Your Vote Is Not Your Voice: Voting Rights Act at 60 years
In this article, I explore the use of Section 2 of the Voting Rights Act provided. A critical reading of this section, an application of the hypothesis for YouTube not living up to expectation.
August 7, 1965, the Voting Rights Act was put into effect. Seeking to rectify issues from America’s past through legal means, the Voting Rights Act has come under scrutiny and controversy in recent years. More often, these matters are outside of mainstream reporting. Light would be shed if the content is sensational. Otherwise, the matter goes largely unreported. Giving attention to how the Voting Rights Act has, and has not, supported Native People is of particular interest.
“At this crucial juncture for defending trustworthy elections and the continued existence of American democracy, we all should highlight and actively support efforts to defend Indigenous Americans’ voting and broader rights. Otherwise, we may all find ourselves to be casualties of a future autocratic version of ‘Manifest Destiny’” (Merloe, Pat, Stolen Land: Stolen Votes, Fulcrum, August 5).
The Supreme Court of the United States (SCOTUS) notes on its blog site,
“The Voting Rights Act of 1965 is widely considered to be the single most important federal statute protecting the right to vote. The act contains a number of important provisions, but today it is Section 2 of the act that continues to have the greatest impact. Adopted essentially as an enforcement mechanism for the 15th Amendment’s guarantee that the right to vote cannot be abridged “on account of race, color, or previous condition of servitude,” Section 2 allows voters to seek judicial relief if they believe that a state or local government has denied or limited their voting rights on the basis of their race, color or membership in a language minority group” (SCOTUS blog, Section 2 of the Voting Rights Act: Vote dilution and vote deprivation, n.d.).
The issue comes with the interpretation of Section 2 of the Voting Rights Act. It was in 1980 when the application and reading of Section 2 came under further review.
“[I]n 1980, the Supreme Court held in City of Mobile v. Bolden that anyone seeking relief under Section 2 had to prove that the claimed abridgement of voting rights had been intentionally motivated by racial bias” (SCOTUS blog, Section 2 of the Voting Rights Act: Vote dilution and vote deprivation, n.d.).
Congress noted that this reading consisted of a high bar. In response, Congress passed an amendment in 1982 in an attempt to clarify further reading, interpretation, and application of Section 2.
“Section 2 now [since 1982] provides that a voting process or requirement that results in the abridgement of the right to vote on account of a voter’s race, color or language minority status is unlawful, whether or not an intent to discriminate can be proven. The revised statute further provides that whether a discriminatory result has occurred requires considering the “totality of the circumstances” to determine whether the challenged voting restriction has abridged protected voters’ ability to participate equally in elections and to elect representatives of their choice” (SCOTUS blog, Section 2 of the Voting Rights Act: Vote dilution and vote deprivation, n.d.).
This amendment created two distinct interpretations and applications of Section 2, “vote dilution” claims and “vote deprivation” claims (SCOTUS blog, Section 2 of the Voting Rights Act: Vote dilution and vote deprivation, n.d.).
At this point, the burden of evidence is on the plaintiff. The location of these legal issues is in federal court. When an issue of voting is noticed for Natives voting, or in a Native nation, the matter goes directly to the federal government. Such has been the case for tribes in recent years.
How Say You?
“[The Voting Rights Act of 1965] promised a future where the right to vote would be equally protected for all” (Native News Online, August 7).
A basic claim that should not hold any contention. Yet, how Native People engage with the courts becomes a long, drawn-out process. Part of this issue is a tactic by the federal government to exhaust an issue or financially cripple the plaintiff. Both are used to resolve an issue with prejudice.
“Native American voters are still fighting to access that promise. Across the country, Native communities continue to face voter suppression, racial discrimination, systemic barriers to the ballot box, and, now, a new and alarming threat to their ability to defend their rights at all” (Native News Online, August 7).
“Passage of the VRA [Voting Rights Act] in 1965 and the 1975 addition to it of Section 203 extended voting rights protections to Indigenous Americans, including Alaskan and Hawaiian native peoples. Yet, significant obstacles remain, particularly for those living on Tribal lands. Only about 13 percent of people who identify as “American Indian” live on the 326 federally recognized reservations, the populations of which include many non-tribal members of diverse backgrounds. Nonetheless, their challenges illustrate broader issues of voter suppression, evidenced in a 2024 study by the Brennan Center” (Merloe, Pat, Stolen Land: Stolen Votes, Fulcrum, August 5).
