment, where too many 
States and localities are restricting access to voting in ways 
that will predictably deprive members of minority groups of 
equal access to the ballot box.''
    Thank you for the opportunity to testify. I am happy to 
answer any questions the Committee may have.
    [The prepared statement of Ms. Ferguson-Bohnee follows:]

Prepared Statement of Patty Ferguson-Bohnee, Director/Professor, Indian 
                 Legal Clinic, Arizona State University
    I. Introduction and History of Native American Voting Rights
    My name is Patty Ferguson-Bohnee, and I am the Director of the 
Indian Legal Clinic at the Sandra Day O'Connor College of Law at 
Arizona State University. The Indian Legal Clinic coordinates the 
Native Vote Election Protection Project in Arizona, a non-partisan 
effort to protect Native American voting rights founded in 2008 in 
response to disparities in voting resulting from Arizona's voter 
identification law. \1\ The Clinic works with its partners to educate 
Arizona's Tribal communities on election laws, voting, and 
redistricting.
    For Native American voters, exercising the right to vote is an 
ongoing battle. This is especially true for states with large Native 
American populations and in jurisdictions where the Native vote could 
be decisive. After the Civil War, Congress amended the Constitution to 
prohibit the federal and state governments from denying or abridging a 
citizen's right to vote based on their ``race, color, or previous 
condition of servitude.'' \2\ However, the Fifteenth Amendment did not 
apply to Native Americans because the Fourteenth Amendment did not 
extend citizenship to Native Americans. \3\
    When Congress passed the Indian Citizenship Act in 1924, states and 
local jurisdictions prevented Native Americans from registering to vote 
and voting. \4\ Little progress was made in the subsequent decades, and 
Congress failed to assure enfranchisement or promulgate instructions on 
how elections should be administered in Indian Country. Montana 
excluded Native Americans from voting and holding office since the 
establishment of its territorial government, and passed measures to 
exclude Native Americans from voting after statehood. \5\ South Dakota 
had a law in effect until 1939 that prevented Native Americans from 
holding public office. \6\ Many states alleged that Native Americans 
living on reservations were not state citizens in an effort to prevent 
them from voting. In 1948, Native Americans in New Mexico and Arizona 
successfully litigated their right to vote. \7\ Utah and North Dakota 
became the last states to afford on-reservation Native Americans the 
right to vote in 1957 and 1958, respectively. \8\ When the right to 
vote was finally secured, state and local officials took steps to 
prevent Native Americans from participating in elections and being 
elected to office. \9\ A common and effective tool for Native American 
disenfranchisement was the use of literacy tests because of the lower 
rates of English literacy in Tribal communities. In Arizona, for 
example, Native Americans could not fully participate in voting until 
1970 when the United States Supreme Court upheld the ban against using 
literacy tests as a voter qualification. \10\
    Exercising the right to vote for Native American voters only came 
with protections afforded by the Voting Rights Act and enforcement of 
those rights has required decades of litigation. However, the Supreme 
Court invalidated the preclearance formula in 2013, removing one of the 
most powerful tools to ensure equal access to the ballot for Native 
Americans, which included two jurisdictions in South Dakota, a 
jurisdiction in North Carolina, and the states of Alaska, and Arizona. 
\11\ Since that time, efforts to suppress the vote have increased and 
the tactics to suppress the Native American vote have diversified by 
``pour[ing] old poison into new bottles.'' \12\ For Native Americans, 
these voter suppression efforts can have devastating impacts.
    Today, only 66 percent of eligible Native American voters are 
registered to vote. \13\ ``With only 66 percent being registered, there 
are over 1,000,000 eligible Native Americans who are of voting age and 
are U.S. citizens who are not registered.'' \14\ Obstacles contributing 
to low voter turnout include geographic isolation, poorly maintained 
and unpaved roads, distance to polling locations, lack of election 
funding, discrimination, voter intimidation, lack of access to voter 
registration, and various technological barriers. Voter participation 
amongst Native Americans is further impacted by isolating conditions 
such as lack of access to transportation, lack of reliable mail 
delivery, and lack of traditional mailing addresses. Such obstacles are 
multiplied when combined with various election laws and procedures, 
such as identification requirements, limiting access to voting sites, 
lack of access to critical election information, inadequate language 
assistance, bans on ballot assistance, and policies that needlessly 
discard ballots based on minor technicalities. These factors create a 
complicated maze that voters must navigate, with no guarantee that 
reaching the end of the maze means that your vote will be counted.
    Within this past decade, State and local policy makers have adopted 
additional barriers, while the tools to combat racially disparate laws 
have been severely curtailed by the Supreme Court's decisions in Shelby 
County v. Holder and Brnovich v. Democratic National Committee. \15\ 
Arizona, for example, has adopted legislative changes in response to 
the political gains that underrepresented groups have made in 
elections. These changes make voting more difficult, unnecessarily 
alter the procedures leading to voter confusion, and hinder democracy.
    Voting is not a simple or easy task for many Native Americans. In 
addition to well-documented access barriers, redistricting has been 
used as a tool to suppress Native American voting rights and depress 
Native American political power. \16\ My testimony will focus on voting 
challenges faced by Tribal citizens in Arizona, new threats to the 
ballot box, and efforts to improve access for Tribal voters.
    The federal government has the power and the obligation to protect 
the Native Vote. Congress' plenary power, rooted in the Indian Commerce 
Clause found in Article I, Section 8 of the United States Constitution, 
gives Congress the ultimate authority to pass legislation governing 
Native American affairs. The trust relationship, a moral and legal 
obligation to ensure the protection of Tribal interests, flows from 
Congress' plenary authority. \17\ The relationship between the federal 
government and Indian Tribes, ``is perhaps unlike that of any other two 
people in existence,'' where the federal government has taken the 
``obligations of the highest responsibility and trust.'' \18\ This 
includes an obligation that rests upon the federal government's 
shoulders to protect Tribes from states. The Supreme Court has 
recognized that ``because of the local ill feeling, the people of the 
states where [Tribes] are found are often their deadliest enemies.'' 
\19\ Thus, the federal government should do more to ensure that Native 
voters have equal access to the ballot.
II. Barriers that Impact Voting
    Long-standing inequalities impact the day-to-day life for many 
Native Americans, including voting. Such barriers include lack of 
infrastructure, socioeconomic barriers, lack of access to postal 
services, nontraditional addresses, language barriers, precinct/county 
lines, and the availability of state and county services.
A. Infrastructure
    In Arizona, many Tribal communities lack access to basic 
infrastructure. Many roads on reservations are unimproved dirt or 
gravel roads that are impassible after rain or snowfall. For example, 
there are over 10,000 miles of road on the Navajo Reservation, and 86 
percent are unpaved. \20\ Half of the paved roads are in poor 
condition. \21\
    Other points of infrastructure such as electricity, running water, 
or broadband also impact voters on Tribal lands. For example, it is 
estimated that 30 percent of homes on the Navajo Nation lack 
electricity. \22\ Fifty-eight out of every 1,000 Native American 
households lack plumbing, compared to 3 out of every 1,000 white 
households in the country. \23\
    Among these basic points of infrastructure, there is a growing 
digital divide between Tribal communities and non-Tribal communities 
with 18 percent percent of reservations residents lacking any Internet 
access and 33 percent relying on Internet services from a smartphone. 
\24\ In 2018, the Arizona Statewide Broadband Strategic Plan noted that

        162,328 people living on tribal lands (95 percent) have either 
        unserved or underserved telecommunication infrastructure needs. 
        They do not have access to fixed advanced telecommunications 
        capabilities, and often resort to local (community anchor 
        institutions, such as libraries and schools), for their only 
        connection to the rest of the digital world. \25\

    These basic infrastructure gaps impede the ability of Native 
American voters to participate in the electorate because of difficulty 
traveling to voter registration sites, early voting locations, or 
polling locations. These barriers also make it difficult to reach these 
voters and get information to them, including information regarding 
changes in election law, policy, procedure, the movement of polling 
locations, the closing or consolidation of polling locations, or other 
critical information. Lastly, as election systems, administrators, and 
civic engagement organizations increasingly rely on digital tools in 
voter registration drives, voter education campaigns, or as modes of 
official communication, Native Americans are left behind.
B. Socioeconomic Barriers
    Many Native Americans in Arizona face obstacles in voting as a part 
of their socioeconomic reality. The poverty rate for Native Americans 
in Arizona is 35.7 percent. \26\ Whereas Non-Hispanic whites in Arizona 
experience poverty at a rate of 10.9 percent. Native Americans in 
Arizona are more likely to work multiple jobs, lack reliable 
transportation, and lack adequate childcare resources. \27\ 
Additionally, Native Americans in Arizona are more likely to work 
multiple jobs, lack reliable transportation, and lack sufficient child 
care resources. \28\
    Another challenge impacting many Native Americans is homelessness 
or near homelessness due to extreme poverty and lack of affordable 
housing on many reservations. A study by Housing and Urban Development 
found that between 42,000 and 85,000 people in tribal areas are couch 
surfers, staying with friends or relatives only because they had no 
place of their own. \29\ Some of the highest rates of near 
homelessness, housing insecurity, and overcrowding in Indian Country 
are found in Arizona. These realities impact the ability of Native 
Americans to have permanent physical addresses, which is critical to 
determining where you can vote and your level of access to early voting 
and election day polling locations. This lack of permanent housing 
should not impede their ability to exercise their right to vote.
C. Non-Traditional Addresses
    Many Native American living on Arizona's Indian reservations lack 
traditional street addresses, and locations for homes are often 
identified in terms of landmarks, cross roads, and directions. \30\ 
Most reservation roads are unimproved dirt or gravel roads, and ``many 
miles of these roads are impassable after rain or snow. Because of the 
poor quality of the road systems on Indian reservations, many of the 
roads are unnamed and not serviced by the U.S. Postal Service. . . .A 
significant number of these reservation residents have no traditional 
street addresses.'' \31\
    Due to the lack of traditional addresses, many Native American 
voters rely on post office boxes to receive their mail and may include 
a post office box on their state identification. ``Most reservation 
residents do not receive mail at their homes and either pay to maintain 
a post office box in a nearby town or receive their mail by general 
delivery at a trading post or other location. Some reservation 
residents have to travel up to seventy miles in one direction to 
receive mail.'' \32\ In Arizona, only 18 percent of reservation voters 
outside of Maricopa and Pima Counties have physical addresses and 
receive mail at home. \33\
    The lack of formal addresses in Indian Country makes it especially 
hard for voters to comply with address requirements to register to vote 
or to produce identification in order to vote on election day. \34\ 
Voters may be placed in the wrong precinct, their ID address may not 
match the voter rolls, and voters may not receive their election mail 
timely, if at all.
D. Vote-by-Mail
    In Arizona, 89 percent of ballots cast in the 2020 general election 
were early ballots and the majority of them were cast by mail. \35\ 
Although many off-reservation voters cast a ballot by mail, Native 
Americans do not have the same access or opportunity to vote by mail. 
This is because Native Americans do not have equitable, reliable, or 
easy access to mail services. Reservation residents in Arizona lack 
traditional mailing addresses resulting in lack of access to home mail 
delivery. Only 18 percent of Native Americans outside of Maricopa and 
Pima Counties receive mail at home. \36\
    The lack of mail access contributes to Native Americans 
participating in Arizona's absentee voting at a significantly lower 
rate.
    However, postal boxes are not a simple alternative because in 
addition to distance, delayed and reduced hours at USPS offices or 
contracted postal units limit the ability of Native Americans to 
regularly receive mail. The postmaster for the Tohono O'odham Nation 
``observes residents come to the post office every two or three weeks 
to get their mail. Due to the lack of transportation, the condition of 
the roads, and health issues, some go to the post office only once per 
month.'' \37\ There are only 48 Post Offices and CPU's on Tribal lands 
in Arizona, a land base that includes 19.8 million acres of land and 
well over 100,000 residents and eligible voters. These post office 
boxes cost an already impoverished population $136.00 for one year and 
defaulting on that payment can result in closure and total loss of 
access to mail. \38\ The number of people that can be listed on a post 
office box is limited and if an individual's name is not listed on the 
box, unable to secure a post office box, or removed from a box that 
they shared, the voter will be unable to receive a ballot at that 
address. \39\ Many of these post offices are only open for a few hours 
a day or a few days a week, further limiting the ability of Native 
Americans to access mail.
    Postal delivery further inhibits vote-by-mail options for Native 
Americans. Access to mail is additionally inhibited due to delays in 
mail delivery between the voter and the county seat. Legally, ballots 
can begin being mailed to voters 27 days before the election. \40\ For 
some voters on Tribal land it can take up to ten days to get from the 
county seat to the reservation and vice versa. \41\ When compared to 
the time it takes for mail to travel from Scottsdale to the Maricopa 
County seat of Phoenix Arizona, merely 18 hours, the difference is 
staggering. \42\ These delays are due in part to the USPS postal routes 
that take mail through a circuitous route before getting on 
reservations. For example, a ballot mailed from a voter in Window Rock, 
Arizona on the Navajo Nation, is routed to Gallup, New Mexico then 
Albuquerque, New Mexico then to Phoenix, Arizona, then to Show Low, 
Arizona, then to the Apache County seat in St. Johns, Arizona. \43\ 
Because these routes are so complex, there is no good estimate for how 
long it will take for a ballot to reach the county recorder's office. 
\44\ If it takes 10 days for a ballot to get from the county seat to 
the voter living on the registration, and ten days to get back, the 
voter only has a seven-day window to receive the ballot, mark it, and 
return it to a post office in order for the ballot to arrive on time. 
Because Arizona does not accept postmarked ballots, voters that fall 
outside of this seven-day window may cast and return their ballot to 
USPS before election day but may nonetheless have their vote rejected 
if the ballot is not received by 7:00 PM on election day. \45\ As a 
result of these realities, Native Americans do not experience the same 
level of access to receiving election information or the ability to 
participate in Arizona's early voting system.
    In addition to mail access, Native Americans in many states, 
including Arizona, do not trust mail-in voting systems. \46\ In Tribal 
communities, mail delivery is untimely and inconsistent, creating a 
preference for Native American voters to vote in person. \47\ Further, 
language translations are oral, requiring in-person assistance.
E. Language Barriers
    Under Section 203 of the Voting Rights Act, election officials in 
Arizona must provide language assistance to the Navajo Reservation and 
the San Carlos Apache Reservation. Navajo and Apache are unwritten 
languages. Because they are unwritten languages, ``only oral assistance 
and publicity are required.'' \48\ Publicity refers to the availability 
of materials and assistance in the minority language. \49\ However, the 
availability of translations to assist Indigenous voters when voting 
early or to assist voters in determining their correct polling 
location, how to complete an early ballot, being educated on changes in 
Arizona election law and procedure, and other basic information needed 
to ensure their vote is counted is needed.
    For the Navajo Nation, language barriers have widespread impact 
across the reservation. One third of the reservation's voting age 
population are limited-English proficient and over one quarter of the 
population are illiterate. In 2018, the Navajo Nation filed a lawsuit 
against the State of Arizona, Apache County, Coconino County, and 
Navajo County. \50\ The Navajo Nation alleged that the state and 
counties failed to provide effective language assistance under Section 
203 of the Voting Rights Act and failed to provide equal access to 
voter registration and in-person early voting. \51\ The counties also 
failed to provided instructions on how to complete an early ballot by 
mail in the Navajo language. \52\ The counties failed to provide 
translators to serve these voters at voter registration sites and at 
early voting locations. \53\ The counties also refused to provide 
additional early voting sites on the reservation which would have 
increased access to translators during the early voting process. \54\ 
Lastly, over 100 votes cast by Navajo tribal members were discarded 
because they lacked a signature but the counties did not provide any 
ballot instructions in the Navajo language for early voters. \55\ The 
State's official election guide used by translators has also not been 
consistently translated in time for early voting.
    Native American voters must travel long distances to reach voter 
registration sites and early voting sites. When minority language 
assistance is not provided to educate voters on changes in Arizona 
election law, or instructions that require strict compliance in order 
for a ballot to be counted, then Native American language speakers do 
not have full and equitable access to the voting process.
III. Election Policies and Procedures
    In addition to systemic inequalities that make it difficult for 
Native Americans to participate in state and federal elections, laws 
and policies add additional hurdles. The Arizona Legislature has 
adopted numerous laws that make it more difficult for Native American 
voters to cast a ballot. However, local elections officials have the 
authority to determine voter registration locations, polling locations, 
and the option to offer vote centers, which can limit the number of 
discarded ballots. Election officials are also responsible for training 
poll workers and placing voters in voting precincts.
A. Polling Locations
    Arizona's Tribal communities do not have equal or equitable access 
to in-person early voting and election day polling locations. 
Reservation communities are often at the mercy of the county officials 
who decide where to locate the polls. For example, members of the 
Kaibab-Paiute Tribe, located in Mohave County, Arizona, were required 
to travel 285 miles one way to participate in in-person early voting. 
\56\ In 2018, only fifteen of the State's 110 in-person early voting 
sites were located in Tribal communities, and of those fifteen, only 
thirteen were placed on Tribal lands. \57\ Thus, in a state where 
Tribal lands make up nearly one-third of the land mass, less than 
twelve percent of its early in-person voting locations were located on 
Tribal lands in 2018.
    The amount of access to in-person early voting was inadequate. Ten 
(10) of the fifteen (15) in-person early voting locations on Tribal 
lands or in Tribal communities were open for ten (10) hours or less. In 
comparison, thirty-five (35) off-reservation early voting polling 
locations were open for 100 hours or more. Many early voting locations 
surpassed 150 hours of in-person early voting; only two (2) in-person 
early voting locations on Tribal lands surpassed 100 hours, the Tuba 
City Elections Office and the Chinle Voter Outreach Office, both on 
Navajo Reservation. The Tuba City early voting location also serves the 
Hopi Tribe and the San Juan Southern Paiute Tribe. The other early 
voting location that surpassed 100 hours served a Tribal community was 
the La Paz County Recorder's Office in Parker, Arizona within Colorado 
River Indian Tribe's ``Indian Country.'' Other early voting locations 
did not provide equitable access to in-person early voting. For 
example, within Navajo County, the Hopi Tribe had a total of four (4) 
hours of in-person early voting on the reservation compared to off 
reservation voters in Holbrook who had 162 hours of in-person early 
voting available to them.
    In 2020, counties in Apache, Coconino, and Navajo Counties added 
drop boxes, drop off locations and early voting locations to address 
COVID-19 restrictions and to implement settlement agreements increasing 
early voting access. However, other counties, such as Pima County 
failed to offer early voting despite requests from Tribal communities.
    Failing to provide Native American voters with equal access to 
polling locations is one of the many ways that state and local 
governments make casting a ballot more difficult for Native voters. In 
both 2016 and 2018, Mohave County denied the Kaibab-Paiute Tribe's 
requests for an on-reservation Election Day polling location. \58\ In 
2018, the County asserted that the Tribe's request was made too late, 
and that the proposed facility did not comply with the Americans with 
Disabilities Act. \59\ After many requests, in 2020, Mohave County 
reopened a polling location on the Kaibab Paiute Reservation. Between 
2016 and 2018, the only polling location on the Yavapai Apache Nation's 
Reservation closed, and there were no polling locations on the Fort 
Yuma-Quechan or Cocopah Reservations. \60\
B. Out of Precinct Policy
    In Arizona, county officials determine precinct boundaries and 
decide whether to offer precinct-based voting or vote centers. This 
decision ultimately makes the difference between whether a ballot will 
be counted. In counties that use a vote center model, any voter in that 
county can cast a ballot at any vote center in the county and the 
ballot will be counted. Under Arizona's precinct-based voting system, 
the whole ballot is discarded if a voter casts a ballot out of 
precinct.
    County lines that bisect and trisect reservations results in 
confusion and significant variances in levels of access across the 
reservations. While smaller reservations are often located in a single 
county, eight of Arizona's twenty reservations are located in two or 
more counties. For example, the Navajo Nation spans Apache County, 
Navajo County, and Coconino County. In Apache County, voters can only 
vote at their assigned polling place on election day. In Navajo County, 
voters can vote at any polling location in the county on election day, 
as long as you are a registered voter in that county. In Coconino 
County, voters can either vote at their assigned polling place or at a 
designated vote center which serves all voters in the county. Arizona's 
precinct policy is further complicated for the Navajo Nation because 
radio ads run across state and county lines.
    Nontraditional addresses cause numerous problems for Tribal voters 
because the Counties can place the voter in the wrong precinct or not 
place them at all, resulting in confusion and unnecessary travel. For 
example, in 2020 a voter called the hotline to report that when she 
attempted to update her voter registration with the county, she 
explained that her physical residence was in Navajo County but her 
mailing address (where her Post Office Box was located) was in Apache 
County. Under Arizona law, the voter should have been registered in 
Navajo County and on Election Day, she would have had the ability to 
vote at any polling place in Navajo County. Instead, her voter 
registration reflected the precinct where her post office box was 
located in Apache County. As a consequence of this error, the voter had 
to drive an hour to her post office in Apache County on election day in 
order for her vote to be counted.
    In the 2020 election, four of the fifteen counties in Arizona 
exclusively offered precinct-based voting, five offered a combination 
of precinct-based and vote center polling occasions, and six used 
exclusively vote centers. However, not every Tribe in a vote-center or 
hybrid county benefitted from these systems. For example, the San 
Carlos Apache Reservation is located across three counties, with 
reservation residents living in Graham and Gila Counties. Graham and 
Gila Counties both offered vote centers off-reservation, but only 
provided precinct-based voting on reservation. Yuma and Yavapai 
Counties have adopted an exclusively vote-center model for voting. 
However, neither county placed a vote center on Tribal lands.
    The four counties that employed exclusively precinct-based voting 
were Apache County, Mohave County, Pima County, and Pinal County. Some 
of the State's largest Tribal areas are included in these counties, 
including the Navajo Nation, the White Mountain Apache Tribe, the 
Tohono O'odham Nation, the Gila River Indian Community, the Fort Mojave 
Indian Tribe, the Hualapai Tribe, the Ak-Chin Indian Community, the 
Pascua Yaqui Tribe, and the Kaibab Paiute Tribe. With the exception of 
the Fort Mojave Indian Tribe and Ak-Chin Indian Community, all of the 
previously mentioned tribes have reservation boundaries that cross 
county lines. For Native American voters living on especially remote 
reservations, going to the wrong precinct may result in having to drive 
long distances to the correct precinct or not voting at all. Arriving 
at the wrong precinct, coupled with the frequency at which voters are 
placed in the incorrect precinct because of non-standard addresses, 
creates broad confusion. Thus, even minor changes in precinct 
boundaries may result in discarded ballots.
    Although voting precincts do not cross county lines, the artificial 
lines imposed upon reservations frequently result in the denial of the 
right to vote. Because Native American voters often do not receive mail 
at home, a voter may not be placed in a precinct, placed in the wrong 
precinct, or even placed in the wrong county-resulting in the ballot 
being discarded. Additionally, voters living on rural reservations have 
difficulty checking their polling locations before casting a ballot, as 
publicly available polling location verification tools are not equipped 
to process non-standard addresses.
    Arizona's out of precinct policy renders voting at the wrong 
polling location fatal to the right to vote. Many times, the voters are 
placed in the wrong precinct through no fault of their own. Native 
American voters with nonstandard addresses are wandering through a maze 
as they are sent from precinct to precinct.
C. Unequal Access to Voter Registration
    Throughout the country, Native Americans report lower awareness of 
how and where to register to vote. In general, Native Americans report 
lower levels of activity by third party groups to conduct voter 
registration drives. \61\
    States continue to adopt online voter registration as a tool, and 
currently 42 states and Washington D.C. offer online registration. \62\ 
Even if a voter living on-reservation has Internet access, many states 
offering online voter registration require a state-issued ID to be used 
in the registration process, thereby excluding on-reservation voters 
who lack state-issued identification. \63\ Additionally, the general 
lack of standard addresses amongst Native American voters renders 
complying with address requirements to register to vote or to produce 
identification on Election Day exceedingly difficult. \64\
    In Arizona, in order to register to vote for state elections, 
voters must submit ``documentary proof of citizenship.'' \65\ Voters 
that fail to produce documentary proof of citizenship are registered as 
a ``federal-only'' voter and only eligible to vote in races for federal 
offices: United States President, United States Senate, and for the 
United States House of Representatives. \66\ Under Arizona law, 
documentary proof of citizenship includes Arizona Driver License or 
Non-Drive Identification Card, Out-of-State Driver License or 
Identification Card, Birth Certificate, U.S. Passport, Citizenship and 
Immigration Documents, and Tribal Identification Numbers and Documents. 
\67\ Despite the inclusion of Tribal identification as an appropriate 
form of identification for registration, this form of ID is 
systemically excluded from Arizona's online voter registration.
    Voter registration for reservation voters has been limited to in-
person voter registration opportunities. To register to vote online in 
Arizona you must possess an Arizona driver license or state-issued 
identification card. This also extends to updating voter registration 
online, such as change of address, party affiliation, and/or joining 
the early voter list to receive an absentee ballot. Until September 21, 
2020, two weeks before the statutory voter registration deadline to 
vote in the General Election, voters registering online were unable to 
register with nonstandard addresses. \68\
    Voters that lack a state-issued form of identification, but possess 
the other forms of qualifying identification, must register using the 
paper voter registration form. One of the most common methods of 
getting the paper voter registration forms to voters living in remote 
or rural Tribal communities is in the form of in-person voter 
registration drives at high trafficked events or locations. Otherwise, 
voters can request a form from the county and return it via mail. In 
2020, during the COVID-19 pandemic, in-person voter registration 
opportunities were largely suspended due to the risk of spreading COVID 
because Tribal communities were already disproportionately affected. As 
a result of Arizona's burdensome system, voter registration between 
2016 and 2020 did not grow proportional to the population increase. 
\69\ The United States District Court of Arizona acknowledged that the 
State had made efforts to increase remote access to voter registration 
but that these efforts have not resulted in equal opportunity, 
``[r]egistering to vote has never being easier for some, though others 
are not so fortunate.'' \70\
    As a result of the barriers to voter registration, Arizona has one 
of the lowest turnout rates in the United States. \71\ The turnout rate 
for minority voters is substantially less than white voters and Native 
American voters vote approximately twenty-three percentage points below 
the statewide average. \72\
    Because Native Americans face significant barriers to simply 
registering to vote, and do not have equal opportunities to register to 
vote, some Tribes remain drastically unregistered and drastically 
underrepresented in the electorate. For example, for the Tohono O'odham 
Nation, less than half of their eligible voting age population is 
registered to vote. In the 2020 General Election, approximately 65 
percent of registered voters on the Tohono O'odham Nation turned out to 
vote. However, when accounting for the low rate of voter registration, 
that results in a turnout of approximately 30.5 percent of the Tohono 
O'odham Nation's voting age population.
D. Ongoing and Emerging Obstacles
    Since the Supreme Court's decision in Shelby County, Arizona laws 
no longer have to be evaluated on the potentially racially disparate 
impact before they go into effect. Since 2013, the Arizona legislature 
has enacted a number of laws that disproportionately burden Native 
American voters and Tribal communities as a whole. Despite significant 
testimony about the harms before these laws went into effect and, in 
one instance, judicial determination that a law was passed with 
racially discriminatory intent, these laws remain in effect and stifle 
the potential of a fully enfranchised Arizona. While some of these laws 
may appear to be neutral, the realities on Arizona's reservations can 
make it more challenging for Native American voters.
i. Ballot Collection (2016) (H.B. 2023)
    In 2007, Arizona implemented a no-excuse early voting process known 
as the Permanent Early Voter List (PEVL). \73\ Early ballots received 
via mail can be returned via mail or in person, either at a drop box 
location or in person at polling places or designated county sites. 
\74\ In 2016, 80 percent of all ballots cast were early ballots \75\ 
and in 2020 that number rose to 89 percent. \76\ For Native Americans, 
third party ballot collection became an important get-out-the-vote 
(GOTV) tool to increase voter turnout and overcome barriers in access 
to mail. It was also a common method of assisting friends and fellow 
Tribal members in returning their ballots, especially those that face 
hurdles in returning their ballots related to socioeconomic conditions, 
difficulties in finding childcare, lack of access to transportation, 
disability, or work constraints.
    Despite the fact that Arizona law already criminalized fraud 
involving wrongful possession or collection of another person's ballot, 
H.B. 2023 was enacted to make it a felony to carry anyone's ballot if 
they are not a family member, caregiver, household member, or a postal 
or election worker. \77\ This bill added no security benefit because 
ballots undergo a signature verification process once received by the 
county, irrespective of who delivered the ballot. Only ballots with a 
matching signature will be counted. Forging ballots was already illegal 
and already prevented by signature verification, thus the law has done 
nothing more than prohibit effective and good faith efforts to increase 
voter participation and criminalize everyday activities.
    The original predecessor of the modern bill was introduced in S.B. 
1412 was introduced when Arizona was subject to preclearance under the 
Voting Rights Act. \78\ On May 18, 2011, Arizona submitted S.B. 1412 
for the United States Department of Justice (DOJ) for preclearance. 
\79\ Parts of the bill were cleared, except for the third party ballot 
collection. \80\ DOJ sent a letter to Arizona concerning that 
provision, stating the information provided with the request was 
``insufficient to enable [DOJ] to determine that the proposed changes 
have neither the purpose nor will have the effect of denying or 
abridging the right to vote on account of race, color, or membership in 
a language minority group.'' \81\ DOJ requested more information but 
the Attorney General pulled the request and the state legislature 
repealed the provision. \82\ Another ban on ballot collection was 
signed into law in 2013, but when voters organized to put that law on 
the ballot in the form of a referendum (a method to repeal law in 
Arizona and prohibit future laws that undercut the purpose of the 
referendum) the law was repealed. \84\ Finally, the contemporary 
version of the law was introduced and passed in 2016 in the form of 
H.B. 2023.
    The Ninth Circuit Court of Appeals found that H.B. 2023 violated 
Section 2 of the Voting Rights Act and the 15th Amendment of the United 
States Constitution because of its racially disparate impact and 
because it was passed with racially discriminatory intent. However, the 
Supreme Court of the United States reversed these holdings in Brnovich 
v. Democratic National Committee.
    Because of the barriers in access to mail, the ban on ballot 
collection has disproportionately harmed Native American communities 
and the laws limited exceptions and constrained definitions of family 
do not comport with Indigenous definitions of family or kinship. 
Because H.B. 2023 criminalizes carrying a ballot for someone outside of 
the limited exceptions, it ignores Tribal family structures and limits 
the ability of families living on reservations to overcome existing 
barriers to mail.
    On October 1, 2019, in a field hearing before the House 
Subcommittee on Election Administration in Phoenix, Arizona, the 
sponsor of the H.B. 2023, Senator Michelle Ugenti-Rita, was asked, 
``were you aware of Tribal opposition to your bill before today?'' The 
bill sponsor responded, ``Yes, sir.'' When asked ``Did you or any 
members of your staff invite Tribal participation at the hearing before 
the Elections Committee that you chaired on H.B. 2023? That is a yes or 
no question.'' The bill sponsor responded ``It is open to the public.''
ii. Voter Identification at the Polls (S.B. 1072) (2019)
    In 2019, the state of Arizona passed S.B. 1072 requiring the use of 
identification at in-person early voting locations. Between 2004 and 
2019, Arizona's voter identification requirement was limited to in-
person election day voting because for early voting, signature 
verification is used to confirm a voter's ballot. Voters that have 
access and the ability to vote by mail do not have to present 
identification.
    Although Tribal identification is a valid form of identification 
under Arizona law, poll workers are not consistently trained on how to 
process Tribal ID and nonstandard addresses present issues complying 
with voter ID laws. Poll workers often fail to recognize or accept 
Tribal ID which often results in wrongful refusal of a ballot or voters 
being wrongly given a provisional ballot.
    Turning voters away for improper application of voter 
identification laws has been an ongoing issue across Arizona. Voters 
have been turned away because their identification does not match what 
is on the voter registration rolls. However, nonstandard addresses are 
changed by counties on the voter registration rolls. For example, the 
counties instituted a process of assigning the District Service 
Centers' addresses as the address of the voters living on the Gila 
River reservation--thereby making it impossible to comply with the 
voter ID requirements because no one lives at the District Service 
Center.
iii. Ballot Curing (S.B. 1003) (2021)
    In 2018, the Navajo Nation sued the state of Arizona and the three 
Arizona counties that spanned the reservation. One of the claims was 
rooted in the equal protection clause, due to unequal treatment between 
voters that signed the ballot but their signatures didn't match, and 
voters that failed to sign their ballot. This followed settlement 
reached in a lawsuit filed by the Republican Party that allowed voters 
in the 2018 General Election to have five days post election to cure 
their ballots by affirming their signature so their ballot could be 
counted. \84\ Navajo Nation's lawsuit alleged that under the Equal 
Protection Clause of the 14th Amendment, unsigned ballots must be 
treated similarly. The Republican Party's settlement agreement, the 
practice of curing mismatched signatures up until five business days 
after the election, was codified in Arizona law in 2019. \85\
    There were settlement agreements reached between the Navajo Nation, 
the State, and the three counties that included provisions related to 
treating unsigned ballots on par with signed ballots. \86\ This 
settlement was critical to address the disparate rate at which Native 
Americans' ballots were unsigned, due to lack of ballot instructions in 
the Navajo language, to ensure that non-English speaking voters had the 
same opportunity to cure on par with mismatched signatures.
    However, this agreement was quickly undermined. First, the Attorney 
General, whose office represented the Secretary of State in the 
settlement negotiations, objected to including the settlement language 
in the Election Procedures Manual. Second, the State Legislature passed 
a bill, S.B. 1003, to prohibit curing of unsigned ballots after 
election day. \87\ Ballots with mismatched signatures have until five 
business days after the election. \88\
    The clear intent of the bill's passage was to undermine the Navajo 
Nation's settlement without addressing either the equal protection or 
language access issues; instead, it sought to codify the problem that 
disproportionately affected Navajo voters and led to the lawsuit in the 
first place. When introduced in the Arizona legislature's House 
Committee on Government, the bill's sponsor, Senator Michelle Ugenti-
Rita, referred to a lawsuit prompting the drafting of the bill. When 
asked by a member of the committee, ``Can you share with us who brought 
that lawsuit and what class of votes they were bringing concerns for?'' 
The bill sponsor responded, ``I believe it was some of the Tribal 
nations and . . .there was an agreement reached with the Secretary of 
State's office . . .There was some litigation behind it, there was an 
issue. That's exactly why I want to address it in law.'' \89\
    When S.B. 1003 passed both chambers of the Arizona legislature the 
Navajo Nation issued a statement saying ``[t]his bill directly 
undermines the settlement the Navajo Nation reached in 2019 with the 
Arizona Secretary of State Office and Arizona Counties.'' \90\ The 
President of the Navajo Nation, President Nez, stated that the Nation 
was disappointed in the actions of the Legislature ``[T]o undermine the 
Nation's settlement with the state. The teachings of our elders tell us 
that the words we speak are sacred and have power. The actions of the 
Legislature undermine the words the state agreed to in its settlement 
with the Navajo Nation. This goes not only against Navajo teachings, 
but against the values of all Arizona citizens who should be able to 
trust the words of their government.'' \91\ Despite the Nation's urging 
the Governor to veto the bill and honor the settlement agreements, the 
law went into effect.
iv. Ban on the Use of Private Funds (H.B. 2569) (2021)
    In 2021, Arizona banned local governments that administer elections 
from using private funds to register voters or administer elections in 
Arizona. The bill's sponsor, Representative Jake Hoffman, recognized 
that the state of Arizona does not provide funds for the administration 
of elections and that it falls on the local governments to fund their 
elections. \92\ In 2020, Arizona received $11.5 million dollars in 
grant funding in 2020 to ensure that local election administrators 
could effectively respond to the public health crisis of COVID-19 and 
safely carry out the election. \93\ Approximately $10,854,120 of the 
$11.5 million went to counties with that cover Tribal communities. 
Counties spent grants on training and paying poll workers, educating 
voters, renting venues that allowed social distancing, or cameras in 
order to comply with Arizona law requiring livestreaming of the 
tabulation center, providing additional early voting, and purchasing 
drop boxes. \94\
    It is critical to note that this bill severely impacts the 
abilities of smaller and more rural counties to administer elections 
because those counties do not have access to robust tax bases needed to 
raise revenue. This especially impacts Tribal lands. In Arizona, 42.1 
percent of Arizona's total land is federal land and 27.1 percent of 
that federal land is Tribal. \95\ Local revenue is primarily raised 
through property taxes, but federal land is beyond the taxing authority 
of the county government. This, coupled with the reality that rural 
Arizona is smaller in population and disproportionately poorer, results 
in a reality where some counties may lose access to voter registration 
and voter education simply due to lack of funds.
    Deputy Elections Director Kimmy Olsen, of La Paz County, told NPR 
that the money the county received from private grants ``was a godsend 
that it showed up on our doorstep the way that it did. Because like I 
said, us smaller counties, we do struggle to survive, to get the things 
that we need.'' \96\ The Colorado River Indian Reservation is located 
within the boundaries of La Paz County.
    Additional funding is necessary to assist Tribes in their voter 
registration and education efforts, to make Election Day, early voting, 
and absentee voting locations more accessible to Tribal communities, 
and to generally increase ballot access for Native American voters.
IV. The Voting Rights Act
    Voting for Native Americans is a constant battle. Prior to 2013, 
the Native Vote was safeguarded by the Section 5 preclearance formula. 
This safeguard was lost when the Supreme Court of the United States 
issued its opinion in Shelby County v. Holder, removing one of the most 
powerful tools that Native American voters had to ensure equal ballot 
access. Before the Shelby County decision, Arizona was a covered 
jurisdiction.
    In the aftermath of the Court's 2013 decision, Tribes have relied 
on Section 2 to protect and enforce their right to vote. Enforcing the 
provisions of the Voting Rights Act through Section 2 litigation is 
expensive and time consuming. Tribes have limited resources to bring 
voting litigation, and litigation does not protect the voting rights of 
Native Americans from bad law, as bad law goes into effect before 
litigation can occur. Over the last two decades, the Department of 
Justice has not filed a single case on behalf of Arizona's Tribes.
    The Supreme Court's July 2021 decision in Brnovich v. DNC only 
rendered Section 2 litigation more untenable, as it greatly diminished 
Section 2's availability to successfully litigate vote denial claims in 
particular. At issue in Brnovich were two Arizona voting laws, 
discussed above, that disproportionately impacted Native American 
voters: a law throwing out ballots if a voter casts their ballot at the 
wrong precinct, and a law banning non-fraudulent ballot collection. In 
2020, the Ninth Circuit found that both of these Arizona policies were 
passed with discriminatory intent because of their impact on minority 
voters. In an amicus brief filed by the Navajo Nation, the Tribe 
explained the negative impact that the ballot collection ban had on its 
community, stating:

