Northwest Austin Municipal Utility Distr. One v. Holder Brief Amici Curiae of the Navajo Nation et al.

    No. 08-322

in  ®f)£
Supreme Court of tfje ?Hntteb States;

---------------- ♦ — -—

NORTHWEST AUSTIN MUNICIPAL 
UTILITY DISTRICT NUMBER ONE,

Appellant,
v.

ERIC H. HOLDER, JR., Attorney General 
of the United States of America, et al.,

Appellees.
---------------- ♦-----------------

On Appeal From The 
United States District Court 

For The District Of Columbia
---------------- ♦-----------------

BRIEF OF AMICI CURIAE THE NAVAJO NATION, 
ANTHONY WOUNDED HEAD, SR., IVAN STARR, 

OLIVER J. SEMANS, SR., AND DAN MCCOOL,
IN SUPPORT OF APPELLEES 

[IMPACT ON AMERICAN INDIANS]

----------------

Patricia A. Ferguson-Bohnee 
Indian Legal Clinic** 
Sandra Day O’Connor 

College of Law 
P. O. Box 877906 
Tempe, AZ 85287 
(480) 727-0420

*Counsel of Record 
**Counsel for Amici Curiae 

***Cou?isel for Amicus
Curiae Navajo Nation

(928) 871-2675

Marvin S. Cohen*
Judith M. Dworkin 
Sacks Tierney PA.**
4250 North Drinkwater Blvd. 
Fourth Floor 
Scottsdale, AZ 85251 
(480) 425-2600
Louis Denetsosie, 

Attorney General*** 
Navajo Nation Department 

of Justice 
P. O. Box 2010 
Window Rock, AZ 86515

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



1

TABLE OF CONTENTS...........................................  i
TABLE OF AUTHORITIES.....................................  iii
INTEREST OF THE AMICI CURIAE.................... 1
ARGUMENT..........................................     4

I. AMERICAN INDIANS HAVE HISTORI­
CALLY BEEN SUBJECT TO PURPOSE­
FUL DISCRIMINATION THAT HAS 
DENIED THEIR RIGHT TO VOTE IN 
STATE AND FEDERAL ELECTIONS........ 4
A. Arizona Continued to Prevent Indians

from Voting Notwithstanding Passage of 
the Indian Citizenship Act of 1924....... 6

B. Racial Discrimination Against Indians
Plague the Election Process in South 
Dakota, Specifically in Todd and Shan­
non Counties............................................  11

II. WHILE THE PROTECTIONS OF SEC­
TION 5 OF THE VOTING RIGHTS ACT 
HAVE IMPROVED VOTING FOR IN­
DIAN VOTERS, DISCRIMINATION HAS 
NOT BEEN ERADICATED..........................  13
A. American Indians Are Disenfranchised

by Voting Schemes................................... 15
B. States Have Used Geography to Disen­

franchise Indian Voters..........................  20
C. Voter Intimidation at the Polls Disen­

franchises American Indian Voters.... . 22

TABLE OF CONTENTS
Page



11

TABLE OF CONTENTS -  Continued
Page

D. Section 5 Has Improved Voting Oppor­
tunities for Native Language Speakers 
in Covered Jurisdictions........................ 23

III. SECTION 5 PRECLEARANCE IS A KEY 
COMPONENT TO PROTECTING THE 
FUNDAMENTAL RIGHTS OF AMERI­
CAN INDIANS................................................ 25
A. Native American Voter Registration

and Turnout Have Increased.............   26
B. The Evidence Reveals that There Is a

Continued Need for Section 5 ...............  27
C. Section 5 Preclearance Continues to

Protect American Indian Voters............ 32
IV. REAUTHORIZATION IS SUPPORTED BY 

THE RECORD AND A VALID EXERCISE 
OF CONGRESSIONAL POW ER................  34

CONCLUSION..................................................   36



I l l

TABLE OF AUTHORITIES
Page

Cases

American Horse v. Kundert, Civ. No. 84-5159
(D.S.D. Nov. 5, 1984)..................................................17

Apache County High School No. 90 v. United 
States, No. 77-1815 (D.D.C. June 12, 1980).......... 10

Apache County v. United States, 256 F. Supp.
903 (D.D.C. 1966)......................................................... 7

Black Bull v. Dupree School District, Civ. No.
86-3012 (D.S.D. May 14, 1986).... ..................... ......21

Blackmoon v. Charles Mix County, No. 05-4017
(D.S.D. 2004)................................................................19

Elk v. Wilkins, 112 U.S. 94 (1884)................................. 5
Goddard v. Babbitt, 536 F. Supp 538 (D. Ariz.

1982)............................................................................ .18
Goodluck v. Apache County, 417 F. Supp. 13 (D.

Ariz. 1975), a ff’d, 429 U.S. 876 (1976)....................... 9
Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 

(Ariz. 1948)....................     6
Kirkie v. Buffalo County, Civ. No. 03-3011

(D.S.D. Feb. 12, 2004).........................................18, 19
Little Thunder v. South Dakota, 518 F.2d 1253

(8th Cir. 1975)........   12
Oregon v. Mitchell, 400 U.S. 112 (1970)..........................8
Porter v. Hall, 34 Ariz. 308, 271 P. 411 (Ariz.

