Native Americans Could Help Swing Arizona—But Many Struggle to Cast Their Ballot

In the final weeks before the presidential election, Tara Benally has spent her days getting Native American voters registered on reservations in Arizona—a key swing state in the 2020 race where the relatively small Native vote could make a big difference. Community members have been coming to her with a lot of questions about how they can actually cast their ballots. Some don’t have a formal street address and don’t receive mail at their homes. Many are unclear which precinct they should vote in and live hours away from a post office.

For Benally, who was born in San Juan County, Utah, and is a descendant of Hopi and born for Navajo, helping Native Americans navigate these obstacles is personal. “It’s just not another job for me,” she says. As a field director for Rural Arizona Project, which works to empower underrepresented voters, she has sometimes been speaking to dozens of people a day about voting before the registration deadline on Oct. 23. Since March, Benally and her team have registered just over 3,000 people to vote. “I’m encouraging individuals, once they get their ballot in the mail, to just fill it out right there and then in the parking lot and send it back to the county,” she says.

Native Americans in Arizona and across the country face unique challenges to accessing the ballot, particularly when it comes to vote-by-mail, which has gained popularity nationwide as many Americans are wary about the health risks of voting in-person during a pandemic. Many homes on reservations don’t have formal addresses where they can receive mail, according to a June 2020 report from the Native American Right Fund (NARF). Rural post offices can be far away from where people live, and involve their own delays in receiving mail on time because of “complicated mail routing,” the report states. “As states are moving to vote-by-mail, Native Americans are getting left out of that conversation,” says Jacqueline De León, a NARF staff attorney.

All of those potential roadblocks tap into a sense of disenfranchisement in the community that goes back nearly a century. Congress’ passage of the Indian Citizenship Act of 1924 that granted all Native Americans who were born in the U.S. citizenship did not automatically grant the community the right to vote, which was instead governed by state law. It was more than 20 years later, in 1948, when Arizona’s Supreme Court overturned Porter v. Hall, that Native Americans in Arizona could cast a ballot. After that, too, more systemic barriers remained: English literacy tests continued to be required to vote for all U.S. citizens until the 1970s, keeping many Native Americans from the polls.

That history has translated into a general distrust of the federal government — and low turnout for Native Americans voters in recent elections. The National Congress of American Indians (NCAI) says the turnout rate for American Indian and Alaska Native voters is anywhere between 1 to 10 percentage points lower than other racial groups in the U.S., and 34% of the community’s voting-age population is not registered to vote, compared to about 60% nationwide. “When entire nations struggle and strive to have this ability to have a seat at the table (…) when our entire nation struggles to gain visibility, our citizens feel just as disenfranchised,” says Fawn Sharp, the NCAI president.

The Democratic Party and voting rights advocates are now fighting to make it easier for Native Americans to vote in this election. In two current court cases, plaintiffs are seeking to expand the time allotted for Native Americans to mail in their ballots, allow multiple ballots to be collected and dropped off together, and to allow Native Americans to vote out-of-precinct.

Experts say the difference in Arizona’s votes between the two presidential candidates could be far less than the roughly 309,000 American Indians and Alaskan Natives who make up about 6% of the state’s voting-age population, according to NCAI. “Native Americans certainly have the potential to swing Arizona,” De León says.

The Native American vote could also help determine a key Senate race, which could in turn influence Trump’s hopes of securing Amy Coney Barrett a spot on the Supreme Court. Arizona’s Republican Senator Martha McSally was appointed — not elected — to her office in 2019 and now faces a special election against Democratic nominee Mark Kelly. Polls indicate that Kelly is expected to win. If he does, he could enter office as early as Nov. 30 due to the special circumstances of McSally’s tenure — possibly in time to vote on Barrett’s confirmation. Even if Kelly is elected, it’s not a given that Democrats will have the votes to block Barrett’s nomination but his vote could, in some scenarios, tip the scales.

