Shelby County v. Holder Brief Amici Curiae

    No. 12-96

it l  Wl)B
Supreme Court of tfje fHntteb States!

---------------- * ----------------

SHELBY COUNTY, ALABAMA,
Petitioner,

ERIC H. HOLDER, JR., ATTORNEY GENERAL 
OF THE UNITED STATES OF AMERICA, ETAL.,

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The District Of Columbia Circuit
-------------- 4 --------------

BRIEF OF AMICI CURIAE THE NAVAJO NATION, 
LEONARD GORMAN, ANTHONY WOUNDED 

HEAD, SR., AND OLIVER J. SEMANS, SR.,
IN SUPPORT OF RESPONDENTS 

AND RESPONDENT-INTERVENORS
-------------- 4--------------

Judith M. Dworkin*
Patricia A. Ferguson-Bohnee 
Sacks Tierney P.A.
4250 North Drinkwater Blvd.
Fourth Floor 
Scottsdale, AZ 85284 
(480) 425-2600 
dworkin@sackstierney. com 
Counsel for Amici Curiae
D. Harrison Tsosie, Attorney General 
Dana Bobroff, Deputy Attorney General 
Navajo Nation Department of Justice 
P. O. Box 2010 
Window Rock, AZ 86515 
(928) 871-2675
Counsel for Amicus Curiae Navajo Nation 
*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF CONTENTS
Page

TABLE OF CONTENTS........................................... i
TABLE OF AUTHORITIES....................................  iv
INTEREST OF THE AMICI CURIAE...................  1
SUMMARY OF ARGUMENT.................................  3
ARGUMENT.............................................................  4

I. THE VOTING RIGHTS ACT AS ENACTED 
AND REAUTHORIZED PROTECTS IN­
DIANS FROM PURPOSEFUL DISCRIM­
INATION THAT HAS DENIED THEIR 
RIGHT TO VOTE IN STATE AND FED­
ERAL ELECTIONS......................................  4
A. Voter Discrimination Prior to the Pas­

sage of the Voting Rights A ct................  4
B. The Voting Rights Act of 1965 Provided

Certain Protections to Indians.............. 7
C. Continued Discrimination Subjected 

Counties in Arizona and South Dakota
to Section 5 .............................................. 8
1. Apache, Navajo and Coconino Coun­

ties in Arizona Discriminated against 
Indian Voters.....................................  8

2. Todd and Shannon Counties in South
Dakota Discriminated against Indi­
an Voters............................................  12



11

II. THE 2006 REAUTHORIZATION WAS A
LEGITIMATE RESPONSE TO CONTIN­
UED INTENTIONAL DISCRIMINATION
AGAINST INDIAN VOTERS IN COV­
ERED JURISDICTIONS.............................. 13
A. Indians Continue to Be Disenfran­

chised by Voting Schemes.....................  16
B. Polling Place Discrimination................  21
C. Ineffective Language Assistance Disen­

franchises Indian Voters.......................  23
D. Language Minority Provisions Have

Had a Beneficial Impact on the Num­
ber of Indian Voters................................ 27

III. SECTION 5 PRECLEARANCE IS A KEY
COMPONENT TO PROTECTING THE FUN­
DAMENTAL RIGHTS OF INDIANS.........  29
A. Native American Voter Registration and

Turnout Have Increased.......................  30
B. The Evidence Reveals that There Is a

Continued Need for Section 5 ............... 31
C. Federal Observers Help to Increase 

Compliance with the Voting Rights Act
in Covered Jurisdictions.......................  35

D. Section 5 Preclearance Continues to
Protect Indian Voters............................  37

E. Section 5’s Preclearance Requirements
Are Not Onerous.....................................  38

TABLE OF CONTENTS -  Continued

Page



Ill

TABLE OF CONTENTS -  Continued
Page

IV. REAUTHORIZATION IS SUPPORTED BY 
THE RECORD AND A VALID EXERCISE
OF CONGRESSIONAL POWER................  41

CONCLUSION.........................................................  42



IV

Cases

American Horse v. Kundert, No. 84-5159

TABLE OF AUTHORITIES

Page

(D.S.D. Nov. 5, 1984).................................................18
Apache County High School No. 90 v. United 

States, No. 77-1815 (D.D.C. June 12, 1980)...........11
Apache County v. United States, 256 F. Supp

903 (D.D.C. 1966).........................................................8
Black Bull v. Dupree School District, No. 86- 

3012 (D.S.D. May 14, 1986)......................................22
Blackmoon v. Charles Mix County, 505 

F. Supp. 2d 585 (D.S.D. 2007).................................. 20
City o f Boerne v. Flores, 521 U.S. 507 (1997).............15
Elk v. Wilkins, 112 U.S. 94 (1884).................................5
Goddard v. Babbitt, 536 F. Supp. 538 (D. Ariz.

1982)............................................................................19
Goodluck v. Apache County, 417 F. Supp. 13 (D.

Ariz. 1975), aff’d, 429 U.S. 876 (1976).............10, 11
Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948)............ 6
Kirkie v. Buffalo County, No. 03-3011 (D.S.D.

Feb. 12, 2004)............................................................19, 20
Little Thunder v. South Dakota, 518 F.2d 1253 

(8th Cir. 1975)............................................................12
Navajo Nation v. Brewer, No. 06-1575 (D. Ariz.

May 27, 2008)..............................................................2, 34
Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009).................................................. 16, 38



V

Oregon v. Mitchell, 400 U.S. 112 (1970)....................... 9
Porter v. Hall, 271 P. 411 (Ariz. 1928).......................... 6
Quick Bear Quiver v. Nelson, 387 F. Supp. 1027 

(D.S.D. 2005).............................................................. 34
Reno v. Bossier Parish School Bd., 528 U.S. 320 

(2000)...........................................................................18
Shirley v. Superior Court for Apache County,

513 P.2d 939 (Ariz. 1973).......................................... 10
Thornburg v. Gingles, 478 U.S. 30 (1986)................. 29
United States v. Arizona, No. 88-1989 (D. Ariz.

May 22, 1989)......................................................17, 25
United States v. Arizona, No. 94-1845, 1994 

U.S. Dist. LEXIS 17606 (D. Ariz. 1994)..................17
United States v. Day County, No. 85-3050 

(D.S.D. Oct. 24, 1986)............................................... 18
United States v. McKinley County, New Mexico,

941 F. Supp. 1062 (D.N.M. 1996)............................27
United States v. South Dakota, 636 F.2d 241 

(8th Cir. 1980)............................................................13

United States Constitution

U.S. Const, amend. XIV........................................ 5, 41
U.S. Const, amend. X V ................................................41

TABLE OF AUTHORITIES -  Continued
Page



VI

Federal Statutes

42 U.S.C. §§ 1973 et seq....................................... passim

43 Stat. 253, Pub. L. No. 175 (1924) (codified as

TABLE OF AUTHORITIES -  Continued

Page

amended at 8 U.S.C. § 1401(b)).......................... 5, 10

Federal Rules, Regulations, and Notices

30 Fed. Reg. 9,897 (Aug. 7, 1965)................................. 8
30 Fed. Reg. 14,505 (Nov. 19, 1965).............................. 8
41 Fed. Reg. 784 (Jan. 5, 1976)....................................12
76 Fed. Reg. 63,602 (Oct. 13, 2011)............................. 25

Federal Legislative Materials

Continuing Need for Section 203’s Provisions 
for Limited English Proficient Voters: Hear­
ing Before the S. Comm, on the Judiciary,
109th Cong. (2006) passim

H.R. R ep . N o . 109-478 (2006) ■passim
Introduction to the Expiring Provisions o f the 

Voting Rights Act and Legal Issues Relating 
to Reauthorization: Hearing Before the S. 
Comm, on the Judiciary, 109th Cong. (2006)....... 35

S. R ep . No. 109-259 (2006).......................................... 41

To Examine the Impact and Effectiveness o f the 
Voting Rights Act: Hearing Before the Sub- 
comm. on the Constitution o f the H. Comm, 
on the Judiciary, 109th Cong. (2005)...............33, 35



V ll

Voting Rights Act: Evidence of Continued Need,
Vol. I: Hearing Before the Subcomm. on the 
Constitution o f the H. Comm, on the Judici­
ary, 109th Cong. (2006).................................... passim

Voting Rights Act: Evidence o f Continued Need,
Vol. II: Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judici­
ary, 109th Cong. (2006).................................... passim

Voting Rights Act: Evidence o f Continued Need,
Vol. Ill: Hearing Before the Subcomm. on the 
Constitution o f the H. Comm, on the Judici­
ary, 109th Cong. (2006)............................................. 19

Voting Rights Act: Section 203 -  Bilingual 
Election Requirements (Part I): Hearing Be­
fore the Subcomm. on the Constitution o f the 
H. Comm, on the Judiciary, 109th Cong.
(2005).................................................17, 25, 27, 28, 29