1928) 6



IV

Quick Bear Quiver v. Nelson, 387 F. Supp. 1027 
(D. S.D. 2005)............................................ .......... 31, 32

Shirley v. Superior Court for Apache County,
109 Ariz. 510, P.2d 939 (Ariz. 1973)..........................9

Thornburg v. Gingles, 478 U.S. 30 (1986)................. 25
United States v. Day County, No. 85-3050 

(D.S.D. Oct. 24, 1986)................................................ 17
United States v. South Dakota, 636 F.2d 241 

(8th Cir. 1980)............................................................. 12
United States v. State o f Arizona, Civ. No. 88- 

1989 (D. Ariz. May 22, 1989)............................. 16, 24

U nited  States C onstitution

U.S. C o n st , amend. XIV, § 1 ....................................5, 34
U.S. C o n st , amend. X V .............................................. ...34

F ederal Statutes

42 U.S.C. § 1973aa (1970)............................................... 7
43 Stat. 253, Pub. L. 175 (1924) (codified as

amended at 8 U.S.C. § 1401(b))..................................4

F ederal R u le s , R egulations, and  N otices

28 C.F.R. § 55.8(a) (2009).... ........................................ 10
30 Fed. Reg. 9897 (Aug. 7, 1965)...................................7

TABLE OF AUTHORITIES -  Continued
Page



V

TABLE OF AUTHORITIES -  Continued
Page

30 Fed. Reg. 14505 (Nov. 19, 1965).............................7
41 Fed. Reg. 784 (Jan. 5, 1976)........................... ........ 12

F ederal L egislative Materials

Continuing Need for Section 203’s Provision for 
Limited English Proficient Voters: Hearing 
Before the S. Comm, on the Judiciary, 109th 
Cong. 309 (2006).................................................4, 5, 23

H.R. Rep. No. 109-478..........................................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)........33

S. Rep. No. 109-259 (2006)........................................... 34
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)............... 30, 32

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

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



VI

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. 3968 (2006)....................................18

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. 99 
(2005)........................................................................... 16

Voting Rights Act: Section 203 -  Bilingual 
Election Requirements (Part II): Hearing 
Before the Subcomm. on the Constitution o f 
the H. Comm, on the Judiciary, 109th Cong. 
4(2005).....................................................14, 17,24, 28

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).....................................................22

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

State Statutes

Ariz. Rev. Stat. Ann. § 16-101(A)(4)-(5) (1956)...........6

TABLE OF AUTHORITIES -  Continued
Page

Ariz. R e v . Stat. A n n . § 16-579.....................................30
S.D. C odified  L aws § 12-18-6.1................................... 30



V ll

TABLE OF AUTHORITIES -  Continued
Page

O ther  S tate M aterials

Ariz. Att’y Gen. Op. No. 103-007 (2003)....................30

O ther  A uthorities

C oh en ’s H an d bo o k  of F ederal Indian  Law ,
§ 14.01[3] (2005 E d.).................................................... 5

Daniel McCool, Susan Olson, and Jennifer 
Robinson, Native Vote: American Indians, 
the Voting Rights Act, and the Right to 
Vote (2007)............................................................. 3, 11

U.S. Census Bureau, Navajo Reservation 
Demographic Profile: 2000, Table DP-1, 
available at http://censtats.census.gov/data/ 
US/502430.pdf............................................................... 1

U.S. C om m ’n  on  C ivil R igh ts . T he unfinished  
b u sin ess : tw enty  years  later , A  report sub­
m itted  to  the U.S. C om m ission  on  C ivil 
rights by  its F ifty-O ne S tate A dvisory  C om ­
mittee  (1977)..................... ........................................ 13

U.S. Dep’t of Justice Civil Rights Division 
website, available at http://www.usdoj.gov/crt/ 
voting/sec_5/covered.php..........................................27

http://censtats.census.gov/data/
http://www.usdoj.gov/crt/


1

Amicus Navajo Nation is a federally recognized 
Indian tribe and is the largest tribe in the United 
States, comprising over 250,000 members and occupy­
ing approximately 25,000 square miles of trust lands 
within Arizona, New Mexico, and Utah.1 2 The State of 
Arizona and political 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 number of voting rights lawsuits to 
ensure that its members can participate in the elec­
toral process. The Navajo Nation and its members sent 
letters to Congress in support of the reauthorization of 
the expiring provisions of the Voting Rights Act.

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 — 
a jurisdiction subject to Section 5’s preclearance

INTEREST OF THE AMICI CURIAE1

1 Counsel of record for the parties have consented to the 
filing of this brief, and letters of consent have been filed with the 
Clerk. Pursuant to Rule 37.6, amici curiae certify that no 
counsel for a party authored this brief in whole or in part, and 
no persons or entity, other than amici curiae and their counsel, 
made a financial contribution for the preparation or submission 
of this brief.

2 According to the 2000 U.S. Census, approximately 180,000 
individuals live on the Navajo Reservation, approximately 97% 
of whom are American Indian. U.S. Census Bureau, Navajo 
Reservation Demographic Profile: 2000, Table DP-1, available 
at http://censtats.census.gov/data/US/502430.pdf.

http://censtats.census.gov/data/US/502430.pdf


2

requirements. Mr. Semans has organized Get Out the 
Vote Campaigns in South Dakota for tribal voters. 
Mr. Semans testified at a hearing in Rapid City, 
South Dakota in support of the reauthorization of the 
Voting Rights Act. Mr. Semans served as a field 
director for a nonprofit group focused -*u Indian \oter 
registration and rights. He has testified extensively 
before South Dakota State Senate Committees on 
proposed laws that would adversely affect the voting 
rights of American Indians. Mr. Semans has continu­
ously worked on increasing voter turnout throughout 
the State of South Dakota and contributed to the 
117% increase in voter participation of Indians during 
the 2004 elections.

