The Difficulties of Voting by Mail in Indian Country
It’s June now, and the novel coronavirus is not so novel anymore. Yet, it still influences decision-making on just about everything, including how we’ll vote in the many primaries yet to come and November’s general election. Will Americans be voting in polling places on Election Day, as most did in 2016, or will far more people vote by mail?
The Canvass addressed variations on this theme in March (Policy Decisions on Voting Outside Polling Places), April (State Responses to Coronavirus and Elections) and May (Why Elections Need Both Absentee and In-Person Voting). Each month’s lead article led to the next—and that’s true this month, too. Mail voting is likely to increase in 2020 as voters choose to request absentee ballots or election officials encourage mail voting by sending out ballot applications or even ballots to all registered voters. It’s worth noting, however, that mail elections may be convenient for many voters, but inconvenient for others. For many American Indian and Alaska Native voters, mail voting may be worse than inconvenient; for some, it verges on impossible.
Vote-by-mail advocates, who are trying this year to address public health concerns about polling places, don’t intend to make voting harder for American Indians or Alaska Natives, and there are ways that states moving toward more mail voting can mitigate its potential problems. This is especially important when the American Indian population is growing (from 4.1 million people in 2000 to 5.2 million in 2010), yet turnout is lower for the group than other racial or ethnic groups, according to an infographic from the National Congress of American Indians’ Native Vote project. Of course, turnout varies widely based on which tribe and the interests of individual voters.
Let’s cut to the chase. “Increased Vote by Mail is Great! All Vote by Mail is Not Great!” read the first slide Jacqueline De León, of the Native American Rights Fund, showed on NCSL’s May webinar, “Moving to All-Mail Elections: Promises and Challenges.” “We must provide safe, in-person voting options, especially in rural and high-poverty areas,” she said to accompany the slide—adding that Indian Country is often both rural and poor.
De León has an ally in Washington state: Secretary of State Kim Wyman. “Here in Washington we have 29 recognized tribes,” says Wyman. “They each have unique challenges, and they cannot all be met in the same way.” She pointed to the Yakima Nation’s decision to locate a ballot drop box near the community center and to permit its members to use the community center for their address.
While generalizations can be dangerous, here are some of the issues voting by mail can pose for American Indian and Alaska Native voters:
- On reservations or in other rural areas, it’s common to have a “nontraditional” address instead of a street address—or no address at all. Registering to vote is based on the geographic location of a home, and if that’s hard to identify, it’s hard to get registered.
- Because of poverty and the lack of housing on many reservations, homelessness—or couch surfing—is more common, again making registration harder.
- The postal service doesn’t deliver mail to many American Indian or Alaska Native homes—and therefore many of those voters can’t vote at home.
- Many American Indians in rural areas use P.O. boxes for mail delivery, but they cost money and are in short supply. Boxes are often shared as well, so ensuring that a ballot gets to the right person is tricky.
- Those P.O. boxes could easily be 20-40 miles away, on rough dirt roads that, depending on the weather, may be impassable. County seats can easily be even farther away, so making a trip to town to get a ballot is hard too.
- Mail delivery can take a long time in rural areas. Voters may not receive their ballots in time to vote, or the returned ballots may not arrive by the voting deadline, even when voters send them in ahead of time.
All of this, according to De León, “means that mail is lost, there are long lapses and conceivably people miss an entire election cycle before they receive their mail.”
Voting challenges in Indian Country aren’t all about the mail, though. They’re also about English fluency. Alaska, Arizona, California, Colorado, Mississippi, New Mexico, Utah and Texas have Native populations with enough nonproficient English speakers that the Native languages are “covered” by section 203 of the Voting Rights Act. That means that in some jurisdictions, bilingual ballots and voting materials must be provided in Alaskan Athabaskan, Apache, Choctaw, Inupiat, Navajo, Pueblo, Ute or a catch-all group for all other languages, according to the Department of Justice’s most recent determination of covered languages.