Voting Rights Act: Section 203 -  Bilingual 
Election Requirements (Part II): Hearing Be­
fore the Subcomm. on the Constitution o f the 
H. Comm, on the Judiciary, 109th Cong.
(2005)............................................................. 14, 18, 31

Voting Rights Act: Sections 6 and 8 -  The 
Federal Examiner and Observer Program, 
Hearing Before the Subcomm. on the Consti­
tution o f the H. Comm, on the Judiciary,
109th Cong. (2005).................................23, 24, 31, 36

TABLE OF AUTHORITIES -  Continued
Page



V l l l

Voting Rights Act: The Continuing Need for 
Section 5: Hearing Before the Subcomm. on 
the Constitution o f the H. Comm, on the Ju­
diciary, 109th Cong. (2005)..............................passim

State Statutes

Ariz. Rev. Stat. Ann. § 16-101.........................................7
Ariz. Rev. Stat. Ann. § 16-579...................................... 33
S.D. Codified Laws § 12-18-6.1..................................... 33

Other Authorities

Cohen’s Handbook of Federal Indian Law,
§ 14.01[3] (2012 Ed.)................................................... 5

Daniel M cCool, Susan Olson, and Jennifer 
Robinson, Native Vote: American Indians, 
the V oting Rights Act, and the Right to 
V ote (Cambridge University Press 2007)................ 7

Letter from T. Christian Herren, Jr., Chief US 
DOJ Voting Section, to Michele L. Forney, 
Arizona Assistant Attorney General (July 30,
2012) ................................................................................................................................ 40

U.S. Census Bureau, The American Indian and 
Alaska Native Population: 2010, Table 6 avail­
able at http://www.census.gov/prod/cen2010/ 
briefs/c2010br-10.pdf

TABLE OF AUTHORITIES -  Continued

Page

1

http://www.census.gov/prod/cen2010/


IX

TABLE OF AUTHORITIES -  Continued
Page

U.S. Comm’n on Civil Rights, The Unfinished 
Business: Twenty Years Later, A  Report 
Submitted to the U.S. Commission on Civil 
Rights by its Fifty-One State Advisory 
Committee (1977)......................................................13



1

Amicus Navajo Nation is the largest federally 
recognized Indian tribe in the United States, compris­
ing over 300,000 members and occupying approxi­
mately 25,000 square miles of trust lands within 
Arizona, New Mexico, and Utah.1 2 The State and po­
litical subdivisions of the Arizona portion of the 
Navajo Nation are required to submit voting changes 
for preclearance under Section 5 of the Voting Rights 
Act. The Navajo Nation has been involved in a num­
ber of voting rights lawsuits to ensure that its mem­
bers can participate in the electoral process. The 
Navajo Nation and its members sent letters to Con­
gress in support of the reauthorization of the expiring 
provisions of the Voting Rights Act.

Amicus Leonard Gorman is an enrolled member 
of the Navajo Nation, a qualified elector in Arizona 
and a resident of Window Rock, Arizona, in Apache 
County. Mr. Gorman is the Director of the Navajo 
Nation Human Rights Commission. The Commission 
is charged with protecting and promoting the human

INTEREST OF THE AMICI CURIAE1

1 The parties have consented to the filing of this brief. Pur­
suant to Rule 37.6, amici curiae certify that no counsel for a 
party authored this brief in whole or part, and no persons or en­
tity, other than amici curiae and their counsel, made a financial 
contribution for the preparation or submission of this brief.

2 According to the 2010 U.S. Census, approximately 173,000 
individuals live on the Navajo'Reservation, approximately 97% 
of whom are American Indian. U.S. Census Bureau, The American 
Indian and Alaska Native Population: 2010, Table 6 available 
at http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf.

http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf


2

rights of Navajo citizens. As part of this mission, the 
Commission is focused on ensuring that Navajo citi­
zens are able to vote and to elect candidates of their 
choice. He has participated most recently in the Con­
gressional and legislative redistricting for the states 
of Arizona, New Mexico and Utah. He testified before 
the Arizona Independent Redistricting Commission 
Mr. Gorman was a plaintiff in Navajo Nation v. 
Brewer, challenging Arizona’s voter identification 
law.3

Amicus Oliver J. Semans, Sr., is a member of the 
Rosebud Sioux Nation and lives on the Rosebud Sioux 
Reservation located in Todd County, South Dakota. 
Mr. Semans is the Executive Director of Four Direc­
tions, a non-partisan voting rights and voter protec­
tion organization. Mr. Semans has organized Get Out 
the Vote campaigns in South Dakota for tribal voters 
and has testified at a hearing in Rapid City, South 
Dakota in support of the reauthorization of the Voting 
Rights Act. Mr. Semans has testified extensively be­
fore South Dakota State Senate Committees on pro­
posed laws that would adversely affect the voting 
rights of Indians and has continuously worked on 
increasing voter turnout.

Amicus Anthony Wounded Head, Sr. is a member 
of the Oglala Sioux Tribe of the Pine Ridge Indian Res­
ervation and a former tribal council representative.

3 No. 06-1575 (D. Ariz.) (settled and dismissed on May 27, 
2008).



3

The Pine Ridge Reservation is one of the poorest 
areas in the country.4 Mr. Wounded Head lives in 
Shannon County, is a native language speaker and 
is supportive of language translations for American 
Indian language speakers. Mr. Wounded Head has 
witnessed the disenfranchisement that can be re­
versed through the protections of Section 5.

-------------- ♦--------------

SUMMARY OF ARGUMENT

Indian people have endured a century of discrim­
ination and overcome new obstacles each generation 
in order to exercise the right to vote in state and 
federal elections. Nowhere have these struggles been 
more prevalent than in the Section 5 covered juris­
dictions of Apache, Navajo and Coconino Counties in 
Arizona the home of the Navajo Nation and Todd and 
Shannon Counties in South Dakota the home of the 
Rosebud and Oglala Sioux. The amici curiae file this 
brief to elucidate the importance that the Voting 
Rights Act and, in particular, Section 5 preclearance,

4 The Pine Ridge Reservation is located in Shannon and 
Jackson counties. Shannon County has the highest Indian pop­
ulation of any county in the United States at 94.2%, and is the 
“second-poorest county nationwide.” The poorest county is 
Buffalo County, South Dakota and has an 81.6% Indian popu­
lation. Voting Rights Act: Evidence of Continued Need, Vol. II: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 2019 (2006)'(appendix to 
the statement of Wade Henderson).



4

has had in overcoming the purposeful efforts to dis­
enfranchise Indian voters.

While passage of the Voting Rights Act in 1965 
ended certain means of discrimination, Indians con­
tinued to be denied the right to vote through a variety 
of new strategies. As part of the 2006 reauthorization 
process, Congress obtained evidence that Indians con­
tinued to be disenfranchised by voting schemes, poll­
ing place discrimination and ineffective language 
assistance. The 2006 reauthorization was a legitimate 
Congressional response to the disenfranchisement. 
Protected by the Section 5 preclearance, voter regis­
tration and turnout have increased, but new chal­
lenges have arisen that require continued vigilance. 
Section 5 preclearance remains a key component to 
protecting the fundamental right to vote. The mini­
mal burden required of covered jurisdictions to com­
ply with Section 5 is justified to protect Indian voters.

-------------- 4 --------------

ARGUMENT

I. THE VOTING RIGHTS ACT AS ENACTED 
AND REAUTHORIZED PROTECTS INDIANS 
FROM PURPOSEFUL DISCRIMINATION  
THAT HAS DENIED THEIR RIGHT TO VOTE 
IN STATE AND FEDERAL ELECTIONS.

A. Voter Discrimination Prior to the Pas­
sage of the Voting Rights Act.

American Indians “have experienced a long his­
tory of disenfranchisement as a matter of law and of



5

practice.” It was not until Congress passed the Indian 
Citizenship Act of 1924 that all Indians were granted 
United States citizenship.5 Prior to 1924, Indians 
were denied citizenship and the right to vote and 
could only become citizens through naturalization “by 
or under some treaty or statute.”6 7 The 1924 Act ended 
the period in United States history in which obtain­
ing United States citizenship required an Indian to 
sever tribal ties, renounce tribal citizenship and as­
similate into the dominant culture.'