Amici Anthony Wounded Head, Sr. and Ivan 
Starr are tribal council representatives of the Oglala 
Sioux Tribe of the Pine Ridge Indian Reservation 
located in Shannon and Jackson Counties in South 
Dakota. The Pine Ridge Reservation is one of the 
poorest areas in the country.3 Mr. Wounded Head and 
Mr. Starr are native language speakers and are 
supportive of language translations for American

3 The Pine Ridge Reservation is located in Shannon and 
Jackson counties. Shannon County has the highest Indian 
population of any county in the United States at 94.2 percent, 
and is the “second-poorest county nationwide.” The poorest 
county is in Buffalo County, South Dakota and has an 81.6% 
Indian population. 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).



3

Indian language speakers during elections. Amici 
have witnessed the impacts of Section 5 in Shannon 
County for reservation voters.

Amicus Dan McCool is a Professor of Political 
Science at the University of Utah. Professor McCool’s 
research focuses on water rights and voting rights, 
and he served as a consultant for the ACLU’s Native 
Vote Project. Professor McCool testified at the Na­
tional Commission for Voting Rights Hearing held in 
Rapid City, South Dakota in 2005 providing evidence 
to support the reauthorization of Section 5 of the 
Voting Rights Act. He has appeared as an expert 
witness in several Indian voting rights cases and has 
written and published extensively on the subject. 
Professor McCool is a co-author of N ative V o te : 
A m erican  In dian s , T he V oting  R ights A c t , A nd  T he 
R ight T o V ote (2007).

The Navajo Nation, and individuals Semans, 
Wounded Head, Starr and McCool file this brief as 
amici curiae in support of the right to vote of Ameri­
can Indians, particularly elders and others who 
continue to live traditional lifestyles in small commu­
nities in rural and remote areas where they continue 
to speak traditional American Indian languages and 
face the impacts of past discrimination in the areas of 
health, education, and voting.

Amici agree with Appellees that Congress’ 2006 
reauthorization of the Voting Rights Act was constitu­
tional. Moreover, Amici are concerned that if the 
Court declares that the reauthorization of Section 5 is



4

unconstitutional, American Indian voting rights will 
be significantly impacted and result in a reversal of 
the strides made in recent years to ensure greater 
Indian voter participation. This would negatively 
impact many American Indian voters who only re­
cently secured the right to vote, continue to face 
discrimination in voting, and who cannot shoulder 
the financial burden to bring lawsuits under Section 
2 of the Voting Rights Act.

---------------- ♦----------------

ARGUMENT

I. AMERICAN INDIANS HAVE HISTORI­
CALLY BEEN SUBJECT TO PURPOSEFUL 
DISCRIMINATION THAT HAS DENIED 
THEIR RIGHT TO VOTE IN STATE AND 
FEDERAL ELECTIONS.

American Indians “have experienced a long 
history of disenfranchisement as a matter of law and 
of practice.”4 5 It was not until Congress passed the 
Indian Citizenship Act of 1924 that all American 
Indians were granted United States citizenship.3 
Prior to 1924, Indians were denied citizenship and 
the right to vote based on the underlying trust

4 Continuing Need for Section 203’s Provision for Limited 
English Proficient Voters: Hearing Before the S. Comm, on the 
Judiciary, 109th Cong. 309 (2006) (letter from Joe Garcia, 
NCAI).

5 An Act of June 2, 1924, 43 Stat. 253, Pub. L. 175 (1924) 
(codified as amended at 8 U.S.C. § 1401(b)).



5

relationship between the federal government and the 
tribes and on their status as citizens of their tribes. 
Until the 1924 Indian Citizenship Act, Indians could 
only become citizens through naturalization “by or 
under some treaty or statute.”6 Enactment of the 1924 
Act ended the period in United States history in 
which United States citizenship of Indians condi­
tioned on severance of tribal ties and renunciation of 
tribal citizenship and assimilation into the dominant 
culture.7

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, states contin­
ued to discriminate against Indians by denying them 
the right to vote in state and federal elections 
through the use of poll taxes, literacy tests, and 
intimidation.9

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

42-44. (2005 Ed.)
8 U.S. Const, amend. XIV, § 1.
9 Continuing Need for Section 203’s Provision for Limited 

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



6

A. Arizona Continued to Prevent Indians 
from Voting Notwithstanding Passage 
of the Indian Citizenship Act of 1924.

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

The State of Arizona continued its discrimination 
through its imposition of English literacy tests which 
were not repealed until 1972.12 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. Apache County,

10 Porter v. Hall, 34 Ariz. 308, 331-332, 271 P. 411, 419 (Ariz. 
1928).

11 Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 (Ariz. 
1948) (holding that Indians living on Indian reservations should 
in all respects be allowed the right to vote).

12 See Ariz. Rev. Stat. A nn. § 16-101(A)(4)-(5) (1956); Voting 
Rights Act: Evidence of Continued Need, Vol. I: Hearing Before 
the Suhcomm. on the Constitution of the H. Conun. on the 
Judiciary, 109th Cong. 1372 (2006) (appendix to the statement 
of Wade Henderson).