        Due to conditions on the Nation, many Navajos rely on others to 
        help them pick up and drop off mail. Because.mail service is 
        severely limited on the Nation, many Navajos rely on neighbors, 
        friends, and clan members to pick up and deliver their mail. 
        Navajos follow a kinship system that consists of more than 100 
        clans. Each Navajo belongs to four different clans. When a 
        Navajo introduces himself or herself to another person who 
        happens to share one or more of the same clans, they become 
        related through clan. Clan relationships are similar to that of 
        familial relationships such as brother, sister, mother, and 
        father. [The ballot collection ban policy] excludes these 
        traditional Navajo familial relationships by limiting familial 
        relationships to someone related by blood, marriage, adoption, 
        or legal guardianship. Arizona's ballot collection law 
        criminalizes the way in which many Navajos have historically 
        handled their mail-in ballots, and it increases the disparity 
        between off-reservation individuals and Navajo voters who do 
        not have the same opportunity to vote by mail. \97\

    In upholding Arizona's ballot collection ban and out-of-precinct 
policy, the majority in Brnovich offered five ``guideposts'' to 
consider when determining whether a voting practice violates Section 2: 
(1) the size of the burden imposed; (2) the degree to which it departs 
from what was standard practice when Section 2 was amended in 1982; (3) 
disparities in its impact on members of minority groups; (4) the 
opportunities provided by a state's voting system; and (5) the state 
interest being served by a challenged policy. \98\ Thus, if the Voting 
Rights Act was a sword, Brnovich made its blade significantly duller by 
adding factors that weigh against the interests of the plaintiff.
V. Election Protection Program
    The Clinic engages in education, outreach, and technical assistance 
to assist Tribes in preparing for elections. The Clinic also educates 
county and state officials about the barriers to voting that Native 
American voters experience. As part of the Election Protection Program, 
the Clinic has trained hundreds of volunteers to assist Tribal voters 
on Election Day. We have also participated in election-related 
litigation to protect the rights of Native Americans to participate in 
the electoral process.
    In 2019, the Inter-Tribal Council of Arizona began hosting ``Native 
Vote Strategy Sessions'' where Tribes and others could discuss and 
collaborate on addressing barriers to voting. These sessions often 
include invitations to County Recorders, Election Administrators, and 
their employees, in order for different entities to understand issues 
and work together to find solution. This was necessary because neither 
Federal nor Arizona law require Tribal consultation. While many 
sessions were fruitful, many counties chose not to participate or send 
representatives.
    While we have been able to forge strong relationships and networks, 
we cannot force the state or counties to come to the table. An 
enforceable obligation requirement is necessary to ensure that those 
living on-reservation have equal and equitable access to voter 
registration, vote by mail, early voting, and election day voting.
    A major part of our Election Protection Program is recruiting and 
training volunteers to assist voters on Election Day. The common types 
of incidents include: voters not found on the voter rolls, issues 
related to provisional ballots, failure to issue provisional ballots, 
lack of voter identification, voter intimidation, problems with early 
ballot requests, long lines, and inadequate poll worker training, 
problems with reservation addresses, polling locations not opening on 
time or closing early, and voters who were unable to vote and denied a 
ballot.
    In 2018, the Indian Legal Clinic created a polling locator tool to 
assist reservation voters. No polling locator tool in Arizona 
accommodated nonstandard addresses. The Indian Legal Clinic worked with 
the Arizona Advocacy Network and U.S. Digital Response to develop a 
polling locator tool that relies on drop pins to determine a voter's 
precinct, as opposed to a search engine that relies on standardized 
addresses. This tool is critical, as Arizona's out-of-precinct policy 
results in 1 in 100 Native American voters' having their ballots 
discarded. Still, additional solutions are necessary to fix the voting 
problems associated with the lack of standard residential and mailing 
addresses in Indian Country.
    In 2020, one of the Arizona Native Vote Election Protection Program 
volunteers stationed in Chinle, Arizona on the Navajo Nation, witnessed 
the delay in opening the polling location. Reports to the Arizona 
Native Vote hotline came in to report that two other polling locations 
on the Navajo Nation, in Red Mesa, Arizona and Window Rock, Arizona, 
were also not opened on time resulting in voters having to wait over an 
hour to vote. The Clinic worked with our volunteers to take 
declarations and assist the American Civil Liberties Union and the 
Navajo Nation as they sought a court order extending the time at which 
the polls are closed to make up for lost time. Ultimately, the 
Plaintiffs were successful in extending the hours of the polling 
location. The Native Vote hotline received a call confirming that at 
least one voter was able to vote as a result of the court order.
    The Clinic was also involved in two cases prior to the 2020 General 
Election. One involved the attempt to kick a Native American candidate 
off the ballot due to nonstandard addresses and the other involved the 
closure of the early voting location on the Pascua Yaqui Reservation.
A. Dedman Candidate Challenge
    In 2020, a non-Native American candidate challenged the candidacy 
of a member of the Navajo Nation and resident of the Navajo 
reservation, running for Apache County Sherriff. \99\ Cope Reynolds, a 
candidate for Apache County Sheriff, challenged Joseph Dedman's 
petitions for a number of reasons, including petition signers not 
``providing a residence address within the district of the office the 
candidate is seeking at the time the petition was signed.'' \100\ 
Reynolds also alleged that a number of signatures were unreasonable to 
be obtained in one day ``due to time and distance.'' \101\ These 
allegations relate to the continuing barrier that Native Americans face 
when engaging with the electorate due to nonstandard addresses.
    The court ultimately found that Dedman had presented a sufficient 
number of signatures to remain on the ballot, but nonetheless 
demonstrates the continued burden of nonstandard addresses.
B. Pascua Yaqui Early Voting Case
    In 2020, the Pascua Yaqui Tribe in Arizona filed a lawsuit to 
restore the reservation's in-person early voting location. The early 
voting location would have cost $5,000 for Pima County to operate, and 
the Secretary of State was willing to cover the costs. Nevertheless, 
the County denied the Tribe an on-reservation early voting location. As 
a consequence of the County's denial, on-reservation voters without 
vehicles were required to take a two-hour round trip bus ride to cast 
an early ballot. Rather than spending $5,000 to give Native voters 
equal access to in-person early voting, the Pima County Recorder's 
Office spent $180,705.39 on legal fees to defend its decision. \102\
    The case was settled in 2021 between the Pascua Yaqui Tribe and the 
newly elected Pima County Recorder, Gabriella Carzares-Kelly (Tohono 
O'odham), was elected. The parties signed an agreement to establish an 
early voting site on the Pascua Yaqui reservation before the 2022 
midterm election for every statewide primary and general election.
VI. Conclusion
    More must be done to address the discriminatory practices and 
dilution of the Native American vote through suppressive voting laws. 
It is illogical to expect Tribes to expend considerable resources to 
litigate voting rights violations, especially when Congress has a trust 
responsibility to ensure that Tribes and their members have the right 
to vote. Part of this responsibility includes ensuring that Tribes can 
actually exercise their right to vote, and in that regard, the federal 
government has failed for decades. Congress has the opportunity to 
fulfill this responsibility by enacting much-needed voting rights 
legislation that would restore Section 2 and reduce the burden on 
Tribes to expend much-needed resources on voting litigation.

