2021 Montana Laws Limit Native Voter Participation

Photo: gillfoto / CC BY-SA (https://creativecommons.org/licenses/by-sa/4.0)

Attorney: Jacqueline De León, Samantha Kelty, Matthew L. Campbell

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On behalf of the Blackfeet Nation, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Fort Belknap Indian Community, and the Northern Cheyenne Tribe, the Native American Rights Fund (NARF), the American Civil Liberties Union (ACLU), and the ACLU of Montana have filed a lawsuit to challenge two discriminatory voting laws in Montana.

Designed to Affect Native Voters in Montana

Photo of long dirt road leading to mountains in Montana

Montana road to mountains. Photo by Jaix Chaix / CC BY-SA

Native American voters must overcome obstacles at every turn, to participate in the U.S. political system, often driving twice as far as other citizens to register and to vote. Residents living on the seven tribal reservations within the borders of Montana contend with limited mail delivery service as well as great distances from voting registration and polling centers.

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Montana capitol building. Photo by gillfoto / CC BY-SA

In the final weeks of the legislative session, Montana legislators passed two laws in 2021 that will hinder Native American participation in the state’s electoral process. The two new laws will limit votes from a group of voters that comprises nearly 7% of Montana’s population.

One of the new laws ends same-day registration (HB 176), which reservation voters have relied upon to cast votes in Montana since 2005. Election-day registration allows Native American voters residing on the lands of the Blackfeet Nation, for example, to coordinate one long-distance trip to participate in elections. Organizations, including Western Native Voice and Montana Native Vote, provide rides from tribal communities to county election offices on election day so that voters can register and vote.

The other new law attempts to block organized ballot collection on rural reservations (HB 530), in spite of the thirteenth district court ruling unconstitutional a similar anti-ballot collection law in Western Native Voice v. Stapleton in 2020. Ballot collection services in Montana offer Native voters a reliable way to cast a vote from rural locations.

“These laws are part of a broader scheme by the Montana legislature to attempt to cut out the Native vote. We stopped them before and we’ll do it again,” said NARF Staff Attorney Samantha Kelty.

The new laws show an ongoing pattern of anti-Native election-related legislation in the state. On a national level, when the Montana bills became law in May 2021, 13 state legislatures with sizeable Native populations had introduced over 100 bills that would disenfranchise Native voters.

The Litigation

Western Native Voice v. Jacobsen Filed May 2021

In partnership with the ACLU of Montana and ACLU, who represent Western Native Voice and Montana Native Vote in Western Native Voice v. Jacobsen, NARF filed a case in Billings on behalf of the Blackfeet Nation, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Fort Belknap Indian Community, and the Northern Cheyenne Tribe. The lawsuit challenges the constitutionality of HB 176 and HB 530.

“These laws are an unconstitutional attack on the right of Native Americans to vote, and we look forward to proving it in court,” said NARF Staff Attorney Jacqueline De León.

Injunction Filed in Jan. 2022

On behalf of the tribal governments and voter support organizations, NARF, ACLU, and the ACLU of Montana filed for an injunction in the Western Native Voice v. Jacobsen lawsuit on Jan. 12, 2022. The injunction asked the court to prevent HB 176 and HB 530 from going into law until the voter suppression case is decided.

“Instead of working with tribes to overcome the lack of residential mail delivery on reservations, or working to cut down the over 100 miles some voters have to travel to register to vote, the Montana Legislature took away options Native Americans depend on to vote. This injunction will protect these options until they are found unconstitutional.” said NARF Staff Attorney Jacqueline De León.

The injunction would protect voting rights for 2022. “Rural tribal communities across the seven reservations in Montana depend on election day registration and ballot assistance to participate in elections, so if the state began implementing these laws, they would deny many Native Americans the right to vote in the upcoming 2022 midterm elections,” said Kelty.

Injunction Granted in April 2022

On April 6, 2022, the Montana 13th District Court granted the injunction, blocking two state laws that hinder Native American participation in the state’s electoral process. “HB 176 and HB 530 are designed to take advantage of the lack of residential mail delivery, poor roads, and inequitable access to election services plaguing Native communities. Such laws are unconstitutional,” said De León. “No matter how many times Montana politicians try to pass laws restricting Native Americans, we will fight on behalf of tribes to ensure Native people’s right to vote in Montana is free and fair.”

Every Vote CountsThe Native American Rights Fund (NARF), ACLU of Montana, American Civil Liberties Union, and Harvard Law School’s Election Law Clinic challenged the laws on behalf of two Native American voting rights organizations and four tribal nations. “This injunction ensures that legislation designed to limit who can participate in this democracy will not take effect in 2022, and we will continue to fight to ensure HB 176 and HB 530 never restrict Native people’s right to vote in Montana,” said Kelty.

Related Litigation: Western Native Voice v. Stapleton

The Montana Ballot Interference Prevention Act (BIPA), introduced by State Sen. Albert Olszewski (R), passed in 2018. The Native American Rights Fund and the American Civil Liberties Union of Montana filed a case against Montana Secretary of State Corey Stapleton.

On September 25, 2020, Yellowstone County District Court Judge Jessica T. Fehr ruled that blocking ballot collection does not serve the state due to the detrimental impacts on Native voters which NARF proved through “cold, hard data.” The Native American Rights Fund won the court decision against the Montana Ballot Interference Prevention Act (BIPA) for the Assiniboine & Sioux Tribes of Fort Peck, Blackfeet Nation, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Crow Tribe, and Fort Belknap Indian Community. ACLU Montana won the case with NARF for the Western Native Voice and Montana Native Vote.

“For over three years, the Native American Rights Fund has researched every aspect of Native voting rights and attempts to disenfranchise Native voters in Montana,” explained De León, one of the NARF attorneys who presented irrefutable evidence about BIPA’s negative impact on the Native vote. “We know how Native Americans overcome barriers to cast a vote in Montana.”

Learn more about NARF’s work to protect Native voting rights at vote.narf.org.

Obstacles at Every Turn

image of the cover of the report. Native American man wrapped in US flagIn 2020, NARF’s Native American Voting Rights Coalition (NAVRC) published Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters, available at vote.narf.org. The report summarizes the circumstances behind the growing number of Native voting rights cases in the U.S. court system.

NAVRC and NARF collected feedback on the issues by hosting the nine field hearings. More than 120 witnesses from dozens of tribes testified at field hearings in Bismarck, N. Dakota, Milwaukee, Wis., Phoenix, Ariz., Portland, Ore., Rincon Band of Luiseño Indians reservation in Valley Center, Calif., Tulsa, Okla., Isleta Pueblo, N. Mexico, Sacramento, Calif., and in Tuba City on the Navajo Nation, Ariz.

Stand with Us

Please stand with us in protecting Native voting rights! To help communities build a brighter future for all, Native Americans must retain their right to vote. The Native American Rights Fund protects Native voting rights in Montana and across the country. Donate today to support our nonprofit legal organization.

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