By: Taylor Bingham
If you were like me this election cycle, your eyes were glued to social media. The 2020 election season seemed never-ending, and it was as if each day brought with it a new constitutional crisis. However, one aspect of this election cycle that brought with it hope for the future of our communities was the extensive efforts being taken on the ground to increase the turnout of Native American voters and expand representation at all levels of government.
This effort resulted in a new President and Vice President, the retention of a Democratic majority in the House of Representatives, and, upon the conclusion of the Georgia runoff election, a 50-50 split in the Senate. It may also lead to the first Native American Cabinet Secretary, with Representative Deb Haaland nominated to serve as Secretary of the Interior. Finally, a record six Native Americans were elected to serve in Congress, and the rise of local Native American candidates who brought crucial issues to the forefront illustrates the potential for the future.
As the nation reflects on the numerous ways in which this election was historic, it is imperative we recognize the importance of Native American voters and Native American candidates. However, we must also acknowledge that in order to bring about fundamental change in our country, progress remains to be made in ensuring that voter disenfranchisement, particularly of Native American communities, is eradicated. As we await the Supreme Court’s decision in Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Apr. 27, 2020), a case in which voting access is being challenged, it is clear that there is still work to be done.
Native American Voters and the 2020 Election
Though Native American voters represent a smaller portion of the United States population, “they are often concentrated in communities that make them a political force.” Native American voters have often been the decisive difference in elections in Alaska, the Dakotas, and the Southwest, and 2020 was no different. The results of this election have been widely attributed to the impact of Native American voters in key states. In Arizona, maps of tribal lands in the state overlap almost exactly with those showing counties that voted for President Biden. As a result, this election was only the second time in 70 years that Arizona has elected a Democratic presidential candidate. Despite the disparate impact of the COVID-19 pandemic on Native American communities and the refusal on the part of the State of Arizona to modify ballot receipt dates, Apache County “saw 116% voter turnout compared to the 2016 election.” In Wisconsin, Native American voters in areas like Menominee County helped create a slim majority for Biden. The Lumbee tribe, who have been pursuing federal recognition for decades and were promised such recognition after a rally held by former President Trump, are being credited with his win in North Carolina, as well as the success of Republican Senator Thom Tillis there.
In South Dakota and Montana, though each state’s electoral votes ultimately went to Trump, counties that overlapped with tribal nations largely showed higher proportions of Democratic voters. Though this did not change the outcome of the Presidential race in those states, the impact on down-ballot races has been demonstrated in the past. The narrow success in 2018 of Montana Senator Jon Tester, a Democrat and staunch advocate for Native American issues, is one example.
With the increase in partisanship stalling legislation and deepening political divides, elections “are increasingly decided by razor-thin margins” while “Native people are almost always overlooked or forgotten.” However, Jordan James Harvill (Cherokee), who worked with Navajo Nation as chief of staff for VoteAmerica, described this election as one that illuminated for the rest of the country just how important Native American voters are, stating “[w]hen we’re looking on to the next several years, we’re going to see that Native American voters become one of the defining members of the electorate.” It would be a mistake to overgeneralize the Native American electorate as one that votes identically and supports only certain issues. However, it is important to note that issues like tribal sovereignty, energy, climate, water, education, and child welfare have been key to motivating Native American voters to take part in elections. These issues have also demonstrated the ability of legislators to work in a bipartisan manner to advance legislation and promote tribal sovereignty. By presenting comprehensive policies to voters in regard to these issues, the success of candidates in close races will be tied to the power of Native American voters, and the nation as a whole will stand to benefit from the progressive policies that many Native American voters support.
The Success (and Future) of Native American Political Candidates
According to data from the 2010 US Census, if Native American representation in Congress was in proportion to the United States population, there would be two Native American Senators and eight House Representatives. Due to increases in population over the last ten years, it is likely that this number is now higher. In 2020, Representative Deb Haaland (Laguna and Jemez Pueblo) and Representative Sharice Davids (Ho-Chunk) were both reelected, continuing their historic legacies as the first Native American women elected to Congress. They were joined by Yvette Herrell (Cherokee), a Republican from New Mexico and Kaiali’i Kahele, a Democrat and only the second Native Hawaiian ever elected to Congress. Representatives Tom Cole (Chickasaw) and Markwayne Mullin (Cherokee) were also reelected. Though this year did not see Congress painting an accurate portrait of the demographic makeup of the United States, the six Native American candidates elected once again make this House one that is making history.
Though the increase in elected representation is crucial, it is also important to note the increase in Native American candidates overall, and the excitement their candidacy garnered among their constituents. Mark Charles (Navajo), a speaker, activist, and author who was raised in Gallup, NM, was on the ballot in Colorado as a candidate for President. Paulette Jordan (Coeur d’Alene), a Democrat state legislator from Idaho, ran for Senate in a race that was closely followed. There were a total of thirteen Native American candidates for the House of Representatives. One candidate, Lynnette Grey Bull (Northern Arapaho and Hunkpapa Lakota), a Democrat from Wyoming, made history as she is believed to be the first Native American to run for federal office from the state. Her challenge to Republican Representative Liz Cheney was marked by debates in which treaty rights and the impact of COVID-19 were discussed, a rare occurrence in Wyoming’s political discourse.
It remains to be seen how this increase in candidacy played out collectively in state and other down-ballot races, but the successful campaign of Christine Haswood (Diné) of Kansas is one example of the ways in which young Native American politicians have increased representation throughout the country.
Voter Disenfranchisement and Brnovich v. Democratic National Committee
The 2020 election has not demonstrated anything new. The impact of Native American voters on key races and in pushing legislative policy is clear to those who pay attention. However, others’ newfound awareness of the importance of Native American voters and their impact during the 2020 election contrasts with the consistent attacks by various governmental entities on the ability of Native Americans to exercise their right to vote.