    ENDNOTES

    1 Many thanks to Native Vote Fellows Torey Dolan and Blair Tarman-
Toner who assisted in preparing this testimony.
    2 U.S. CONST. amend. XV,  1.
    3 Patty Ferguson-Bohnee, The History of Indian Voting Rights in 
Arizona: Overcoming Decades of Voter Suppression, 47 ARIZ. ST. L.J. 
1099, 1102 (2015); see also Elk v. Wilkins, 112 U.S. 94, 103-04 
(explaining tribal member who renounces tribal citizenship cannot 
become United States citizen via the Fourteenth Amendment's citizenship 
clause).
    4 For a detailed history of voting rights of Native Americans, see 
generally, Daniel McCool et al., Native Vote: American Indians, the 
Voting Rights Act, and the Right to Vote (2007).
    5 Amicus Brief of American Civil Liberties Union, Wandering 
Medicine, et. al. v. McCullouch, No. 1:12-cv-00135 (D. Mont. Dec. 4, 
2012); Kaitlyn Schaeffer, The Need for Federal Legislation to Address 
Native Voter Suppression, 43 N.Y.U. REV. L. & SOC. CHANGE 707, 712 
(2019).
    6 Schaeffer at 712.
    7 Tapia v. Lucero, 52 N.M. 200, 202, 195 P.2d 621, 621 (N.M. 1948); 
Montoya v. Bollack, 372 P.2d 387 (N.M. 1962) (holding that Navajo 
Indians residing on the reservation were eligible to vote); Harrison v. 
Laveen, 196 P.2d 456 (Ariz. 1948).
    8 Jennifer L. Robinson & Stephen L. Nelson, The Small but Powerful 
Voice in American Elections: A Discussion of Voting Rights Litigation 
on Behalf of American Indians, 70 BAYLOR L. REV. 91, 103-04 (2018); 
Allan v. Merrell, 305 P.2d 490 (Utah 1956), vacated 353 U.S. 932 
(1957); Delilah Friedler, The Rise of the Native American Electorate, 
Mother Jones (Aug. 27, 2019), available at https://www.motherjones.com/
politics/2019/08/the-rise-of-the-
native-american-electorate/. 
    9 See generally, Patty Ferguson-Bohnee, The History of Indian 
Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47 
ARIZ. ST. L.J. 1099 (2015).
    10 The 1970 Amendments to the VRA suspended the use of literacy 
tests as a qualification for voting. Arizona had a literacy test for 
voter registration and unsuccessfully challenged the prohibition on 
using literacy tests. Oregon v. Mitchell, 400 U.S. 112 (1970).
    11 Shelby County v. Holder, 570 U.S. 529 (2013).
    12 Reno v. Bossier Parish School Bd., 528 U.S. 320, 366 (2000) 
(Souter, J., concurring in part, dissenting in part).
    13 DR. JAMES T. TUCKER ET AL., NATIVE AMERICAN RIGHTS FUND, 
OBSTACLES AT EVERY TURN: BARRIERS TO POLITICAL PARTICIPATION FACED BY 
NATIVE AMERICAN VOTERS 6 (2020), https://vote.narf.org/wp-content/
uploads/2020/06/obstacles_at_every_turn.pdf.
    14 Id.
    15 See generally Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 
2321 (2021); see also Shelby County v. Holder, 133 S. Ct. 2612, 2621 
(2013) (invalidating Section 5 preclearance formula).
    16 See generally, Patty Ferguson-Bohnee, The History of Indian 
Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47 
ARIZ. ST. L.J. 1099 (2015); JAMES TUCKER ET AL., OBSTACLES AT EVERY 
TURN (2020); Patty Ferguson-Bohnee, How the Native American Vote 
Continues to be Suppressed, ABA Human Rights Mag. Vol. 45-1 (2020); 
Patty Ferguson-Bohnee and James Tucker, Voting During a Pandemic: Vote-
by-Mail Challenges for Native Voters, AZ Attorney 24-35 (July/Aug. 
2020).
    17 See generally Cohen's Handbook of Federal Indian Law 5.04[3] 
(Nell Jessup Newton ed., 2012); Seminole Nation v. United States, 316 
U.S. 286, 296-97 (1942).
    18 Cherokee Nation v. Georgia, 30 U.S. 1, 10 (1831).
    19 United States. v. Kagama, 118 U.S. 375, 384(1886).
    20 FY2019 Navajo Nation Tribal Transportation Plan at 1, available 
at http://navajodot.org/uploads/files/Draft%20FY2019%20NNTTIP_08-20-
18.pdf.
    21 Id.
    22 U.S. DEP'T ENERGY OFF. INDIAN ENERGY, STRENGTHENING TRIBAL 
COMMUNITIES, SUSTAINING FUTURE GENERATIONS (2017), https://
www.energy.gov/sites/prod/files/2017/09/f36/DOE-IE-brochure_17.pdf.
    23 Many Native Americans Can't Get Clean Water, Report Finds, 
NPR.ORG (Nov. 18, 2019 5:01 AM), https://www.npr.org/2019/11/18/
779821510/many-native-
americans-cant-get-clean-water-report-finds. 
    24 AMERICAN INDIAN POLICY INSTITUTE, ARIZONA STATE UNIVERSITY, 
TRIBAL DIGITAL DIVIDE POLICY BRIEF AND RECOMMENDATIONS, https://
aipi.asu.edu/sites/default/files/
tribal_digital_divide_stimulus_bill_advocacy_04032020.pdf (last visited 
Oct. 24, 2021).
    25 MISSION CRITICAL PARTNERS, LLC, ARIZONA DEP'T ADMIN., ARIZONA 
STATEWIDE BROADBAND STRATEGIC PLAN (2018), https://azlibrary.gov/sites/
default/files/erate_2018_az_broadbandstrategicplan_final.PDF.
    26Nationally, the poverty rate for Native Americans is 26.8 
percent. Poverty Rate, MAP AZ Dashboard (2019), available at https://
mapazdashboard.arizona.edu/health-social-well-
being/poverty-rate/poverty-rate; see also Natalie M & Brianna M, Native 
American Poverty in Arizona: How does poverty on Arizona reservations 
affect its residents? (Jan. 17, 2020), https://storymaps.arcgis.com/
stories/b7b09da92c664e0baa5fd375c
045cc26.
    27Democratic Nat'l Comm. v. Reagan, 904 F.3d 686, 704 (9th Cir. 
2018), reh'g en banc granted, 911 F.3d 942 (9th Cir. 2019) (Thomas, S., 
dissenting).
    28 Democratic Nat'l Comm. v. Reagan, 904 F.3d 686, 704 (9th Cir. 
2018), reh'g en banc granted, 911 F.3d 942 (9th Cir. 2019) (Dissent, 
Thomas).
    29 HUD, Housing Needs of American Indians and Alaska Natives in 
Tribal Areas: A Report from the Assessment of American Indian, Alaska 
Native and Native Hawaiian Housing Needs (Jan. 2017) at xx, 76, 82, 85, 
available at https://www.huduser.gov/portal/sites/default/files/pdf/
HNAIHou
singNeeds.pdf.
    30 Native American Voting Rights Coalition, Voting Barriers 
Encountered by Native Americans in Arizona, New Mexico, Nevada, and 
South Dakota at 3, 5 (Jan. 2018).
    31 Brief for National Congress of American Indians et al. as Amici 
Curiae Supporting Petitioners at 11-12, Crawford v. Marion County, 553 
U.S. 181 (2008) (Nos. 7-21 & 7-25), available at https://sct.narf.org/
documents/crawford/merits/amicus_ncai.pdf.
    32 Brief of Amici Curiae NCAI at 12, Crawford v. Marion County 
(2008).
    33 Democratic Nat'l Comm. v. Reagan, 329 F. Supp. 3d at 869-70.
    34 Native American Voting Rights Coalition, Voting Barriers 
Encountered by Native Americans in Arizona, New Mexico, Nevada, and 
South Dakota at 5 (Jan. 2018).
    35 ARIZONA CLEAN ELECTIONS, Vote By Mail, https://
www.azcleanelections.gov/how-to-vote/early-
voting/vote-by-mail (last visited Oct. 24, 2021).
    36 Democratic Nat'l Comm. v. Reagan, 329 F. Supp. 3d 824, 869-70 
(D. Ariz. 2018).
    37 Carrie Jung, Home Addresses on Navajo Nation are Rare (Oct. 8, 
2015), https://kjzz.org/content/202564/homeaddresses-navajo-nation-
are-rare-officials-working-change.
    38 Brief for Navajo Nation as Amici Curiae Supporting Respondents 
at 13, Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321 (2021) (Nos. 
19-1257 & 19-1258).
    39 Id.
    40 ARIZ. REV. STAT.  16-544.
    41 Complaint at 5, Yazzie v. Hobbs, No. 3:20-cv-08222-GMS (D. Ariz. 
Aug. 26, 2020).
    42 Id.
    43 Brief for Navajo Nation as Amici Curiae Supporting Respondents 
at 15, Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321 (2021) (Nos. 
19-1257 & 19-1258).
    44 Id.
    45 ARIZ. REV. STAT.  16-547(C); ARIZ. REV. STAT.  16-551(C).
    46 NATIVE AMERICAN VOTING RIGHTS COALITION, Voting Barriers 
Encountered by Native Americans in Arizona, New Mexico, Nevada, and 
South Dakota 1, 110 (Jan. 2018), available at https://www.narf.org/
wordpress/wp-content/uploads/2018/01/2017NAVRCsurvey-results.pdf.
    47 Id.
    48 28 C.F.R.  55.12(c).
    49 28 C.F.R.  55.18.
    50 First Amended Verified Complaint for Injunctive and Declaratory 
Relief at 22, Navajo Nation v. Reagan, No. CV-18-08329-PCT-DWL (D. 
Ariz. Dec. 11, 2018), ECF No. 29.
    51 Id.
    52 Id.
    53 Id.
    54 Id.
    55 Id. at 5.
    56 ARIZONA STATE UNIVERSITY INDIAN LEGAL CLINIC, NATIVE VOTE--
ELECTION PROTECTION PROJECT 2016 ELECTION REPORT 1, 21 (2016).
    57 ARIZONA STATE UNIVERSITY INDIAN LEGAL CLINIC, NATIVE VOTE--
ELECTION PROTECTION PROJECT 2018 ELECTION REPORT 1, 9 (forthcoming 
2021).
    58 Id. at 12.
    59 Id.
    60 Id.
    61 Id. at 6.
    62 NAT'L CONF. STATE LEGISLATURES, Online Voter Registration (July 
23, 2021), https://www.ncsl.org/research/elections-and-
campaigns/electronic-or-online-voter-registration.aspx.
    63 NAT'L CONF. STATE LEGISLATURES, Online Voter Registration (Feb. 
3, 2020), https://www.ncsl.org/research/elections-and-
campaigns/electronic-or-online-voter-registration.aspx.
    64 NATIVE AMERICAN VOTING RIGHTS COALITION, Voting Barriers 
Encountered by Native Americans in Arizona, New Mexico, Nevada, and 
South Dakota 1, 5 (Jan. 2018).
    65 ELECTIONS SERVICES DIVISION, ARIZ. SEC'Y STATE'S OFF., ARIZONA 
ELECTIONS PROCEDURES MANUAL 3 (2019), available at https://azsos.gov/
sites/default/files/2019_ELECTIONS_PROCEDURES_MANUAL_APPROVED.pdf.
    66 Id.
    67 Id. at 3-5.
    68 Press Release, Katie Hobbs, Ariz. Sec'y State, Secretary of 
State's Office announces upgrade to ServiceArizona.com and new 
AZVoteSafe Guide for Native American voters (Sept. 21, 2020), https://
azsos.gov/about-office/media-center/press-
releases/1223.
    69 Mi Familia Vota v. Hobbs, No. CV-20-01903-PHX-SPL at 6 (D. Ariz. 
Oct. 5, 2020), ECF No. 35.
    70 Id. at 7.
    71 Democratic Nat'l Committee v. Hobbs, 989, 1025 (9th Cir. 2020).
    72 Id.
    73 Democratic Nat'l Comm. v. Hobbs, 948 F.3d 989, 1005 (9th Cir. 
2020). Under S.B. 1485, the PEVL is now the active early voter list.
    74 Id.
    75 Id.
    76 ARIZONA CLEAN ELECTIONS, Vote By Mail, https://
www.azcleanelections.gov/how-to-vote/early-
voting/vote-by-mail (last visited Oct. 24, 2021).
    77 ARIZ. REV. STAT.  16-1005.
    78 Democratic Nat'l Comm. v. Hobbs, 948 F.3d 989, 1008 (9th Cir. 
2020).
    79 Id.
    80 Id.
    81 Id.
    82 Id.
    83 Id.
    84 Bob Christie & Nicholas Riccardi, Settlement reached in tight 
Arizona Senate vote count (Nov. 9, 2018), https://apnews.com/article/
north-america-lawsuits-ap-top-news-
elections-az-state-wire-18679ae12bbe4b2d9dbe93fcaf00e757.
    85 S.B. 1003, 55th Leg., Reg. Sess. (Ariz. 2021).
    86 Matthew Campbell, Materials in Navajo Nation et al. v. Reagan--
Voting Rights Litigation (Nov. 27, 2019), https://turtletalk.blog/2019/
11/27/materials-in-navajo-nation-et-al-v-reagan-voting-rights-
litigation/.
    87 S.B. 1003, 55th Leg., Reg. Sess. (Ariz. 2021).
    88 Id.
    89 Arizona House Government & Elections Committee, 55th Leg. (Mar. 
17, 2021) (statements of Michelle Ugenti-Rita), https://www.azleg.gov/
videoplayer/?eventID=2021031084.
    90 Press Release, Navajo Nation, Office of the President and Vice 
President, Navajo Nation leaders urge Arizona Governor to veto voter 
suppression bill (Apr. 30, 2021), https://www.navajo-nsn.gov/
News%20Releases/OPVP/2021/Apr/
FOR%20IMMEDIATE%20RELEASE%20-%20Navajo%20Nation%20
leaders%20urge%20Arizona%20Governor%20to%20veto%20
voter%20suppression%20bill.pdf.
    91 Id.
    92 Arizona House Government & Elections Committee, 55th Leg. (Feb. 
18, 2021) (statement of Jake Hoffman), https://www.azleg.gov/
videoplayer/?eventID=2021021140.
    93 Press Release, All Voting is Local, Arizona Counties Must 
Provide Rapid Response Election Funding (May 5, 2021), https://
allvotingislocal.org/press-releases/arizona-counties-
must-provide-rapid-response-election-funding/.
    94 Private Donations Helped Pay For 2020 Elections. Arizona 
Republicans Say No More, NPR.ORG (Mar. 11, 2021, 5:00 AM), https://
www.npr.org/2021/03/11/975746051/private-donations-
helped-pay-for-2020-elections-arizona-republicans-say-no-more.
    95 Julia Shumway, Fact Check: Gosar correct on private land in 
Ariz., THE REPUBLIC (Apr. 13, 2015, 4:28 PM), https://
www.azcentral.com/story/news/politics/fact-
check/2015/04/13/fact-check-gosar-correct-private-land-arizona/
25740527/.
    96 Id.
    97 Brief for Navajo Nation as Amici Curiae Supporting Respondents 
at 19-20, Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321 (2021) 
(Nos. 19-1257 & 19-1258).
    98 See Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321 (2021).
    99 Reynolds v. Dedman, No. CV2020-0057 (Apache Cty. Sup. Ct. 2020).
    100 Amended Complaint at 2, Reynolds v. Dedman, No. CV2020-0057 
(Apache Cty. Sup. Ct. 2020).
    101 Id.
    102 Memo to Pima County Board of Supervisors from F. Ann Rodriguez 
(Nov. 20, 2020).

    The Chairman. Thank you very much.
    It now gives me pleasure and pride to introduce my friend, 
Mr. Naalehu Anthony, Principal of Paliku Films. Mr. Anthony?

    STATEMENT OF NA'ALEHU ANTHONY, COMMUNICATE ADVOCATE AND 
                    PRINCIPAL, PALIKU FILMS

    Mr. Anthony. Aloha, [phrase in Native tongue] Schatz, 
[phrase in Native tongue] Murkowski, and [phrase in Native 
tongue]. [Phrase in Native tongue] Anthony [phrase in Native 
tongue].
    Aloha, Chairman Schatz, Vice Chair Lisa Murkowski and 
Committee members. My name is Na'alehu Anthony and I come from 
Ka`a`awa on the island of Oahu. Mahalo for the opportunity to 
provide testimony on Voting Matters in Native Communities.
    The stakes are high across the Country and while there are 
numerous examples in the continental 48 that require your 
thoughtful consideration, my testimony is offered to highlight 
the unique perspectives that we face as Native Hawaiians in our 
ancestral lands.
    He Ali'i ka `Aina; he Kauwa ke Kanaka: the Land is the 
Chief and we are its servants. This `olelo no'eau comes to us 
from our ancestors. We have been caretakers of this place we 
call Hawaii for more than a thousand years and over that time 
the responsibilities that we have taken left an undeniable 
imprint on the trajectory of this place, and an essential 
connection that should not be severed.
    And yet, over the last 200 years, we have shared the common 
story with other Native peoples testifying today, of cultural 
and physical genocide. With our lands and people no longer 
cared for by a Hawaiian governing entity and instead 
assimilated into the U.S. mainstream, our voice in the 
democratic process has dwindled.
    I fear that without engagement in voting, and therefore 
standing with a voice of authority in government, the world 
view that has persisted here will no longer be the dominant one 
of this place. The future story with Native Hawaiians in it 
will be in jeopardy if we can no longer see ourselves in the 
reflection of that mo'olelo, that story.
    There is an insidious belief in the politics of Hawaii: 
Hawaiians simply don't vote. I have heard it many times. And we 
don't actually know the truth to that statement because our 
political organizers lack quality data to help us truly 
understand voting habits and sentiment toward electoral 
politics amongst our Native Hawaiian community.
    The possibility of holding Hawaiian-only elections 
disappeared in 199 with the ruling in Rice v. Cayetano, which 
also took away our ability to understand who amongst our 
majority-mixed-race Hawaiian community vote with their Hawaiian 
identity in mind. Our grassroots organizations lack the 
research budgets necessary to better understand who of those 
community members vote or do not vote, and therefore how we 
might be able to activate and inspire them.
    We would deeply appreciate the help of this Committee to 
improve our access to data that will help inform and empower 
our community.
    Underrepresented in local, statewide and national politics, 
Hawaiian interests, like those of many other Native peoples, 
have been marginalized, ignored or actively opposed time and 
time again. So one might ask, if voting changes nothing for us, 
why bother?
    The threshold for ``why bother'' is high, not only due to 
the lack of faith in government, but also because of the 
extraordinary social and economic pressures our communities are 
under. We live in a place where virtually everything is 
imported. We have become accustomed to shipping most of our 
food in, even though these islands fed close to one million 
people before the point of Western contact. We have some of the 
highest costs for everything here, from milk and bread to 
utilities like electricity.
    One of the most troubling benchmarks is the median cost of 
a single-family home: now more than $1 million on the island 
where I live, Oahu. The economists tell us that the qualifying 
income for that $1 million median home would be just about 
$140,000 a year. Though local economic data for Native Hawaiian 
households is not as readily available as we would like, data 
from the Census Bureau indicates the median household income 
for Native Hawaiians and Pacific Islanders nationwide was just 
under $67,000. Nationally, Native Hawaiians and Pacific 
Islanders make only half the money they would need to afford a 
house on Oahu.
    That statistic alone threatens our ability for Native 
Hawaiians to vote in Hawaii, and the income figures quoted 
above are pre-pandemic, not yet reflecting the outsized 
economic burden Covid-19 has had in our community. Far too many 
of us have fallen through the cracks. Increasingly more and 
more of us find it easier to pack up and leave for other States 
than slip deeper and deeper into debt in an attempt to remain 
in our ancestral home.
    This phenomenon has become even more acute with the 
pandemic as Hawaii has become the lifeboat for the extremely 
wealthy seeking the relative safety of the islands and our low 
Covid rates. Houses are still being bought sight unseen with 
cash from those who can now work remotely. Put simply, we are 
being forced to leave due to the high costs required to persist 
here.
    This is problematic, as there are simply fewer of us left 
to vote in Hawaii elections. Those of us who remain are under 
increasing pressure to just make it every day.
    Before the 2020 election, Hawaii saw two decades of voter 
turnout with percentages in the 30s and 40s, some of the lowest 
turnout in the United States. That figure alone should cause 
concern for this Committee. Individuals and communities who 
lack faith in and engagement with the established political 
systems seek other avenues to make their voices heard, as our 
community has with increasing visibility and effect in recent 
years.
    A healthy democracy requires representation, and we as 
Native Hawaiians need our perspectives weighed and counted, so 
that we may and once again take on the kuleana, responsibility, 
for this place we call home.
    I thank you for your time today and look forward to any 
questions that you might have. Aloha.
    [The prepared statement of Mr. Anthony follows:]

   Prepared Statement of Na'alehu Anthony, Communicate Advocate and 
                        Principal, Paliku Films
    Aloha Chair Brian Schatz, Vice Chair Lisa Murkowski, and Committee 
members,
    My name is Na'alehu Anthony and I come from Ka'a'awa on the island 
of O'ahu. Mahalo for the opportunity to provide testimony on ``Voting 
Matters in Native Communities.'' The stakes are high across the country 
and, while there are numerous examples in the continental 48 that 
require your thoughtful consideration, my testimony is offered to 
highlight the unique perspectives that we face as Native Hawaiians in 
our ancestral lands.
    He Ali'i ka 'Aina; he Kauwa ke Kanaka: the Land is the Chief and we 
are its servants. This 'olelo no'eau comes to us from our ancestors. We 
have been caretakers for this place we call Hawai'i for more than a 
thousand years and over that time the responsibilities that we have 
taken left an undeniable imprint on the trajectory of this place, and 
an essential connection that should not be severed.
    And yet, over the last 200 years, we've shared the common story 
with other native peoples testifying today--of cultural and physical 
genocide. With our lands and people no longer cared for by a Hawaiian 
governing entity and instead assimilated into the US mainstream, our 
voice in the democratic process has dwindled. But it is clear that the 
ability to vote and engage in government is critical to the continuity 
of the responsibility we have to this place as Native Hawaiians.
    I fear that without our engagement in voting, and therefore 
standing with a voice of authority in government, the worldview that 
persisted here will no longer be the dominant one of this place. The 
future story of Hawai'i with Native Hawaiians in it will be in jeopardy 
if we can no longer see ourselves in the reflection of that mo'olelo, 
that story.
    There is an insidious belief in the politics of Hawai'i--Hawaiians 
simply don't vote. It comes up again and again in conversations about 
engaging the Hawaiian population during each new voting cycle. ``Why 
talk to them? Hawaiians don't vote.'' I have heard it many times. And 
we don't actually know the truth to that statement, because our 
political organizers lack quality data to help us truly understand 
voting habits and sentiment toward electoral politics amongst our 
Native Hawaiian community. The possibility of holding Hawaiian-only 
elections disappeared with the 1999 ruling in Rice v. Cayetano, which 
also took away our ability to understand who amongst our majority-
mixed-race Hawaiian community vote with their Hawaiian identity in 
mind. Our grassroots organizations lack the research budgets necessary 
to better understand who of those community members vote or do not 
vote, and therefore how we might be able to activate and inspire them. 
We would deeply appreciate the help of this committee to improve our 
access to data that will help inform and empower our community.
    But anecdotally, it's easy to extrapolate why Hawaiian voters may 
not see the effort of voting as worth their time. Underrepresented in 
local, statewide and national politics, Hawaiian interests--like those 
of many other native peoples--have been marginalized, ignored or 
actively opposed time and time again. So, one might ask, if voting 
changes nothing for us, why bother? The threshold for ``why bother'' is 
high, not only due to lack of faith in government, but also because of 
the extraordinary social and economic pressures our community members 
are under. We live in a place where virtually everything is imported. 
We have even become accustomed to shipping most of our food in, even 
though these islands fed close to one million people before the point 
of Western contact. We have some of the highest costs for everything 
here--from milk and bread, to utilities like electricity.
    One of the most troubling benchmarks is the median cost of a 
single-family home: now more than one million dollars on the island 
where I live, O'ahu. The economists tell us that the qualifying income 
for that $1.05M median home would be just about $140,000, while the 
median household income on our island is $102,100. Though economic data 
for Native Hawaiian households is not as readily available as we'd 
like, data from the census bureau indicates the median household income 
for Native Hawaiians and Pacific Islanders nation-wide was just under 
$67,000. Nationally, Native Hawaiians and Pacific Islanders make only 
half the money they'd need to afford a house on O'ahu.
    That statistic alone threatens the ability for Native Hawaiians to 
vote in Hawai'i, and the income figures quoted above are pre-pandemic, 
not yet reflecting the outsized economic burden COVID-19 has had in our 
community. Far too many of us have fallen through the cracks. We need 
to put food on the table, make it to our third job on time, see that 
our children are cared for, and political engagement just simply may 
not make it to the priority list. And increasingly more and more of us 
find it easier to pick up and leave for other states rather than slip 
deeper and deeper into debt in an attempt to remain in our ancestral 
home.
    This phenomenon has become even more acute with the pandemic as 
Hawai'i became the lifeboat for the extremely wealthy seeking the 
relative safety of the islands and our low COVID rates. Houses are 
still being bought sight unseen with cash from those who can now ``work 
remotely.'' Put simply, we are being forced to leave due to the high 
costs required to persist here.
    These economic pressures decrease our ability as Native Hawaiians 
to effectuate change here for two reasons: first, there are simply 
fewer of us left to vote in Hawai'i elections. And those of us who 
remain are under increasing pressure to just make it by every day, 
disillusioned by a system that continues to fail this community, and 
with little faith in government to follow through with meaningful 
change in response to their voters' mandates.
    Before the 2020 election, Hawai'i saw two decades of voter turnout 
with percentages in the 30's and 40's: some of the lowest turnout in 
the United States. That figure alone should cause concern for this 
committee. Individuals and communities who lack faith in and engagement 
with the established political systems seek other avenues to make their 
voices heard, as our community has with increasing visibility and 
effect in recent years. A healthy democracy requires representation, 
and we as Native Hawaiians need our perspectives weighed and counted, 
so that we may and once again take on the kuleana--responsibility--for 
this place we call home.

    The Chairman. Mahalo.
    Vice Chair Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman, and thank you 
to all those who have joined the Committee here this afternoon, 
and for sharing as you have.
    I am going to start my questions directed to you, Julie 
Kitka. Julie, thank you for your leadership at AFN. You have a 
decades-long tenure there that again, I mentioned to the 
Committee, you are no stranger to the Committee here, but you 
ae also no stranger to these issues. You have worked through so 
many issues of discrimination as they relate to Alaska Native 
peoples. Certainly, when it comes to the voting rights issues, 
you have been engaged in this for many, many years. I want to 
thank you for your efforts and those of so many Alaska Native 
leaders that have worked hard to combat the disenfranchisement 
of Alaska Native votes.
    Your testimony is very thorough, and I think shares well 
the concern that voting rights violations unfortunately are not 
a thing of the past, as you have outlined. There are some 
differences, I would suppose, on the need for, when we are 
talking about Federal voting rights legislation, there are some 
differences of opinion on whether or not one sees a role for 
the Federal Government in the administration of State 
elections. It is usually your States that set the rules and the 
elections are run at the local level.
    Julie, in your statement, you have repeated it here today, 
it is really quite telling to know that more regions of Alaska 
are currently designated for Federal observers under the Voting 
Rights Act than in the remainder of the United States. It is an 
important thing to include as part of the record.
    If you can share with the Committee, please, how the 
Section 5 pre-clearance provisions in the Voting Rights Act 
worked to stop voting discrimination in Alaska. I think one of 
the things we are trying to do here is to prevent these issues 
of discrimination in the first place. Can you speak to Section 
5 of the Voting Rights Act?
    Ms. Kitka. I can speak directly on how we dealt with 
Section 5. There were changes in the process. The authority was 
required to notify people that the changes had come. So I would 
get a letter in the mail that would say, on such and such and 
such we are changing this, we are closing this or whatever. But 
you were given that advance notice so that you could respond.
    Sometimes the changes you just thought, oh, this is minor, 
put it aside, it is not a big thing. Other things were bigger. 
So the pre-clearance was critically important because they gave 
you a chance to be alerted to these changes and assess whether 
or not those were significant to your community or not. If they 
were, we could alert other people. Our tribal leaders would get 
them, we would get the letters. Now, since the Shelby County 
decision on that, the lack of the pre-clearance, we get no 
letters. We get no notification that this change is happening 
or that.
    So it takes away the ability for us to respond. We believe 
in voting rights, in these issues, that there are mutual 
responsibilities. There are responsibilities for us as Native 
leaders, to do our part. And there are responsibilities for 
government.
    If we are not notified of the changes, we don't have the 
ability to exercise our responsibility. And as I mentioned in 
my testimony, I probably didn't elaborate, because I know you 
know that our way of life creates a lot of barriers. We live in 
one of the largest land masses in the United States. We have 
tremendous diversity across our State, very remote and isolated 
communities.
    For us to do our responsibility to participate in this 
democracy, for us to do our responsibility to advise government 
when they make changes that have negative impacts, we are 
blocked from doing that. Then people say, well, how is this 
happening right now? Why are there all these problems? It is 
not just bad people. It is not just ill-informed people. You 
are talking about people versus systems. You are talking about 
inertia that happens in these systems.
    You talk about perceived lack of funding where election 
officials say, we have to tighten our belts and make money 
stretch further on that. At the same time, they have money in 
an interest-bearing account that they could use to solve it.
    But the pressure is on government to cut corners or to 
stretch funding. Further, real human beings make decisions 
based on those pressures. Often, we are the ones that lose out 
on that. This emphasis on cost-cutting, again, the inertia. 
Some of it is bureaucratic. Some of it is people that are just 
tired of this stuff and have lost the spark and enthusiasm of 
what they are doing in their job and how exciting it is to be 
on the cutting edge on voting and empowering your people.
    What we want to do is we want to exercise our 
responsibility. In order to exercise our responsibility on the 
pre-clearance, we need to be informed. So that is kind of a 
short answer. I could fill that out in written comments. But 
that is a practical example.
    Senator Murkowski. [Presiding.] It is a strong example, and 
I think we recognize that in a State, as you point out, where 
geography is massive, it is not just distances, it is distances 
that come about when you have limited communications access 
through broadband, when you don't have connectors by roads. So 
there are many ways where you are literally cut off. So how you 
communicate is something that is clearly a challenge for us.
    We are going to turn to Senator Smith for her questioning.