The legal fight to enfranchise Native Americans

In January, a federal court ruled in Democratic National Committee v. Hobbs that Arizona’s ban on both ballot collection, which allows Native Americans to have someone other than a family or household member, mail carrier or election official drop their ballot on their behalf, and on out-of-precinct voting, which often results in Native votes not being counted because community members have in the past mistakenly voted at the wrong precincts, was “enacted with discriminatory intent” and should be lifted.

However, the ruling has since been stayed. The Supreme Court announced on Friday that it would take up the case, but any ruling affecting the legitimacy of the ban would not occur until next year and the stay will continue until then, including in the lead-up to this year’s presidential election, De León says.

Ballot collection is an important issue for the Native American community. For many Native Americans in rural areas it’s not just inconvenient to mail and drop off their ballot, it is “practically impossible,” De León says. Having one person round up a number of ballots to drop off “just makes more sense (…) resource-wise.”

Ignoring out-of-precinct ballots penalizes Native Americans, too. Voting precincts are often created without consulting tribes, which already have geographic areas and clans associated with them, “but the precincts (sometimes) don’t match with their traditional chapter house,” where they vote for tribal elections, De León says. That’s confusing for a lot of voters, advocates say. She points out that many states allow voters to cast a ballot out-of-precinct — at least for county, statewide and federal offices — if you’re voting in the right county. “When you throw out a ballot if it’s cast out of precinct, then you throw away their vote.”

The district court noted in its majority opinion in DNC v. Hobbs that Arizona “rejects a higher percentage of provisional ballots than any other State,” frequently because they are cast out-of-precinct. (Between 2008 to 2016, Arizona discarded 38,335 out-of-precinct ballots cast by registered voters, according to the ruling.) “Navajo voters in Northern Apache County lack standard addresses, and their precinct assignments for state and county elections are based upon guesswork, leading to confusion about the voter’s correct polling place,” it said.

Although the default rule in Arizona currently requires voters cast their ballot in their assigned precinct, the County’s Board of Commissioners can elect to have open-precinct voting that would allow community members to vote at any voting location in their county, says Naomie A. Droll, attorney-candidate for the Navajo Nation Department of Justice. Only one of the three Arizona counties that the Navajo Nation is located in has chosen to do so, according to Navajo Nation President Jonathan Nez’s written testimony for Congress last year. Nez also took issue with Arizona’s ban on ballot collection at that time. These limitations place “the burden on low-income, isolated, elderly voters, who may not speak English as a first language, to find a way to get their ballot to a mail-box possibly as far as 30 miles away, in a timely manner,” he said.

In a second legal case, Navajo Nation members, with help from nonprofit Four Directions, sued Arizona in August in an attempt to secure equal access to mail-in-voting by extending the timeframe in which the state accepts absentee ballots. Current law requires mail-in ballots are received by 7 p.m. on Nov. 3; plaintiffs are asking the state to consider mail-in ballots postmarked on or before Election Day that arrive within 10 days of Nov. 3.

“Navajo Nation Members currently have 40 to 70% fewer days to cast their ballots after they receive them than other non-Indian Arizona voters,” Four Directions said in a statement. If you are a non-Indian person living in a wealthy Arizona city like Scottsdale, checking your mail is as easy as opening your front door or traveling to a post office that is a mile or two away, and you likely have around 25 days to “consider, cast and return” your ballot, according to the lawsuit. If you are a Navajo Nation member you would likely get only 15 days for the same process and cannot walk to your mailbox because you don’t have home delivery, the lawsuit notes.

The lawsuit also highlights disparities in access to mail and transport, stating that “there is one Post Office for every 15.3 square miles in Scottsdale, versus one Post Office every 707 square miles On-Reservation.” About 29% of (Navajo Nation Tribal) member households do not own a vehicle, it reads. “All we’re asking is that they have the same type of timeframe in which to look at that ballot and cast it to make it fair,” says OJ Semans, the group’s co-executive director.