7

Arizona was included in the original list of jurisdic­
tions covered by Section 5 of the Voting Rights Act.1,5 
On November 19, 1965, Navajo and Coconino Coun­
ties also became covered by Section 5.13 14 As a result of 
this coverage, the Arizona literacy tests were sus­
pended in each of these three counties. In 1966, these 
three counties became the first jurisdictions to suc­
cessfully 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 dis- 
criminatorily applied against Indians in the preced­
ing five years.15

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 
literacy tests.16 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

13 Determination of the Attorney General Pursuant to 
Section 4(b)(1) of the Voting Rights Act of 1965, 30 Fed. Reg. 
9897 (Aug. 7, 1965).

14 Determination of the Director Pursuant to Section 4(b)(2) 
of the Voting Rights Act of 1965, 30 Fed. Reg. 14505 (Nov. 19, 
1965).

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

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



8

Indians.”1' The Court recognized that non-English 
speakers may make use of resources in their native 
languages in order to responsibly and knowledgeably 
cast a ballot.17 18

The Voting Rights Act amendments of 1970 
included, as one of the measures of voting discrimina­
tion, registration and turnout in the 1968 presiden­
tial election. As a result, Apache, Coconino and 
Navajo Counties again became covered by Section 5 
along with five (5) other Arizona counties.

Even after 1970, there were a number of chal­
lenges to Indians’ right to vote and 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 American Indian. Of these languages, the most 
commonly used is Navajo, a historically unwritten 
language.19 The Arizona Supreme Court quashed a 
permanent injunction by the lower court against the 
seating of Tom Shirley, a Navajo Indian living on the

17 Oregon v. Mitchell, 400 U.S. 112, 117, 132, 153 (1970).
18 400 U.S. at 146.
19 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 Nation Reserva­
tion are limited-English proficient and over one-quarter are 
illiterate. 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. 1403-1404 (2006) (appen­
dix to the statement of Wade Henderson).



9

Navajo Reservation, who had been elected to the 
Apache County Board of Supervisors.20 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 3.21

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.22 Apache County claimed that 
Indians are not citizens of the United States and the 
Indian Citizenship Act granting them citizenship was 
unconstitutional.23 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 plaintiff’s 
motion for summary judgment.24

20 Shirley v. Superior Court for Apache County, 109 Ariz. 
510, 516, 513 P.2d 939, 945 (Ariz. 1973).

21 Id. at 516, 513 P.2d at 945.
22 Goodluck v. Apache County, 417 F. Supp. 13, 14 (D. Ariz. 

1975), a ff’d, 429 U.S. 876 (1976).'
417 F. Supp. at 14.
417 F. Supp. at 16.24



10

In 1976, Apache County attempted to avoid 
integration of its public schools to include Indian 
students by holding a special bond election to fund a 
new school in the almost entirely non-Indian south­
ern part of the county. Although the special election 
affected 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.* 26

Nine Arizona counties are covered under Section 
203 for American Indian languages: Apache, Cocon­
ino, Gila, Graham, Maricopa, Navajo, Pima, Pinal 
and Yuma and must provide all election materials, 
including assistance and ballots, in the language of 
the applicable language minority group.26 Of these 
counties four — Navajo, Apache, Coconino and Pinal -  
are covered under Section 5 and must have all mate­
rials and procedures precleared.

26 Apache County High School No. 90 v. United States, No. 
77-1815 (D.D.C. June 12, 1980).

26 See Implementation of the Provisions of the Voting Rights 
Act Regarding Language Minorities, 28 C.F.R. § 55.8(a) (2009).



11

B. Racial Discrimination Against Indians 
Plague the Election Process in South 
Dakota, Specifically in Todd and Shan­
non Counties.

Like Arizona, South Dakota has had a long 
history of discrimination against American 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 territo­
rial civil code expressly prevented Indians from 
voting. The state’s civil code, developed in 1903, 
specified that Indians could not vote or hold office 
while “maintaining tribal relations.”27 The state 
applied 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 1951.28

27 Daniel McCool, Susan Olson, and Jennifer Robinson, 
Native Vote: American Indians, the V oting Rights A ct, and 
the Right to V ote 137-138 (Cambridge University Press 2007).

Id. at 28.28



12

The repeal of this provision did not automatically 
result in full voting rights for Indians living in Todd 
and Shannon Counties. Indians living in these two 
counties were prohibited from voting for the county 
officials who governed them. This injustice was 
finally ended by the Eighth Circuit Court of Appeals 
in 1975.29 However, South Dakota still forbade Indi­
ans from Todd and Shannon Counties from holding 
office; that injustice was not struck down until 1980.30

In 1976, the counties of Todd and Shannon were 
placed under the provisions of Section 5 of the Voting 
Rights Act.31 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 state.32

The continuing racial animosities in South Dakota 
have resulted in a series of reports by the U.S. Com­
mission on Civil Rights. In 1977, the Commission

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

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

31 Partial List of Determinations Pursuant to Voting Rights 
Act of 1965, as Amended, 41 Fed. Reg. 784 (Jan. 5, 1976): 
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).

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



13

noted that the “voting problems of minorities” 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 Ameri­
can Indians. Much of this report focused on Todd and 
Shannon Counties.

II. WHILE THE PROTECTIONS OF SECTION 
5 OF THE VOTING RIGHTS ACT HAVE 
IMPROVED VOTING FOR INDIAN VOT­
ERS, DISCRIMINATION HAS NOT BEEN 
ERADICATED.