                 STATEMENT OF HON. TINA SMITH, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Smith. Thank you very much, Madam Vice Chair, and 
to our chair as well. Thank you also to all of our panelists 
today. You provided us a thorough and sobering review of the 
many challenges that Native voters experience as they attempt 
to exercise, as you attempt to exercise your freedom to vote, 
and the disparities that you are confronted with.
    I also appreciate the way in which you highlighted the 
particular trust and treaty responsibilities that we have to 
ensure that Native voters are able to access your freedom to 
vote.
    I would like to dive in one general question and one 
specific question. I am going to start with the specific 
question, which I am going to direct to Ms. De Leon. This has 
to do with vote by mail.
    In Minnesota, we are quite fortunate to have accessible and 
secure vote by mail infrastructure. Minnesotans rely on this 
option to vote safely and securely by election day.
    But of course, this strong vote by mail infrastructure 
relies on the Postal Service to deliver ballots to voters and 
to election officials on time. I have been quite concerned 
about this. I recently asked Postmaster General Louis DeJoy to 
explain how changes to first class mail service that he is 
putting forth will impact tribal communities. This is extremely 
important when it comes to voting access for Native people.
    Mail access, as many of you have described, is already 
quite difficult in some tribal communities, especially if homes 
are on tribal lands, don't have traditional addresses, as you 
have pointed out, or if the nearest post office of post office 
box is miles and miles and miles away.
    Ms. De Leon, could you talk about what we need to do, ways 
to improve access on tribal land, to mail-in voting when it 
might not be fully accessible and while voters are faced with 
relying in the Postal Service for speedy delivery even as they 
are rolling back standards of service for first class mail?
    Ms. De Leon. Thank you so much for that question. I think 
it would be important to note that vote by mail is difficult 
because of the structural reasons that you descried. What NAVRA 
does, which I think is a practical solution, is it allows 
tribes to designate a building that has an address that can be 
used to register, pick up and drop off ballots.
    This is important, because not only is that a familiar 
place for many tribal members, but it also gets rid of 
confusion, and it would be closer in a lot of instances than 
post offices that can be a significant distance away.
    The nice thing is that they have actually recently 
implemented this exact system in Washington State, which has a 
lot of experience with vote by mail. That has been met with 
success as well.
    So NAVRA extends those provisions nationwide, because as 
you know, the problems with mail deliver in Indian Country is a 
nationwide problem.
    Senator Smith. Thank you very much. I completely agree with 
that.
    I just have a minute or two left, so I am going to ask my 
broad question. As you have all shown today in your testimony, 
there are so many ways that Native peoples' access to voting is 
restricted. I would like to ask you, whoever on the panel, what 
do you think are the one or two most important things that the 
Federal Government could do to address these barriers for 
Native and tribal communities?
    I will turn to Janet Davis to begin.
    Ms. Davis. In our case, I think it is very important that 
there is Federal law that will make the tribes be able to have 
that access throughout everywhere. As you know, even 
throughout, right now, States provide different avenues and 
restrictions to voting. I would like to say in Nevada, Nevada 
has been very good. They passed a State legislation, they are 
doing things on a State level to make access to our tribes.
    I think if other States could follow that example, and if 
your new law is voted into place, that would actually help and 
designate other States to follow along as well. That is my 
thought, to make it uniform across the board.
    Senator Smith. Yes. So if there was a basic national 
standard--pardon me.
    Ms. Davis. Yes, a national standard. So, all States are 
doing what they want to do at all different levels. I think 
that goes for all voting, even non-tribal. But there has to be 
consistency across, throughout all of our land as well to allow 
equal voting access for everyone, not only Native Americans.
    Senator Smith. Thank you very much for that.
    Mr. Chair, I believe I am out of time. I yield back.
    The Chairman. [Presiding.] Thank you very much, Senator 
Smith.
    Senator Daines?

                STATEMENT OF HON. STEVE DAINES, 
                   U.S. SENATOR FROM MONTANA

    Senator Daines. Chairman, thank you.
    First of all, let me state by saying that ensuring that all 
eligible voters can vote, that they can be certain that their 
ballot counts, is a goal that we all share on both sides of the 
aisle. The Native Voting Rights Act does not further the goal 
of free, fair, and secure elections. In fact, looking at 
Montana, we have had extraordinary levels of voter turnout, 81 
percent in 2020, 72 percent in 2018, 74 percent in 2016. In 
Montana, our legislature, our secretary of State, and our 
governor took the necessary steps to ensure integrity of our 
elections going forward.
    But for months, my Democrat colleagues have felt compelled 
to mislead the truth and the facts about voting in Montana. So 
let me set the record straight.
    We put in place some commonsense reforms that enjoy the 
support of the vast majority of Montanans, requiring photo ID. 
If you want to go get a library card at the library, you 
produce a photo ID. If you want to buy a fishing license, if 
you want to buy a hunting license, you produce a photo ID. That 
is so every county, every tribe, every State can deal with the 
challenges that they uniquely face.
    The Native American Voting Rights Act contains a number of 
provisions that are ripe for fraud, such as sending unlimited 
absentee ballots to tribally designated public buildings, 
rather than directly to the voter. In her written testimony, 
Ms. De Leon talks about Montana's ballot harvesting plan. But 
she mischaracterizes the nature of this legislation and fails 
to acknowledge that Indian Country widely supported a voter 
passed ban on ballot harvesting in 2018. Go back and look at 
the specific precincts in Indian Country, widely supported.
    First and foremost, the Montana law only bans people from 
being paid to collect ballots. It doesn't ban ballot collection 
in its entirety. Even the Carter Baker Commission suggested 
that handling of absentee ballots should be limited, and the 
Supreme Court, just as you noted, there are a number of 
legitimate reasons to limit ballot harvesting.
    In Montana, we want everyone legally allowed to vote to be 
able to do so. We want there to be zero doubt that those votes 
indeed will be counted. All Montanans, Republicans, Democrats, 
Independents, Libertarians, should have faith in our elections.
    Ms. De Leon, last week you testified in front of the 
Judiciary Subcommittee on the Constitution. At that hearing, 
Senator Cruz rightly pointed out that no witnesses invited by 
the Democrats addressed any concerns with ballot harvesting.
    So to that point, what makes you so confident that no fraud 
will occur with paid ballot harvester?
    Ms. De Leon. Thank you so much for that question. I would 
like to make a couple of notes in response to your questions 
and your statement.
    First, while Montana has about an 83 percent turnout, 
unfortunately, in Native communities, that turnout is about 65 
percent, so, significantly lower. In fact, in 2014, right 
before Montana was sued under Section 2, Fort Salish 
[phonetically] provided on-reservation polling places, the 
turnout on reservations was about 30 percent.
    So this was in our very recent history that Montana was 
forced to place on-reservation polling places and attempt to 
increase voter turnout. That has increased, but it still lags 
behind those of the rest of Montana.
    As for the ballot collection law, I think that it is 
noteworthy that there was a previous ballot collection law, as 
you note, the 2018 initiative. Upon review, five tribes joined 
us in suing against that law. While we were successful in State 
court, under the State constitution election vote provisions, 
the ballot collection ban was found to be unconstitutional 
because of the burden it placed on Native Americans.
    The most recent attempt to ban ballot collection, which 
would effectively make it so that organizations could not pick 
up and drop off ballots, was found from the Montana Advisory 
Committee to the U.S. Commission on Civil Rights intentional 
discrimination on behalf of Montana's State legislature.
    The reason that I am so confident that fraud will not occur 
is because I can look at the past history, I can see that there 
is no record of a significant amount of fraud, and that in 
instances where fraud occurred, that is already prosecuted 
under laws that outlaw fraud. If we have concerns about fraud, 
things like ballot tracking are significant steps that States 
can take to ensure ballot integrity when allowing State 
practices like ballot collection.
    I will also note that NAVRA similarly includes a provision 
that says you cannot be paid for the number of ballots that are 
collected, but that organizations can still pay individuals for 
getting out and picking up and dropping off ballots. Because it 
does take a significant amount of time and it takes a 
significant amount of resources to collect and drop off ballots 
on vast Montana reservations. That is what the most recent 
ballot collection ban would prohibit. That is why we continue 
to challenge that law in State court.
    Senator Daines. I am out of time, Mr. Chairman. Thank you.
    The Chairman. Thank you.
    Senator Cortez Masto?
    Senator Cortez Masto. Thank you.
    Chairwoman Janet Davis, let me ask you this question. I 
think this is important for purposes of what is happening in 
Nevada, to talk a little bit about why I support these voting 
right reforms. You mentioned AB4. AB4, which was introduced and 
passed by legislature actually was later repealed, but it was 
replaced with AB321 in the 2021 legislative sessions. It made 
important reforms that impact our Native communities.
    One of this, as my understanding of the reform was, it took 
away the obstacles to picking up and dropping off mail which is 
extremely common for Native Americans in Nevada. In other 
words, to pick up and drop off mail for one another, which 
would include the mail-in ballot.
    Can you talk a little bit about why was that a barrier, and 
is that something our Native communities supported?
    Ms. Davis. Our Native communities support that. As you 
know, for us, our post office right now, the postmaster comes 
whenever they want. Right now, we are dealing with, because we 
are a small community, if we see that lady's car down there, we 
race down there to check our mail. It has no set time frame for 
us to pick up mail.
    So the narrow drop-off, ballot drop-off here that was at 
our administration building made it easy for people to vote and 
to drop off their ballots. As you know, we all live in extended 
family housing where there is mother, daughter, brother, maybe 
an uncle, an aunt, able to help drop off that ballot. But the 
laws that were restricting that was only that person that voted 
could drop off the ballot. So when the laws were changed in the 
State of Nevada to allow the pickup of the ballots and the 
drop-off, it made it more easy for our citizens, our community 
members to drop off their ballots.
    Senator Cortez Masto. Why was it important, instead of 
restricting just the individual who voted to drop off the 
ballot, to allow family members or others to drop it off?
    Ms. Davis. Because you have people that live, again, a 
great distance away that may not have a car, may not have that 
access to drop off ballots, for whatever reason. It just made 
it easier and it would allow more people to cast their ballots. 
It just made it more easy for everyone to vote.
    Senator Cortez Masto. To your knowledge, was there fraud 
associated with that?
    Ms. Davis. Oh, no. Definitely not. I think everyone insists 
that there is fraud. But for Native Americans to vote, you do 
it because you want to cast your vote, you do it proudly, you 
are not going to defraud. Again, we are trying to honor our 
ancestors by casting our votes. There isn't fraud involved, 
there hasn't been in the past. There hasn't been any fraud.
    Senator Cortez Masto. To my knowledge, not only, there was 
a lawsuit that was filed against AB4, if I am not mistaken, it 
was Donald J. Trump for President, Republican National 
Committee and Nevada Republican Party v. Barbara Cegavske, who 
is our Secretary of State and also happens to be a Republican. 
It was filed in the District Court for the District of Nevada, 
but it was eventually dismissed by the judge. The judge said, 
not only have the challengers failed to allege a substantial 
risk of voter fraud, but the State has its own mechanisms for 
deterring and prosecuting voter fraud.
    So I think it is important that we do not get caught up in 
the partisanship and the politics. We need to focus, if we 
truly are going to work in a bipartisan way, to allow voters to 
vote in the manner that works for them. Wouldn't you agree with 
that?
    Ms. Davis. That should be the ultimate goal of all parties 
involved. We do want people to vote. That should be ultimately 
why are here today, for that matter. We want people to vote. We 
want to hear what they want.
    So with that being said, I have to agree.
    Senator Cortez Masto. Thank you. Thank you, Chairwoman. I 
yield back.
    The Chairman. Thank you, Senator Cortez Masto.
    Ms. De Leon, simple question. Is voter fraud a concern in 
Indian Country? Does it happen?
    Ms. De Leon. No, not in significant numbers. It has not 
been recorded. There haven't been instances of voter fraud of 
note in Indian Country. There have been false accusations that 
have been successfully rebutted.
    The Chairman. Can you give me a couple of examples, just 
very briefly, of allegations that have been proven to be false?
    Ms. De Leon. Sure. In South Dakota, following the election, 
a close election that was ultimately decided by Native voters, 
a Congressional election, there was a rumor, a persistent rumor 
of rampant fraud on the, within the reservation. In fact, 15 
affidavits were submitted to that effect.
    Those were all investigated and there was no finding of 
fraud. They were false allegations. In fact, unfortunately, the 
perception that Indian Country or that Native Americans are 
somehow incapable of running fair and safe elections is false 
and is damaging, because Native Americans are trustworthy 
Americans that absolutely can and should run elections with 
integrity.
    The Chairman. Thank you very much.
    Mr. Anthony, as you know, Hawaii consistently experiences 
low voter turnout, especially in districts where large number 
of Native Hawaiians live. Can you describe for the Committee 
efforts to increase Native Hawaiian voter engagement, including 
Aloha Rising, No Vote No Grumble, and what role Congress could 
play in helping to increase civic engagement among Native 
Hawaiians?
    Mr. Anthony. Sure, thank you for that question. I think 
certainly having the resources to be able to engage voters in 
Hawaii is necessary, not just during the voting cycle when 
there is a lot of activity, but also during other opportunities 
where we can engage in making sure that we see the reflection 
of ourselves in this idea that voter engagement is important to 
further the trajectory of engagement to Native Hawaiians.
    Most simply, it goes to this idea that we need resources, 
the resources to make sure that there is voter registration and 
that there is follow-up with some of the communities that are 
far out in rural areas, not unlike some of the descriptions 
that we have heard from other panelists today.
    Certainly, I think that it is critical just to echo some of 
the other sentiments that we have heard by the other panelists, 
it is critical for us to engage in voting, and it is critical 
for us to encourage everyone, not only because we have a civic 
duty to do so, but because it is how we have the ability to 
come together as communities to make the best decisions for our 
places and our spaces.
    So certainly, the work that you are doing with Indian 
Affairs I think is really important for all of our communities. 
But specifically, the funds available to make sure that 
everyone understands the rules of how this is done and the ways 
in which we can ask for our communities to engage is critical. 
Thank you.
    The Chairman. Thank you very much.
    Professor Ferguson-Bohnee, what can we expect the impacts 
of the Brnovich decision to be on Native voters? Could the 
protections afforded Native voters under the Voting Rights Act 
be in doubt?
    Ms. Ferguson-Bohnee. Yes, Mr. Chairman. The Brnovich 
decision has thrown a wrench in the ability to bring Section 2 
cases. Native American voters will have a harder time 
succeeding and filing claims under the Voting Rights Act. They 
are severely impacted by the court's decision to adopt a de 
minimis impact factor, because the Native American population 
is already small in Arizona and reservation communities are a 
smaller subsection of an already small population.
    So that is a huge concern for the Native American 
community, the opportunity to bring a case that will withstand 
Section 2. So yes, addressing Section 2 by creating a standard 
for vote denial is very important to the ability to uphold the 
purpose of Section 2 of the Voting Rights Act.
    The Chairman. Thank you very much.
    Senator Lujan?

               STATEMENT OF HON. BEN RAY LUJAN, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Lujan. Thank you very much, Mr. Chairman. Again, I 
want to thank you and the Vice Chair for the markup earlier, 
for the passage of legislation more appropriately, and also 
this important hearing.
    Native Americans have the lowest voting rate of any 
American racial or ethnic group, an outgrowth of having one of 
the lowest voter registration rates in the United States as 
well.
    Mr. Payment, what percentage of Native Americans are not 
registered to vote?
    Mr. Payment. I am glad I get a question. Thank you, 
Senator, and thank you again for introducing the legislation.
    We have some updated data from the U.S. Census. There are 
about 7 million eligible Native voters across the Country. 
About 34 percent, our best estimate is about 34 percent remain 
unregistered to vote.
    Senator Lujan. Mr. Payment, you answered my next question, 
which is what that number translates to. You said there is 
about 7 million. So is that approximately 2.4 million, that 
would equate to that 34 percent that are not registered to 
vote?
    Mr. Payment. Yes.
    Senator Lujan. Ms. De Leon, you mentioned that Native 
Americans face many obstacles to voting. I also want to 
highlight, these obstacles are different from those faced by 
other language and ethnic minorities. Ms. De Leon, yes or no, 
do Native Americans face unique obstacles to voting that are 
not fully addressed in S. 1, and require more tailored 
legislation like the Native American Voting Rights Act and the 
John Lewis Voting Rights Act to adequately address?
    Ms. De Leon. Yes, absolutely.
    Senator Lujan. Ms. Ferguson-Bohnee, some have characterized 
my legislation as an attempt to Federalize elections for Native 
voters. But the Constitution affirms that the Federal 
Government has a unique obligation to protect Native voting 
rights.
    Ms. Ferguson-Bohnee, yes or no, does the Constitution grant 
Congress broad powers to legislate on the rights of Native 
voters under the authority granted in the Indian Commerce 
Clause, the Elections Clause, the Treaty Clause and Congress' 
plenary authority?
    Ms. Ferguson-Bohnee. Yes, definitely. And Congress has 
exercised that in various areas.
    Senator Lujan. Now, again, some have questioned whether the 
provisions of the Native American Voting Rights Ac are unfunded 
mandates. Ms. De Leon, yes or no, isn't it true that the $10 
million grant program in the legislation would help with 
administering the requirements and the Help America Vote Act 
funding is available to help with the hard costs associated 
with running elections?
    Ms. De Leon. Yes, that is absolutely correct.
    Senator Lujan. Now, some also have questioned the ability 
of States and precincts to administer the legislation. But we 
have examples in Washington State and in Nevada where we see 
provisions of the Native American Voting Rights Act being 
implemented with success. For example, Nevada got rid of ballot 
collection bans and has mandated polling locations on tribal 
lands.
    Ms. Davis, yes or no, have these changes increased Native 
voter access?
    Ms. Davis. Yes, it has, definitely.
    Senator Lujan. And Ms. Davis, yes or no, in the instance of 
ballot collection, has there been any fraud or security 
problems, to your knowledge, in Nevada?
    Ms. Davis. No, there hasn't been. Actually, it was 
challenged and it failed. So no, definitely not.
    Senator Lujan. I wanted to bring attention to that 
particular question, because there was a question raised in the 
previous hearing in Judiciary about that. So that is an 
important answer, responding to that concern.
    While 84 percent of the United States' population lives in 
urban areas, the majority of Native Americans and Alaska 
Natives live in rural communities on or near their tribal 
homelands, which often lack polling places. Ms. Ferguson-
Bohnee, yes or no, currently do you see large disparities in 
access to polling locations between voters living on tribal 
lands and those living off tribal lands?
    Ms. Ferguson-Bohnee. Yes, tribal voters definitely have 
less access to polling locations and in-person and early voting 
locations.
    Senator Lujan. And Ms. Ferguson-Bohnee, yes or no, would 
you agree that the Native American Voting Rights Act would 
secure equitable access to polling places on tribal lands by 
ensuring a minimum of one polling location per precinct on 
tribal lands?
    Ms. Ferguson-Bohnee. Yes, but just in addition, there is 
also a provision for larger tribes to request additional 
polling locations.
    Senator Lujan. Mr. Payment, geographical isolation and the 
lack of mailing addresses hinders Native voters from accessing 
the ballot, because traditional addresses are needed to obtain 
non-tribal identification for voter registration. Mr. Payment, 
for many Native Americans, how far must one travel to get to 
the nearest DMV or obtain non-tribal identification?
    Mr. Payment. Senator, you heard my testimony, but you also 
heard from several of us today that it seems like a common 
occurrence that it as least up to an hour to drive to the DMV 
or Social Security office to register to vote. In some cases, 
it is almost as long to travel to get to poll sites as well.
    Senator Lujan. I appreciate that very much.
    Mr. Chairman, I have many other questions, but I will 
submit them into the record as well, and I just very much 
appreciate the testimony of everyone here today. I hope this is 
an area that we can find some common ground, work together.
    But again, this legislation, as much as I would like to 
take credit for it, wasn't my idea. This was a result of Native 
American voting rights advocates coming to work with me, to 
present the importance of getting this done. That is why there 
are over 30 organizations including every known prominent 
Native American organization, organizations that represent 
tribes from across the United States, that have endorsed this 
legislation. So I am hopeful and prayerful that we can get his 
across the finish line.
    Thank you very much. I yield back.
    The Chairman. Thank you, Senator Lujan. And thank you very 
much for your leadership in this space. We need it, and your 
bipartisan attitude and your determination on behalf of all 
Native peoples really helps us to advance this cause.
    Vice Chair Murkowski.
    Senator Murkowski. Thank you. I too want to thank you, 
Senator, for your leadership on this.
    I want to pick up, Mr. Payment, where Senator Lujan left 
off, with the identification. Access to department of motor 
vehicles in Alaska and way too many of our communities is not 
possible. We don't have the DMV there, and there is no road 
out. So if you want to go get your license, you fly to a larger 
community.
    I want to ask you, Mr. Payment, the importance of the 
ability for Native Americans to use tribally issued ID cards. 
Can you speak to the concerns that others have raised about any 
security issues that present themselves with regard to validity 
of tribally issued identification cards?
    Mr. Payment. Absolutely, Senator. I have a high respect for 
you as one of our U.S. Senators, and a close affiliation with 
our Alaska Native people. The conditions they live in are very 
similar, but more remote and more challenging than my 
community.
    I did bring my tribal card to show you. It is an old one, 
so you can see my hair is black in this picture.
    Senator Murkowski. It doesn't look anything like you.
    [Laughter.]
    Mr. Payment. And my hair is a little bit shorter. But we 
have a security strip on the back, and tribes are very guarded 
with our tribal cards. There are issues of per capita, there 
are issues of membership services and identification, such that 
our identification cards are no less stringent than the State's 
process.
    So the intimation from some that somehow we are less than 
either to conduct our own registration to vote or to have poll 
sites or to issue our own cards, these are legitimate cards 
that are equal to State driver's licenses. Again, to see the 
strip, it has data on the back of it, and a security strip. So 
we have very secure tribal ID cards to identify who we are as 
members and citizens of our tribes.
    Senator Murkowski. I appreciate that.
    Let me ask, this was a question that was directed, I 
believe it was directed to Ms. De Leon just a moment ago, about 
the issue of unfunded mandates. One of the concerns that we 
have heard about the Native American Voting Rights Act is that 
it is an unfunded mandate on States. There is funding 
authorized, and I guess I would ask you if you are concerned 
about this aspect of the legislation. Can you identify what 
types of costs may be associated with some of the requirements 
that are called for, and what resources are available to States 
and tribes to implement some of the provisions under the Act?
    Ms. De Leon. Thank you so much, Senator, for a really 
thoughtful question.
    I think we should start the conversation by just 
acknowledging that States have been failing their financial 
obligations to Native citizens. I think that States 
unfortunately have been very inequitable in the amount of money 
that they are willing to spend on tribal citizens. So they are 
acting a bit in a deficit there.
    But there are funds available. As you mentioned, the grant 
program itself is funded, which will help with the transition. 
It also helps with the language access provisions, and also 
helps with poll worker training, some of the technical aspects.
    As for the hard costs of starting a polling place, such as 
the need to buy some polling machines, to train workers, you 
can use HAVA funding in order to pay for those costs. We have 
seen satellite offices in places like South Dakota and Montana 
use satellite offices in order to meet the hard costs of 
starting a polling location in Indian Country.
    I would say that the costs themselves aren't overwhelming. 
For a polling place, once you have acquired the machines, it is 
really about the labor of manning a polling place. But relative 
to State budgets and the like, it is relatively small. I think 
Professor Ferguson-Bohnee mentioned that in the Pascua Yaqui 
Reservation, it would have cost about $5,000 to run the polling 
place. But the State spent $180,000 fighting against it.
    So we are not talking about overwhelming sums of money. And 
there is quite a bit of HAVA funding available throughout the 
Country. There is a surplus [indiscernible] Alaska, there is 
over a million dollars in States like Montana and South Dakota 
and others, over a million dollars. HAVA funding has different 
tiers, and those different tiers can be used for some of these 
hard costs. So there are available funds.
    Senator Murkowski. I am going to turn to you, Julie. 
Obviously, there are costs that are incurred when you are not 
only establishing the polling place, but then making sure that 
it is appropriately staffed with the trained poll workers. So 
as we look to different ways to make sure that there is greater 
access and fair and equitable access, we know that it is going 
to require more of those who are willing to step forward and be 
that poll worker. I know that in many of our villages that has 
been the greatest challenge, is to get sufficient people to 
basically work in the polling places.
    So I look at some of the provisions that are included 
within both the John Lewis Voting Rights Act as well as the 
NAVRA, and a recognition that we are going to have to be 
training and bringing on more to ensure that these polling 
places are open.
    So I would like your comment to that. But while I have you, 
and recognizing that I am over my time already, I want you to 
also address the issue that we have heard from the State of 
Alaska about concerns that ballots must be postmarked the day 
they are received at a postal facility located on Indian lands. 
We know that in Alaska, our mail delivery is oftentimes less 
than reliable, and that is probably putting it politely. So 
that is something that we are looking at within the legislation 
here as to how we might be able to address that.
    But just two concerns here that I have raised. First is our 
ability to be able to find and train so we are adequately 
staffing the polling places, but particularly in some of these 
very small remote communities.
    Then also the concern about this provision that says that 
ballots have to be postmarked the day that they are received at 
the postal facility. So if you can speak to those two.
    Ms. Kitka. Thank you, Madam Vice Chair.
    Especially during this pandemic, it has been really hard to 
get poll workers on that. People have been spooked by the 
disease and the contagiousness. So it has been difficult during 
this pandemic to get people.
    But I want to describe really quickly the desire for people 
to help out is there. When we helped the State a number of 
years ago, when they said there wasn't any communities that 
wanted early voting spots, and we deployed a small group of 
people to contact them, we got 50 villages within just a matter 
of a couple of days of people wanting to have that.
    We had them work with the State, fill out a form, email it 
back. We had one elder in one of our communities that didn't 
have a car, didn't have a four-wheeler, that walked miles to 
get to the tribal hall on that, to be able to use their 
internet to fill out the form to have an open voting area for 
her village on that.
    The desire for people to have early voting and polling 
spots that are accessible to our people is there. It is 
overcoming the barriers. And also making sure that there are 
equities. I said in my testimony that when we had all these 
early voting spots that the State said, well, we will offer you 
an honorarium. People are working hours and hours for the 
honorarium, and the honorarium was $100 for the whole time on 
that. When we calculated out how much that was, people were 
paid 15 cents an hour.
    It is not the money, it is the lack of equity and the lack 
of respect for people wanting to commit their time to do it. At 
the same time, in the urban areas, they were hiring more people 
to build up their operations, to handle them, and they were 
paying them all $15 an hour. It was the inequity; it is not 
that people don't want to help out, don't want to volunteer, 
don't want to go to that extra effort. We found in our early 
voting process tremendous desire for people to help out and 
participate.
    But I do think we are going to have added burdens with this 
pandemic as people get spooked by the contagiousness of the 
pandemic.
    And your second question?
    Senator Murkowski. This was on the language in the bill 
currently that says that ballots have to be postmarked the day 
they are received at a postal facility, and the concerns that 
we have with reliability of a postal service, when you have 
weather issues, and just the challenges of getting mail in and 
out of villages.
    Ms. Kitka. Yes. No, there is no doubt that we have storms 
all the time, which change things. We have a lot of dedicated 
people trying to deliver mail, but you can't take it to the 
bank. There are many obstacles; many things fall through the 
cracks. You cannot require the date stamp on that to make that 
work.
    Senator Murkowski. Okay, we will look at addressing that.
    Thank you, Mr. Chairman.
    The Chairman. Senator Lankford?