The Trump campaign recently filed a motion to intervene in the Four Directions lawsuit, arguing expanding the deadline would change the election results, provide special treatment to some citizens and “sow confusion and delay,” but the motion was denied.

For Semans, the case is a matter of accessing constitutional rights, not partisan politics. “We don’t go to court on behalf of one party or the other because we have seen both parties—Democrats and Republicans—have taken action that has adversely affected Indian Country,” Semans says. “We have sued Republicans, we have sued Democrats.”

A spokesperson for Democratic Secretary of State Katie Hobbs, who is being sued in her official capacity in the lawsuit, says her office is working with Native Americans who want to vote. The agency said it has “secured an additional $1.5 million for counties to reach out to tribal and rural communities,” to be spent on initiatives like mobile voting sites and additional ballot box locations, Hobbs said in a statement emailed to TIME. State voting officials are coordinating with each of the tribes and have “included about 24,000 voter registration forms voter registration forms as inserts in the three newspaper publications across Arizona in indigenous communities,” the statement says.

No internet or formal addresses make it more difficult to register and vote

It’s not just voting but also voter registration that is difficult this year for Native Americans, many of whom register in-person because they lack good internet access, says Patricia Ferguson-Bohnee, a law professor at Arizona State University who leads the college’s Indian Legal Program. The fact that many people lack formal address and official identification complicates things further. “It’s not their fault they don’t have a standard address or have no need for a state ID… that’s a huge issue which disproportionately impacts Native people and their ability to register and participate in the election,” Ferguson-Bohnee says.

Governor of the Gila River Indian Community Stephen Roe Lewis says individuals who use tribal identification cards have run into “very serious barrier(s)”to voting in the past because sometimes addresses don’t match up with those on inaccurate poll address lists. “Voters have been turned away,” particularly when poll workers haven’t been trained in a culturally appropriate manner, he says. “We’re a vote that is often overlooked but we shouldn’t be,” Lewis says. But that may be changing, he adds. Both candidates for Arizona’s U.S. Senate seat—McSally and Kelly—prepared videos for the Gila River Indian Community’s virtual Census & Get Out the Vote Rally last month in an attempt to earn the Native American vote.

To tackle the formal address issue, election advocates in Navajo Nation are starting to use Google Plus Codes, which are based on latitude and longitude and used for places that don’t have an address. Navajo Nation Attorney General Doreen McPaul testified before Congress in February, saying that about 70 of the Navajo Nation’s 110 chapters “do not have street names or numbered addresses, which adds up to at least 50,000 unmarked properties.”

Although the Google Plus Codes can be used for online voter registration to ensure voters are placed in the correct precinct, they are not currently being used as a fix for home delivery, says Droll, with the Navajo Nation Department of Justice. It also doesn’t solve the problem that many people can’t register online from home. “It sounds great, but the issue is that more than half the homes on the nation don’t have access to the internet,” Droll says.

Coconino county recorder Patty Hansen says authorities in the county, which includes multiple Native American Tribal Lands, have expanded in-person early voting locations since the 2018 midterm elections and will be setting up at least nine drive-up ballot drop off sites. They are also running more radio ads and newspaper ads since many chapter meetings—where many community members got information about voting—have been cancelled due to COVID-19. “Logistics and communication is hard,” since there’s “very poor internet access on the Navajo reservation,” Hansen says.

Because online voter education and outreach won’t work on any scale, Benally and her team in the Rural Arizona Project have been hitting the phones, calling people up and encouraging them to make sure their friends and families vote and providing drive-through voter registration, as well as setting up at malls and chapter houses. They were door-knocking before COVID hit.

By trying to help Native Americans vote, Benally is also trying to rebuild the communities’ faith in the Democratic process. “Time and time again, treaties have been broken…funding was cut,” she says. “All they know is the fact that the federal government is not to be trusted.”