The expiring provisions of the Voting Rights Act 
include (i) Section 4(b)(4), (ii) Section 5 preclearance, 
(iii) Section 203 — bilingual elections for American 
Indians, Asian Americans, Alaska Natives and Span­
ish heritage speakers who are limited English profi­
cient (LEP), (iv) Section 6 — federal election 
examiners, and (v) Section 8 -  federal election ob­
servers. The Voting Rights Act, including the Section 
5 preclearance requirement and the minority lan­
guage provisions, provides necessary protections to 
American Indian voters from ongoing discrimination. 
Congress implemented Section 203 of the Voting 
Rights Act in 1975 based on findings that American

33 U.S. Comm’n on Civil Rights. The unfinished business:
TWENTY YEARS LATER, A REPORT SUBMITTED TO THE U.S. COMMIS­
SION on Civil rights by its Fifty-One State Advisory Commit­
tee. (1977).



14

Indians, Alaska Natives and other language minori­
ties were prohibited from fully participating in the 
democratic process.34 However, even with implemen­
tation of Section 5, Section 4(f)(4), and Section 203 
protections, the provisions do not provide absolute 
protection for American Indian voters. Congressional 
testimony and materials submitted in support of 
reauthorization of the expiring provisions of the 
Voting Rights Act demonstrate numerous instances 
where American Indians have been subject to dis­
crimination since 1982.

In support of reauthorization of Section 5, the 
House of Representatives Committee to the Judiciary 
received testimony that revealed a need to extend the 
temporary and expiring provisions of the Voting 
Rights Act 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 jeopardy,”* 36 because there is widespread,

Voting Rights Act: Section 203 -  Bilingual Election 
Requirements (Part II): Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 4 
(2005) (testimony of Jacqueline Johnson, National Congress of 
American Indians).

36 H.R. Rep. No. 109-478, at 56 (2006).
°6 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).



15

systematic voting discrimination against American 
Indians.37 The House Committee Report found that 
Section 5 enforcement authority was critical, because 
it allowed the Department of Justice and private 
citizens to monitor covered jurisdictions with a his­
tory of discrimination to ensure full compliance of the 
law.38 The Committee ultimately found that “substan­
tial discrimination continue[d] to exist in 2006.”39 The 
Congressional Record supports the Committee’s 
finding and the Congressional reauthorization of 
Section 5.

A. American Indians Are Disenfranchised 
by Voting Schemes.

Recent instances of voting discrimination in 
Indian Country documented in the Congressional 
Record indicate that the Section 5 preclearance 
protection of the Voting Rights Act is still necessary 
to protect American Indian voters. The House Com­
mittee Report found that American Indian citizens 
were subject to voting schemes that prevent Ameri­
can Indians from gaining majority seats by disman­
tling minority districts.40 The Committee Report also

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 Id. at 45.



16

found that similar tactics kept American Indians 
from registering and casting effective ballots.41

In Northern Arizona, there is extensive history of 
discrimination against Navajo, Apache, and Hopi 
voters.42 Since 1982, there have been two successful 
cases against the Section 5 covered Counties of Co­
conino, Navajo, and Apache compelling enforcement 
of the Voting Rights Act.43 In 1989, the United States 
brought forth a claim against Arizona for “unlawfully 
denyling] or abridg[ing] the voting rights of Navajo 
citizens residing in defendant counties.”44 The Arizona 
counties settled the claims by consent decree which 
required the establishment of the Navajo Language 
Election Information Program including the employ­
ment of outreach workers to assist in all aspects of 
voting by Indian voters.45 46 In 1994, Coconino County 
created two new Superior Court judgeships without 
seeking preclearance under Section 5. The District

41 Id.
42 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).

43 Id.
44 United States v. State o f Arizona, Civ. 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).

46 Id. (appendix to the Statement of Bradley J. Schlozman).



17

Court held that the judgeships constituted “covered 
change” and enjoined the judicial election until pre­
clearance was obtained.46

American Indian voters in South Dakota con­
tinue to encounter racial hostility, polarized voting, 
and resistance when participating in state and fed­
eral elections. Between 1982 and 2006, American 
Indians in South Dakota were subject to de jure 
and de facto discrimination, including having their 
voter registration cards systematically denied by the 
county registrar46 47 and not being able to vote in elec­
tions because they were non-white land owners.48 
There have been nineteen 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.49 Continued discrimination in South

46 Voting Rights Act: Evidence of Continued Need, Vol. I: 
Hearing Before the Subconun. on the Constitution of the H. 
Comm, on the Judiciary, 109th Cong. 1411-1412 (2006) (appen­
dix to the statement of Wade Henderson).

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

48 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 o f the H. 
Comm, on the Judiciary, 109th Cong. 2000 (2006) (appendix to 
the statement of Wade Henderson).

49 Voting Rights Act: Section 203 -  Bilingual Election 
Requirements (Part II): Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 264 
(2006).



18

Dakota necessitates federal oversight over Shannon 
and Todd counties through the preclearance protec­
tions of Section 5.

American Indians in both Arizona and South 
Dakota have been subject to voting schemes that aim 
to dilute or pack the Indian vote. In Goddard v. 
Babbitt, the San Carlos Apache Tribe successfully 
objected to proposed redistricting in 1982 that aimed 
to split and dilute the Apache vote.50 The Department 
of Justice objected to the plan on the grounds that the 
plan had a discriminatory effect. According to the 
District Court, the proposed plan “has the effect of 
diluting the San Carlos Apache Tribal voting strength 
and dividing the Apache community of interest.”51

In two South Dakota cases not covered by Section 
5 preclearance protection, discrimination in redis­
tricting led to prolonged litigation followed by 
consent decrees. In Kirkie v. Buffalo County, Buffalo 
County, South Dakota gerrymandered its three 
districts by packing 75% of the Indian population 
into one district.52 The county, the “poorest in the * 61

30 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 o f the H. Comm, on the 
Judiciary, 109th Cong. 3968 (2006) (materials submitted by the 
Honorable Steve Chabot).