               STATEMENT OF HON. JAMES LANKFORD, 
                   U.S. SENATOR FROM OKLAHOMA

    Senator Lankford. Mr. Chairman, thank you very much.
    I am not going to have a question to be able to ask, but I 
have a couple of comments and things that I want to be able to 
mention.
    First off, I want to say thank you to all the witnesses who 
are coming. I have appreciated being able to listen in and 
being a part of the dialogue today, to be able to get some 
additional background on this. So I appreciate very much your 
engagement and what you are doing to make sure every person has 
not only the opportunity to vote, but the ability to able to 
vote in America. That is essential to who we are as Americans 
that everyone has that opportunity and that ability to be able 
to get their vote in.
    So thanks for that engagement. We need folks who are going 
to continue to speak out for every single person across the 
country to be able to have that opportunity and ability to be 
able to vote.
    There are some questions I am going to continue to be able 
to go through. Oklahoma is unique in some ways in Indian 
Country and how that actually works for us. The definitions 
that are in this particular bill as I am going through it and 
trying to do some additional research seems to, it would take 
almost the entire State if not the entire State of Oklahoma, 
because we have some areas of reservation, some areas of non-
reservation, some tribal areas, and they are listed as non-
reservation tribal areas.
    So we are trying to figure out this all-encompassing 
definition and what that would cause in the interaction between 
the States and the tribes and how that would actually operate 
there. This has been an area that we have been very, very 
engaged in in Oklahoma and have not had issues, thankfully, of 
opportunity and ability for individuals to be able to vote in 
Oklahoma from tribal areas.
    So we will continue to be able to research and be able to 
drill down on this. It could have a pretty far-reaching effect 
in Oklahoma in particular for some of the new definitions as 
well. So we are being very, very attentive to that.
    Some of the changes that are also in the bill as well and 
how it would handle some of the issues like the drop boxes and 
what that would look like in every part of my State, what that 
would work with ballot harvesting and if that would then compel 
it or allow that when that is not in our State law, it has not 
been an issue in our State and has been something we have been 
very protective of, and how we actually handle absentee 
ballots.
    We want to make sure that everyone has the opportunity to 
be able to vote early and everyone has the opportunity to be 
able to vote in person or, we have a no-excuse absentee as 
well. This would change that structure for everyone in our 
State.
    So I am very attuned to that, to be able to make sure that 
we still have a basic function of how we are operating as a 
State in all of our voting issues.
    The John Lewis bill this appears to be moving with also has 
an uncertainty for pre-clearance. Currently, Oklahoma is not a 
pre-clearance State, was not historically a pre-clearance 
State, did not have the same issues as some other States did in 
the 1940s, 1950s, and 1960s. So we were not included in that.
    It is still uncertain if we would now be looped into 
becoming a pre-clearance State because of the uncertainty of 
those definitions in the John Lewis Voting Rights bill, because 
we don't know on what State suddenly becomes a pre-clearance 
and what does not based on how the definition is done.
    The Federal observers, we don't know how that actually 
works and operates, to suddenly have Federal observers that are 
coming into our State elections.
    Then the consent decrees or settlements that have been done 
in the past that appear to be something that would suddenly be, 
the State in the future would be punished for, when typically a 
consent decree or settlement, when it is done on a voting 
issue, it resolves the issue and moves on. The John Lewis bill 
reaches back 25 years and looks back to see anything that was 
done in the past, and may cause consequences for the future on 
that.
    So we are trying to be attentive to all this. I have a few 
concerns that we are walking through on the days ahead on this 
and some issues that do need to be resolved, especially with 
the uniqueness of where we are as a State, but also to be able 
to continue to make sure that States and local areas are able 
to stay very, very engaged in the unique issues.
    As everyone on this group knows, Alaska is different than 
Oklahoma is different than New York State or California or 
North Dakota or Arizona or Nevada. We want to make sure that 
every person has the opportunity and ability to be able to vote 
and that it works well for every person there.
    Again, thanks for your engagement. Thanks for allowing me 
to be able to listen in today.
    The Chairman. Thank you.
    If there are no more questions for our witnesses, members 
may also submit follow-up written questions for the record. We 
want to thank all of our panelists for taking the better part 
of an afternoon and for some of you, the morning.
    The hearing record will be open for two weeks. I want to 
thank all of the witnesses for their time and their testimony.
    This hearing is now adjourned.
    [Whereupon, at 4:49, the hearing was adjourned.]

                            A P P E N D I X

   Prepared Statement of Fawn Sharp, President, National Congress of 
                            American Indians
Introduction
    Chairman Schatz, Vice Chairman Murkowski, and members of the Senate 
Committee on Indian Affairs, on behalf of the National Congress of 
American Indians (NCAI), I would like to thank you for holding this 
hearing today to discuss the critically important issue of voting 
rights. My name is Fawn Sharp, Vice President of the Quinault Indian 
Nation, and President of NCAI.
    We greatly appreciate the Committee holding this important hearing 
on how we can address barriers to ensure the federal government 
protects voting rights for all Native Americans. It is very timely with 
the introduction of the Frank Harrison, Elizabeth Peratrovich, and 
Miguel Trujillo Native American Voting Rights Act of 2021 (NAVRA) and 
the new John Lewis Voting Rights Advancement Act. With federal 
elections coming up soon, the Congress has a trust responsibility to 
enact voting rights legislation to protect the constitutionally-
guaranteed right of Native Americans to vote.
    Despite being the first inhabitants and sovereigns of what is now 
the United States, American Indians and Alaska Natives were the last 
people granted the right to vote. We were not even recognized as United 
States citizens with a right to vote until the Indian Citizenship Act 
in 1924, and it took more than three decades after that before all 
Native Americans were able to fully participate in state elections. \1\
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    \1\ American Bar Association, Resolution 112 (adopted: February 17, 
2020) (available at: https://www.americanbar.org/content/dam/aba/
directories/policy/midyear-2020/2020-midyear-112.pdf).
---------------------------------------------------------------------------
    Because many Native American reservations are rural with poor 
infrastructure, we still face unique barriers to making our voices 
heard at the ballot box. With recent court decisions and state laws 
increasingly taking advantage of our isolated conditions in order to 
make it more difficult for tribal citizens to vote, federal legislation 
is needed to counter the state efforts that would serve to 
disenfranchise Native American voters.
    For example, the U.S. Supreme Court's July 2021 decision in 
Brnovich v. Democratic National Committee allows the state of Arizona 
to continue with practices that disenfranchise Native Americans who 
have to travel upwards of fifty miles to reach a post office to return 
their ballots. \2\ And a law passed in the 2021 legislative session in 
Montana was described by the Montana Advisory Committee to the U.S. 
Commission on Civil Rights as ``intentional discrimination. . . [that] 
will increase barriers to voting for Native Americans on reservations 
in Montana.'' \3\ We are facing present-day discrimination that 
capitalizes on the longstanding inequities and challenges we face every 
day due to failures in the execution of the federal government's trust 
and treaty obligations.
---------------------------------------------------------------------------
    \2\ Brnovich v Democratic National Committee, 594 U.S. __ (2021) 
(available at: https://www.supremecourt.gov/opinions/20pdf/19-
1257_g204.pdf).
    \3\ Montana Advisory Committee on the U.S. Commission on Civil 
Rights, Voting Access for Native Americans in Montana (June 2021) 
(available at: https://www.usccr.gov/files/2021/07-15-Native-American-
Voting-Rights-Advisory-Memo.pdf).
---------------------------------------------------------------------------
    While some progress has been made, today, there are strong forces 
preventing our people from fully participating in the political 
process. These barriers include geographic isolation, poorly maintained 
roads, housing insecurity, depressed socio-economic conditions, and 
discrimination.
    The obstacles are exacerbated by the growing number of laws across 
the country seeking to purge voting information, limit voter 
registration, create language and residency barriers, and other 
mechanisms producing discriminatory outcomes.
    The ability to vote is a fundamental right and the foundational 
principle of any democracy. Our people want to participate in 
democracy, but for many, barriers make this impractical or even 
impossible. I am going to use my brief time with you today to highlight 
that no matter we live, what identification cards we have, or what 
language we speak, Native people should have fair and equal access to 
voting. \4\
---------------------------------------------------------------------------
    \4\ National Congress of American Indians, Resolution MSP-15-030 
(2015) (available at: https://www.ncai.org/resources/resolutions/
tribal-equal-access-to-voting).
---------------------------------------------------------------------------
Residency/Address Requirements
    Native voters are often barred from registering to vote when 
election officials insist that a physical address for their residence 
be provided. This is a problem because some Native voters only have 
post office box numbers or general delivery addresses and do not have a 
physical address they can provide. Additionally, some Native voters 
live permanently in RVs, which often cannot be used to establish an 
address for voting purposes.
    Transitory residences both on and off the reservation likewise pose 
barriers to voting. On the Lummi Reservation in Washington, the tribal 
housing authority has 400 rental units and ``40 percent of those people 
change every month.'' As one community organizer asked rhetorically, 
``How do you register to vote because your address is different every 
couple of months''? \5\
---------------------------------------------------------------------------
    \5\ Native American Rights Fund, Obstacles at Every Turn: Barriers 
to Political Participation Faced by Native American Voters (2020) 
(available at: https://vote.narf.org/wp-content/uploads/2020/06/
obstacles_at_every_turn.pdf).
---------------------------------------------------------------------------
    Additionally, address requirements harm homeless Native voters who 
are often unable to register to vote. Finally, due to the lack of 
standardized postal service addresses on tribal lands, many Native 
voters are either unintentionally placed in the wrong voting precinct 
when they register to vote resulting in their future ballots being 
rejected, or, in some cases, election officials deliberately establish 
voting procedures disqualifying Native voters using non-traditional 
addresses. \6\
---------------------------------------------------------------------------
    \6\ Id.
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    Due to the lack of residential mail delivery, poor roads, and 
prevalence of homes that do not have addresses, it is harder for Native 
Americans to register, receive an absentee ballot, and reach the polls. 
The most direct way of ensuring more equitable access is a federal 
mandate requiring on-reservation polling places and registration 
opportunities.
    Allowing tribes to designate a building whose address can be used 
to register, pick up, and drop off a ballot would also help 
tremendously. Straightforward protections of this sort are included in 
the Native American Voting Rights Act, which was introduced in by 
Senator Lujan. Let me just take a moment and thank you, Senator, for 
introducing legislation that has broad support across Indian Country.
    Notably, this same piece of legislation was introduced in the House 
by Representative Tom Cole from Oklahoma, and Representative Sharice 
Davids from Kansas also recognizing that voting protections are a 
universal and collective issue.
Identification and Language Requirements
    For many of our people, participation is not possible due to overly 
restrictive voter identification requirements. Studies have shown that 
photo ID requirements, in particular, have had a chilling effect on 
Native American voting turnout. In many states, voters are required to 
present identification, and far too often Tribal Nation issued 
identification cards are not considered acceptable for voter 
registration or to cast a ballot. This forces many Native people who 
wish to cast a vote to seek state-issued identification, which can be 
unreasonably difficult to obtain for many Native voters.
    For instance, for many of our Native brothers and sisters, merely 
getting to a DMV means leaving the reservation and, in many instances, 
traveling 50 or even 100 miles. Additionally, it is cost-prohibitive 
for many. In my home state of Washington, for example, an individual 
seeking their very first license is going to pay nearly $100, and that 
is money that is all too often needed for food, medicine, and other 
basic necessities. \7\ Additionally, in many jurisdictions, an 
individual cannot acquire state-issued identification without a 
permanent mailing address, which as I've already discussed is something 
many Native voters don't have. \8\
---------------------------------------------------------------------------
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------
    And even when Native people can get registered to vote, get to the 
polls, and provide appropriate identification, language barriers remain 
intact for the more than 350,000 speakers of our more than 175 Native 
languages \9\--these Native speakers are the keepers of our histories, 
our traditions, and our culture. They are revered in our Native 
communities, but all too often, they are rejected at the ballot box.
---------------------------------------------------------------------------
    \9\ U.S Department of Education, U.S. Department of Health and 
Human Services, & U.S. Department of Interior, A New Chapter for Native 
American Languages in the United States: A Report on Federal Agency 
Coordination (October 2016) (available here: https://acfmain-
stage.acf.hhs.gov/sites/default/files/documents/ana/
a_new_chapter_for_native_american_languages_in_the_united.pdf).
---------------------------------------------------------------------------
    Over a quarter of all single-race American Indian and Alaska 
Natives speak a language other than English at home. Two-thirds of all 
speakers of American Indian or Alaska Native languages reside on a 
reservation or in a Native village, including many who are 
linguistically isolated, have limited English skills, or a high rate of 
illiteracy. The lack of assistance or complete and accurate 
translations of voting information and materials for Limited-English 
Proficient American Indian and Alaska Native voters can be a 
substantial barrier. \10\
---------------------------------------------------------------------------
    \10\ Id.
---------------------------------------------------------------------------
    Again, legislation such as the Native American Voting Rights Act 
addresses these identification requirements and language barriers with 
simple, common sense solutions like permitting individuals to vote with 
any Tribal Nation issued identification card, and allowing Tribal 
Nations to request voting registration and ballot materials be 
available in their own, traditional languages.
Conclusion
    I urge this Committee and all of Congress to take action to ensure 
that voting rights across the country are uniformly protected for 
everyone. Congress needs to pass legislation with the protections 
included in Native American Voting Rights Protection Act. We are 
strongest as a democracy when we are all participating equally.
    I want to thank the Senate Committee for this opportunity to 
testify and I would be happy to answer any questions you may have.
                                 ______
                                 
 Prepared Statement of Jonathan M. Nez, President of the Navajo Nation
    Ya'at'eeh (Hello) Chairman Blumenthal, Ranking Member Cruz, and 
Members of the Subcommittee. Thank you for the opportunity to talk to 
you today about the importance of the Native American vote.
    Native Americans were the first Americans, and yet we were the last 
to be granted citizenship in the United States. As citizens, Native 
Americans should have the same access to voting opportunities as all 
other citizens, but too often we find that this is not the case.
    With over 27,000 square miles and 400,000 citizens, the Navajo 
Nation (Nation) is the largest federally recognized tribe in the United 
States both in terms of land mass and membership. With land spread 
across Arizona, New Mexico, and Utah, we are happy to say that we are 
represented by six U.S. Senators, and five members of the U.S. House of 
Representatives, but even with such a broad base of support in the 
United States Congress, many of our citizens still face barriers to 
voting that are unique to Indian Country. The main areas I will focus 
on in this testimony that pose a challenge when it comes to voting are: 
geography, language, institutional barriers, and our socio-economic 
realities.
I. Geographic distance and multiple jurisdictions limit access
    As stated above, the Navajo Nation has over 27,000 square miles, 
making it slightly larger than the state of West Virginia and nine 
other states. With our large land base, many of our citizens live in 
rural areas and travel long distances to access basic needs and 
services. Getting to a polling station is often a difficult task, as 
transportation options are limited. Our people rely on relatives or 
clan members for rides because most households only have one car for 
the entire family. Travel across the Nation can also be difficult as 
over 86 percent of the roads are unpaved. This burden is exacerbated 
when it comes to: (1) driving to voting locations located on the 
Nation; and (2) driving from the Nation to a County Recorder's office, 
or county seat.
    Counties retain broad discretion on the placement of polling 
locations for early voting and on Election Day--including how many 
polling sites they are willing to place on the Nation and where. For 
example, in the 2018 election, the closest early voting location to 
Teec Nos Pos, a Navajo community located in the northern part of Apache 
County, Arizona, was in Fort Defiance, AZ. This resulted in Navajo 
voters having to travel 113 miles one way to participate in early 
voting.
    When the Nation made a request to the County for an early polling 
location in Teec Nos Pos it was denied.
    On the New Mexico side of the Nation, during the 2020 election, the 
Nation requested San Juan County to provide more drop boxes beyond the 
two available, but our request was denied. This resulted in Navajo 
voters living in Crystal having to travel at least 54 miles, round 
trip, to deliver their ballot to the nearest drop box in Newcomb.
    And on the Utah side of the Nation, in the 2018 election, San Juan 
County removed all in-person polling locations on the Nation, requiring 
anyone who wanted to vote in person to travel to the county seat in 
Monticello, a journey of 196 miles one way from the Navajo Mountain 
community. The Navajo Nation Human Rights Commission filed a lawsuit to 
restore those polling locations.
    Driving off the Nation to a county seat to register or clarify a 
voting issue can also present unique difficulties: using the same 
example of Apache County, if a voter resides in Teec Nos Pos they would 
need to travel 211 miles one way to the county seat in St. Johns. This 
distance to a county seat presents a burden for those voters who must 
travel to correct their ballots or provide proof of residence in-
person.
    Many of the problems we face due to the largely rural and expansive 
nature of the Navajo Nation could be solved with increased polling 
locations per precincts and adding voter registration centers across 
the Nation. This would ease the burden of travel and allow more 
opportunities for voters to participate in state and federal elections. 
However, local opposition to these measures has prevented solutions 
that have often only been rectified by bringing challenges to court.
Utah Cases
    There are two key cases in Utah that affected the voting rights of 
Navajo citizens. The first is Navajo Nation v. San Juan County. \1\ In 
2012, the Nation filed a lawsuit against San Juan County (County) 
alleging violations of the constitution and the Voting Rights Act. The 
federal district court in Utah found the County violated the 
constitutional rights of Native Americans living in San Juan County 
through its malapportioned school board district and its racial 
gerrymandering of its county commissioner district.
---------------------------------------------------------------------------
    \1\ 266 F.Supp.3d 1341 (D. Ct. Utah 2018).
---------------------------------------------------------------------------
    Based on these findings the District Court allowed the County an 
opportunity to draw new districts that were constitutionally sound and 
in compliance with the Voting Rights Act. When the County presented 
these districts to the Judge, they were rejected because he found them 
to be drawn predominantly based upon race. The Court then appointed a 
Special Master to draw new districts. After completing this task in 
December 2017, the District Court accepted the districts drawn by the 
Special Master and implemented them for the 2018 election.
    The District Court also ordered the County to hold new elections 
for all county commission and school board seats in 2018. As a result 
of the new districts, two Navajo individuals were elected to the county 
commission, creating a Native American majority of the commission for 
the first time in San Juan County's history.
    The second case is Navajo Nation Human Rights Commission v. San 
Juan County. \2\ In 2014 San Juan County attempted to transition to an 
all-mail voting system, reducing its number of physical polling places 
from nine across the County down to one, located only at the County 
Clerk's office. After the case was filed, the County added three in-
person polling sites on the Nation and provided Navajo language 
assistance. None of the three-added locations were accessible for the 
early voting period.
---------------------------------------------------------------------------
    \2\ 215 F. Supp. 3d 1201, 1206 (D. Ct. Utah 2016).
---------------------------------------------------------------------------
    The Navajo Nation Human Rights Commission argued that the political 
process in San Juan County was not equally open to Navajo voters in 
violation of Section 2 of the Voting Rights Act. The three polling 
locations in the majority-Navajo precincts were only open on Election 
Day while the polling place in the majority-non-Native precinct was 
accessible for 14 days during the early voting period.
    The case was settled in February 2018. Per the terms of the 
settlement agreement, the County was required to (1) continue to 
provide three polling locations on the Nation through the 2020 
election; (2) open satellite offices in three on-the-Nation locations 
for in-person voting assistance during the 28-days preceding the 
primary and general election; and (3) provide in-person voting 
assistance, confirm language assistance, and discuss public 
notification of election deadlines, locations, and other election-
related information. The settlement has been extended through the 2024 
election cycle.
    Although the situation in Utah has been rectified for the moment, 
when the current settlement expires, we may be forced to go to court 
once again unless Congress acts. There are some issues that are rightly 
decided at the local level, but when a fundamental right such as the 
right to vote is at stake, and states are not being responsive to the 
needs of their citizens, that is one of the areas when it is 
appropriate for the federal government to step in.
II. Navajo voters face language barriers in voting
    The Navajo language is widely spoken by Navajo voters, and it is 
the first and preferred language for many Navajo people. The Navajo 
people are a racial and language minority under Section 2 of the Voting 
Rights Act and entitled to language assistance under Section 203 of the 
Act. \3\ Section 2 of the Act prohibits voting practices or procedures 
that discriminate on the basis of race, color, or membership in one of 
the language minority groups identified in Section 4(f)(2) of the Act. 
Section 203 of the Act requires covered jurisdictions to provide 
language assistance to all aspects of the voting process, including 
during voter registration and early voting.
---------------------------------------------------------------------------
    \3\ Voting Rights Act of 1965, 52 U.S.C.   10301 et seq.
---------------------------------------------------------------------------
    Navajo is traditionally an oral language, not a written one, and 
many Navajos struggle to read and require in-person language assistance 
to cast a ballot. There are sometimes differences between dialects 
across the Nation, so in-person translations can be particularly 
beneficial. Any written election material provided in the English 
language must also be provided in Navajo. However, providing written 
election materials alone is not always helpful as translations are not 
guaranteed to be accurate and can cause more confusion than assistance. 
This means that any changes to a complete vote-by-mail system would 
deny Navajo speakers the opportunity to vote. In this example, Navajo 
voters who do not speak English would be required to find their own 
designated individual to explain the ballot. In-person translation 
services are sometimes preferred. For these reasons, Navajo voters must 
be provided complete and accurate translations before they cast their 
vote.
III. Institutional barriers limit the ability of Navajo citizens to 
        cast their vote
    Homes across the Nation are unmarked and lack formal street 
addresses. Navajo citizens do not enjoy at-home mail delivery and 
instead must rely on post office boxes to receive mail. These post 
offices boxes are often limited in availability, shared within 
families, require a fee, and require traveling significant distances to 
access.
    Post offices generally limit the number of people that can be 
listed on a box, causing some who share P.O. boxes with their families 
to be removed from the box. Even if multiple family members are able to 
share one box, there are not enough boxes to serve an entire community. 
There are a limited number of post office boxes available at each 
location, and across the Nation there is a critical shortage of postal 
service providers.
    Some families also share a family box because individually they may 
not be able to afford their own post office box. Renting a post office 
box can cost a considerable amount: in Arizona the fee is $136.00 per 
year, and if the fee is not paid on time, the box could be closed. \4\ 
This means that if there is no availability on the family box, or if 
voters do not have enough money to pay the yearly fee, voters are 
forced to travel longer distances to secure any available post office 
boxes, sometimes in addition to the travel made to the initial postal 
service provider. This drastically limits the ability of the voter to 
receive important voter information or their ballot in the mail. Long 
travel times make checking post office boxes a hardship for voters who 
are elderly or disabled. Voters might also choose to check their mail 
less frequently, checking once a week or even as little as once every 
few weeks, making receipt of time sensitive information difficult.
---------------------------------------------------------------------------
    \4\ Brief for the Navajo Nation as Amicus Curiae Supporting 
Respondents at 13, Brnovich v. Democratic National Committee, 594 U.S. 
__ (2021) (No. 19-1257) [hereinafter Brief for the Navajo Nation].
---------------------------------------------------------------------------
    Additionally, when the voter does utilize a post office to mail off 
their ballot, mail routes and timing are unreliable. Using the example 
of Apache County, a ballot sent from Window Rock to the county recorder 
in St. Johns must first route through Gallup, then to Albuquerque, then 
to Phoenix, then to Show Low, and then finally to St. Johns \5\--at a 
minimum taking at least 10 days from the time of sending to the time of 
delivery. This increases the risk of a ballot going uncounted. Because 
of the long delay in mailing, many Navajo citizens prefer to vote in-
person or utilize drop boxes to ensure their vote is counted.
---------------------------------------------------------------------------
    \5\ Teleconference with Samantha E. Lamb, AZ/NM Political Mail 
Coordinator, United States Postal Service (Sept. 29, 2020).
---------------------------------------------------------------------------
    Eligible voters on the Nation should not face hardship in 
registering to vote, receiving important voting information, or casting 
their ballot. More locations on the Nation that can provide Navajo 
voters with voting-related services would alleviate some of these 
hardships. The Nation welcomes regular tribal consultation with the 
Postmaster General to address the mail barriers faced by Navajo voters.
IV. Socio-economic factors create challenges for Navajo voters
    Navajo citizens face disparities in education, employment, and 
housing. Only four percent of the Nation's enrolled citizens have 
obtained college degrees. \6\ The current unemployment rate is 48.5 
percent with the average household income at $8,240, below federal 
poverty guidelines. \7\ The poverty rate on the Nation is 38%--twice as 
high as the poverty rate in Arizona. \8\ These socio-economic factors 
impede Navajo voters in many different ways. Voters lack access to 
vehicles; lack verifiable physical addresses; and lack secure housing.
---------------------------------------------------------------------------
    \6\ Brief for the Navajo Nation. at 16.
    \7\ Navajo Nation Department of Agriculture, https://
www.agriculture.navajo-nsn.gov/.
    \8\ Brief for the Navajo Nation. at 16.
---------------------------------------------------------------------------
    In some parts of the Nation, only one in ten families own a 
vehicle. \9\ Voters are reliant on the family vehicle, friends, 
relatives, or clan members to catch a ride to work or school-and often 
pay for fuel. When it comes to voting, whether a voter intends to vote 
early, deposit their ballot at a drop box, or vote in-person on 
Election Day, any of the available options require a dependable vehicle 
to travel the distance to a polling location. The Nation also occupies 
some of the most remote and challenging terrain in the country. \10\ 
Notwithstanding the remote and expansive nature of the Nation, all of 
this creates an arduous journey for Navajo citizens who want to cast 
their vote.
---------------------------------------------------------------------------
    \9\ Id. at 14.
    \10\ Id. at 12.
---------------------------------------------------------------------------
    Houses on the Nation are unmarked and lack traditional street 
addresses, meaning voters lack verifiable physical addresses. When 
registering to vote, a map is drawn showing where their house is 
located. This creates inaccuracies because on an Arizona voter 
registration form there is rarely enough space to show a house's 
location. \11\ County officials are then left to make their best guess 
on the physical location of a residence, and sometimes voters are 
placed in the wrong precinct.
---------------------------------------------------------------------------
    \11\ Id. at 16.
---------------------------------------------------------------------------
    Housing is a two-fold issue because some Navajo citizens move 
intermittently from place-to-place and there is a lack of housing on 
the Nation. While most voters live in multi-generational homes, many 
still move from place-to-place because they cannot afford a single 
stable domicile. Lack of permanent housing or residency makes it hard 
for eligible Navajos to register to vote. With no reliable residential 
addresses, these voters cannot register to vote, even if they are 
moving around within the same precinct.
    Overall, poverty combined with the rural nature of the Nation, 
language barriers, long distances between polling and registration 
sites, and state restrictions make voting for Navajo citizens uniquely 
challenging. These disparities hinder active participation in the 
political process and effectively deny Navajos living on tribal lands 
the right to vote.
Conclusion
    The Nation has a strong interest in ensuring that Native Americans 
have an equal opportunity to participate in the electoral process the 
same as other U.S. citizens. Each Navajo registered to vote in state 
and federal elections in Arizona, New Mexico, or Utah should have the 
ability to cast their ballot and have that vote count.
    Protecting the Native American vote requires taking into 
consideration the unique challenges faced by Navajo voters. The Nation 
has, and continues, to fight repeated efforts by the states and their 
political subdivisions through restrictive voting laws and policies 
that try their best to impede access to the polls. The Navajo Nation 
cannot fully rely on states to provide protections to our right to 
vote.
    We demand that Congress enact voting rights legislation to protect 
the constitutionally guaranteed right of Native Americans to vote. The 
federal government must fulfill its trust responsibility and safeguard 
our Navajo citizens' right to vote. The first peoples of this country 
should not be the last peoples to cast their ballots.
    We thank Senator Ben Ray Lujan for his diligent efforts in 
addressing these urgent needs in Indian Country by introducing the 
important legislation that is the Native American Voting Rights Act. We 
are also thankful for Senator Leahy's work to include the Native 
American Voting Rights Act within the John Lewis Voting Rights 
Advancement Act. We look forward to working with the 117th Congress to 
fully realize protections for Navajos and all Native Americans who wish 
to exercise their inherent right to vote in the United States.
    Ahehee' (Thank you).
                                 ______
                                 
   Prepared Statement of Hon. Gary Batton, Chief, Choctaw Nation of 
                                Oklahoma
    Thank you for holding this hearing and the opportunity to provide 
written testimony. We appreciate you highlighting barriers to voting in 
Indian Country and looking for ways to address them. For too long, 
Native Americans have faced almost insurmountable obstacles when it 
pertains to exercising their constitutional right to vote, and it is 
crucial we continue to work together to rectify the issue. Native 
Americans are Americans; therefore, they deserve the right to 
paticipate fully in our electoral system.
    See comments below submitted to the White House earlier this year 
on the same topic. We want to remain consistent in our message and 
partnership to find ways to address and improve voting access for our 
Choctaw and Native people in every part of the United States. We thank 
you for your efforts and support all legislation that promotes 
accepting tribal IDs as acceptable forms of ID for voting, as well as 
to strengthen our citizens' access to voting.

