The fate of a voting rights lawsuit could depend on whether a federal judge believes current practices discriminate against Native Americans or just people who live in rural areas.
Bret Healy, an expert witness for members of the Navajo Nation, testified Tuesday on how much more time it takes for an early ballot to be received at reservation addresses than in cities. On top of that, Healy said it can take up to 10 days for something mailed from certain reservation locations to make it to the county seat to be tallied.
He told Judge Murray Snow that this gives reservation residents far less time to consider their options before they have to mail them off. And in some cases, Healy said, it is physically impossible for a reservation resident to get a ballot, mark it, mail it back and have it received by the current deadline of 7 p.m. Election Day.
All that is relevant because attorney Chris McClure wants Snow to order that any ballot from a reservation address postmarked by that deadline has to be counted, even it does not arrive at county election offices for days later. He contends the current state deadline violates federal voting rights laws because it discriminates against Native Americans.
Snow, however, said he’s not sure it’s that clear and simple.
He said the issue of having less time to return early ballots and get them in on time applies “whether you’re Navajo, whether you’re Hopi, whether you’re Caucasian, Latinex.”
“It’s a matter of geography,” Snow said.
McClure did not dispute that point. But he said the research shows a high correlation between the reduced time to vote early and the Navajo Nation.
“And I think similar situated tribes would probably fall under the same problem,” McClure added.
The effect on Native Americans is crucial to McClure winning his case.
Federal law says that states may not take actions that have a “disparate effect” on what the law calls “suspect” classes. These are groups that have been the historic victims of discrimination.
Without that evidence of disparate effect, McClure cannot use the Voting Rights Act to demand changes to state election procedures.
Snow was clearly skeptical of the claims about this being about race, saying that non-Indians in rural areas — and even those living on reservations — would have the same burdens. McClure, however, said the issue should be seen from a different perspective.
“Just because the Native Americans live in more desolate areas, have less resources available … does not justify having it be harder for them to vote based on their geography,” he said. And McClure said it’s not like the shorter time they have to return their ballots is their fault because they chose to be further from urban areas and in places with slower mail service.
“They have done nothing to impact their opportunity other than to live on the lands that have been their tribal lands forever, essentially,” he said. “And that should not be some reason they lose the opportunity to have their votes counted.”
Attorneys for Secretary of State Katie Hobbs, who is asking Snow to dismiss the lawsuit, did not dispute that mailings to and from many reservation addresses take longer. But Marty Harper, one of her attorneys, said this has nothing to do with actions by the state — or the requirement for ballots to be in the hands of county officials by 7 p.m. on Election Day to be counted.
Harper told Snow that challengers must first show the deadline itself causes a discriminatory burden on Navajo Nation members living on the reservation. And then, he said, they have to show some connection between the deadline and any social and historical inequities that have been suffered by tribal members.
He said there is no such evidence.
And Harper said there’s another factor that Snow has to consider.
“Plaintiffs must show a discriminatory intent or purpose, or a substantial or motivating factor behind the law” which sets out the deadline for receipt of early ballots, he said. “And they don’t.”
McClure, however, argued the legal test is different. He said the key is whether members of the tribe have a way to vote in a way that gives them the same opportunity as those who are not Native Americans. And he said there is clear evidence of how non-reservation residents can mail ballots at the last minute and have them counted while those living on the reservation not only get their early ballots later but then have less time to mail them back in time to be counted.
That factor, McClure said, is further amplified by the fact that many reservation addresses have no home mail service with residents having to actually drive somewhere to pick up their ballots, bring them home, fill them out and then get them back to the post office.
State Elections Director Bo Dul told Snow that any ruling to county ballots from reservation addresses not received by Election Day would cause additional voter confusion. She said it would give voters incentive to put their ballots in the mail, even close to Election Day, “rather than taking it to a polling place where they can be sure it will be received on time.”
Snow gave no indication when he will rule.