61 Id.
02 Kirkie v. Buffalo County, Civ. 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 

(Continued on following page)



19

country,”* 53 was comprised of approximately 2,100 
people, of which 83% were American Indian, This 
redistricting had been implemented with the purpose 
of diluting the Indian vote, as whites controlled both 
the other two districts and thus County government.54 * 
The case was settled by a consent decree wherein the 
county admitted its plan was discriminatory and was 
forced to redraw the district lines.56 Pursuant to the 
consent decree, the county agreed to subject itself to 
Section 3(c) of the Voting Rights Act, which requires 
the submission of voting changes for preclearance.56 
As recent as 2005, another South Dakota county was 
forced to redraw district lines for similar malappor­
tionment of Indian voters.57 Section 5 protections

of the H. Comm, on the Judiciary, 109th Cong. 132-133 (2005) 
(appendix to the statement of Laughlin McDonald).

53 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).

64 Kirkie v. Buffalo County, Civ. 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).

65 Id.
66 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).

07 Blackmoon v. Charles Mix County, No. 05-4017 (D.S.D. 
2004); Voting Rights Act: The Continuing Need for Section 5: 
Hearing Before the Subcomm. on the Constitution of the H.

(Continued on following page)



20

could have prevented this type of de facto discrimina­
tion, because the changes would have needed pre­
clearance approval prior to enactment.08

B. States Have Used Geography to Disen­
franchise Indian Voters.

The Congressional Record demonstrates how 
South Dakota and Arizona have employed geography 
to decrease voter turnout on reservations. In Arizona, 
polling locations and voter registration sites on 
reservations are often located at substantially greater 
distances from voters than sites located off reserva­
tion.58 59 Further distances means a greater cost in­
curred to exercise one’s vote.60 Registering to vote is 
also an obstacle as a majority of counties bordering 
reservations limit registration locations to off- 
reservation towns.61 In South Dakota, one county 
failed to provide sufficient polling locations for a 
school district election. Many Indian voters traveled

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

58 Charles Mix County is not covered by Section 5.
°9 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).

60 Id.
61 Id.



21

up to 150 miles to vote.62 63 Only after a federal district 
court entered a judgment against the County did the 
County provide additional reservation polling 
places.68

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.64 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 
ensure the continued neglect and inattention to 
issues of disparity and inequality” in South Dakota.65 * *

62 Black Bull v. Dupree School District, Civ. 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) 
(appendix to the statement of Laughlin McDonald).

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

64 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).

Id. at 1989.65



22

C. Voter Intimidation at the Polls Disen­
franchises American Indian Voters.

The Congressional Record provides evidence that 
voter intimidation tactics are still employed at vari­
ous polling places in order to deter language minority 
voters. The Department of Justice reported instances 
where observers witnessed language minority voters 
being harassed and intimidated by polling officials.66 
Congressional testimony described the efforts to 
discourage the Indian vote by intimidating poll 
workers and voters at several polling locations on the 
Navajo Reservation in 2002.6‘ 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.68

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

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

68 Voting Rights Act: Evidence o f 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).



23

D. S ection  5 Has Im p roved  V oting O p p or­
tunities fo r  N ative L anguage Speakers 
in C overed  Ju risd iction s .

Because language has been a significant barrier 
to voting for American Indians, Section 5 provides 
equal access to the ballot by American Indians. The 
House Committee Report found that American Indi­
ans continue to experience hardships when attempt­
ing to vote, because of their limited ability to speak 
English and inability to read the ballots.69 70 The Na­
tional Congress of American Indians testified that 
there are many American Indians, especially elders, 
who “speak English only as a second language.” '0 The 
illiteracy rate for Arizona Indians is nineteen times 
the national illiteracy rate.71 For South Dakota Indi­
ans, the illiteracy rate is similarly very high and 
“[significant numbers of Indians” require oral and 
written translation assistance in the Lakota and 
Dakota languages.72

69 H.R. Rep. No. 109-478, at 45 (2006).
70 Id. at 46; Continuing Need for Section 203’s Provision for 

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

71 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).

72 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).



24

The Department of Justice identified situations 
in which ineffective language assistance was provided 
to American Indian voters in the Section 5 covered 
jurisdictions in Northern Arizona.73 Navajo and 
Apache Counties agreed to establish minority lan­
guage programs to better assist Indian voters as a 
result of the Department of Justice’s efforts.74 Pre­
clearance under Section 5 ensures that ineffective 
language assistance will not recur because changes to 
the election procedures must be precleared.

Congressional testimony revealed that American 
Indians have historically had low voter participation 
rates. However, testimony from witnesses in Indian 
communities noted that participation rates have 
increased in some communities by as much as 50% to 
150%.75 The House Committee found sufficient evi­
dence of increased participation by language minori­
ties, including American Indians located in Section 5 
jurisdictions.76 *

,3 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).