    Libby Washburn, Special Assistant to the President for 
                     Tribal Affairs Domestic Policy Council

Halito, Ms. Washburn:

    Thank you for your leadership on the Domestic Policy Council to 
bring attention and solutions to improve Native voting rights across 
the country. The Choctaw Nation of Oklahoma is committed to increasing 
voter participation for our citizens and providing good information to 
help increase voter education and turnout. We have implemented a 
candidate survey to get to know candidates who are running for state 
legislative offices. Furthermore, we have methods in place to identify 
and support Native candidates in Oklahoma, and to identify candidates' 
knowledge of tribal sovereignty. This is an effective tool to help 
share information with our tribal citizens as they prepare for election 
day, and we are consistently looking for new and inventive ways to 
share election information with our Choctaw people.
    Nationally, we have more than 200,000 tribal citizens; a few years 
ago, we rolled out a new tribal membership/ID card that was designed to 
be a free, useful tool for the Choctaw people. We made sure our new 
cards had photo identification, expiration dates, and identification 
numbers so that they could be practically useful in many different 
scenarios. We always enjoy hearing how Choctaw people practice tribal 
sovereignty by using their Choctaw Nation ID to board airplanes, visit 
governmental offices, and vote. The State of Oklahoma accepts tribal 
membership cards as valid forms of ID for voting; however, many states 
do not accept them. We take pride in providing this free identification 
card to our Choctaw people and would like our tribal citizens to be 
able to use them at ballot boxes across the country. Unlike state 
driver's licenses or other state IDs, our tribal membership card is 
completely free of charge.
    The fact that some states accept tribal IDs and others do not 
creates unnecessary ambiguity and confusion for our citizens. We have 
many Choctaws who live in Texas, just outside our reservation 
boundaries; they are not permitted to use their IDs to vote, but 
friends and relatives a few miles away in Oklahoma can. The creation of 
a standard, universal acceptance by all states would increase our 
tribal citizens' access to voting.
    We want to be a partner to help create the solution of standard 
acceptance of tribal ID cards for voting. Please reach out to Sara Jane 
Smallwood Cocke [email protected] and Jackson Stuteville 
[email protected] as points of contact if we may provide 
any additional information to work together.
    Thank you again for your work to improve access to voting for 
Native people. The Choctaw Nation of Oklahoma is proud to be a partner 
in these efforts.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                           Jacqueline De Leon
    Question 1. The Native American Voting Rights Act of 2021 
establishes a Native American Voting Task Force with the goal of 
improving voter outreach and education, facilitating collaboration 
between local election officials and Tribes, improving language access, 
and participating in future redistricting efforts. To your knowledge, 
have similar programs resulted in successful collaboration with local 
election officials in Indian Country? And would a Native American 
Voting Task Force be helpful in states that do not currently have a 
program like this? Have similar programs resulted in successful 
collaboration with local election officials in Indian Country?
    Answer. The taskforce created by the Native American Voting Rights 
Act (NAVRA) is modeled after the New Mexico Native American Voting Task 
Force (NAVTF). New Mexico Secretary of State Maggie Toulouse Oliver 
first announced NAVTF in April 2017 as part of the state's Native 
American Election Information Program (NAEIP). \1\ The taskforce was 
``charged with identifying ways to boost voter registration, education 
and election participation in tribal communities'' by ``analyzing the 
areas of need, making recommendations for election officials across the 
State, and developing an action plan to address voter registration, 
voter education and turnout in tribal communities.'' \2\ The specific 
objectives of NAVTF include: \3\

 [C]onsult[ing], advis[ing] and mak[ing] recommendations to 
        Secretary of State Maggie Toulouse Oliver on Native American 
        voting issues, including:

          --Increasing voter registration in Native American 
        communities

          --Establishing adequate early voting sites

 Increasing access to the ballot

 Providing election documents in Native American languages

 Proposing statutory changes on Native American voting rights 
        issues

 Increasing voter outreach and voter education in Native 
        American communities

 Assisting New Mexico's counties in complying with federal 
        voting rights statutes

 Assisting the federal government in recognizing areas of need 
        in New Mexico's Native American communities, including in urban 
        areas

 Streamlining and reducing inconsistencies in the voting 
        process

 Improving translation services inclusive of language 
        diversities

 Increasing dialogue between the task force, the counties, the 
        state and tribal leadership

 Advocating to the legislature to address the digital divide 
        and Internet connectivity

          --Incorporating Native American input into future 
        redistricting efforts

 Securing additional funding for Native American voter outreach 
        programs

    The taskforce is composed ``of representatives from pueblos and 
tribal communities across New Mexico, including one representative 
living in an urban area.'' \4\ Ten members currently sit on the 
taskforce: Linda Yardley--Taos Pueblo, April K. Chavez--Santa Domingo 
Pueblo, Arden Kucate--Zuni Pueblo, Amanda Tolino--Northern Agency, 
Jamie Henio--Eastern Agency, Julie Badonie--Ft. Defiance Agency, Stacy 
Sanchez--Jicarilla Apache Nation, Eric Spitty--Mescalero Apache Tribe, 
Lisa LeFlore Davis--Ft. Sill Apache Tribe, and Laurie Weahkee--Urban 
Native American. \5\ New Mexico Secretary of State, Maggie Toulouse 
Oliver also attends taskforce meetings. \6\
    NAVTF's first meeting was held November 3, 2017. In the past two 
years it has met three times per year. Meeting agendas and minutes are 
publicly accessible on the Secretary of State's website. At these 
conferences, members present ongoing projects, provide legislative 
updates, and discuss upcoming elections. A Public Forum is also held 
for members of the public wishing to speak on related matters.
    In just four or so years, NAVTF has made significant progress 
towards improving Native awareness of voting rights, boosting Native 
voter registration, and increasing Native voters' access to polls. This 
work will only continue to grow in importance as the Native voting age 
population continues to grow. \7\
    Ahead of the 2018 election, the taskforce ensured that the state 
trained Native American interpreters to translate official ads for 
Native voters. \8\ NAEIP also provides essential election-related 
materials (resolution, ballots etc.) in eight tribal languages. \9\ In 
partnership with the League of Women Voters of New Mexico, NAVTF helped 
to publish and distribute 15,000 Native American Voter Guides. \10\ 
Leading up to the 2020 general election and since then, the taskforce 
has continued with these initially successful projects as well as 
further developed projects and resources for New Mexico's Native 
voters. \11\ In partnership with Native American Voters Alliance (NAVA) 
Education Project, NAVTF created a number of educational toolkits on 
registration and voting, totaling 200,000 pieces, that were 
disseminated to tribal communities ahead of the 2020 general election. 
Informational fliers on polling locations and hours were also 
circulated. \12\ The partnership coordinated radio messaging about the 
election in some of the state's common Native languages such as Tewa, 
Northern Tiwa, Zuni, Navajo, and Mescalero Apache. By conducting 
regular gatherings with local tribal communities and tribal leaders, 
the taskforce gained valuable insight into understanding what obstacles 
most hindered the Native vote and used this information to design 
strategies to overcome these challenges. For example, in learning 
significant of Native voters' COVID concerns with voting in person, the 
taskforce partnership successfully distributed a significant amount of 
personal protective equipment to tribal communities to ensure safe in-
person voting practices.
    In addition to executing successful grassroot outreach and 
education initiatives, the taskforce has helped to facilitate the 
passage of essential voter protections statutes in New Mexico, such as 
Senate Bill 4 from the 2020 Special Legislative Session ``which strived 
to expanded access to vote-by-mail in the general election passed. 
[which] designate[d] tribal voting sites as voter convenience centers 
in all 23 tribal nations.'' \13\ The taskforce's work and advocacy was 
also instrumental in the passage of the state's Native American Polling 
Place Protection Act (HB 231) which, among its important provisions, 
ensures that ``a polling place located on Indian nation, tribal or 
pueblo land shall not be eliminated or consolidated with other polling 
places, nor shall the days and times of voting be modified, without the 
written agreement of the Indian nation, tribe or pueblo where the 
polling place is located[.]'' \14\
    Though causation cannot definitively be concluded here, there has 
been a notable correlative increase in the number of Native voter 
turnout and the successful election of Native representatives since the 
taskforce's creation. In the 2020 election, some tribal precincts saw 
``turnout [of] over 70 percent, including the precincts for Tesuque and 
Nambe Pueblos in Santa Fe County. . . . In fact, Tesuque Pueblo has a 
far higher rate of voter turnout in this election than any other 
recognized tribal nation in the state. A whopping 78.7 percent of 
voters registered in the Tesuque Pueblo precinct cast a ballot-which 
also puts the pueblo ahead of the 67.5 percent of voters who cast 
ballots statewide, and the 75.6 percent turnout in Santa Fe County.'' 
\15\ Furthermore, ``all eight Native American candidates running for 
seats in the [New Mexico's] Legislature won their races, and Haaland, 
who is a member of Laguna Pueblo, was reelected to New Mexico's 1st 
Congressional District.'' \16\
    Yet, while New Mexico has seen significant progress for the Native 
Vote since the commencement of NAVTF, there is still work to do. ``If 
the barriers to securing representation are eliminated, whether it is 
through collaboration with non-tribal election officials, legislation, 
litigation, or some combination of those methods, it makes a 
significant difference.. It builds bridges between Native and non-
Native communities to start a dialogue. In New Mexico, political 
participation of the Pueblos and tribes led to passage of the State 
Tribal Collaboration Act. ``[I]t was very important at the time that 
the attitude be conveyed to the state government and to the state 
legislators and the governor that tribal people are constituents and 
citizens of the state of New Mexico and that there is an obligation to 
them just as any other constituent in the state of New Mexico.'' \17\ 
New Mexico's Native American Voting Task Force is emblematic of such 
collaboration. It should be looked to as a success story on which other 
state's taskforces under NAVRA should be modeled.

    Question 1a. Would a Native American Voting Task Force be helpful 
in states that do not currently have a program like this?
    Answer. Absolutely. Native voters in New Mexico are not alone in 
having to face myriad obstacles to registration and voting. ``Native 
Americans were one of the last ethnic groups to get the right to vote.. 
Historically, Native Americans have some of the lowest voter turnout 
rates of any ethnic group in the country.'' \18\ Just as in New Mexico, 
there are many other states in which the percentage of Native citizen 
voting age population (CVAP) is similar, if not greater than in New 
Mexico, \19\ yet Native voters similarly remain underrepresented at the 
polls. For example, nationwide, there were ``approximately 3.7 million 
Natives and Alaska Natives of voting age [] represented in [the 2020] 
election's crucial swing states: Arizona--5.6 percent, Colorado--2.5 
percent, Michigan--1.4 percent, Minnesota--1.8 percent, Nevada--2.5 
percent, North Carolina--2.1 percent, Wisconsin--1.5 percent,'' \20\ 
yet 34 percent of eligible Native voters (equivalent to about 1.2 
million) are not yet even registered to vote and the turnout rate 
nationwide for AI/AN voters is 1 to 10 percentage points lowers than 
other racial/ethnic groups. \21\ The achievements and ongoing progress 
being made by New Mexico's NAVTF hard work will prove to be 
advantageous if extended to Native voters across the entire country, 
especially so in the 15+ or so other states with critical, yet still 
underrepresented, Native voting populations.

    Question 2. English-only ballots are reportedly a barrier for 
speakers of Indigenous languages. Has the Native American Voting Rights 
Coalition documented specific instances of poll workers denying 
language assistance to Native voters? How can Congress ensure language 
assistance services are provided to Native voters? Has the Native 
American Voting Rights Coalition documented specific instances of poll 
workers denying language assistance to Native voters?
    Answer. I understand this question is intended to ask about the 
level of compliance with Section 203 of the Voting Rights Act (VRA) 
documented by NAVRC. As phrased, the question refers to ``specific 
instances of poll workers denying language assistance,'' which is 
focused on compliance issues under Section 208 of the VRA. I will 
briefly explain the differences between the two statutory provisions 
and how they compliment one another in making elections more accessible 
for limited-English proficient (or ``LEP'') American Indian and Alaska 
Native voters.
    Congress enacted Section 208 of the VRA in 1982. \22\ Section 208 
provides, ``Any voter who requires assistance to vote by reason of 
blindness, disability, or inability to read or write may be given 
assistance by a person of the voter's choice, other than the voter's 
employer or agent of that employer or officer or agent of the voter's 
union.'' \23\ Therefore, Section 208 gets at the question you have 
asked: namely, whether any LEP Native voters have been denied language 
assistance from the person of their choice, such as a relative or 
friend who accompanied them into the polling place. NARF was counsel of 
record in Nick v. Bethel, in which the District Court of Alaska granted 
an injunction against the State of Alaska because it had denied LEP 
Yup'ik-speaking voters of language and voter assistance from the person 
of their choice. \24\
    Section 203 is broader than Section 208 because it affirmatively 
requires a covered jurisdiction to provide language assistance to LEP 
voters in each language that triggered coverage. Specifically, the 
statute provides that prior to the sunset date in 2032, ``no covered 
State or political subdivision shall provide voting materials only in 
the English language.'' \25\ It elaborates, ``Whenever any State or 
political subdivision subject to the prohibition of subsection (b) of 
this section provides any registration or voting notices, forms, 
instructions, assistance, or other materials or information relating to 
the electoral process, including ballots, it shall provide them in the 
language of the applicable minority group as well as in the English 
language.'' \26\ ``Voting materials'' is expansively defined to include 
``registration or voting notices, forms, instructions, assistance, or 
other materials or information relating to the electoral process, 
including ballots.'' \27\ In other words, Section 203 requires that it 
provide oral and written (where the language is a written one) 
translations of all information, materials, forms, instructions and 
ballots provided to voters in English and to provide in-person voting 
assistance at voting locations. Unlike Section 208, which applies 
nationwide and prohibits denial of voter and language assistance, 
Section 203 mandates that covered jurisdictions actually provide 
language assistance. Turning back to the first paragraph of my 
response, it is my understanding that is the question you are asking: 
whether jurisdictions that are required to provide language assistance 
to LEP American Indian and Alaska Native voters have done so. I will 
focus the balance of my response on the answer to that question.
    Jurisdictions covered under Section 203 have a lengthy record of 
failing to offer language assistance to LEP Native voters. The U.S. 
Department of Justice's website lists approximately one dozen 
enforcement actions it has successfully brought under Section 203 in 
Indian Country dating back to United States v. San Juan County, NM in 
1979, less than four years after Section 203 was signed into law. \28\ 
NARF likewise has been active in bringing litigation to enforce the 
language assistance provisions of the Voting Rights Act, including 
nearly a decade of litigation in Alaska. \29\ For your convenience, I 
have attached a copy of one of the articles that documents Alaska's 
violations of Section 203, which I also will briefly summarize.
    One of the more notable examples of a covered jurisdiction failing 
to provide language assistance to Native voters occurred in Alaska and 
was litigated in Toyukak v. Treadwell, \30\ under Section 203 of the 
VRA. There, Alaska election officials failed to offer language 
assistance despite the previous judicial rulings requiring voter 
information provided in English must also be provided in the covered 
Alaska Native languages in a form intended to effectively communicate 
all of that information to voters in a manner they understood. \31\ The 
court also held that Section 203 does not permit election officials to 
diminish the content and extent of information that must be provided. 
\32\ Yet, even after Toyukak federal observers continued to report 
violations. For example, during the 2016 election cycle, Alaska's 
bilingual poll workers or interpreters were not trained on how to 
translate the ballot or procedural instructions in the covered Alaska 
Native languages. \33\ Federal observers also documented there were no 
voting materials available in the covered Alaska Native language in six 
villages, and the ``I voted'' sticker was the only material in a Native 
language in two other villages. \34\ The attached article details these 
and other examples of continuing violations of the language assistance 
mandate.
    San Juan County, Utah has refused to comply with Section 203. For 
example, when a Navajo voter asked a poll worker about some of the 
issues on the ballot he did not understand, they told him, ``[w]ell, if 
you don't understand it, don't vote on it.'' \35\ In 2014 the County 
removed all language assistance by switching to a vote-by-mail system. 
As a result, many voters received an English ballot they could not 
read, so they simply did not vote, \36\ effectively denying LEP Navajo 
voters an opportunity to vote. \37\ A federal court found that the use 
of English-only voting materials and all mail-in voting violated 
Section 203. There are several other examples, which we have described 
in the materials accompanying my testimony and these responses.

    Question 2a. How can Congress ensure language assistance services 
are provided to Native voters?
    Answer. Currently, Section 203 of the VRA helps LEP American Indian 
and Alaska Native voters overcome barriers to political participation 
but falls short of adequately addressing this obstacle to voting access 
and democratic representation. For example, Section 203 only requires 
the state or political subdivision to furnish oral instructions, 
assistance, and other voting information if the covered language is 
considered to be ``historically unwritten.'' \38\ Jurisdictions and 
some courts have misconstrued this limitation to mean that written 
translations are never required for American Indian and Alaska Native 
languages, even where a written language is widely used. \39\ For 
example, written forms of Choctaw, Navajo and Yup'ik are extensively 
taught in schools, and common use includes publication of books, 
notices, signs and other information in those languages. In the Nick 
litigation, we found that about 90 percent of Alaska's Yup'ik-speaking 
poll workers read and used written Yup'ik in their daily lives. For 
that reason, in the Nick and Toyukak orders, Alaska was required to 
prepare bilingual written materials in the Yup'ik and Gwich'in 
languages because those written translations were necessary to provide 
complete, accurate and uniform translations of information voters 
received in English.
    Effective just yesterday, December 8, 2021, 12 political divisions 
of Alaska have to provide language assistance in Alaskan Native 
languages, and an additional 94 political subdivisions in 12 states 
have to provide language assistance in thirteen American Indian 
language groups that include dozens of different dialects. \40\
    Congress must do more, such as ensuring that the Department if 
Justice has the resources to enforce the language assistance 
requirements in covered jurisdictions for all public elections. \41\ 
NAVRA's provisions on this issue--a) the creation of a Native American 
Voting Taskforce to investigate and address this issue and provide for 
federal observers to document compliance efforts; and b) that states 
and political subdivisions provide bilingual written materials in 
native languages in which tribes have requested written translations 
because it is for languages that are commonly used in written form, 
such as Choctaw, Navajo and Yup'ik..

    Question 3. The Native American Voting Rights Act of 2021 (NAVRA) 
defines Indian lands as:

        ``(A) Indian country as defined under section 1151 of title 18, 
        United States Code;

        (B) any land in Alaska owned, pursuant to the Alaska Native 
        Claims Settlement Act (43 U.S.C. 1601 et seq.), by an Indian 
        Tribe that is a Native village (as defined in section 3 of that 
        Act (43 U.S.C. 1602)) or by a Village Corporation that is 
        associated with an Indian Tribe (as defined in section 3 of 
        that Act (43 U.S.C. 1602));

        (C) any land on which the seat of the Tribal government is 
        located; and

        (D) any land that is part or all of a Tribal designated 
        statistical area associated with an Indian Tribe, or is part or 
        all of an Alaska Native village statistical area associated 
        with an Indian Tribe, as defined by the Census Bureau for the 
        purposes of the most recent decennial census.''