With the passage of the Indian Citizenship Act 
and by operation of the Fourteenth Amendment, an 
Indian who is a United States citizen is also a citizen 
of his or her state of residence.8 Notwithstanding the 
passage of the Indian Citizenship Act, some states 
continued to deny Indians the right to vote in state 
and federal elections through the use of poll taxes, 
literacy tests, and intimidation.9

Even after 1924, Arizona Indians were prohibited 
from participating in elections. The Arizona Supreme

5 An Act of June 2, 1924, 43 Stat. 253, Pub. L. No. 175 
(1924) (codified as amended at 8 U.S.C. § 1401(b)).

6 Elk v. Wilkins, 112 U.S. 94, 103 (1884).
7 Cohen’s Handbook of Federal Indian Law, § 14.01[3], 

n. 42-44 (2012 Ed.).
8 U.S. Const, amend. XIV, § 1.
9 Continuing Need for Section 203’s Provisions for Limited 

English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 309 (2006) (letter from Joe Garcia, 
NCAI).



6

Court upheld the prohibition finding that Indians 
living on reservations could not vote because they 
were wards of the federal government and, as such 
were “persons under guardianship” and thereby pro­
hibited from voting in Arizona.10 Reservation Indians 
in Arizona did not achieve the right to vote in state 
elections until 1948 when the Arizona Supreme Court 
overturned the Porter v. Hall decision.11

Like Arizona, South Dakota has had a long 
history of discrimination against Indians. Todd and 
Shannon Counties have been the focus of much of the 
discrimination because the Rosebud Reservation is 
located in the former, and the Pine Ridge Reservation 
is in the latter.

The Sioux people of South Dakota have experi­
enced a long struggle to attain full voting rights. The 
first territorial legislative assembly limited voting to 
whites. This provision was revoked after passage of 
the Civil Rights Amendments, but still limited voting 
to citizens, which excluded most Indians. The terri­
torial civil code expressly prevented Indians from 
voting. The state’s civil code, developed in 1903, 
specified that Indians could not vote or hold office

10 Porter v. Hall, 271 P. 411, 419 (Ariz. 1928).
Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948) (holding 

that Indians living on Indian reservations should in all respects 
be allowed the right to vote).



7

while “maintaining tribal relations.”12 The state ap­
plied a culture test to voting, requiring Indians to 
abandon their identity, their culture, their language, 
and their homeland in order to vote. This provision 
was not repealed until 1951.13 The repeal of this pro­
vision did not automatically result in full voting 
rights for Indians living in Todd and Shannon Coun­
ties.

B. The Voting Rights Act of 1965 Provided 
Certain Protections to Indians.

At the time of passage of the Voting Rights Act in 
August 1965, the State of Arizona required all voters 
to pass an English literacy test as a prerequisite 
to voting.14 Only those Indians who could read the 
United States Constitution in English and write their 
names were eligible to vote in state elections. The 
enactment of the Voting Rights Act in 1965 included a 
temporary prohibition of literacy tests in covered 
jurisdictions.

12 Daniel M cCool, Susan Olson, and Jennifer R obinson, 
Native V ote: American Indians, the V oting R ights A ct, and 
the Right to V ote 137-138 (Cambridge University Press 2007).

13 Id. at 138.
14 The English literacy test was not repealed until 1972. See 

Ariz. Rev. Stat. Ann. §§ 16-101.A4, 16-101.A5 (1956); Voting 
Rights Act: Evidence of Continued Need, Vol. I: Hearing Before 
the Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 1372 (2006) (appendix to the statement 
of Wade Henderson).



8

Apache County, Arizona was included in the orig­
inal list of jurisdictions covered by Section 5 of the 
Voting Rights Act.15 On November 19, 1965, Navajo 
and Coconino Counties also became covered by Sec­
tion 5.16 As a result of this coverage, literacy tests 
were suspended in each of these three counties. How­
ever, in 1966, these three counties became the first 
jurisdictions to successfully bail out from coverage 
under Section 5 after the U.S. District Court for the 
District of Columbia held that Arizona’s literacy test 
had not been discriminatorily applied against Indians 
in the preceding five years.17

C. Continued Discrimination Subjected Coun­
ties in Arizona and South Dakota to 
Section 5.

1. Apache, Navajo and Coconino Coun­
ties in Arizona Discriminated against 
Indian Voters.

When the Voting Rights Act was amended in 
1970, it included a nationwide ban on literacy tests, 
which again preempted the operation of Arizona’s

Determination of the Attorney General Pursuant to Sec­
tion (4)(b)(l) of the Voting Rights Act of 1965, 30 Fed. Reg. 9,897 
(Aug. 7, 1965).

Determination of the Director Pursuant to Section 4(b)(2) 
of the Voting Rights Act of 1965, 30 Fed. Reg. 14,505 (Nov. 19, 
1965).

' Apache County v. United States, 256 F. Supp. 903, 910- 
911 (D.D.C. 1966).



9

literacy tests.18 Arizona became one of the states 
to unsuccessfully challenge the ban on literacy 
tests. In upholding the ban and striking down literacy 
tests, the Supreme Court noted that Arizona had 
“a serious problem of deficient voter registration 
among Indians.”19 The 'Court recognized that non- 
English speakers may make use of resources in their 
native languages in order to responsibly and knowl­
edgeably cast a ballot.20

The Voting Rights Act amendments of 1970 
included, as one of the measures of voting discrim­
ination, registration and turnout in the 1968 presi­
dential election. As a result, Apache, Coconino and 
Navajo Counties again became covered by Section 5 
along with five other Arizona counties.21

Even after 1970, there were a number of chal­
lenges to Indians’ right to vote and right to hold 
office. Many of these cases challenged activities in 
Apache County, one of only a few counties within the 
United States in which the predominant languages 
spoken are Indian. Of these languages, the most 
commonly used is Navajo, a historically unwritten

18 The Voting Rights Act, 42 U.S.C. § 1973aa (1970) (current 
version at 42 U.S.C. § 1973b (2008)).

19 Oregon v. Mitchell, 400 U.S. 112, 117, 132, 153 (1970).
20 Id. at 146.
21 Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1370 (2006) (appendix to 
the statement of Wade Henderson).



10

language.22 The Arizona Supreme Court quashed a 
permanent injunction by the lower court against the 
seating of Tom Shirley, a Navajo Indian living on the 
Navajo Reservation, who had been elected to the 
Apache County Board of Supervisors.23 The Arizona 
Court reaffirmed the right of Indians to vote, vacated 
the injunction and directed the Apache County Board 
of Supervisors to certify Shirley as the elected super­
visor from District 3.24

Apache County also discriminated against Indian 
voters by gerrymandering the districts for the three 
seats on the County’s Board of Supervisors. In the 
early 1970’s, Apache County District 3 had a popula­
tion of 26,700 of whom 23,600 were Indian, while 
District 1 had a population of 1,700 of whom only 
70 were Indian and District 2 had a population of 
3,900 of whom only 300 were Indian. Several Indian 
voters challenged Apache County for violating the 
one-person, one-vote rule.20 Apache County claimed 
that Indians are not citizens of the United States and 
the Indian Citizenship Act granting them citizenship

2 Considering the Navajo Reservation as a whole, including 
parts of the States of Arizona, New Mexico and Utah, over one- 
third of the voting age citizens on the Navajo Reservation are 
limited-English proficient and over one-quarter are illiterate. Id. 
at 1403-1404 (appendix to the statement of Wade Henderson).

Shirley v. Superior Court for Apache County, 513 P.2d 
939, 945 (Ariz. 1973).

2a Goodluck v. Apache County, 417 F. Supp. 13, 14 (D. Ariz. 
1975), aff’d, 429 U.S. 876 (1976).



11

was unconstitutional.26 The three-judge federal court 
rejected the County’s arguments, noted that the 
County must be redistricted in accordance with one- 
person, one-vote standards and granted plaintiffs’ 
motion for summary judgment.27

In 1976, Apache County attempted to avoid 
integration of Indian students into the public schools 
by holding a special bond election to fund a new 
school in the almost entirely non-Indian southern 
part of the county. Although the special election af­
fected Indian students who would be denied equal 
schooling, Indian turnout for the election was abnor­
mally low. Investigation demonstrated that the low 
turnout was a result of the closing of nearly half of 
the polling places on the reservation, the total lack of 
language assistance, the absence of Navajo language 
informational meetings regarding the bond election 
and the use of English-only in the implementation of 
absentee voting procedures. This litigation ended in a 
Consent Decree in which Apache County agreed to a 
number of changes to the blatant discrimination in 
voting practices.28

26 Id. at 14.
27 Id. at 16.
25 Apache County High School No. 90 v. United States, No. 

77-1815 (D.D.C. June 12, 1980).