74 United States v. State o f Arizona, Civ. 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).

H.R. Rep. No. 109-478, at 20 (2006).
Id.76



25

Continuation of the protections provided by 
Section 5 is vital for maintaining and increasing 
American Indian voter participation. The report on 
American Indian and Alaska Native progress con­
cluded with the Committee stating, “[t]he Committee 
believes that these examples reflect the gains that 
Congress intended language minorities to make 
under Section 4(f) and 203, and concludes that all 
American citizens should have the opportunity to 
participate in the political process.”77 Section 5 of the 
Voting Rights Act continues to be a critical element in 
ensuring the ability of Native language speakers the 
opportunity to knowingly exercise their electoral 
franchise.

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

In Thornburg v. Gingles, the Supreme Court 
stated that “[b]oth this Court and other federal courts 
have recognized that political participation by minori­
ties tends to be depressed where minority group 
members suffer effects of prior discrimination such as 
inferior education, poor employment opportunities, 
and low incomes.”78 Indian voters continue to suffer

78 478 U.S. 30, 69 (1986); Voting Rights Act: Evidence of 
Continued Need, Vol. II: Hearing Before the Subcomm. on the 

(Continued on following page)



26

from some of the highest poverty rates and unem­
ployment rates in the country. Many Indian reserva­
tions are rural. In Shannon County, which includes 
the Pine Ridge Reservation, 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.79 On Arizona 
tribal reservations, poverty rates are above 42% with 
Fort Yuma’s rate exceeding 94%.80 The need for Sec­
tion 5’s preclearance provisions in Indian Country is 
demonstrated by not only the historical impediments 
to suppress the Indian vote, but the continuing effects 
of past discrimination and continuing voter suppres­
sion efforts that disenfranchise Indian voters.

A. Native American Voter Registration and 
Turnout Have Increased.

Seven counties are covered under Section 4(f)(4) 
for American Indian languages and are subject to the 
preclearance requirements of Section 5 including four 
in Arizona, two in South Dakota, and one in North

Constitution of the H. Comm, on the Judiciary, 109th Cong. 2020 
(2006) (appendix to the statement of Wade Henderson).

79 Id.
80 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. 1383 (2006) (appendix to 
the statement of Wade Henderson).



27

Carolina.81 Counties subject to preclearance for 
American Indian languages have past histories of 
discrimination against Indians and include many 
limited English proficient speakers.

Prior to Section 5 coverage, American Indians in 
covered jurisdictions had little opportunity to vote. 
Section 5 of the Voting Rights Act has resulted in 
increased participation by Indian voters in the elec­
toral process. The House Judiciary Committee found 
“that increased participation levels are directly 
attributable to the effectiveness of the VRA’s expiring 
provisions.”82 The Committee also found that the 
temporary provisions have protected minority voters 
and helped them to register to vote unchallenged, 
cast ballots unhindered, and cast meaningful votes. 
More Indian voters have registered to vote and 
turned out to vote since the implementation of Sec­
tion 5.83

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

Despite improvements, Indian voters still face 
obstacles in voting.84 The need for the continuation of

81 “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.

82 H.R. Rep. No. 109-478, at 21.
83 Id. at 20.
84 H.R. Rep. No. 109-478, at 34, 35, 45, 52.

http://www


28

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 voting 
cases in Indian Country. From 1999-2005, South 
Dakota was involved in seven cases regarding viola­
tions of Indian voting rights.85

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 that 
Arizona still needs to make a lot of progress for 
Indian voters.

More than eighty percent of Arizona’s 
twenty-two Section 5 objections have oc­
curred 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 re­
cently as 2002. Since 1982, the Department 
of Justice has interposed objections to voting 
changes from nearly half of Arizona’s 15 
counties that have had the purpose or effect

85 Voting Rights Act: Section 203 -  Bilingual Election 
Requirements (Part II): Hearing Before the Subcomm. on the 
Constitution of the H. Comm, on the Judiciary, 109th Cong. 259- 
268 (2005) (materials submitted by Rep. Chabot).



29

of discriminating against Latino or American
Indian voters.86

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 
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 by only 
524 votes. In Washington state, a surge of Indian 
votes ensured Senator Maria Cantwell’s narrow win 
in 2000. 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

86 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).



30

identification laws requiring identification when 
voting at the polls, restricting Indian voting rights.87 
Individuals testified that the South Dakota voter 
identification law was passed in response to the 
Indian voter turnout in 2002, which helped to elect 
Senator Johnson.88 The voter identification law in 
Arizona resulted in a significant decrease in the 
number of Native Americans who voted during the 
2006 elections.

In 2003, the speaker of the House for the Arizona 
State Legislature questioned whether a Navajo tribal 
member may serve as a member of the Commission 
on Appellate Court Appointments.89 The specific 
request questioned “the ability of a member of a 
sovereign nation to participate ‘in the selection proc­
ess of judges to courts that this individual may not be 
subject to as a result of his tribe’s status.’ ”90 The 
Attorney General affirmed the ability of Indians to 
participate in all aspects of state government, includ­
ing serving on court commissions.

87 Ariz. Rev. Stat. Ann. § 16-579; S.D. Codified Laws § 12- 
18-6.1.

88 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).

89 Ariz. Att’y Gen. Op. No. 103-007 (2003).
90 Id. at 3.



31

Further attempts to disenfranchise Indian voters 
occurred during the 2008 Arizona election when the 
candidacies of Navajo candidates were challenged 
because the addresses on the signature petitions 
included post office boxes and not physical addresses, 
an impossible task for reservation residents who do 
not have physical addresses.