Then there’s everyday literacy. Ballots and the instructions that go with them may not be easily understood by anyone with low literacy, American Indian or otherwise. (By providing design guidance, the Center for Civic Design can help make voting easier for everyone.) While literacy can pose a problem for in-person voters, too, polling places have staff who can explain the process.
“What we need is cooperation with state and county officials to provide safe in-person voting options,” says De León. But because Native communities, such as the Navajo Nation, have been hard hit by COVID-19, even that is challenging.
The solution, says De León, is to continue to offer in-person voting on tribal lands, preferably over the course of an ample early voting period. That will both keep crowds down (and therefore limit opportunities for catching or spreading the virus) and accommodate more voters who must travel a long distance. Curbside voting would work well, too, and there’s every reason to train tribal members to be election officials and poll workers.
Since 2017, at least six states have considered bills specifically addressing the needs of American Indian voters, whereas between 2011 and 2016, no bills of this nature were introduced.
- Washington in 2019 enacted SB 5079, the Native American Voting Rights Act, becoming the first state to have one. The act specifies that ballot drop locations be situated on tribal lands, and it allows the use of a tribal building as a voter’s home address, thus accommodating voters who move frequently.
- Montana in 2019 adopted HJR 10, which calls for an interim study to identify and address barriers to voting by American Indians in the state.
- Colorado in 2019 enacted HB19-1278, which allows voters living on reservations to use alternative addresses for voter registration and enables tribes to request vote centers and ballot drop box locations on tribal lands.
- California is currently considering AB 2314, which would create the Native American Voting Accessibility Advisory Committee to “establish guidelines for reaching as many Native American voters as practical” and “make recommendations to improve the recruitment of Native American poll workers,” among other goals.
- Nevada in 2017 enacted SB 492, a bill that requires counties to set up a polling place on a reservation at a location determined in consultation with the tribe.
- New Mexico in 2017 had three bills proposed to create a Native American Voting Taskforce; when session ended with no enactments, the secretary of state created the task force on her own.
This trendlet, not surprisingly, comes from western states with large American Indian populations. Voting by mail has largely been a western phenomenon, too.
What else can legislators do to ensure changes to voting methods don’t harm American Indian and Alaska Native voters? Legislators can connect with members of the National Caucus of Native American State Legislators. They can ask to meet with tribal leaders on a reservation. They can require that elections information be screened for literacy level, something that would benefit many voters. And as their states move toward more mail, they can require that some in-person and on-reservation voting remain available, no matter what.
To learn more about American Indian voting generally, read the Native American Voting Rights Coalition’s report, “Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters,” on a series of field hearings held in Indian Country in 2017 and 2018.
Legislative Action Bulletin
- As of this writing, at least nine legislatures continue to have their sessions postponed due to COVID-19.
- Twelve states are currently in regular session, along with the District of Columbia, Gaum, Puerto Rico and the U.S. Virgin Islands.
- Four states are not in session in 2020: Montana, Nevada, North Dakota and Texas.
As more state legislatures return to session, some with modified provisions for social distancing and some even voting remotely, legislators are introducing election bills in response to the current public health crisis. Many states are focused on expanding absentee voting or preparing for an increase in the number of voters choosing to vote outside the polling place. For example:
Enactments
South Carolina passed a bill that allows any voter to cast an absentee ballot if they are in an area subject to a state of emergency and there are fewer than 46 days remaining until the election. This applies to the June 9, 2020, state primary election and not to the general election.
Utah enacted a bill that makes temporary changes to its election code relating to the 2020 primary, including allowing counties to conduct the June 30 state primary entirely by mail, with some exceptions for disabled voters and limited opportunities for drive-up voting on Election Day.
Vermont enacted a bill that expands the powers of the governor and secretary of state to order changes to election procedures, including the authority to require town clerks to send mail ballots to all registered voters. The act also suspends requirements for candidates to gather signatures to get on the ballot. This law applies to all elections in 2020.
Maryland passed a bill that requires local boards of election to provide prepaid postage on absentee ballots mailed to voters.