    In light of the Supreme Court's decision in McGirt v. Oklahoma, is 
there merit to the concern that NAVRA would be too complicated--or even 
impossible--to implement in Oklahoma?
    Answer. No. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) does not 
complicate, nor frustrate, the implementation of NAVRA. In fact, it is 
quite the contrary. Furthermore, McGirt has no altering effect on the 
contents bill.
    The McGirt decision formally settled the land status question for 
the Creek Nation, \42\ decisively holding that these lands remain 
``Indian Country'' as defined by 18 U.S.C.  1151. \43\ In determining 
``whether the land these treaties promised remains an Indian 
reservation for purposes of federal criminal law'' the Supreme Court 
held that ``[b]ecause Congress has not said otherwise, we hold the 
government to its word.'' McGirt v. Oklahoma, 140 S. Ct. at 2459. In 
doing so, the Supreme Court has now clarified, where before significant 
ambiguity existed, to which lands NAVRA will apply.
    Prior to McGirt's determining the scope of category (a) under 
NAVRA's definition of Indian lands would have been unclear and tedious 
to implement. But, in definitively clarifying the jurisdictional bounds 
of Indian Country, the parameters of category (a) are now more apparent 
than ever before. Consequently, the process or determining where NAVRA 
applies in Oklahoma has become more straightforward.
    McGirt not only makes the implementation of NAVRA possible, but 
more than that makes it practically more feasible, by adding certainty 
and clarity to its application. As Justice Gorsuch counsels in his 
opinion, ``[I]t is unclear why pessimism should rule the day. With the 
passage of time, Oklahoma and its Tribes have proven they can work 
successfully together as partners.'' McGirt v. Oklahoma, 140 S. Ct. at 
2481.
    ENDNOTES
    1. ``Starting in 1978, the Office of the Secretary of State in New 
Mexico established an avenue to assist Native Americans in the 
electoral process. Native American interpreters were hired to interpret 
state election documents in various New Mexico tribal language 
dialects. These interpreters also informed tribal members about voter 
information and candidate requirements needed during an election.
    In 1988, the Department of Justice, took legal action in New Mexico 
to extend greater election information to Native Americans based on the 
minority language assistance amendments to the Federal Voting Rights 
Act of 1965. As a result of these actions, the Native American Election 
Information Program was established in the Office of the Secretary of 
State, within the Bureau of Elections, to assist in developing voter 
education projects for 11 New Mexico counties with substantial Native 
American populations: Bernalillo; Cibola; McKinley; Otero; Rio Arriba; 
Sandoval; San Juan; Santa Fe; Socorro; Taos; and Valencia.
    Over the years, NAEIP has served New Mexico tribes and its tribal 
members. The goals of the program are to provide voter education and to 
ensure compliance with the minority language assistance amendments of 
the Federal Voting Rights Act of 1965. To accomplish these goals, the 
program is designed to communicate with Native American voters on a 
wide range of information, voter and candidacy requirements, electoral 
process and participation. The program provides technical assistance to 
New Mexico tribes and New Mexico County Clerks for statutory compliance 
on the federal and state election laws, oral assistance and voter 
education programs.'' 
https://www.sos.state.nm.us/voting-and-elections
/native-american-election-information-program/)
    2. Press Release: ``Secretary of State Toulouse Oliver Announces 
Native American Voting Taskforce.'' April 21, 2017. New Mexico 
Secretary of State.
 https://realfileee3072ab0d43456cb15a51f7
d82c77a2.s3.amazonaws.com/9ede6ac9-5ad6-4fba-
b9f1-262c25c935b0?AWSAccessKeyId=AKIAJBKPT2UF7EZ6B7YA
&Expires=1638655408&Signature=jaZMQfSZvDLUkN0bMt
Jmh6JXxPk%3D&response-content-disposition=inline%
3B%20filename%3D%22Secretary%20of%20State%20Toulouse%
20Oliver%20Announces%20Native%20American%20
Voting%20Taskforce%20%C3%A2%3F%3F%
2004-21-2017.pdf%22&response-content-
type=application%2Fpdf
    3. https://www.sos.state.nm.us/voting-and-elections/native-
american-
election-information-program/native-american-voting-task-force/
    4 Press Release: Secretary of State Toulouse Oliver Convenes Native 
American Voting Task Force'' November 3, 2017. New Mexico Secretary of 
State.
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.amazonaws.com/c69db1ce-ea32-4505-9636-41c57
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disposition=inline%3B%20filename%3D%22Secretary
%20of%20State%20Toulouse%20Oliver%20Convenes
%20Native%20American%20Voting%20Task%20Force
%20%C3%A2%3F%3F%2011-03-2017.pdf%22&response
-content-type=application%2Fpdf
    5 ``Native American Voting Taskforce,'' New Mexico Secretary of 
State website, available at: https://www.sos.state.nm.us/voting-and-
elections/native-american
-election-information-program/native-american-voting-task-force/
    6 ``Native American Voting Taskforce,'' New Mexico Secretary of 
State website, available at: https://www.sos.state.nm.us/voting-and-
elections/native-american
-election-information-program/native-american-voting-task-force/
    7 ``Native Americans--either as a single ethnic group or in 
combination with other ethnicities--make up a key population. at 12.4 
percent of New Mexico's population, according to the latest Census 
Bureau data. That's an increase of about 20 percent from 2010.'' Yet, 
the Native vote age population is currently underrepresented.'' Curtis 
Segarra. ``Redistricting: Protecting the Native American Vote in New 
Mexico.'' KRQE News 13. Sept. 16, 2021. Updated Sept. 18, 2021 
available at:
https://www.krqe.com/plus/data-reporting/redistricting-
protecting-the-native-american-vote-in-new-mexico;
See also, AI/AN alone or in combo CVAP percentage of total state CVAP 
grew from 9.7 percent in 2010 to 11.5 percent in 2020. National 
Congress of American Indians Policy Research Center, Research Policy 
Update: Native Vote Report: 2020 Decennial Census Redistricting Data 
and the AI/AN Voting Age Population. Oct. 8, 2021.
https://www.ncai.org/policy-research-center/research-data/prc-
publications/Native
_Vote_Report_2020_Redistricting_
File_and_AIAN_Voting_Age_Population_
FINAL_10_8--2021.pdf (AI/AN alone or in combo CVAP percentage of total 
state CVAP grew from 9.7 percent in 2010 to 11.5 percent in 2020.)
    8 ``New Mexico Trains Native American Interpreters for Election'' 
Associated Press. Oct. 1, 2018. https://www.abqjournal.com/1227923/new-
mexico-
trains-native-american-interpreters-for-election.html?fbclid=
IwAR1DxFwYpECRzixwtpEqMRSkDNap4besuAyTc6F7jHjxW_5DLoKxYBNVRPo
    9 NM Secretary of State's Office: Native American Election 
Information Program (NAEIP) 2020 General Election School presentation. 
https://www.nmlegis.gov/handouts/
IAC%20080420%20Item%201%20SOS%20NAEIP.pdf
    10'' League of Women Voters Publishes Native American Voter Guide 
for New Mexico Indian Country.'' League of Women Voters of New Mexico. 
Oct. 2, 2018, available at: https://www.lwvnm.org/news.html; https://
www.lwvnm.org/VGuide2018/
    11 Minutes from the Native American Voting Task Force Meeting. 
January 14, 2021. https://
realfileee3072ab0d43456cb15a51f7d82c77a2.s3.amazonaws.
com/ef6f3aec-85a2-4d3c-a115-eee2ec87f5fb?AWSAccessKeyId=
AKIAJBKPT2UF7EZ6B7YA&Expires=1638665758&Signature=xvg
UVYqCZqaZAh%2Bl722CTSwIl4o%3D&response-content-disposition=
inline%3B%20filename%3D%22Jan%2014-2021%20Final%20Draft%
20NAVTF%20Mtg%20Mins.pdf%22&response-content-type=application%2Fpdf
    12 NAVA's GOTV materials available at: https://
www.navaeducationproject.org/gotv-materials
    13 New Mexico Indian Affairs Department: FY 2020 Annual Report. 17.
https://www.nmlegis.gov/handouts/IAC%20092920
%20Item%201%20IAC--%20STCA_
AnnualRpt_2020_IAD.pdf
    14 HB 231/a page 1. Section 1-3-7.2(A) of NMSA 1978.
    15 Leah Cantor, ``The Power of the Native Vote'' Santa Fe Reporter. 
Nov. 6, 2020, available at: https://www.sfreporter.com/news/2020/11/06/
the-power-of-the-native-vote/
    16 Id.
    17 Dr. James Thomas Tucker, et al., Obstacles at Every Turn: 
Barriers to Political Participation Faced by Native American Voters, 
Native American Rights Fund (2020) at 125 and n. 1011, citing NAVRC 
Field Hearings: Isleta Tr. Helen Padilla at 64. Available at: https://
vote.narf.org/wp-content/uploads/2020
/06/obstacles_at_every_turn.pdf
    18 Press Release: ``Secretary of State Toulouse Oliver Announces 
Native American Voting Taskforce.'' April 21, 2017. New Mexico 
Secretary of State. https://realfileee3072ab0d43456cb15a51f7d82c77
a2.s3.amazonaws.com/9ede6ac9-5ad6-4fba-b9f1-262c25c
935b0?AWSAccessKeyId=AKIAJBKPT2UF7EZ6B7YA
&Expires=1638655408&Signature=jaZMQfSZvD
LUkN0bMtJmh6JXxPk%3D&response-content-disposition=
inline%3B%20filename%3D%22Secretary%20
of%20State%20Toulouse%20Oliver%20Announces%20
Native%20American%20Voting%20Taskforce%20
%C3%A2%3F%3F%2004-21-2017.pdf%22&
response-content-type=application%2Fpdf
    19 ``The share of New Mexicans who identify themselves as 
Indigenous by race or by combined ancestry is 12.4 percent. Alaska is 
the most predominantly Native American state, followed by Oklahoma and 
then New Mexico.'' Associated Press. ``Native Americans Aim to Boost 
Voting Power in New Mexico.'' Sept. 20, 2021, available at: https://
www.usnews.com/news/best-states/new-mexico/articles
/2021-09-20/native-americans-aim-to-boost-voting-power-in-new-mexico
    20 Mary Annette Pember, ``Native Vote plays powerful role, 
especially in swing states.'' Indian Country Today. Oct. 29, 2020, 
available at: https://indiancountrytoday.com/news/native-vote-plays-
powerful-role-especially-in-swing-states
    21 National Congress of American Indians, ``Every Vote Counts Fast 
Facts'' factsheet, available at: https://www.ncai.org/initiatives/
campaigns/NCAI_NativeVoteInfographic.pdf
    22 See Voting Rights Act Amendments of 1982, Pub. L. No. 97-205,  
5, 96 Stat. 131, 134-135.
    23 52 U.S.C.  10508 (previously codified as 42 U.S.C.  1973aa-6 
(2000)).
    24 Nick v. Bethel, Case No. 3:07-cv-00098-TMB-MMM-KS (D. Alaska 
filed July 30, 2008), Dkt. 327, Order Granting Pls.' Mot. for Prelim, 
Injunction at 9-10.
    25 52 U.S.C.  10503(b)(1).
    26 52 U.S.C.  10503(c).
    27 52 U.S.C.  10503(b)(3)(A).
    28See U.S. Dep't of Just., Civ. Rts. Div., Voting Section, Voting 
Section Litigation, available at https://www.justice.gov/crt/voting-
section-litigation (look under ``Cases Raising Claims Under the 
Language Minority Provisions of the Voting Rights Act'').
    29 See James Thomas Tucker, Natalie Landreth & Erin Dougherty 
Lynch, ``Why Should I Go Vote Without Understanding What I am Going to 
Vote For?'': The Impact of First Generation Voting Barriers on Alaska 
Natives, 22 MICH. J. RACE & LAW 327, 358-72 (2017).
    30 Joint Motion for Settlement. No. 3:13-cv-00137 (D. Alaska Sept. 
30, 2015).
    31 See Dr. James Thomas Tucker, et al., Obstacles at Every Turn: 
Barriers to Political Participation Faced by Native American Voters, 
Native American Rights Fund (2020) at 61, available at: https://
vote.narf.org/wp-content/uploads/2020/06/
obstacles_at_every_turn.pdf; see Nick v. Bethel, No. 3:07-cv-00098-TMB 
2010 WL 11640036 (D. Alaska 2007).
    32 See id. at 363.
    33 See Federal Observer Reports for 2016 Elections, Toyukak v. 
Treadwell, No. 3:13-cv-00137- SLG, docket no. 295, attachments 295-1 to 
295-33 (D. Alaska filed Dec. 13, 2016).
    34 See Obstacles at Every Turn at 61.
    35 Testimony from NAVRC Field Hearings: Isleta Tr., Wilfred Jones 
at 25-27.
    36 Testimony from NAVRC Field Hearings: Tuba City Tr., James 
Attakai at 14.
    37 See Navajo Nation Human Rights Commission v. San Juan County, 
No. 2:16-cv-00154-JNP (D. Utah Feb. 2018).
    38 See 52 U.S.C.  10503(c).
    39 See Tucker, supra note 5, at 54.
    40 See NARF et al., Acting Census Director Identifies Jurisdictions 
that Must Provide Language Assistance under Section 203 of Voting 
Rights Act (Dec, 8, 2021), available at https://
www.lawyerscommittee.org/wp-content/uploads/2021/12/Section-203-
coverage-determinations_Dec-2021_Draft_
1245-pm-PT-LCJ.pdf.
    41 See 28 C.F.R.  55.10.
    42 And subsequently extended to all Five Tribes in addition to the 
Quapaw Nation, see e.g. Curtis Killman, ``State Appellate Court Extends 
McGirt Ruling to Include Quapaw Nation.'' TulsaWorld, Oct. 21, 2021, 
updated Dec. 1, 2021 available at: https://tulsaworld.com/news/state-
and-regional/state-appellate-court-extends-mcgirt-ruling-to-include-
quapaw-nation/article_55a45f32-3290-11ec-8b4d-c3254cce02d7.html
    43 ``Indian country. means (a) all land within the limits of any 
Indian reservation under the jurisdiction of the United States 
Government, notwithstanding the issuance of any patent, and, including 
rights-of-way running through the reservation..''
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                         Patty Ferguson-Bohnee
    Question 1. Ms. Ferguson-Bohnee, the Supreme Court Brnovich case 
held that Arizona's voting restrictions did not violate Section 2 of 
the Voting Rights Act. This decision disparately affected Native 
American voters, making it more difficult for them to rely on 
affirmative litigation under Section 2's promise of ``equal 
opportunity'' for all voters. Would passing the Native American Voting 
Rights Act and the John Lewis Voting Rights Advancement Act help to 
reaffirm the Voting Rights Act's purpose of ensuring that all voters, 
regardless of their race or ethnic group, have an equal opportunity to 
participate in elections?
    Answer. Yes, passing the Native American Voting Rights Act (NAVRA) 
and the John Lewis Voting Rights Advancement Act (``John Lewis Act'') 
would help to reaffirm the Voting Rights Act's purpose and intent of 
ensuring that all voters, regardless of their race or ethnic group, 
have an equal opportunity to participate in elections by casting a 
ballot and having that ballot counted. \1\ When Congress passed the 
Indian Citizenship Act of 1924, states and local jurisdictions 
continued to prevent Native Americans from registering to vote and 
participating in elections. \2\ The provisions of NAVRA remedy the 
failures of the Indian Citizenship Act and fulfill Congress's trust 
responsibility to Tribes by enacting key measures that directly address 
voter inequalities in Indian Country and addressing the ongoing 
disenfranchisement of Native American voters that has persisted since 
1924. Additionally, the John Lewis Act offers solutions to the judicial 
undermining of the Voting Rights Act of 1965. Taken together, these two 
pieces of legislation would expand the franchise and ensure that all 
voters have access to the political process.
---------------------------------------------------------------------------
    \1\ The Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 
(codified as amended at 52 U.S.C.   10301-10314, 10501-10508, 10701-
10702).
    \2\ Pub. L. No. 68-175, 43 Stat. 254 (1924) (codified as amened at 
8 U.S.C.  1401 (b)); Patty Ferguson-Bohnee, How the Native American 
Vote Continues to be Suppressed, 45 ABA Hum. Rts. 16 (2020).
---------------------------------------------------------------------------
    The Voting Rights Act has been a powerful and successful mechanism 
to eliminate discriminatory practices and procedures against racial and 
language minorities. The Voting Rights Act sought to overcome legal 
barriers put in place by state and local governments to prevent 
minorities from exercising the right to vote guaranteed under the 
Fifteenth Amendment. \3\ In addition, Congress included the language 
minority provisions in Section 203 and Section 4(f)(4) of the Voting 
Rights Act to enforce the guarantees of the Fourteenth and Fifteenth 
Amendments. Section 203 seeks to prohibit discrimination against 
citizens of language minorities in voting and requires that voting 
materials be provided in the minority language.

    \3\ The Fifteenth Amendment provides that ``The right of citizens 
of the United States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color, or previous 
condition of servitude.'' U.S. CONST., AMEND. XV.

        [T]hrough the use of various practices and procedures, citizens 
        of language minorities have been effectively excluded from 
        participation in the electoral process. Among other factors, 
        the denial of the right to vote of such minority group citizens 
        is ordinarily directly related to the unequal educational 
        opportunities afforded them resulting in high illiteracy and 
        low voting participation. The Congress declares that, in order 
        to enforce the guarantees of the fourteenth and fifteenth 
        amendments to the United States Constitution, it is necessary 
        to eliminate such discrimination by prohibiting these 
        practices, and by prescribing other remedial devices. \4\
---------------------------------------------------------------------------
    \4\ 52 U.S.C.  10503(a) (2006).

    Tribal voters face ongoing challenges in receiving language 
assistance under the Voting Rights Act. \5\ In 2018, for example, the 
Navajo Nation sued Arizona and three counties for failure to provide 
language assistance, specifically instructions on how to complete an 
early ballot, in the Navajo language. \6\
---------------------------------------------------------------------------
    \5\ DAN MCCOOL ET AL., NATIVE VOTE: AMERICAN INDIANS, THE VOTING 
RIGHTS ACT, AND THE RIGHT TO VOTE (Cambridge 2007) 45-68; Oregon v. 
Mitchell, 400 U.S. 112 (1970), Patty Ferguson-Bohnee, The History of 
Indian Voting Rights in Arizona: Overcoming Decades of Voter 
Suppression, 45 ASU LAW J. 1112-18 (2015); see generally JAMES TUCKER, 
THE BATTLE OVER BILINGUAL VOTING RIGHTS 235-92 (Routledge 2016).
    \6\ Navajo Nation v. Regan, No. 18018329, Complaint, (D. Arizona 
2018).
---------------------------------------------------------------------------
    Section 2, the heart of the Voting Rights Act, prohibits voting 
practices or procedures that result in the denial or abridgment of the 
right to vote on account of an individual's race, color, or membership 
in a language minority group. \7\ While Native voters have won many 
cases under the Voting Rights Act, the Fourteenth Amendment, and the 
Fifteenth Amendment, enforcing voting rights is expensive and time 
consuming. In the aftermath of the United States Supreme Court's 
decision in Shelby County v. Holder, which invalidated the preclearance 
coverage, Tribes previously covered by Section 5 have been forced to 
solely rely on Section 2 to protect their right to vote. \8\ However, 
the Supreme Court's decision in Brnovich v. DNC weakened Section 2 and 
creates new factors for courts to consider in Section 2 vote denial 
cases. This decision weakens the Voting Rights Act's promises and can 
only be addressed through subsequent legislation. \9\
---------------------------------------------------------------------------
    \7\ 52 U.S.C.  10302.
    \8\ 570 U.S. 529 (2013).
    \9\ 141 S. Ct. 2321 (2021).
---------------------------------------------------------------------------
    In Brnovich v. DNC, the Court further diminished protections under 
the Voting Rights Act, particularly vote denial claims under Section 2. 
The majority in Brnovich set forth five ``guideposts'' to consider when 
determining whether a voting practice violates Section 2: (1) the size 
of the burden imposed; (2) the degree to which it departs from what was 
standard practice when Section 2 was amended in 1982; (3) disparities 
in its impact on members of minority groups; (4) the opportunities 
provided by a state's voting system; and (5) the state's interest in 
enforcing the challenged policy. \10\ Thus, the majority opinion added 
factors that weigh against the interests of minority plaintiffs and, 
when combined with the expensive costs of litigation, undermines the 
original intent of Section 2. This is especially harmful for Native 
Americans who are subject to ongoing disparities or discrimination due 
to the size of their population in comparison to the larger electorate.
---------------------------------------------------------------------------
    \10\ Brnovich, 141 S. Ct. at 2336-43.
---------------------------------------------------------------------------
    The John Lewis Voting Rights Act would clarify the standard for a 
Section 2 vote denial or abridgement violation. While the John Lewis 
Voting Rights Act would not restore preclearance to all states 
previously covered by Section 5, such as Arizona, the Native American 
Voting Rights Act would provide essential protections for Native 
American voters. The need for these protections is well documented in 
the Native American Voting Rights Coalition's field hearings. \11\
---------------------------------------------------------------------------
    \11\ NARF, OBSTACLES AT EVERY TURN: BARRIERS TO POLITICAL 
PARTICIPATION FACED BY NATIVE AMERICAN VOTERS (June 2020).
---------------------------------------------------------------------------
    Congress has the authority and the responsibility to reaffirm the 
Voting Rights Act's purpose by enacting legislation pursuant to the 
enforcement clauses of the Fourteenth and Fifteenth Amendments. Voting 
is a fundamental right, and because Native Americans' right to equal 
protection under the law is jeopardized by states' enactment of 
racially discriminatory voting laws and procedures, Congress may 
exercise its Fourteenth and Fifteenth Amendment authority to protect 
the rights of Native American voters. \12\ The Fourteenth Amendment 
prevents states from invidiously discriminating against certain people 
with respect to voting. \13\ Furthermore, the Fifteenth Amendment 
provides that ``[t]he right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any State on 
account of race, color, or previous conditions of servitude,'' and it 
empowers Congress to enforce the provision by enacting ``appropriate 
legislation.'' \14\ Despite passage of the Indian Citizenship Act, many 
states prevented Native Americans from voting.
---------------------------------------------------------------------------
    \12\ See generally Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) 
(describing ``the right of suffrage'' as a fundamental matter in a free 
and democratic society).
    \13\ Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666-
68 (1966) (finding Virginia's poll tax unconstitutional under the Equal 
Protection Clause of the Fourteenth Amendment).
    \14\ U.S. CONST. AMEND. XV; see also Democratic Nat'l Comm. v. 
Hobbs, 948 F.3d 989, 1010 (9th Cir. 2020).
---------------------------------------------------------------------------
    The United States has a trust relationship with Tribes and their 
members. This relationship has been defined as requiring the United 
States to meet the highest moral obligations by ensuring the protection 
of Tribal and individual Indian lands, assets, resources, treaty 
rights, and other rights, such as voting rights. \15\ This is a well-
established legal obligation that originates from the unique, 
historical relationship between the United States government and Indian 
Tribes. Article I, Section 8 of the United States Constitution provides 
that Congress shall have the power ``to regulate commerce with foreign 
nations and among the several states, and with the Indian Tribes,'' 
acknowledging that Tribes are distinct from the federal government, the 
states, and foreign nations. The United States authorized Congress to 
enact laws governing Indian affairs through the Indian Commerce Clause. 
\16\
---------------------------------------------------------------------------
    \15\ See generally Cohen's Handbook of Federal Indian Law 5.04[3] 
(Nell Jessup Newton ed., 2012); Seminole Nation v. United States, 316 
U.S. 286, 296-97 (1942).
    \16\ Daniel Rey-Bear and Matthew Fletcher, We Need Protection from 
our Protectors: The Nature, Issue, and Future of the Federal Trust 
Responsibility to Indians, Mich. Journal of Envt'l and Admin. Law, Vol 
VI: 2, 401 (2017), available at https://repository.law.umich.edu/cgi/
viewcontent.cgi?article=1063&context=mjeal. 
---------------------------------------------------------------------------
    Furthermore, Congress has exclusive authority to legislate 
concerning Tribal matters and may regulate pursuant to its 
Constitutional powers, which are recognized as plenary. \17\ The 
Supreme Court analyzed the scope of Congress's plenary authority over 
Tribal matters in United States v. Kagama. \18\ In upholding Congress's 
power to enact legislation governing relations with Indian Tribes, the 
Court explained that such authority is implied not only by general 
Constitutional principles, but also by the nature of the federal 
government's relationship with the Tribes, with the federal government 
acting as a protectorate. In undertaking this responsibility, the 
United States has charged itself with ``obligations of the highest 
responsibility and trust.'' \19\ These obligations are moral as well as 
legally enforceable, and they require the federal government to ensure 
the proper administration of federal law with respect to the Tribes. 
Additionally, the trust relationship includes the obligation to protect 
Tribes from the states. As the Supreme Court noted in Kagama, 
``[b]ecause of the local ill feeling, the people of the states where 
[Tribes] are found are often their deadliest enemies.'' \20\
---------------------------------------------------------------------------
    \17\ Lone Wolf v. Hitchcock, 187 U.S. 553(1903); see generally 
Angela R. Riley, The Apex of Congress' Plenary Power over Indian 
Affairs: The Story of Lone Wolf v. Hitchcock, in Indian Law Stories 189 
(Carole Goldberg et al. eds., 2011).
    \18\ 118 U.S. 375 (1886).
    \19\ Cherokee Nation v. Georgia, 30 U.S. 1, 10 (1831).
    \20\ Kagama, 118 U.S. at 384.
---------------------------------------------------------------------------
    Given the scope of Congress's plenary authority to legislate on 
Tribal matters, the explicit and implicit powers under the Indian 
Commerce Clause and the Fourteenth and Fifteenth Amendments, and the 
obligations imposed pursuant to the trust relationship, Congress has 
the authority and duty to provide a legislative solution to the ongoing 
attack on the voting rights of Native Americans. \21\ The Native 
American Voting Rights Act would address current disparities in access 
to the ballot box, challenges faced by voters with nontraditional 
addresses, and the lack of postal services on Native American 
reservations. It would also require jurisdictions to accept Tribal IDs. 
Such provisions reaffirm the purpose of the Voting Rights Act, as 
Native Americans do not currently have equal access to election day 
polling locations, early voting locations, or vote-by-mail. \22\ This 
lack of access is due to socioeconomic conditions as well as 
institutional barriers. For example, on the rare occasion that on-
reservation early voting is offered in Arizona, it is typically limited 
to a few hours on a couple of days. Residents of the Kaibab Paiute 
Reservation must travel over 280 miles one way to participate in early 
voting. Additionally, in 2018, the Hopi Tribe had four hours of in-
person early voting while off-reservation voters in Holbrook, Arizona 
had 162 hours of in-person early voting.
---------------------------------------------------------------------------
    \21\ For a more in-depth discussion of the trust relationship, see 
Native Voting Rights: Exploring Barriers and Solutions, Hearing Before 
the H. Subcomm. on Elections, 116th Cong. 1, 3-4 (2020) (statement of 
Patty Ferguson-Bohnee, Dir., Indian Legal Clinic, Sandra Day O'Connor 
Coll. of L.),
    \22\ See generally Native Voting Rights: Exploring Barriers and 
Solutions, Hearing Before the H. Subcomm. on Elections, 116th Cong. 
(2020) (statement of Patty Ferguson-Bohnee, Dir., Indian Legal Clinic, 
Sandra Day O'Connor Coll. of L.).
---------------------------------------------------------------------------
    Additionally, NAVRA would require each State to permit any person 
to return a sealed ballot on behalf of a voter living in Indian 
Country. Allowing third-party ballot collection would significantly 
increase voter turnout and assist in overcoming barriers in access to 
mail, as it is currently a felony under Arizona law to carry another's 
ballot if they are not a family member, caregiver, household member, or 
a postal or election worker. \23\
---------------------------------------------------------------------------
    \23\ ARIZ. REV. STAT.  16-1005.
---------------------------------------------------------------------------
    The John Lewis Voting Rights Advancement Act also assists in 
reaffirming the purpose of the Voting Rights Act by attempting to solve 
judicial undermining of the Voting Rights Act in three ways. First, it 
codifies the legal standard for Section 2 vote dilution claims 
articulated in Thornburg v. Gingles. \24\ Second, it establishes a 
distinct ``totality of the circumstances'' test that applies to Section 
2 vote denial and abridgement claims. \25\ Third, it explicitly 
prohibits a court from considering whether an election practice or 
procedure imposes a material burden on the total number or share of 
members of a protected class; the degree to which the challenged policy 
has a long pedigree; the use of similar practices in other states or 
political subdivision; the availability of other forms of voting 
unimpacted by the challenged procedure; a prophylactic impact on 
potential criminal activity by individual voters, where such crimes 
have not been committed in the state in substantial numbers; and mere 
reference to interests in preventing voter fraud or promoting voter 
confidence. \26\
---------------------------------------------------------------------------
    \24\ See Thornburg v. Gingles, 478 U.S. 30 (establishing the 
specific factors courts must consider in a ``totality of the 
circumstances'' analysis).
    \25\ 25 S.4, 117th Cong.  101 (2021).
    \26\ Id.
---------------------------------------------------------------------------
    By enacting NAVRA, Congress would fulfill its trust responsibility 
to ensure that Tribes and their members have the right to vote, and 
that such right is protected. Additionally, the legislation would 
address the shortcomings of the Indian Citizenship Act and--in 
combination with the John Lewis Act--would restore Section 2 of the 
Voting Rights Act and clarify the standard for Section 2 vote denial 
claims, thereby restoring the spirit and purpose the Voting Rights Act. 
Furthermore, passing such legislation would reduce the current burden 
on Tribes and Tribal members to litigate for their right to vote in 
accordance with the Voting Rights Act.

