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Excerpted From: Patty Ferguson-Bohnee and James Thomas Tucker, Voting During a Pandemic: Vote-by-mail Challenges for Native Voters, 56-AUG Arizona Attorney 24 (July/August, 2020) (80 Footnotes) (Full Document)


BoneeandTucker25 Coming into 2020, it was apparent that this would be a momentous year. The summer Olympics would be held in Tokyo. The United States Census Bureau would conduct the decennial Census, which is used for reapportioning seats in the House of Representatives among the states, redistricting to meet equal population requirements, and producing data used for federal appropriations over the next 10 years. Party caucuses and primaries were to begin in early February, culminating in the presidential election in November.

Most of those events will still happen. But the timing and the way in which they are conducted may change significantly due to the COVID-19 pandemic. The 2020 Olympics have been postponed a year and will not commence until July 2021. In mid-March, the Census Bureau announced it was delaying its in-person field operations. In mid-April, the Bureau requested that Congress extend the statutory deadlines by 120 days to complete the decennial Census, report the reapportionment numbers to the President and prepare the data files used for redistricting. On March 19, California became the first state to issue a stay-at-home order. Arizona followed on March 31, along with most of the remaining states.

Elections proved that they were not immune to the pandemic's effects. Arizona held its primary on March 17, but it was one of the last states to do so. Sixteen states postponed their primaries because of the pandemic. Despite a stay-at-home order, the closure of all non-essential businesses, and limits on the size of gatherings, Wisconsin proceeded with in-person voting during its primary on April 7--and was widely criticized for doing so. Milwaukee closed 175 of 180 polling locations, resulting in long lines and increased risks. A terrible price may have resulted from the election. It was reported that over 50 people who voted in-person during the Wisconsin primary tested positive for the COVID-19 virus within two weeks of voting.

Against this backdrop, there is an increasing call for alternatives to in-person voting, such as Vote-By-Mail (“VBM”). Nationally, polls show that a clear majority of Americans support VBM, with approximately two-thirds in favor. While there is some partisan disagreement about VBM--those who identify as Democrats or Independents overwhelmingly favor it compared to 40 percent of Republicans--that divide tends to evaporate in states that already use it. A Pew survey reported that 68 percent of Republicans in those states support it. Several bills have been introduced in Congress that would mandate making VBM an option for conducting federal elections in November 2020.

Elections conducted by VBM have been on the rise. In 1972, only four percent of all ballots were cast by mail. By 2008, 30 percent of all ballots nationwide were cast by mail. In some states that offered a mail-in voting option, up to half of all ballots were cast using that option. According to the National Conference of State Legislatures (NCSL), by the end of 2019, at least 22 states currently use some form of VBM for their elections, with three states (Colorado, Oregon and Washington) conducting all voting by mail.

Arizona first made VBM available to all voters in 1998. Arizona law provides, “Any election called pursuant to the laws of this state shall provide for early voting. Any qualified elector may vote by early ballot.” The 2010 election marked the first time that more than half of all ballots cast in Arizona were through VBM. Currently, approximately 80 percent of all Arizonans receive their ballot by mail.

NCSL explains how VBM commonly works:

The voter marks the ballot, puts it in a secrecy envelope or sleeve and then into a separate mailing envelope, signs an affidavit on the exterior of the mailing envelope, and returns the package via mail or by dropping it off. Ballots are mailed out well ahead of Election Day, and thus voters have an “election period,” not just a single day, to vote .... [T]his does not preclude in-person voting opportunities on and/or before Election Day. For example, despite the fact that all registered voters in Colorado are mailed a ballot, voters can choose to cast a ballot at an in-person vote center during the early voting period or on Election Day (or drop off, or mail, their ballot back). VBM is a viable option for many voters. However, it is not a panacea for the challenges of voting during a pandemic. For many voters, especially Native Americans and others living in remote or rural areas, casting a ballot by mail is not possible. As a result, the Inter Tribal Council of Arizona opposes having all ballots cast through VBM. One tribal member from Montana went even further, describing VBM as “regressing ... I would see it as a Jim Crow law.” This article explains why having in-person and related voting options are necessary to ensure that those living in Indian Country have a voice in the political process.

Disparities Affecting Native Voter Access Members of the 574 federally recognized tribes face many barriers to political participation. Although many other American voters share some of these obstacles, no other racial or ethnic group faces the combined weight of these barriers to the same degree as Native voters in Indian Country. Moreover, the government-to-government relationship between the tribes and the United States is unique to the American Indian and Alaska Native (AIAN) population. “First generation” voting barriers--those that prevent eligible people from registering to vote, casting a ballot, and having that ballot counted--remain the dominant paradigm in Indian Country. Those obstacles often are exacerbated by the general disparities that Native voters face when trying to participate in non-tribal elections.

[. . .]

While social distancing and reducing contact are important measures for the 2020 election, states and counties have a duty and responsibility to provide accessible voting to all voters. Instead of trying to force all voters to cast a ballot by mail, which may be rejected, election officials can do a variety of things to increase voting opportunities while reducing contact.

Expand in-person voting opportunities. Indian Country has unequal access to early voting, and expanding early voting to Tribal lands during the early voting period will reduce lines and in-person contact on election day. Pinal County purchased a mobile voting unit, designating it as an early voting location. This will allow the county to reach more voters during the early voting period.

Maintain polling locations on Tribal lands.

Provide additional opportunities for elderly and sick voters to vote at home by advertising the use of special election boards.

Increase the use of curbside and/or drive through voting.

Inform voters of the changes and additional opportunities to address potential fears of contact and to inform them of measures being taken to address health concerns.

For those who do vote by mail, add drop-box locations to Tribal lands and deputize Tribal employees as election officials to collect and receive ballots.

Election officials should coordinate with Tribal officials to ensure that they are working together to address the needs of Tribal voters.

Patty Ferguson-bohnee is the Director of the Indian Legal Clinic and Faculty Director of the Indian Legal Program at the Sandra Day O'Connor College of Law and is Of Counsel at Sacks Tierney P.A.

James T. Tucker is an attorney at Wilson Elser Moskowitz Edelman & Dicker LLP, with offices in Phoenix and Las Vegas, Nev.

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