12

2. Todd and Shannon Counties in South 
Dakota Discriminated against Indian 
Voters.

After the passage of the Voting Rights Act, Indi­
ans living in Todd and Shannon Counties. South 
Dakota, home of the Pine Ridge and Rosebud Reser­
vations, were prohibited from voting for county offi­
cials. This injustice was finally ended by the Eighth 
Circuit in 1975.29

In 1976, the counties of Todd and Shannon were 
placed under the provisions of Section 5 of the Voting 
Rights Act.30 The Attorney General of South Dakota, 
William Janklow, directed the South Dakota Secre­
tary of State to virtually ignore the Voting Rights Act 
provisions that were “plaguing” the state31 and Indi­
ans from Todd and Shannon Counties were prohibited

29 Little Thunder v. South Dakota, 518 F.2d 1253, 1258 (8th 
Cir. 1975).

30 Partial List of Determinations Pursuant to Voting Rights 
Act of 1965, as Amended, 41 Fed. Reg. 784 (Jan. 5, 1976); Voting 
Rights Act: Evidence of Continued Need, Vol. II: Hearing Before 
the Subcomm. on the Constitution of the H. Comm, on the Ju­
diciary, 109th Cong. 1990 (2006) (appendix to the statement of 
Wade Henderson).

31 Voting Rights Act: Evidence of Continued Need, Vol. II: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1990 (2006) (appendix to 
the statement of Wade Henderson).



13

from holding office; that injustice was not struck 
down until 1980.32

The continuing racial animosities in South 
Dakota have resulted in a series of reports by the 
U.S. Commission on Civil Rights. In 1977, the Com­
mission noted that the “voting problems of minor­
ities” in South Dakota were part of the state’s 
“unfinished business in the area of civil rights.”33 In 
1981 the Commission again turned its attention to 
South Dakota to investigate the voting problems of 
Indians. Much of this report focused on Todd and 
Shannon Counties.

II. THE 2006 REAUTHORIZATION WAS A LE­
GITIMATE RESPONSE TO CONTINUED 
INTENTIONAL DISCRIMINATION AGAINST 
INDIAN VOTERS IN COVERED JURIS­
DICTIONS.

The expiring provisions of the Voting Rights Act 
include (i) Section 4(b)(4), (ii) Section 5 preclearance, 
(iii) Section 203 -  bilingual elections for limited 
English proficient voters, (iv) Section 6 -  federal elec­
tion examiners, and (v) Section 8 -  federal election 
observers. The Voting Rights Act, including the

32 United States v. South Dakota, 636 F.2d 241, 243 (8th Cir. 
1980).

33 U.S. Comm’n on Civil Rights, The Unfinished Business: 
Twenty Y eaes Later, A Report Submitted to the U.S. Commis­
sion on Civil Rights by its Fifty-One State Advisory Commit­
tee (1977).



14

Section 5 preclearance requirement and the minority 
language provisions, provides necessary protections 
to Indian voters from ongoing discrimination. Con­
gress implemented Section 203 of the Voting Rights 
Act in 1975 based on findings that American Indians, 
Alaska Natives and other language minorities were 
prohibited from fully participating in the democratic 
process.34 * However, even with the implementation of 
Section 5, and other protections, the provisions do not 
provide absolute protection for Indian voters. Con­
gressional testimony and materials submitted in sup­
port of reauthorization of the expiring provisions of 
the Voting Rights Act demonstrate numerous in­
stances where Indians have been subject to discrimi­
nation since 1982.

In support of reauthorization, the House of Rep­
resentatives Committee to the Judiciary received tes­
timony that revealed a need to extend Section 5 to 
protect racial and language minority citizens from 
discrimination.30 Laughlin McDonald of the ACLU 
testified that “there is in fact, abundant modern-day 
evidence showing that section 5 is still needed in 
this country and that the right to vote is still in

34 Voting Rights Act: Section 203 -  Bilingual Election Re­
quirements (Part II): Hearing Before the Suhcomm. on the Con­
stitution of the H. 'Comm. on the Judiciary, 109th Cong. 4 (2005) 
(testimony of Jacqueline Johnson, National Congress of Ameri­
can Indians).

H.R. Rep. No. 109-478, at 56 (2006).35



15

jeopardy,”36 because there is widespread, systematic 
voting discrimination against Indians.37 The House 
Committee Report found that Section 5 enforcement 
authority was critical, because it allowed the Depart­
ment of Justice and private citizens to monitor cov­
ered jurisdictions with a history of discrimination to 
ensure full compliance of the law.38 The Committee 
ultimately found that “substantial discrimination 
continuefd] to exist in 2006.”39

The Congressional Record supports the Commit­
tee’s finding and the Congressional reauthorization. 
Because there is ongoing intentional discrimination 
against Native Americans in covered jurisdictions, 
there is “a congruence between the means used and 
the ends to be achieved” by extending Section 5’s pro­
tections.40 The record demonstrates that the current 
need to prevent voter discrimination against Indians 
in Todd, Shannon, Coconino, Apache and Navajo

36 Voting Rights Act: The Continuing Need for Section 5: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 4 (2005) (testimony of 
Laughlin McDonald).

37 Id. at 101 (appendix to the statement of Laughlin 
McDonald).

38 H.R. Rep. No. 109-478, at 42 (2006).
39 Id. at 25.
40 City of Boerne v. Flores, 521 U.S. 507, 530 (1997).



16

Counties justifies the reauthorization of Section 5 of 
the Voting Rights Act.41

A. Indians Continue to Be Disenfranchised 
by Voting Schemes.

Recent instances of voting discrimination in 
Indian Country documented in the Congressional 
Record indicate that Section 5 is still necessary to 
protect Indian voters. The House Committee Report 
included testimony of voting schemes that prevented 
Indians from gaining majority seats by dismantling 
minority districts.42 The Committee Report also found 
that similar tactics kept Indians from registering and 
casting effective ballots.43

There is an extensive history of discrimination 
against Indian voters from the Navajo, Apache, and 
Hopi tribes included in the Congressional Record.44 
Since 1982, there have been two successful cases 
against Coconino, Navajo, and Apache Counties 
where the specific provisions of the Voting Rights Act 
were enforced on behalf of Indian voters.45 In 1989,

41 See Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 
U.S. 193, 203 (2009).

42 H.R. Rep. No. 109-478 at 45.
43 Id.
44 Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1379, 1411-1412 (2006) 
(appendix to the statement of Wade Henderson).

Id.45



17

the United States brought forth a claim against 
Arizona for “unlawfully deny[ing] or abridging] the 
voting rights of Navajo citizens residing in defendant 
counties.”46 The Arizona counties settled the cla im s by 
Consent Decree which required the establishment of 
the Navajo Language Election Information Program 
including the employment of outreach workers to 
assist in all aspects of voting by Indians.47 In 1994, 
the Department of Justice brought an enforcement 
action to enjoin Navajo and Coconino Counties from 
having judicial elections for four new judicial divi­
sions created without seeking preclearance under 
Section 5. The District Court held that the judgeships 
constituted a “covered change” and enjoined the ju ­
dicial elections until preclearance was obtained.48

Indian voters in South Dakota also continue to 
encounter racial hostility, polarized voting, and re­
sistance when participating in state and federal elec­
tions. Between 1982 and 2006, Indians in South

46 United States v. Arizona, No. 88-1989 (D. Ariz. May 22, 
1989) (Consent Decree) (as amended Sept. 7 1993); Voting Rights 
Act: Section 203 -  Bilingual Election Requirements (Part I): 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 99 (2005) (appendix to the 
statement of Bradley J. Schlozman).

Id. (appendix to the Statement of Bradley J. Schlozman).
48 Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. (2006) (appendix to the 
statement of Wade Henderson); United States v. Arizona, No. 94- 
1845, 1994 U.S. Dist. LEXIS 17606 (D. Ariz. 1994).



18

Dakota were subject to de jure and de facto discrim­
ination, including having their voter registration 
cards systematically denied by the county registrar49 
and not being able to vote in elections because they 
were non-white land owners.50 There have been nine­
teen Indian voting rights cases brought against South 
Dakota; out of those cases, eighteen were decided in 
favor of the Indian plaintiffs or were settled with the 
agreement of the Indian plaintiffs.61 Continued dis­
crimination in South Dakota necessitates federal 
oversight over Shannon and Todd counties through 
the preclearance protections and language minority 
provisions.

Indians in both Arizona and South Dakota have 
been subject to voting schemes that aim to dilute or 
pack the Indian vote. This Court has recognized that 
alternative methods have been employed to infringe 
on the rights of minority voters by “pour[ing] old poi­
son into new bottles.”* 01 02 Although this is not outright

49 American Horse v. Kundert, No. 84-5159 (D.S.D. Nov. 5, 
1984).

00 United States v. Day County, No. 85-3050 (D.S.D. Oct. 24, 
1986); Voting Rights Act: Evidence of Continued Need, Vol. II: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 2000 (2006) (appendix to 
the statement of Wade Henderson).

01 Voting Rights Act: Section 203 -  Bilingual Election Re­
quirements (Part II): Hearing Before the Subcomm. on the Con­
stitution of the H. Comm, on the Judiciary, 109th Cong. 264 
(2006).