Section 5 coverage should have ended disenfran­
chisement of Indian voters in covered jurisdictions; 
however, South Dakota failed to preclear voting 
changes in violation of Section 5.91 Despite Section 5’s 
requirement that Todd and Shannon Counties submit 
election changes for preclearance, South Dakota 
ignored the requirement for a quarter of a century 
until tribal members from Todd and Shannon Coun­
ties filed a lawsuit to force compliance in 2002.92 In 
2002, Quick Bear Quiver v. Nelson was resolved by 
entering into a consent decree, but South Dakota 
continued to violate the preclearance requirements 
and Quiver Plaintiffs returned to court in 2005 to 
enforce the consent order.

In 2005, South Dakota passed a law allowing 
counties to redraw county commissioner districts 
more than once per decade and the law was immedi­
ately implemented without preclearance.93 Pursuant

91 Quick Bear Quiver v. Nelson, 387 F. Supp. 1027, 1028 (D. 
S.D. 2005).

92 Id. at 1028.
Id.93



32

to the consent decree, the state submitted 714 stat­
utes and 545 administrative rules for preclearance by 
April 2005.94

Litigation to enforce voting rights is not an 
effective alternative to Section 5 coverage. Litigation 
is not quick, easy, or cost-efficient. Tribes cannot 
afford to challenge every law that impacts Indian 
voting rights.95 American Indians challenged an 
Arizona voter identification law in 2006, but trial on 
the issue was not scheduled in time to affect the 2008 
Presidential Primary Elections.

C. Section 5 Preclearance Continues to 
Protect American Indian Voters.

The House Committee heard “[t]estimony from 
many outside groups confirming] the importance of 
Section 5’s enforcement mechanisms, especially in 
protecting smaller, more rural communities within 
covered states, where Federal oversight has been 
limited and non-compliance extensive.”96 Testimony 
provided examples of on-going discrimination in 
Indian Country.97 In 2006, the Eighth Circuit Court of

94 Id.
95 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).

96 H.R. Rep. No. 109-478, at 43 (2006).
97 Continuing Need for Section 203’s Provisions for Limited 

English Proficient Voters: Hearing Before the S. Comm, on the
(Continued on following page)



33

Appeals found that the city of Martin, South Dakota 
“has been the focus of racial tension between Native 
Americans and whites” for over a decade.98 99

The history of discrimination and ongoing dis­
crimination in voting demonstrates a need for the 
continuation of Section 5." The National Commission 
on the Voting Rights Act investigated the way in 
which the federal government and citizens employed 
the Voting Rights Act in order to combat racial dis­
crimination with regard to voting. The study found 
that since 1982, the Justice Department had sent out 
626 letters objecting to proposed election changes in 
Section 5 covered jurisdictions, because those changes 
would have a discriminatory effect. The changes 
sought by “covered jurisdictions were calculated 
decisions to keep minority voters from fully partici­
pating in the political process.”100

Because covered jurisdictions must submit pro­
posed changes for approval prior to implementation,

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).

98 Introduction to the Expiring Provisions o f the Voting 
Rights Act and Legal Issues Relating to Reauthorization: Hear­
ing Before the S. Comm, on the Judiciary, 109th Cong. 242 
(2006) (statement of Laughlin McDonald).

99 Id.
100 H.R. Rep. No. 109-478, at 21.



34

Section 5 deters covered jurisdictions from discrimi­
nating.101 If not for the temporary provisions of the 
Voting Rights Act, gains would not have been made. 
Section 5 is needed to protect American Indians in 
covered jurisdictions.102

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

Reauthorization of Section 5 of the Voting Rights 
Act is a valid exercise of Congressional powers to 
enforce the Fourteenth and Fifteenth Amendments to 
the United States Constitutions. In reauthorizing 
Section 5 of the Voting Rights Act, Congress received 
evidence of ongoing discrimination. Congress was not 
willing to jeopardize forty years of progress especially 
in the face of the evidence of discrimination compiled 
by the record.103 “With more and more Indian people

101 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).

102 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. 74-75, 218-220 (2006) 
(appendix to the statements of the Hon. Bill L. Lee and the Hon. 
Joe Rogers).

103 See generally, S. Rep. No. 109-259 (2006).



35

participating in elections for the first time,”104 Section 
5 preclearance provisions play an important role in 
ensuring access to the ballot. This case should be 
resolved with a ruling in Appellees’ favor, because 
reauthorizing Section 5 of the Voting Rights Act is 
supported by the Congressional Record and is a valid 
exercise of Congressional enforcement powers.

--------------- - ♦ ---------------------------------------

104 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).



36

CONCLUSION
For the foregoing reasons, the judgment of the 

district court should be affirmed.

Respectfully submitted,
M arvin  S. C oh en ,

Counsel o f Record 
J udith  M . D w orkin  
Sacks T ierney  R A .
4250 North Drinkwater Blvd. 
Fourth Floor 
Scottsdale, AZ 85284 
(480) 425-2600
Counsel for Amici Curiae

P atricia  A. F erguson -B ohnee 
Indian  L egal C linic 
San dra  D ay O ’C onnor  

C ollege  of Law  
P. O. Box 877906 
Tempe, AZ 85251 
(480) 727-0420
Counsel for Amici Curiae
L ouis D enetsosie ,

Attorney General 
N avajo N ation  D epartment 

of J ustice 
P. O. Box 2010 
Window Rock, AZ 86515 
(928) 871-2675
Counsel for Amicus Curiae 

Navajo Nation