How far residents of the Pascua Yaqui reservation have to travel to cast an early ballot this year will depend on what a federal judge concludes is the reason for moving the site in the first place.
Pima County Recorder F. Ann Rodriguez says it’s just a matter of numbers. She argued there just weren’t enough people using the site during the last presidential election four years ago.
Attorneys for the tribe, which filed suit demanding restoration of the site this year, said it isn’t that simple.
They point to provisions of the federal Voting Rights Act, which limits the ability of state and local officials to take any action that disproportionately affects the rights of protected minorities. And that includes Native Americans.
But U.S. District Court Judge James Soto could sidestep the whole legal issue – at least for the time being – by simply ruling that the tribe waited too long to file suit.
The case didn’t exist until it was filed a week ago. And the tribe wants James to order Rodriguez to set up the early voting site for five days beginning this coming Monday.
Underlying much of the case during two days of testimony is the question of whether racism played a role in the decision to eliminate the early-voting site.
Tribal Chairman Peter Yucupicio talked of a history of discrimination.
“Some of us walked these lands way before everybody else,” he told the judge. “We welcomed everybody, along with all the other tribes in Arizona. And yet we still fight to be equal.”
But attorneys for Rodriguez hope to convince Soto that the decision has nothing to do with race.
Chris Roads, the county elections director, detailed the factors used in deciding where to put the sites.
Some of that, he said, is based strictly on population, with areas of greater density getting a higher concentration of places for people to cast their ballots or drop off their early ballots before Election Day. There’s the question of whether a facility is available.
Roads said the concerns about foreign influence in 2016 led to choosing locations that could be physically secure, including cameras, enhanced locks on doors and, where available, hard-wired internet access.
Roads said officers also considered serving minority communities. And he said that sites offered by the tribe were not appropriate.
And then there was the testimony of an expert called by Rodriguez who said that of the 248 early voting sites used in 2016, the turnout at the one located on the Yaqui reservation was No. 217 – with just 44 people using it during an entire week and only 29 of whom actually lived within the precinct.
That, however, may not matter.
The way tribal attorneys put it, Soto has to evaluate the “totality of the circumstances” to determine whether there is a legally significant relationship between a decision that has a disparate effect on minority voters and the “social and historical conditions affecting them.”
One of those is the history of official discrimination. That includes not just the fact the Arizona Constitution barred Native Americans from voting in state elections until 1948 but that literacy tests and other barriers existed for decades afterwards.
Another is the extent to which minority groups have been elected to public office.
The court heard testimony that no Native American has ever been elected to statewide office or to Congress. But there also was no evidence that any Native American had ever sought one of those offices.
Part of the defense mounted by Rodriguez is that alternatives exist to having an early-voting site on the reservation, and not just because there is one at the Mission Library, which is 8.5 miles further away. There also is the option of requesting an early ballot and dropping it in the mail.
But Rebecca Lewis, an administrative support specialist for the tribe who is involved in voter outreach, said that for many tribal members, that’s not an answer.
“Mailed ballots can be tossed for errors” versus problems being resolved at an early-voting location when the ballots actually are cast, she told Soto.
And then there was a study of Native Americans in the Southwest, which concluded just 29.2% trust their mail-in ballots would be counted.
The bottom line, the tribe’s lawyers say, is that turnout by Pascua Yaquis in 2018 was 39% versus more than 70% in the county. With limited access to early voting, they say, tribal residents will not have an equal opportunity to vote for candidates of their choice, among them a Native American candidate running for Pima County recorder in the 2020 general election.
That race is between Republican Benny White and Democrat Gabriella Cázares-Kelly; Rodriguez is not seeking another term.
The tribe said that it offered to provide various sites for an early-voting location. And Lewis testified that no one from the county ever said any of these was not acceptable because of questions like internet access or even the ability to accommodate wheelchairs.
Nothing that Soto decides will affect an existing polling place, which will be set up on the reservation on Election Day.
But Roads said there are substantial differences with early-voting sites required to have more electronic equipment and be available and secured for days at a time.
That question of an additional burden for early-voting sites came up during the testimony of Joseph Dietrich, an expert hired by the tribe to help make the case that removing the option for tribal members is discriminatory.
He pointed out that Secretary of State Katie Hobbs offered to pick up the cost of maintaining the site yet that did not sway Rodriguez. But Dietrich conceded under cross-examination that does not cover the need to actually find people to staff the site for five days.
How Soto determines whether the tribe waited too long may depend on what he believes are the reasons.
Tribal attorney said there had been multiple calls on Rodriguez – not just by the Yaqui leaders – but also county supervisors, the secretary of state and the mayor of Tucson to reinstate an early voting site. But they said it was not until she was threatened with legal action that she even began to look at possible locations and that she asked the tribe to hold off on filing suit.
Soto said he hopes to have a ruling by Thursday.