02 Reno v. Bossier Parish School Bd., 528 U.S. 320, 366 
(2000) (Souter, J., concurring in part, dissenting in part).



19

vote denial, the methods employed have the same 
effect, to diminish the “minority community’s ability 
to fully participate in the electoral process and to 
elect their preferred candidates of choice.”53

In 1982, in Goddard v. Babbitt, the San Carlos 
Apache Tribe successfully objected to a proposed re­
districting plan that aimed to split and dilute the 
Apache vote.54 The Department of Justice objected to 
the plan on the grounds that the plan had a discrimi­
natory effect. The District Court found the proposed 
plan had “the effect of diluting the San Carlos Apache 
Tribal voting strength and dividing the Apache com­
munity of interest.”55 56 *

In two South Dakota cases not covered by Section 
5 preclearance protection, discrimination in redis­
tricting led to prolonged litigation followed by Con­
sent Decrees. In Kirkie v. Buffalo County, Buffalo 
County, South Dakota gerrymandered its three 
districts by packing 75% of the Indian population 
into one district.06 The county, the “poorest in the

03 See H.R. Rep. No. 109-478, at 6 (2006) (“Discrimination 
today is more subtle than the visible methods used in 1965. 
However, the effect and results are the same.”).

°4 Goddard v. Babbitt, 536 F. Supp. 538, 541 (D. Ariz. 1982); 
Voting Rights Act: Evidence of Continued Need, Vol. Ill: Hearing 
Before the Subcomm. on the Constitution of the H. Comm, on the 
Judiciary, 109th Cong. 3968 (2006) (materials submitted by the 
Honorable Steve Chabot).

55 Id.
56 Kirkie v. Buffalo County, No. 03-3011 (D.S.D. Feb. 12, 

2004)'(Consent Decree); Voting Rights Act: The Continuing Need
(Continued on following page)



20

country,”57 was comprised of approximately 2,100 peo­
ple, of which 83% were Indian. This redistricting had 
the purpose of diluting the Indian vote, as whites 
controlled both the other two districts and thus 
County government.58 The case was settled by a 
Consent Decree wherein the county admitted its plan 
was discriminatory and was forced to redraw the 
district lines.’9 60 In addition, the county agreed to 
subject itself to Section 3(c) of the Voting Rights Act, 
which requires the submission of voting changes for 
preclearance.69 As recent as 2005, another South 
Dakota county was forced to redraw district lines for 
similar malapportionment of Indian voters.61 Section

for Section 5: Hearing Before the Subcomm. on the Constitution 
of the H. Comm, on the Judiciary, 109th Cong. 132-133 (2005) 
(appendix to the statement of Laughlin McDonald).

sl Voting Rights Act: Evidence of Continued Need, Vol. II: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 2019 (2006) (appendix to 
the statement of Wade Henderson).

Kirkie v. Buffalo County, No. 03-3011 (D.S.D. Feb. 12, 
2004) (Consent Decree); Voting Rights Act: The Continuing Need 
for Section 5: Hearing Before the Subcomm. on the Constitution 
of the H. Comm, on the Judiciary, 109th Cong. 132-133 (2005) 
(appendix to the statement of Laughlin McDonald).

59 Id.
60 Voting Rights Act: Evidence of Continued Need, Vol. II: 

Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 2005 (2006) (appendix to 
the statement of Wade Henderson).

61 Blackmoon v. Charles Mix County, 505 F. Supp. 2d 585 
(D.S.D. 2007); Voting Rights Act: The Continuing Need for Sec­
tion 5: Hearing Before the Subcomm. on the Constitution of the

(Continued on following page)



21

5 protections could have prevented this type of de 
facto discrimination, because the changes would have 
needed preclearance approval prior to enactment.62

B. Polling Place Discrim ination

The Congressional Record demonstrates how 
Indian voters on reservations in the covered jurisdic­
tions of South Dakota and Arizona have more limited 
access to polling places and voter registration result­
ing in lower Indian voter turnout. In Arizona, polling 
locations and voter registration sites on reservations 
are often located at substantially greater distances 
from voters, than sites located off reservation.63 Fur­
ther distances means a greater cost incurred to exer­
cise one’s vote.64 Registering to vote is also an obstacle 
as a majority of counties bordering reservations limit 
registration locations to off-reservation towns.65

In South Dakota, one county failed to provide suf­
ficient polling locations for a school district election.

H. Comm, on the Judiciary, 109th Cong. 156 (2005) (appendix to 
the Statement of Laughlin McDonald).

62 Charles Mix County is not covered by Section 5.
63 Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution of the H.
Comm, on the Judiciary, 109th Cong. 1380, 1411-1412 (2006)
(appendix to the statement of Wade Henderson).



22

Many Indians traveled up to 150 miles to vote.66 Only 
after a federal district court entered a judgment 
against the County did the County provide additional 
reservation polling places.67

In South Dakota, a hearing in support of a bill to 
create more on-reservation polling places was sched­
uled 3 hours away from the reservation at 7:30 a.m., 
which made it difficult for tribal members to attend 
and testify.68 The bill was subsequently defeated. In 
2000, the U.S. Commission on Civil Rights noted that 
“Native Americans do not fully participate in local, 
state, and federal elections. This absence from the 
electoral process results in a lack of political repre­
sentation at all levels of government and helps to en­
sure the continued neglect and inattention to issues 
of disparity and inequality” in South Dakota.69

The Congressional Record provides evidence that 
voter intimidation tactics are still employed at vari­
ous polling places in order to deter language minority

66 Black Bull v. Dupree School District, No. 86-3012 (D.S.D. 
May, 14 1986); Voting Rights Act: The Continuing Need for 
Section 5: Hearing Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. 133 (2005) (ap­
pendix to the statement of Laughlin McDonald).

Black Bull v. Dupree School District, No. 86-3012 (D.S.D. 
May 14, 1986).

68 Voting Rights Act: Evidence of Continued Need, Vol. II: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 2027 (2006) (appendix to 
the statement of Wade Henderson).

69 Id. at 1989.



23

voters. The Department of Justice reported instances 
where observers witnessed language minority voters 
being harassed and intimidated by polling officials.70 
Congressional testimony described the efforts to dis­
courage the Indian vote by intimidating poll workers 
and voters at several polling locations on the Navajo 
Reservation in 2002.71 In South Dakota, Indian voters 
have been intimidated by accusations of voter fraud 
by local officials -  that in turn, created a racially 
hostile environment at the voter registration sites 
and voting polls.72

C. Ineffective Language Assistance Disen­
franchises Indian Voters.

Language has been a significant barrier to voting 
for Indians. The House Committee Report found that 
Indians continue to experience hardships when at­
tempting to vote, because of their limited ability 
to speak English and inability to read the ballots.73 
Testimony highlighted the many Indians, especially

70 H.R. Rep. No. 109-478, at 45 (2006).
71 Voting Rights Act: Sections 6 and 8 -  The Federal Exam­

iner and Observer Program, Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 16 
(2005) (statement of Penny Pew).

Voting Rights Act: Evidence of Continued Need, Vol. I: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 2007 (2006) (appendix to 
the statement of Wade Henderson).

H.R. Rep. No. 109-478, at 45 (2006).73



24

elders, who “speak English only as a second lan­
guage.”74 75 76 * The minority language protections require 
that covered jurisdictions provide assistance to In­
dian voters who may have little or no formal educa­
tion and who may speak English only as a second 
language. Testimony revealed that there are numer­
ous jurisdictions that require language translations 
so that the Indian population can function in the 
electoral process.70 The right to language translations 
is important for Indians to have equal access to the 
ballot box.'6 In 2006, 88 jurisdictions in 17 states 
were covered for American Indian languages.7' Nine 
Arizona counties are covered under Section 203 
for American Indian languages: Apache, Coconino, 
Maricopa, Mohave, Navajo, Pima, Pinal, Yavapai, and 
Yuma and must provide all election materials, includ­
ing assistance and ballots, in the language of the 
applicable language minority group. Of these counties 
four -  Navajo, Apache, Coconino and Pinal -  are

74 Id. at 46; Continuing Need for Section 203’s Provisions for 
Limited English Proficient Voters: Hearing Before the S. Comm, 
on the Judiciary, 109th Cong. 309 (2006) (letter by Joe Garcia, 
NCAI).

75 Voting Rights Act: Sections 6 and 8 -  The Federal Exam­
iner and Observer Program, Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 35- 
37, 43-45 (2005) (statement of Benny Weinberg).

76 Continuing Need for Section 203’s Provisions for Limited 
English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 310 (2006) (letter by Joe Garcia, NCAI).