Introductions
Legislation passed by both chambers in Missouri would expand absentee voting to voters who have contracted, or are at risk for, illnesses related to the new coronavirus, and would allow any registered voter to vote by mail. Voters casting a ballot by mail would still be required to submit a notarized statement under penalty of perjury. Both portions of the bill apply to elections in 2020 only. This bill awaits the governor’s signature.
Legislation introduced in Massachusetts would implement the 2020 Vote by Mail Act, which requires that every voter be sent an application for a vote-by-mail ballot, with prepaid postage. The bill applies to all elections in 2020.
Legislation introduced in Michigan would require all elections after Oct. 1, 2020, to be conducted “by absentee voter ballot only,” with every voter sent an application for a vote-by-mail ballot.
From the Chair
This month we spoke with Maryland Delegate Nick Mosby (D). Mosby represents District 40, which is located within Baltimore City and contains more than 117,000 residents, the majority of whom are African American. He has held this office since 2017.
How did you get selected to chair the election law subcommittee?
The House of Delegates leadership just changed over for the first time in two decades. The new speaker of the House—our first female speaker, Adrienne A. Jones—had confidence in me. I had been on the subcommittee since 2017 and was very successful in passing bills out of it. When she asked me, I emphatically said yes.
What are the major election administration priorities for you and Maryland? How have those priorities changed with the coronavirus pandemic?
We had to adjourn our 90-day session abruptly due to the outbreak, but there were a couple different bills we passed in an emergency fashion. We passed a bill that repackages the idea of absentee ballots to vote-by-mail. When people hear absentee ballot, they think of that as being for people in the military, the hospital, out of state—not as a standard way of voting. So we decided to call it vote-by-mail.
We also passed a bill to ensure that postage for mail ballots is 100% paid, and our governor moved our municipal primaries from April 28 to June.
What are your thoughts on Maryland moving to all-mail elections for its primary?
I’m supportive of vote-by-mail and providing folks with the option of voting at home.
Maryland is a diverse state with some large urban areas, though, so it will be interesting to see how the concept takes hold. Traditionally people like to go to the polls on Election Day because that’s the way they’ve always done it. It also will be interesting to see how mail voting affects turnout, especially for our older electorate.
Our response to the COVID-19 outbreak will help normalize vote-by-mail. That’s my hope. It’s going to be normalized and here to stay.
Does being close to Washington, D.C., have an effect on Maryland’s elections?
No—D.C. and Maryland are two totally different animals. Particularly in a place like Baltimore City, we have access to a lot of astute, subject matter experts, but that doesn’t necessarily translate into our state’s elections because we’re so diverse. Even counties are very different from one another, so it’s important to understand the local way of running things.
What are you most proud of in terms of Maryland’s elections?
I think Maryland has been ahead of the curve on initiatives to stop voter suppression, as well as expanding the accessibility of voting and opening up voting to otherwise forgotten populations.
In Maryland, we work to ensure the sanctity of voting and that access to voting is done in a way so all folks feel comfortable.
For example, in our state, felons can vote if they’ve finished parole or probation. I sponsored a bill this session—which unfortunately couldn’t make it out of the Senate due to our sudden adjournment—that would allow incarcerated people to vote and provide tools to help them do so.
I’ve also worked with the disability community to ensure the usability of our ballot marking devices, that voters with disabilities are provided with matching ballots and that our voting technology works for them.
Anything else you think your peers in other states might find interesting?
We’ve had some sweeping reforms in the past few years, including adopting Election Day registration. But there’s still many more progressive things to do around giving voters the ability to vote, expanding polling place hours and stopping voter suppression.
This interview has been edited for length and clarity.
What is ballot collection and how do states address the concerns it raises?
Ballot collection is when a volunteer or worker collects mail or absentee ballots from several other voters and returns them to an approved drop off location. The biggest concern with ballot collection (and the reason it’s pejoratively known as “ballot harvesting”) is that the collector could persuade the voter to vote a certain way, so some states have laws limiting this practice.