    Question 2. Ms. Ferguson-Bohnee, you state in your testimony that 
the lack of formal addresses on Tribal lands makes it difficult for 
voters to comply with address requirements to register to vote or to 
produce identification to vote on Election Day. You also state that the 
lack of a formal address can cause election officials to place Native 
voters in the wrong precinct. In many states, like Arizona, a voter's 
entire ballot is discarded if they cast a ballot out of precinct. This 
is complicated by the fact that for many Tribes, more than one precinct 
crosses their Tribal lands. For example, in New Mexico the Navajo 
Nation spans five counties and over 60 precincts. Do nontraditional 
addresses often cause counties to place Native voters in the wrong 
precinct or not place them in any precinct at all? How often does this 
occur?
    Answer. Yes, many Native Americans living on-reservation lack 
traditional street addresses, and landmarks and cross roads are 
frequently used to identify the location of homes. \27\ Further, many 
of the roads on Indian reservations are unnamed and not serviced by the 
U.S. Postal Service due to the poor quality of road systems on Indian 
reservations. \28\ In light of the lack of traditional addresses, many 
Native Americans receive their mail at post office boxes and may 
include a post office box on their state identification. In Arizona, 
only 18 percent of voters living on-reservation outside of Maricopa and 
Pima Counties have a physical address and receive mail at home. \29\
---------------------------------------------------------------------------
    \27\ Native American Voting Rights Coalition, Voting Barriers 
Encountered by Native Americans in Arizona, New Mexico, Nevada, and 
South Dakota at 3, 5 (Jan. 2018).
    \28\ Brief for National Congress of American Indians et al. as 
Amici Curiae Supporting Petitioners at 11-12, Crawford v. Marion 
County, 553 U.S. 181 (2008) (nos. 7-21 & 7-25), available at https://
sct.narf.org/documents/crawford/merits/amicus_ncai.pdf.
    \29\ Democratic Nat'l Comm. v. Reagan, 329 F. Supp. 3d 824, 869-70 
(D. Ariz. 2018).
---------------------------------------------------------------------------
    The lack of traditional addresses in Indian County renders 
compliance with address requirements when registering to vote and 
producing identification on election day especially difficult. In 
addition, nontraditional addresses frequently cause counties to place 
Native American voters in the wrong precinct or not place Native 
American voters in any precinct at all.
    We have documented issues with precinct placement during each 
election since the Indian Legal Clinic began the Native Vote Election 
Protection Project. Each election cycle, we document numerous incidents 
of voters placed in the wrong precincts due to their nonstandard 
addresses, many of whom were either denied a ballot or directed to 
polling locations outside of their rightful precinct. Leading up to the 
2020 election, over 2,000 Native American voters in Apache County were 
not placed in any precinct because the County could not confirm the 
correct polling locations for these nonstandard addresses. Instead, 
these voters were placed on a suspense list. When voters showed up at 
the polls on election day, they were not on any list, and the poll 
workers were instructed to call the county to determine the correct 
precinct. However, due to the overwhelming number of calls, some calls 
went unanswered.
    In some cases, the voter is assigned a polling place closest to 
their post office box, which could be thirty minutes to two hours from 
where they live. This confusion happens across Indian Country in 
Arizona. For example, in 2016, poll workers in Maricopa County gave a 
Native American voter a provisional ballot because the voter 
registration rolls listed the voter's physical address, while her 
identification displayed the address of her post office box. \30\ 
Additionally, in the 2016 General Election, voters living on the Gila 
River Indian Reservation were assigned to the wrong precinct. \31\ The 
Native Vote Hotline directed voters to the correct precinct, but some 
left without voting. \32\ In the same election, voters on the San 
Carlos Apache Reservation were sent back and forth between two polling 
locations in different precincts. \33\ Both precincts informed the 
voters that they were not registered in that precinct, and poll workers 
did not offer the voters a provisional ballot. \34\ In 2020, voters on 
the Gila River Reservation were redirected to vote at the precinct 
associated with their post office box even when the voter confirmed 
that s/he lived in the precinct.
---------------------------------------------------------------------------
    \30\ ARIZONA STATE UNIVERSITY INDIAN LEGAL CLINIC, NATIVE VOTE--
ELECTION PROTECTION PROJECT 2016 ELECTION REPORT 1, 11 (2018), 
available at https://law.asu.edu/sites/default/files/pdf/2016-native-
vote-election-protection-report.pdf.
    \31\ Id.
    \32\ Id. at 11-12.
    \33\ Id. at 12.
    \34\ Id.

    Question 3. Ms. Ferguson-Bohnee, would allowing Tribes to designate 
a Tribal building whose address can be used by voters to register, pick 
up, and drop off a ballot help ensure that Native voters can access the 
ballot box? Would this provision also help ensure that Native voters 
are placed in the correct precinct and that their votes are counted?
    Answer. Yes, allowing Tribes to designate at least one building in 
each precinct as a ballot pickup and collection location would address 
several of the obstacles that voters living on-reservation face, 
including the issues associated with nontraditional addresses and vote-
by-mail. This provision would also help to ensure that Native American 
voters are placed in the correct precinct and that their votes are 
counted. Considering extreme poverty and lack of affordable housing in 
many reservation communities, many Native Americans experience homeless 
or near homelessness. This ultimately impacts the ability of Native 
American voters to maintain a permanent physical address, which is 
critical to maintain an active voter registration status, as Arizona 
law requires voters to provide a residential address. Designated Tribal 
buildings for voter registration, ballot pick up, and ballot drop off 
would assist these voters by providing them with a consistent physical 
address to use when voting or registering to vote. Furthermore, a 
designated Tribal building will assist voters that lack equitable 
access to mail, as lack of access to mail contributes to Native 
Americans participating in Arizona's absentee voting at a significantly 
lower rate. Post office boxes are not an adequate alternative to home 
mail delivery, as some reservation residents must travel up to seventy 
miles in one direction to get mail. \35\ In addition to distance, 
limited hours at USPS offices or contracted postal units limit Native 
Americans' ability to regularly receive mail. For example, Arizona's 
Tribal land base consists of 19.8 million acres and more than 100,000 
residents, yet there are only 48 post offices and contracted postal 
units on Tribal land. Allowing Tribes to designate buildings as 
additional locations to receive and drop off a ballot will increase the 
number of locations where voters can access the ballot and register to 
vote. As discussed above, nontraditional addresses cause various 
problems for Native American voters because counties may place voters 
in the wrong precinct or fail to place the voter in altogether. 
Further, under Arizona's out-of-precinct policy, the entire ballot is 
discarded if a voter casts a ballot in the wrong precinct. Allowing 
voters living on Tribal lands to use the address of a designated Tribal 
building as their residential and mailing address would ensure that 
Native American voters are placed in the correct precinct and that 
their ballots are counted. If county boundaries respect the tribal 
subdivision boundaries, this could improve the ability to identify 
precincts for Tribal members. For example, the Gila River Indian 
Community has seven districts, and these districts align with the 
voting precincts. All of the voters who live in District 4 are assigned 
the District 4 Service Center address as their residential address in 
the voter registration database.
---------------------------------------------------------------------------
    \35\ Brief of Amici Curiae NCAI at 12, Crawford v. Marion County 
(2008).
---------------------------------------------------------------------------
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                         Patty Ferguson-Bohnee
    Question 1. Do you see patterns in voting turnout within Native 
American communities? What can we learn from those patters to improve 
voter access and address other barriers to the ballot those communities 
currently experience?
    Answer. To understand the challenges faced by Native American 
voters, one must recognize the vast differences in experiences, 
opportunities, and realities facing on-reservation voters as compared 
to off-reservation voters. Turnout for Native Americans is the lowest 
in the country, as compared to other groups. \1\ While a number of 
issues contribute to the low voter turnout, a study conducted by the 
Native American Voting Rights Coalition found that low levels of trust 
in government, lack of information on how and where to register and to 
vote, long travel distances to register or to vote, low levels of 
access to the Internet, hostility towards Native Americans, and 
intimidation are obstacles to Native American voter participation. \2\ 
Further, access to the polls and participation in the political process 
are impacted by isolating conditions such as language barriers, 
socioeconomic disparities, lack of access to transportation, lack of 
residential addresses, lack of access to mail, and the digital divide. 
Changes to voting processes interact with these isolating conditions to 
limit Native American voter participation.
---------------------------------------------------------------------------
    \1\ Tova Wang, Ensuring Access to the Ballot for American Indians & 
Alaska Natives: New Solutions to Strengthen American Democracy at 3, 6, 
available at https://www.demos.org/sites/default/files/publications/
IHS%20Report-Demos.pdf.
    \2\ Native American Voting Rights Coalition, Voting Barriers 
Encountered by Native Americans in Arizona, New Mexico, Nevada, and 
South Dakota at 3, 5 (Jan. 2018) (hereinafter ``NAVRC Study'').
---------------------------------------------------------------------------
    Turnout for Native Americans in Arizona consistently lags behind 
the state's average. In 2016, the turnout for the state was 74.71 
percent. \3\ For Tribal communities, half of Arizona's reservations had 
turnout below 50 percent of registered voters. In 2018, the turnout for 
the state was 64.85 percent, \4\ but for Tribal communities the average 
turnout was 44 percent with some Tribal precincts seeing turnout as low 
as 22 percent. In 2020, the State's turnout was 79.9 percent. \5\ For 
Tribal communities, the average turnout was around 60 percent.
---------------------------------------------------------------------------
    \3\ ARIZONA SEC'Y STATE, Voter Registration and Historical Election 
Data, https://azsos.gov/elections/voter-registration-historical-
election-data (last visited Nov. 23, 2021).
    \4\ Id.
    \5\ Id.
---------------------------------------------------------------------------
    These patterns in Arizona demonstrate that unequal access to voter 
registration opportunities, in-person early voting locations, voter 
identification and socioeconomic barriers that impede access to the 
ballot ultimately impede turnout and overall participation of Native 
Americans in the electorate overall. While there was a significant 
increase in the 2020 participation rates, Native American registration 
and turnout lag behind.
    Meaningful participation by Tribal voters will only be achieved 
when there are increased opportunities to register to vote and to vote 
in state and federal elections. Although all Native Americans became 
United States citizens in 1924, the path to the ballot box continues to 
be blocked for many Tribal citizens. In 2015, after consultation with 
Tribes, the Department of Justice proposed legislation to improve 
voting access for Native Americans noting that ``[i]n addition to 
suffering from a long history of discrimination, the distance many 
American Indian and Alaska Native citizens must travel to reach a 
polling place presents a substantial and ongoing barrier to full voter 
participation.'' \6\ The Native American Voting Rights Act seeks to 
improve opportunities for Native Americans when registering to vote, 
accessing polling places, and casting a ballot. To properly assess how 
to improve election administration decisions for the benefit of Native 
Americans, a State or political subdivision needs to consider the 
realities of Native American voters on Tribal lands and recognize that 
for many Tribal communities, life on Tribal lands is different. 
Accordingly, ensuring equal access to voting requires consultation from 
tribal leaders because they best understand the issues specific to 
their communities and their members. For example, Tribal leaders can 
assess issues such as: (1) the number of additional polling places 
needed for a community; (2) strategic locations of new polling places; 
(3) the distances that voters will have to travel to reach polling 
places; and (4) ways to maximize voter registration and educational 
outreach.
---------------------------------------------------------------------------
    \6\ USDOJ, Proposed Legislation Tribal Equal Access to Voting Act 
of 2015, available at https://www.justice.gov/file/440986/download; 
USDOJ, Department of Justice Proposes Legislation to Improve Access to 
Voting for American Indians and Alaska Natives, Press Release (May 21, 
2015), available at https://www.justice.gov/opa/pr/department-justice-
proposes-legislation-improve-access-voting-american-indians-and-alaska.

                       Arizona Native Vote Turnout in 2016 and 2020 Presidential Elections
----------------------------------------------------------------------------------------------------------------
                                                              2016                             2020
                     TRIBE                      2016 REG.   BALLOTS      2016    2020 REG.   BALLOTS      2020
                                                  VOTERS      CAST     TURNOUT     VOTERS      CAST     TURNOUT
----------------------------------------------------------------------------------------------------------------
Ak-Chin                                               410        234        57%        485        333        69%
Fort McDowell                                         551        252        46%        617        367        59%
Gila River                                           4450       2107        47%       5520       2758        50%
Havasupai                                             129         38        29%        152         63        41%
Hopi                                                 9346       5293        57%      10595       7443        70%
Hualapai                                              617        241        39%        580        301        52%
Kaibab-Paiute                                         151         71        47%        143         95        66%
Pascua Yaqui                                         1951        974        50%       2302       1298        56%
Salt River                                           3581       1802        50%       3738       2165        58%
Tohono O'odham                                       3224       1934        60%       3477       2253        65%
White Mountain Apache                               12931       8230        64%      14070       9993        71%
Navajo Nation                                       38019      20506        54%      40341      26208        65%
----------------------------------------------------------------------------------------------------------------

    Question 2. The Native American Voting Rights Act of 2021 (NAVRA) 
defines Indian lands as:

        (A) Indian country as defined under section 1151 of title 18, 
        United States Code;

        (B) any land in Alaska owned, pursuant to the Alaska Native 
        Claims Settlement Act (43 U.S.C. 1601 et seq.), by an Indian 
        Tribe that is a Native village (as defined in section 3 of that 
        Act (43 U.S.C. 1602)) or by a Village Corporation that is 
        associated with an Indian Tribe (as defined in section 3 of 
        that Act (43 U.S.C. 1602));

        (C) any land on which the seat of the Tribal government is 
        located; and

        (D) any land that is part or all of a Tribal designated 
        statistical area associated with an Indian Tribe, or is part or 
        all of an Alaska Native village statistical area associated 
        with an Indian Tribe, as defined by the Census Bureau for the 
        purposes of the most recent decennial census.

    In light of the Supreme Court's decision in McGirt v. Oklahoma, is 
there merit to the concern that NAVRA would be too complicated--or even 
impossible--to implement in Oklahoma?
    Answer. No, there should be no concern that the application of 
NAVRA in Oklahoma would be too complicated. The Native American Voting 
Rights Act is largely compatible with the administration of elections 
in Oklahoma. Even in light of the McGirt decision, NAVRA will not 
dramatically change the landscape of Oklahoma's election law, nor will 
NAVRA be too complex to implement in Oklahoma. Rather, the minor 
changes brought by NAVRA will be easily implemented because of existing 
processes in Oklahoma or because they eliminate additional steps. A 
review of voter registration, absentee ballot, polling locations, and 
vote by mail suggests that NAVRA fits within Oklahoma's election 
administration processes.
Voter Registration
    NAVRA provides that Tribal buildings can serve as residential 
addresses and mailing addresses for the purposes of voter registration 
on Indian lands. \7\ Oklahoma law already provides that voters can 
provide directions to a home or provide a legal description. \8\ 
Addresses or locations of Tribal buildings will likely be easier for 
the county to distinguish than directions or descriptions of 
nontraditional addresses.
---------------------------------------------------------------------------
    \7\ S.4, 117th Cong.  306 (e)(4) (2021).
    \8\ OKLAHOMA STATE ELECTION BOARD, Oklahoma Voter Registration 
Application, Instructions, Sec. 5 (2019) available at https://
oklahoma.gov/content/dam/ok/en/elections/forms/voter-registration-
application.pdf.
---------------------------------------------------------------------------
Absentee Voting
    NAVRA contains several provisions with respect to absentee voting 
that are largely compatible with Oklahoma law. NAVRA requires a minimum 
of one early voting location on Tribal lands during the early voting 
period. \9\ This is compatible with Oklahoma law, as the State requires 
that the county election board serve as an in-person early voting site. 
\10\ Pursuant to NAVRA, only twelve (12) of Oklahoma's seventy-seven 
(77) counties-Bryan, Duncan, Grady, Hughes, Jefferson, Johnston, 
McIntosh, Muskogee, Ottawa, Pontotoc, Rogers, and Tulsa-may have to add 
a second early voting location (if the county election board is not 
already located on Indian land) for the reservations affirmed since 
McGirt. \11\
---------------------------------------------------------------------------
    \9\ S.4, 117th Cong.  306 (g)(1).
    \10\ VOTE 411, Vote in My State, Oklahoma, VOTE.ORG, available at 
https://www.vote411.org/oklahoma.
    \11\ These areas are already covered by NAVRA. See S.4, 117th Cong. 
 303(3)(D).
---------------------------------------------------------------------------
    Furthermore, NAVRA requires that early voting on Indian lands be 
for 15 days prior to the election for no less than 10 hours starting 
some time before 9:00 AM and after 5:00 PM. \12\ Oklahoma recently 
expanded early voting to allow for three days of early voting from 8:00 
AM to 6:00 PM, and the Saturday immediately preceding the election from 
8:00 AM to 2:00 PM. \13\ Thus, Oklahoma currently provides a multi-day 
early voting period. Under NAVRA, it would have to extend the early 
voting period on Indian land.
---------------------------------------------------------------------------
    \12\ S.4, 117th Cong.  (f-g)(3).
    \13\ 26 O.S.  14-115.4(A).
---------------------------------------------------------------------------
Polling Locations
    NAVRA requires a minimum of one polling location in each precinct 
in which there are eligible voters that reside on Indians lands in a 
location selected by the Tribe and at no cost to the Indian Tribe 
regardless of the population or number of registered voters residing on 
Indian lands. \14\ This is largely consistent with Oklahoma law, as the 
State already requires that the county provide one polling location per 
precinct. \15\
---------------------------------------------------------------------------
    \14\ S.4, 117th Cong.  306 (a)(2)(A).
    \15\ 26 O.S.  3-120(A).
---------------------------------------------------------------------------
    Additionally, NAVRA provides that counties must allow eligible 
voters the opportunity to cast ballots out of precinct, without fear 
that that the entire ballot will be discarded. \16\ If the County does 
not have an express voting machine or something similar which can print 
the voter's ballot for his/her precinct, the election administrator can 
disregard any races cast out of precinct.
---------------------------------------------------------------------------
    \16\ S.4, 117th Cong.  306 (a)(2)(I).
---------------------------------------------------------------------------
Ballots
    NAVRA's provisions with respect to provisional ballots require that 
voters receive written notice as to why they received a provisional 
ballot, allows voters an opportunity to submit additional documentation 
in order for the ballot to be counted, and requires the county to 
notify the voter if and why their ballot was rejected. \17\ Oklahoma 
currently has a process in place to notify voters in writing when their 
ballot affidavit is rejected, and therefore provides a model for 
implementing these provisions. \18\
---------------------------------------------------------------------------
    \17\ S.4, 117th Cong.  306 (e)(7).
    \18\ 26 O.S.  14-133.
---------------------------------------------------------------------------
Voter Identification
    NAVRA provides that voters can use Tribal ID when registering to 
vote or as voter ID to cast a ballot. Oklahoma law already provides for 
the use of Tribal ID when voting in person. \19\ Thus, Oklahoma law 
would need only to adapt to allow Tribal IDs to be used for voter 
registration.
---------------------------------------------------------------------------
    \19\ 26 O.S.  7-114 (A)(4).
---------------------------------------------------------------------------
Conclusion
    The McGirt decision should not result in any additional 
requirements on Oklahoma election administrators. NAVRA will make 
Oklahoma eligible for grant opportunities that can offset the costs or 
burden of implementing NAVRA's provisions. Since NAVRA is largely 
compatible with Oklahoma law, these should be limited to increased 
early voting and processing out of precinct ballots. Instead, NAVRA 
will provide opportunities for funding and serve to strengthen the 
State-Tribal relationship between Oklahoma and the six Nations with 
affirmed reservations.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Hoeven to 
                           Hon. Aaron Payment
    Question 1. The right to vote is fundamental to our democracy, and 
we must make sure that all eligible voters have the opportunity and 
ability to cast their ballot. Ensuring free, fair, and secure elections 
and making sure that voters know their ballot counts are bipartisan 
priorities. How can States and Tribes better work together in a spirit 
of cooperation and consultation to help resolve voting issues when they 
may arise?
    The right to vote is fundamental to our democracy, and we must make 
sure that all eligible voters have the opportunity and ability to cast 
their ballot. Ensuring free, fair, and secure elections and making sure 
that voters know their ballot counts are bipartisan priorities.
    The U.S. Constitution vests authority in the States to conduct 
their own elections. I have heard concerns from my home state that a 
number of the voting proposals put forth at the federal level would 
interfere with the state's responsibility to administer elections. 
Additionally, in a frontier state like North Dakota, there are several 
logistical and resource challenges that would arise if a number of the 
federal mandates discussed during this hearing were to be implemented.
    Answer. The Native American Voting Rights Act (NAVRA) recognizes 
that Tribal Nations have, for far too long, been ignored when it comes 
to exercising the right to vote. NAVRA represents simple, 
straightforward steps that can be taken to ensure that Tribal Nations' 
sovereignty is respected and that Native people are able to exercise 
their right to vote. In order to ensure that Tribal Nations have 
meaningful protections and a meaningful say in the elections carried 
out on their sovereign territories, the protections in NAVRA need to be 
enacted. Passing NAVRA is (or similar protections are passed) is the 
best way to promote States and Tribal Nations working together in a 
spirit of cooperation and consultation to address ongoing issues.

    Question 2. One bill discussed during this hearing, the Native 
American Voting Rights Act, would require that an absentee ballot be 
sent to every registered voter. How would the State of North Dakota--
which does not require voter registration--be expected to comply with 
this requirement?
    Answer. The purpose of the Native American Voting Rights Act 
(NAVRA) is to ensure that Tribal Nations' concerns are treated with the 
seriousness and respect required by a sovereign, and to ensure that 
voting decisions on tribal lands are governed by a tribally-driven 
process. In order to allow all people to more freely access the ballot, 
NAVRA requires that an absentee ballot be sent to every registered 
voter.

    Question 3. Under the Native American Voting Rights Act, 
individuals other than the voter would be permitted to return a ballot. 
How can it be ensured that the integrity of the voter's ballot is 
maintained if the ballot can be in the possession of someone other than 
the voter?
    Answer. The Native American Voting Rights Act (NAVRA) ensures the 
integrity of the vote by requiring the vote to be sealed by the voter 
prior to someone else returning the ballot, the individual returning 
the ballot cannot be compensated for doing so, and the ballot must be 
returned to officially designated polling places. Additionally, once 
received, as with any ballot, there is system of checks in place to 
ensure the ballot submitted was actually cast by the individual in 
question.
    Additionally, absentee and mail-in balloting have been successfully 
used in elections. As with absentee/mail-in balloting, federal and 
state government take reasonable precautions to ensure the integrity of 
the ballots cast. Nothing in NAVRA alters the system of checks already 
in place to ensure election integrity, but NAVRA will increase voter 
participation making our democracy a truer representation of the people 
it serves.

    Question 4. Locating a sufficient number of Election Day workers 
and volunteers is already challenging. Are you concerned that 
legislative proposals at the federal level to mandate early voting 
hours and require additional polling locations could pose logistical 
and financial challenges, particularly for more rural and low 
population density states?
    Answer. One common-sense solution to increasing voter turnout and 
increasing the availability of volunteers on Election Day is to 
legislate a paid voting holiday. Until that occurs, ensuring workers 
are fairly compensated--particularly in rural areas with fewer job 
opportunities--is one way to increase the supply of available workers. 
Coordinating with national, regional, and local entities to locate and 
train volunteers will also assist in this matter. Ultimately, Tribal 
Nations are primarily concerned with making sure barriers are removed 
to accessing the ballot. If removing those barriers creates new 
challenges, Tribal Nations are prepared to find new solutions. Doing 
nothing though is no longer acceptable, which is why the Native 
American Voting Rights Act needs to be passed and implemented to the 
fullest extent possible.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                           Hon. Aaron Payment
    Question 1. Mr. Payment, geographic isolation and the lack of 
mailing addresses continue to disenfranchise Native voters. 
Unfortunately, these factors are often not taken into account by States 
and precincts when administering elections, especially because 
traditional addresses are needed to obtain non-Tribal identification 
and for voter registration. Are many Tribal members without a permanent 
mailing address denied state-issued identification, or denied voting 
opportunities when they present a Tribal I.D. without a residential 
address?
    Answer. Non-traditional mailing addresses include a wide range of 
circumstances, including but not limited to:

 Addresses that do not contain a house number;

 Addresses that do not contain a street name;

 General delivery addresses;

 Rural route and box number addresses;

 Highway contract route and box number addresses;

 Post office box delivery addresses;

 Addresses that include location descriptions;

 Addresses that are based on geographic coordinates; and

 Addresses utilizing census geographic codes.

    The reality is that non-traditional mailing addresses are prevalent 
among American Indian and Alaska Natives residing on tribal lands. For 
example, in Arizona, outside of metropolitan Phoenix and metropolitan 
Tucson, only 18 percent of Native American voters have home mail 
delivery--which is due to a combination of circumstances, including the 
lack of traditional mailing addresses. The result of requiring a 
traditional mailing address is the inability for many Native people to 
get state-issued identification, to register to vote, to receive mail-
in ballots, and ultimately, to exercising one's right to vote.
    While this issue affects rural individuals most often, it is also 
an issue for some urban Native people as well. Many Native people move 
to cities for education or employment opportunities, but maintain their 
permanent address on the reservation. This can result in barriers to 
registering to vote and in missing mail, including information about 
voting and/or mail-in ballots.
    Thus, the short answer to your question is: Yes, many tribal 
members without a permanent mailing address are denied voting 
opportunities.
                                 ______
                                 

*RESPONSES TO THE FOLLOWING QUESTIONS WERE NOT AVAILABLE AT THE TIME 
        THIS HEARING WENT TO PRINT*

  Written Questions Submitted by Hon. Brian Schatz to Na'alehu Anthony
    1. Historical distrust has an impact on civic engagement in 
Indigenous communities. Can you expand more on the role history plays 
in contributing to Native Hawaiian voter turnout? What can be done to 
address it?

    2. Lack of residential addresses, poor infrastructure, and voter 
intimidation are some of the issues that Native voters face. Do Native 
Hawaiian voters face similar issues?

    3. Do you see a pattern in Native Hawaiian voter turnout in the 
recent election? What can we learn from those patterns and how can 
Congress utilize those trends to increase civic engagement in the 
Native Hawaiian community?

                                  [all]