Id. at 309.77



25

covered under Section 5 and must have all materials 
and procedures precleared.78

Congress reauthorized the temporary, minority 
language provisions, because there are still language 
barriers that make it difficult or impossible for citi­
zens to understand election ballots.79 The Department 
of Justice identified situations in which ineffective 
language assistance was offered to Indian voters in 
Apache County, Arizona.80 Navajo and Apache Coun­
ties agreed to establish minority language programs 
to better assist Indian voters pursuant to a Consent 
Decree.81

The House Committee found that “Section 203 
is intended to remedy . . . unequal educational op­
portunities afforded [Indians], resulting in high il­
literacy and low voting participation.”82 Educational

78 See Voting Rights Act Amendments of 2006, Determina­
tions under Section 203, 76 Fed. Reg. 63,602 (Oct. 13, 2011).

79 H.R. Rep. N o . 109-478, at 147 (2006).
Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1367 (2006) (appendix to 
the statement of Wade Henderson).

81 United States v. Arizona, No. 88-1989 (D. Ariz. May 22, 
1989) (Consent Decree) (as amended Sept. 7 1993); Voting Rights 
Act: Section 203 -  Bilingual Election Requirements (Part I): 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 99 (2005) (appendix to the 
statement of Bradley J. Schlozman).

82 H.R. Rep. N o. 109-478, at 59 (2006); Voting Rights Act: 
Evidence of Continued Need, Vol. I: Hearing Before the 
Subcomm. on the Constitution of the H. Comm, on the Judiciary,

(Continued on following page)



26

discrimination has been broad in scope. There are 
disparities in funding given to Indian students com­
pared to other students.83 Sixty percent of Latino and 
Indian students score below grade level in national 
testing.84 * There are insufficient adult English as a 
Second Language courses available in many covered 
jurisdictions.80 The illiteracy rate for Arizona Indians 
is nineteen times the national illiteracy rate.86 For 
South Dakota Indians, the illiteracy rate is similarly 
very high and “[sjignificant numbers of Indians” re­
quire oral and written translation assistance in the 
Lakota and Dakota languages.87 *

The 2000 Census data reported that 21.4% of 
American Indians are limited English proficient. 
The import of the Census Data was included in the 
testimony of the National Congress of American

109th Cong. 1380 (2006) (appendix to the statement of Wade 
Henderson).

83 H.R. Rep. No . 109-478, at 51 (2006).
84 Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1367 (2006) (appendix to 
the statement of Wade Henderson).

8° Arizona has inadequate English as a Second Language 
and adult ELL courses to help bridge the language gap. Id. at 
1367, 1379.

86 Id.
8‘ Voting Rights Act: The Continuing Need for Section 5: 

Hearing Before the Subcomm. on the Constitution of the H.
Comm, on the Judiciary, 109th Cong. 2020-2091 (2005) (appen­
dix to the statement of Laughlin McDonald).



27

Indians.88 Many Indian languages are oral and are 
not written.89 The Section 203 language minority pro­
visions are necessary to ensure that Indians can 
effectively exercise their right to vote. Section 203 
litigation regarding minority language assistance has 
led to Consent Decrees where Section 203 covered 
jurisdictions agree to provide bilingual voting mate­
rials and translators to assist at polling sites.90 Be­
tween 2001 and 2006, the Department of Justice filed 
more minority language violation cases than in the 
previous twenty-one years.91 *

D. Language Minority Provisions Have Had 
a Beneficial Impact on the Number of 
Indians Voters.

The House Committee found evidence of increased 
participation by language minorities in Section 203

Id. (many American Indian and Alaska Natives continue 
to speak in their tribal language and many do not speak English 
well).

Continuing Need for Section 203’s Provisions for Limited 
English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 498-499 (2006) (statement by Alfred 
Yazzie); see also, United States v. McKinley County, New Mexico, 
941 F. Supp. 1062, 1066-1067 (D.N.M. 1996).

90 H.R. Rep. No. 109-478, at 59 (2006).
Voting Rights Act: Section 203 -  Bilingual Election Re­

quirements (Part I): Hearing Before the Subcomm. on the Con­
stitution of the H. Comm, on the Judiciary, 109th Cong. 10
(2006) (testimony of Bradley Schlozman).



28

covered jurisdictions92 and that the minority language 
provisions were “instrumental in fostering progress 
among language minority citizens.”93 Indian witnesses 
testified that voter participation had increased in 
some communities by as much as 50% to 150%.94 * The 
Department of Justice additionally noted that the gap 
in electoral participation had narrowed for some mi­
nority voters.90 Furthermore, Indian witnesses testi­
fied that there has been some success in electing 
candidates of their choice.96

The temporary provisions of the Voting Rights 
Act have helped increase Indian voter turnout on 
reservations. Continuation of the protections provided 
by Section 5 and the language minority provisions are 
vital for maintaining and increasing Indian voter par­
ticipation. The report on American Indian and Alaska 
Native progress concluded with the Committee stat­
ing, “[t]he Committee believes that these examples 
reflect the gains that Congress intended language 
minorities to make under Section 4(f) and 203, and

93 Id. at 18 (2006).
94 Id. at 20 (2006).
93 Id.
96 Id. (finding that there has been an increase in the num­

ber of Native Americans being elected to office; Voting Rights 
Act: Section 203 -  Bilingual Election Requirements (Part I): 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 10, 12 (2006) (testimony of 
Bradley Schlozman).



29

concludes that all American citizens should have the 
opportunity to participate in the political process.”97

III. SECTION 5 PRECLEARANCE IS A  KEY 
COMPONENT TO PROTECTING THE FUN­
DAMENTAL RIGHTS OF INDIANS.

In Thornburg v. Gingles, this Court stated that 
“[bjoth this Court and other federal courts have 
recognized that political participation by minorities 
tends to be depressed where minority group members 
suffer effects of prior discrimination such as inferior 
education, poor employment opportunities, and low 
incomes.”98 Indian voters continue to suffer from some 
of the highest poverty rates and unemployment rates 
in the country. Many Indian reservations are rural. In 
Shannon County, which includes the Pine Ridge Res­
ervation, 52.3% of the families are below the poverty 
line, and in Todd County, which includes the Rosebud 
Sioux Reservation, 48.3% of the families live below 
the poverty line.99 On Arizona tribal reservations, pov­
erty rates are above 42% with Fort Yuma’s rate ex­
ceeding 94%.1UI) The need for Section 5’s preclearance

478 U.S. 30, 69 (1986); Voting Rights Act: Evidence of 
Continued Need, Vol. II: Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 2020 
(2006) (appendix to the statement of Wade Henderson).

. 99 Id.
00 Voting Rights Act: Evidence of Continued Need, Vol. I: 

Hearing Before the Subcomm. on the Constitution o f the H. 
(Continued on following page)



30

provisions in Indian Country is demonstrated by not 
only the historical impediments to suppress the In­
dian vote, but the continuing effects of past discrimi­
nation and continuing voter suppression efforts that 
disenfranchise Indian voters.

A. Native American Voter Registration and 
Turnout Have Increased.

Prior to Section 5 coverage, Indians in covered 
jurisdictions had little opportunity to vote.* 101 The 
House Judiciary Committee found that the temporary 
provisions have protected minority voters and helped 
them to register to vote unchallenged, cast ballots un­
hindered, and cast meaningful votes. The Committee 
found “that increased participation levels are directly 
attributable to the effectiveness of the VRA’s expiring 
provisions.”102 More Indian voters have registered to 
vote and turned out to vote since the implementation 
of Section 5.103 The Voting Rights Act’s temporary 
provisions have resulted in increased participation by

Comm, on the Judiciary, 109th Cong. 1383 (2006) (appendix to 
the statement of Wade Henderson).

101 “Section 5 Covered Jurisdictions,” on the U.S. Dep’t of 
Justice Civil Rights Division website, available at http://www. 
usdoj.gov/crt/voting/sec_5/covered.php (seven counties are covered 
under Section 4(f)(4) for Indian languages and are subject to the 
preclearance requirements of Section 5 including four in Ari­
zona, two in South Dakota, and one in North Carolina).

102 H.R. Rep. No. 109-478, at 21.
103 Id. at 20.

http://www


31

Indian voters in the electoral process. Jurisdictions 
that comply with Section 203’s language minority 
provisions have also improved registration and turn­
out rates.103 104 Enforcement of voting rights through 
Consent Decrees and the federal observer programs 
have also increased Indian participation in voting.105

B. The Evidence Reveals that There Is a 
Continued Need for Section 5.

Despite improvements, Indian voters still face 
obstacles in voting.106 The need for the continuation 
of Section 5 was demonstrated by noncompliance, 
continuing discrimination, Consent Decrees entered 
in Arizona and South Dakota for covered jurisdictions 
as late as 1993 and 2005, and the number of vot­
ing cases in Indian Country. From 1999-2005, South 
Dakota was involved in seven cases regarding viola­
tions of Indian voting rights.107

103 The Navajo Language Program precleared by Section 5
and required under a Consent Decree has resulted in more op­
portunities for Navajos to register to vote and vote on Election 
Day. See Voting Rights Act: Sections 6 and 8 -  The Federal Ex­
aminer and Observer Program, Hearing Before the Subcomm. on 
the Constitution of the H. Comm, on the Judiciary, 109 Cong. 15 
(2005) (statement of Penny Pew).