In Alabama, for example, ballots can only be returned by the voter. Nine other states allow a family member to return a ballot for a voter, and 27 states allow voters to designate someone to return their ballot. Of those 27 states, 12 have laws limiting the number of ballots any one agent can collect and return. Several states, such as Nebraska and West Virginia, allow a volunteer or designated agent to collect and return two ballots for any election. In Montana, an agent may collect six ballots, and in Colorado and Georgia, an agent may collect up to 10.
Find information for each state on this table.
One Big Number
One.
That’s the number of state websites where the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) information meets ideal readability standards, according to a new study from the Federal Voting Assistance Program. All 55 U.S. states and territories have webpages with UOCAVA information, and most of those webpages are easy to locate. But the vast majority do not communicate that information in a clear, logical, concise or jargon-free manner, according to the report. Find a brief overview of the study and readability recommendations here.
Worth Noting
California Goes All-Mail, Catches Fire
California is now the sixth state with plans to conduct its November general election by mailing ballots to all of its voters. This change comes by executive order and will only be in effect for the November 2020 election, unless the legislature decides otherwise. Other factors may affect this proposed shift, as well: The governor’s order is the subject of a lawsuit brought by the Republican National Committee, so watch for further developments.
New Jersey Town Takes Novel Approach to Tied Election
When ties occur, candidates typically petition for a recount or contest the results, which may break the tie. The township of Nutley, N.J., however, might see a different resolution. The current mayor, Joseph Scarpelli, and Mauro Tucci, both Republicans, tied for the seat and plan to split the four-year term, with Tucci taking the first two years and Scarpelli the second—though a recount may be in the works, if third-place finisher Al Petracco decides to request one. He trailed Scarpelli and Tucci by just 37 votes.
Wisconsin Election Commission Releases Report on April 7 Election
The Wisconsin Election Commission has released a report analyzing absentee voting in the state’s April 7 election. The report finds that 61.8% of the ballots cast were cast by mail. In addition to the numbers of absentee ballots sent, returned and counted, returned and rejected, and not returned, the report offers recommendations for addressing future logistical and technical challenges with absentee voting in the Badger State.
Duplicate Ballots, But No Double Voting, in Pennsylvania
A system glitch in Allegheny County, Pa., has sent out duplicate ballots to an unknown number of voters. Fortunately, county election officials stress that even if a voter received multiple ballots, the barcode on each is the same—which means that the voter can only vote once because the system ignores any ballot whose barcode has already been scanned.
Legal Battle Over Felon Voting Rights Continues in Florida
A federal judge ruled that the state cannot prevent felons from voting if they cannot pay fees, fines and restitution, a decision that would make more than 430,000 felons eligible to vote in the Sunshine State. Shortly after the ruling, Governor Ron DeSantis expressed plans to appeal the judge’s decision to the 11th Circuit.
Looking for Elections Reading Material?
Check out the Fulcrum, a new online publication that covers democracy issues, including lots about elections. And if you want more news, Electionline Daily News and Electionline Weekly are longstanding, reliable sources. We at NCSL rely on them for election news.
Voting in Jails Report
Many people in local jails are eligible to vote because they are not serving felony sentences. However, the vast majority of inmates who are eligible to vote do not have a way to do so, and this report from the Sentencing Project addresses the state of voting access in jails and highlights jurisdictions actively supporting ballot access for those in jail.
Library Staff Become Ballot Processers
In Chesapeake, Va., library staff found themselves with time on their hands due to COVID-19-related shutdowns, and the city’s Voter Registrar’s Office found itself with significantly more mail ballots than ever before—who knew that this could lead to a valuable partnership? Several library employees stepped up to help prepare and process absentee ballots, making the surge of absentee ballots more manageable and paving the way for future collaborations should the election office remain closed for the June 23 primary.
Learn More About Voting by Mail
It’s not too late to learn from NCSL’s “Voting Outside the Polling Place” webinar series and report.
From the NCSL Elections Team
Our biggest news is that the 2020 NCSL Legislative Summit scheduled for Aug. 10-13 in Indianapolis has been canceled. We regret not being able to gather together, but this decision was made with the health and safety of legislators, staff and others as NCSL’s top priority.
Wendy Underhill, Brian Hinkle and Mandy Zoch