In 2020, the Native American Rights Fund (NARF) issued an extensive report entitled Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters. This report used historical data and data compiled from a series of field hearings conducted across seven states to identify the various barriers to voting access faced by Native American voters. In all, the report describes eleven factors that discourage political participation, ten barriers to voting registration, nine barriers to casting a ballot, and four barriers to having ballots fairly and accurately counted. Each of these factors was then compounded by the failure of many jurisdictions to implement required language assistance provisions mandated by the Voting Rights Act (VRA). As the authors of the report state, it may be that the potential of Native American voters to decide competitive elections has “made them the target of voter suppression tactics in communities that are not used to Native Americans flexing their political power.”
One such example of voter suppression is Brnovich v. Democratic National Committee, a pending Supreme Court Case that is set for oral argument in March 2021. This case presents two questions: 1) Whether Arizona’s out-of-precinct policy violates Section 2 of the VRA, and 2) whether Arizona’s ballot-collection law, passed in 2016, violates Section 2 of the VRA or the Fifteenth Amendment.
In Arizona, each county determines whether they will use a vote center system or a precinct based system for voters who cast their ballots in person. Arizona’s out-of-precinct policy states that voters must vote at their assigned polling place within their precinct, but may cast provisional ballots if they arrive at a polling place where their name is not listed on the precinct register. If that voter is later found to not live at an address within the precinct in which they voted, the provisional ballot is discarded entirely. The second law being challenged is H.B. 2023, which was passed in 2016 and made it a crime to collect or deliver another person’s ballot unless that person was an election official, mail carrier, family or household member, or a caregiver. The Democratic National Committee (DNC) challenged these laws, in part stating that they violate Section 2 of the VRA “by adversely and disparately impacting the electoral opportunities of Hispanic, African American and Native American Arizonans.”
The National Congress of American Indians (NCAI) prepared an amicus brief in support of the respondents in which they used the voting report to demonstrate the ways in which these two Arizona laws disenfranchise Native American voters in the state. The NCAI brief points to factors such as geographic isolation, lack of residential mail delivery, and lack of reliable roads and broadband access that prevent voters from accessing polling places in precinct or from handling their own ballots. It also described the historical impacts of voter disenfranchisement on Native American communities, and provided numerous examples of ways in which systemic racism has played a significant role in the creation of new voting laws, even since the passage of the VRA. These factors have only been compounded by the COVID-19 pandemic, which has further limited voting access.
It remains to be seen whether the Court will uphold the previous courts reversal that struck down these two Arizona provisions. Regardless of what the Court decides, as voters and advocates, it is crucial that we hold legislators accountable and demand that they address voting barriers such as those described in the NARF report. As community members, volunteering to support voter outreach or donating to voter outreach organizations like Four Directions, the Native American Rights Fund, and the National Congress of American Indians can also be beneficial. However, if the Court chooses to change course and allow the state of Arizona (and others like it) to circumvent voter protections, we can expect to see a continued push by grassroots vote organizers to push forward for the benefit of Native American communities.
 Dr. James Thomas Tucker, Jacqueline De León, & Dr. Daniel McCool, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters 1, Native American Rights Fund (2020), https://vote.narf.org/wp-content/uploads/2020/06/obstacles_at_every_turn.
 Anna V. Smith, How Indigenous Voters Swung the 2020 Election, High Country News (Nov. 6, 2020), https://www.hcn.org/articles/indigenous-affairs-how-indigenous-voters-swung-the-2020-election.
 Julian Brave NoiseCat, In Trump v. Biden, Native American Voters Played a Crucial Role. It’s Time to Recognize That, NBC News Think (Nov. 27, 2020, 2:32 AM), https://www.nbcnews.com/think/opinion/trump-v-biden-native-american-voters-played-crucial-role-it-ncna1249005.
 See Smith, supra note 3; National Congress of American Indians, Fast Facts, Every Native Vote Counts (2020), http://www.nativevote.org/wp-content/uploads/2020/05/2020-Native-Vote-Infographic.pdf.
 NoiseCat, supra note 6.
 Smith, supra note 3.
 National Congress of American Indians, supra note 7.
 Interview by Savannah Maher with Aliyah Chavez, Reporter/Producer, Indian Country Today (Nov. 4, 2020), https://www.wyomingpublicmedia.org/post/win-or-lose-indigenous-congressional-candidates-made-history-2020#stream/0.
 National Congress of American Indians, supra note 7.
 Dalton Walker, US House Candidates Make History, Indian Country Today (Nov. 4, 2020), https://indiancountrytoday.com/news/us-house-candidates-make-history-nrjfe9eNSk6dY6UQLZgD-g.
 Id.; Dalton Walker, Is Mark Charles on the Ballot?, Indian Country Today (Aug. 21, 2020), https://indiancountrytoday.com/news/is-mark-charles-on-the-ballot-nPPL9aro7UKG86zI-kMAuA.
 Walker, supra note 13.
 Maher, supra note 11.
 Maher, supra note 11.
 Tucker et al., supra note 1, at 4.
 Id. at 2.
 See id. The details of this extensive report are beyond the scope of this reflection piece but are considered by the author to be required further reading for advocates.
 Id. at 1.
 Petition for Writ of Certiorari at -, Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Apr. 27, 2020).
 Brnovich v. Democratic National Committee, Oyez, https://www.oyez.org/cases/2020/19-1257 (last visited Jan 24, 2021).
 Petition for Writ of Certiorari, supra note 25, at 6.
 Id. at 7.
 Id. at 5.
 See Brief of National Congress of American Indians Amicus Curiae in Support of Respondents at 14-26, Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Jan. 20, 2021).
 Id. at 26-34.