106 H.R. Rep. No. 109-478, at 34, 35, 45, 52.
Voting Rights Act: Section 203 -  Bilingual Election Re­

quirements (Part II): Hearing Before the Subcomm. on the Con­
stitution of the H. Comm, on the Judiciary, 109th Cong. 259-268 
(2005) (materials submitted by Rep. Chabot).



32

Section 5 has improved the political landscape for 
tribal participation in elections, but it has not eroded 
animosity against Indian voters nor has it ended all 
discrimination in voting. In the Renew the Voting 
Rights Act Report for Arizona, experts found Arizona 
still needs to make improvements for Indian voters.

More than eighty percent of Arizona’s twenty- 
two Section 5 objections have occurred for 
voting changes enacted since 1982. Four 
post-1982 objections have been for statewide 
redistricting plans, including one in the 
1980s, two in the 1990s and one as recently 
as 2002. Since 1982, the Department of Jus­
tice has interposed objections to voting 
changes from nearly half of Arizona’s 15 
counties that have had the purpose or effect 
of discriminating against Latino or American 
Indian voters.108

The Indian voters in covered jurisdictions com­
prise a substantial percentage of the Voting Age 
Population in those counties. (Todd County 85.6%; 
Shannon County, 94.2%; Apache County, 76.88%; 
Navajo County, 47.74%; Coconino County, 28.51%; 
Jackson County, NC, 10.2%; Pinal County, 6.1%). 
Therefore, the Indian vote poses a significant threat 
to the non-Indian voters located in the same political

108 Voting Rights Act: Evidence of Continued Need, Vol. I: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1379 (2006) (appendix to 
the statement of Wade Henderson).



33

jurisdictions. For these reasons, efforts have been 
made to suppress the Indian vote.

In this century, Indian voters have been able to 
ensure the success of candidates in several prominent 
elections. Recent successes for Indian voters include 
the 2002 Senate election in South Dakota, in which 
there was a huge increase in reservation turnout, and 
Senator Tim Johnson barely won re-election with only 
524 votes. In Arizona, reservation voters helped elect 
Governor Janet Napolitano in 2002.

Successes in Indian voting and threats of Indian 
voting strength have lead to attacks on Indian voting 
rights. Arizona and South Dakota passed voter identi­
fication laws requiring identification when voting 
at the polls, restricting Indian voting rights.109 In­
dividuals testified that the South Dakota voter identi­
fication law was passed in response to the Indian 
voter turnout in 2002, which helped to elect Senator 
Johnson.110 The voter identification law in Arizona re­
sulted in a significant decrease in the number of Na­
tive Americans who voted during the 2006 elections.

109 A riz. Rev. Stat. Ann. § 16-579; S.D. Codified Laws § 12- 
18-6.1.

110 To Examine the Impact and Effectiveness of the Voting 
Rights Act: Hearing Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. 707-710 (2005) 
(statement of O.J. Semans); Voting Rights Act: Evidence of 
Continued Need, Vol. I: Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 2026 
(2006) (appendix to the statement of Wade Henderson).



34

The Navajo Nation filed a section 2 lawsuit against 
the State of Arizona challenging the law, which suit 
was settled by expanding the types of documents that 
Indian voters can use for identification.111

Further attempts to disenfranchise Indian voters 
occurred during the 2008 Arizona election when the 
candidacy of Navajo candidates were challenged be­
cause the addresses on the signature petitions in­
cluded post office boxes and not physical addresses, 
an impossible task for reservation residents who do 
not have physical addresses. To date, no Indian has 
been elected to a statewide office.

Despite Section 5’s requirement that Todd and 
Shannon Counties submit election changes for pre­
clearance, South Dakota ignored the requirement for 
a quarter of a century until tribal members from Todd 
and Shannon Counties filed a lawsuit to force compli­
ance in 2002.112 The lawsuit was resolved by Consent 
Decree. Quiver Plaintiffs returned to court in 2005 to 
enforce the consent order that had been violated by 
South Dakota’s continued failure to comply with Sec­
tion 5.113

Litigation to enforce voting rights is not a suffi­
cient alternative to Section 5 coverage. Litigation is

111 Navajo Nation v. Brewer, No. 06-1575 (D. Ariz. May 27, 
2008) (order approving settlement agreement and dismissal).

112 Quick Bear Quiver v. Nelson, 387 F. Supp. 2d 1027, 1029 
(D.S.D. 2005).

Id. at 1030.113



35

not quick, easy, or cost-efficient. Tribes cannot afford 
to challenge every law that impacts Indian voting 
rights.114 *

C. Federal Observers Help to Increase Com­
pliance with the Voting Rights Act in 
Covered Jurisdictions.

The presence of federal observers at the polls has 
increased compliance with the Voting Rights Act. The 
Department of Justice has sent “several thousand 
Federal observers to participate in 622 election day 
coverages when it had reason to expect [voter disen­
franchisement], Not only did they sometimes report 
discrimination, their presence probably discouraged 
even more.”110 Between 1982 and 2005, “there have 
been more than 1200 federal observers deployed to 
Apache, Navajo, and Yuma Counties, identifying sub­
stantial non-compliance in the availability and quali­
ty of language assistance to American Indian and 
Latino voting-age citizens.”116

114 To Examine the Impact and Effectiveness of the Voting 
Rights Act: Hearing Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. 715 (2005) (state­
ment of O.J. Semans).

u° Introduction to the Expiring Provisions of the Voting 
Rights Act and Legal Issues Relating to Reauthorization: Hear­
ing Before the S. Comm, on the Judiciary, 109th Cong. 6 (2006) 
(statement of Chandler Davidson).

Voting Rights Act: Evidence of Continued Need, Vol. I: 
Hearing Before the Subcomm. on the Constitution of the H.

(Continued on following page)



36

The presence of federal observers in polling 
places increases voter confidence and leads to in­
creased participation in voting for Indian electors 
who are limited English proficient.11' As part of the 
Consent Decree in Apache County for Navajo lan­
guage compliance, federal observers serve as a check 
and balance to the Navajo Language Information 
Program. The Apache County Elections Director 
testified in support of the reauthorization of the 
federal observer program because of the program’s 
success in Apache County.* 118

The federal observer program has helped to 
reveal deficiencies and problems complying with 
the minority language provisions.119 A Department 
of Justice consultant testified how lack of language 
assistance precludes Indian voters from casting mean­
ingful ballots. When federal observers are not pre­
sent, officials fail to post the required notices at polls,

Comm, on the Judiciary, 109th Cong. 1367 (2006) (appendix to 
the statement of Wade Henderson).

11' Continuing Need for Section 203’s Provisions for Limited 
English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 414, 492, 500 (2006) (statement and 
response of Alfred Yazzie).

118 Voting Rights Act: Sections 6 and 8 -  The Federal Exam­
iner and Observer Program, Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109 Cong. 12-17 
(2005) (statement of Penny Pew).

119 Continuing Need for Section 203’s Provisions for Limited 
English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 414, 492, 500 (2006) (statement of Alfred 
Yazzie).-



37

incorrectly translate ballots, rush voters who are 
casting ballots, and fail to make assistance available 
to voters.120

D. Section 5 Preclearance Continues to Pro­
tect Indian Voters.

Ongoing discrimination in voting demonstrates a 
need for the continuation of Section 5.121 The House 
Report122 included examples of on-going discrimina­
tion in Indian Country.123 Because covered jurisdic­
tions must submit proposed changes for approval 
prior to implementation, Section 5 is a deterrent to 
discrimination.124 Covered states have noted the pre­
ventative benefits of Section 5.

As a result of Section 5, “minority voters 
have a greater involvement in decisions 
about election procedures as they are being

120 Id. at 500-501.
121 Id.
122 H.R. Rep. No. 109-478, at 43 (2006).
123 Continuing Need for Section 203’s Provisions for Limited 

English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 500-501 (2006) (statement of Alfred 
Yazzie); Voting Rights Act: Evidence of Continued Need, Vol. I 
and Vol. II, Hearing Before the Subcomm. on the Constitution of 
the H. Comm, on the Judiciary, 109th Cong. 1363-1453, 1986- 
2029 (2006) (appendix to the statement of Wade Henderson).

124 Voting Rights Act: The Continuing Need for Section 5: 
Hearing Before the Subcomm. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 6 (2005) (statement of 
Laughlin McDonald).



38

made.” In a covered jurisdiction, for example, 
election officials typically will consult with 
minority voters before moving a polling 
place. This dialog strengthens communities 
and helps ensure that “harmful effect[s] on 
minority voters are stopped.” Such consulta­
tions do not typically occur in non-covered 
jurisdictions, even though they should. In 
short, Section 5 “plays an important educa­
tive function in covered jurisdictions.” The 
communication that flows from a preclear­
ance submission “facilitates public aware­
ness and compliance with the law even short 
of the provision’s affirmative deterrence ef­
fects.”125

E. Section 5’s Preclearance Requirements 
Are Not Onerous.

In 2009, Arizona, along with other covered juris­
dictions, submitted a brief urging this Court to up­
hold the constitutionality of Section 5.126 Based on the 
record for reauthorization, Arizona noted that com­
pliance with Section 5 is a minimal burden that does 
not intrude upon state sovereignty.

The Amici States urge his Court to uphold 
the constitutionality of the 2006 Reauthori­
zation of the Voting Rights Act. Any assertion

12° Brief for the States of North Carolina, et al., as Amici 
Curiae in Support of Eric H. Holder, Jr. et al., Northwest Austin 
Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009).

126 Id. at 14 (internal citations omitted).



39

that Section 5 constitutes an undue intrusion 
on state sovereignty does not withstand scru­
tiny. Section 5 does not place an onerous 
burden on States. States have been able to 
comply with Section 5 without undue costs or

127expense.

The Amici States noted that the process did not 
impose any undue costs.

The preclearance requirements of Section 5 
do not impose undue costs on covered ju­
risdictions. Administrative preclearance is 
expeditious and cost-effective. The process is 
neither difficult nor complicated. Rather, 
Section 5 preclearance is one of the most 
streamlined administrative processes within 
federal government.128

Further, the Amici States noted that the time 
required to comply is minimal.

As one state election law official explained to 
Congress, the average submission (excluding 
redistricting and annexations) requires less 
than one hour of personnel time to prepare. 
Some, though not all, submissions may be 
completed in a few minutes.129

Arizona now claims that it should not be re­
quired to submit election changes for preclearance

128 Id. at 2.
129 Id. at 8 (internal citations omitted).



40

and provides the example of the closure of a Motor 
Vehicle Division office.130 Arizona residents register 
to vote and obtain required voter identification at 
the Motor Vehicle Division offices and such closure 
is, therefore, subject to Section 5 preclearance. The 
request for preclearance does not seem burdensome 
as compared to the benefits of preclearance. It took 
the Department of Justice approximately one month 
to approve the request.131 Furthermore, in the cov­
ered, rural Counties of Navajo, Apache and Coconino, 
the loss of a single Motor Vehicle Division office 
would result in additional travel and resultant ex­
pense for some citizens to register to vote and to 
obtain voter identification. Such increased expense 
should be required to undergo Department of Justice 
review to determine whether the change results in an 
unacceptable hardship for Indians residing on reser­
vations. Preclearance of such closures are justified 
under Section 5 of the Voting Rights Act.

lo° Brief of Arizona, et al., as Amici Curiae in Support of Pe­
titioner, Shelby County v. Holder at 25, No. 12-96 (U.S. Dec. 31, 
2012).

131 Letter from T. Christian Herren, Jr., Chief US DOJ 
Voting Section, to Michele L. Forney, Arizona Assistant Attorney 
General (July 30, 2012).



41

IV. REAUTHORIZATION IS SUPPORTED BY 
THE RECORD AND A VALID EXERCISE OF 
CONGRESSIONAL POWER.

The temporary provisions of the Voting Rights 
Act are a valid exercise of Congressional powers to 
enforce the Fourteenth and Fifteenth Amendments to 
the United States Constitution. In reauthorizing 
Section 5, Congress received evidence of ongoing 
discrimination. Congress was not willing to jeopard­
ize forty years of progress especially in the face of the 
evidence of continued discrimination compiled by the 
record.132 “With more and more Indian people partici­
pating in elections for the first time,”133 Section 5 
preclearance provisions play an important role in 
ensuring access to the ballot. This case should be 
resolved with a ruling in Respondents’ favor, because 
reauthorization is supported by the Congressional 
Record and is a valid exercise of Congressional en­
forcement powers.

132 See generally, S. Rep. No. 109-259 (2006).
133 Continuing Need for Section 203’s Provisions for Limited 

English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 310 (2006) (letter by Joe Garcia, NCAI).



42

CONCLUSION

For the foregoing reasons, the judgment of the 
Circuit Court should be affirmed.

Respectfully submitted,
Judith M. Dworkin*
Patricia A. Ferguson-Bohnee 
Sacks Tierney P.A.
4250 North Drinkwater Blvd.
Fourth Floor 
Scottsdale, AZ 85284 
(480) 425-2600 
Counsel for Amici Curiae
D. Harrison Tsosie, Attorney General 
Dana Bobroff, Deputy Attorney General 
Navajo Nation Department of Justice 
P. O. Box 2010 
Window Rock, AZ 86515 
(928) 871-2675
Counsel for Amicus Curiae Navajo Nation 
*Counsel o f Record



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No. 12-96

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SHELBY COUNTY, ALABAM A, 
Petitioner, 

v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL 

OF THE UNITED STATES OF AMERICA, ET AL., 
Respondents.

AFFIDAVIT OF SERVICE

I, Patricia Billotte, o f lawful age, being duly sworn, upon my oath state that I did, on the 1st day of February, 2013, send out 
from Omaha, NE 6 package(s) containing * copies of the BRIEF OF AMICI CURIAE THE NAVAJO NATION, LEONARD 
GORMAN, ANTHONY WOUNDED HEAD, SR., AND OLIVER J. SEMANS, SR., IN SUPPORT OF RESPONDENTS 
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SEE ATTACHED

To be filed for:
JUDITH M. DWORKIN*
PATRICIA A. FERGUSON-BOHNEE 
SACKS TIERNEY P.A.
4250 North Drinkwater Blvd.
Fourth Floor 
Scottsdale, AZ 85284 
(480) 425-2600 
dworkin@sackstierney.com 
Counsel for Amici Curiae

D. HARRISON TSOSIE, Attorney General 
DANA BOBROFF, Deputy Attorney General 
NAVAJO NATION DEPARTMENT OF JUSTICE 
P. O. Box 2010 
Window Rock, A Z 865 15 
(928) 871-2675
Counsel for Amicus Curiae Navajo Nation 

*Counsel of Record

Subscribed and sworn to before me this 1st day of February, 2013.
I am duly authorized under the laws of the State of Nebraska to administer oaths.

< m ..* * . a  d h  jfc  a  •

' ANDREW COCKLE ’
< General Notary •
< State of Nebraska i
, My Commission Expires Apr 9,2014 ,

Notary Public
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Bert W . Rein 
W iley Rein LLP 
1776 K  Street, N .W .
Washington, DC 20006  
brein@wileyrein.com  
(202) 719 -7000
Counsel o f  Record for Petitioner Shelby County, Alabama 
(3 copies)

Donald B. Verrilli, Jr.
Solicitor General
United States Department o f  Justice 
950 Pennsylvania Avenue, N .W ., Room 5614  
Washington, DC 20530-0001  
SupremeCtBriefs@usdoj .gov 
(2 0 2 )5 1 4 -2 2 1 7
Counsel o f  Record for Respondent Eric H. Holder,

Attorney General o f  the United States 
(3 copies)

Jon M . Greenbaum
Lawyers’ Committee for Civil Rights Under Law 
1401 New  York Avenue, N W , Suite 400  
Washington, DC 20005  
jgreenbaum@lawyerscommittee.org 
(202) 662-8315
Counsel o f  Record for Respondent-Intervenor Bobby Lee Harris 
(3 copies)

Laughlin McDonald
American Civil Liberties Union Foundation 
230 Peachtree Street, N W , Suite 1440 
Atlanta, G A  30303-1227  
lmcdonald@aelu.org  
(404) 523-2721
Counsel o f  Record for Respondent-Intervenors 

Bobby Pierson, W illie Goldsmith, Sr., Mary Paxton-Lee,
Kenneth Dukes, and The Alabama State Conference o f  the 
National Association for the Advancement o f  Colored People, Inc. 

(3 copies)

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mailto:lmcdonald@aelu.org


Debo P. Adegbile
N A A C P  Legal Defense &  Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, N Y  10013 
dadegbile@naacpldf.org 
(2 1 2 )9 6 5 -2 2 4 9
Counsel o f  Record for respondent-intervenors Earl Cunningham, et al. 
(3 copies)

Joshua Civin
N A A C P  Legal Defense &  Educational Fund, Inc. 
1444 I Street, N W , 10th Floor 
Washington, D C 20005  
(202) 682 -1300  
(1 copy)

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No. 12-96

SH E LB Y C O U N T Y , A L A B A M A ,
Petitioner,

v.
ERIC H. H OLDER, JR., A T T O R N E Y  G ENER AL  

OF THE U NITED  STATES OF A M E R IC A , ET A L .,
Respondents.

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