A current example provided by Native News Online revolves around redistricting, voter dilution, and fair representation.
“[T]he Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and individual Native voters challenged North Dakota’s state legislative map under Section 2 of the Voting Rights Act. The plaintiffs argued that the map illegally diluted the voting power of Native people by dividing Tribal communities across districts — thereby denying them an equal opportunity to elect representatives of their choice” (Turtle Mountain Band of Chippewa Indians v. Michael Howe, qtd in Native News Online, August 7).
“The Turtle Mountain Band of Chippewa Indians v. Howe, therefore provides an opportunity to support Native American rights while simultaneously defending trustworthy elections. The case is also indicative of the denial of Native American rights and current voter suppression campaigns” (Merloe, Pat, Stolen Land: Stolen Votes, Fulcrum, August 5).
In this case, an accurate interpretation of Section 2 favored the tribe. The 8th Circuit Court of Appeals passed a decision on this case, erasing 40 years of support for the Voting Rights Act.
“It [8th Circuit Court of Appeals] ruled that private individuals and groups, like the Tribes and Native voters in this case, do not have the right to bring lawsuits under Section 2 of the Voting Rights Act. According to the court, only the Department of Justice can enforce those protections” (Native News Online, August 7).
Taking action against this ruling is central in providing Native People the opportunity to secure the right to vote without bias or prejudice.
“If this decision stands, it will leave millions of voters across seven states, including North Dakota, without a meaningful way to challenge racial discrimination in voting” (Native News Online, August 7).
It has been a staple for Native People to rely on a credible, accurate, fair, and unbiased interpretation and application of Section 2 of the Voting Rights Act. If Turtle Mountain Band of Chippewa Indians v. Michael Howe rules in favor of the defendant, the non-Native entity, this would lay a devastating precedent across Indian Country.
Voting lines would be subject to revisions as needed to secure political positions for a particular political party. This is another step in disenfranchisement and political erasure, pointing toward the government’s long-standing, now silent, policy of termination. Reading this outcome, Native People would be fulfilling voting assimilation from a forced legal ruling. Such an action could only take place in a country that, 60 years ago, passed a law designed to avoid such action.
Voting Is Not Free
Disenfranchisement, gerrymandering, proof of citizenship requirements, failing infrastructure and access to voting locations, and limited hours of voting are all on the list of techniques employed by the federal government to legally disrupt voting for Native People. Coupled with the over 400 legal cases, using Section 2 of the Voting Rights Act, submitted by tribal entities since 1982 to claim the legal right to vote, being a registered voter in America is another brick in the wall of socio-political denial.
Federal lawmakers should recall the foundation of the voting policy.
“[D]rafters of the U.S. Constitution drew on the structure of the six-nation Iroquois Confederacy (Haudenosaunee) and the democratic principles of Native American peoples, the trail of genocidal practices against Indigenous Americans includes disenfranchisement — on top of forced movement onto reservations, broken treaties, and deprivation of resources. They [Native People] were not even recognized as citizens of this country, and therefore not allowed to vote in U.S. elections until the 1924 Indian Citizenship Act” (Merloe, Pat, Stolen Land: Stolen Votes, Fulcrum, August 5).
The right to vote is fundamental to all U.S. citizens. Least we forget, Native People are the first people in the colonized territory of the U.S. Restricted application of this right, with the eventual intent to remove the right, follows the history of the U.S.-Native relationship.
Requiring America’s Indigenous People to prove they are not illegal aliens (proof of citizenship), instituting restrictions on voting (failing infrastructure, voting times, gerrymandering, physical address requirements, etc), and real-time revisions to voting policies (Court of Appeals reversals) frame the present battles being fought in the courts. The difficulty for the federal government to properly recognize Native Peoples is a mark against the presumed cooperation between Native nations and the U.S. It appears much easier for the federal government to decline over $8 billion in funding to Native entities, social, and welfare programs. Despite this context, the more troubling issue is that the majority of American citizens will never hear of these matters.
Bracing for the social fear of how much more an overly priced cup of coffee will now cost, Native issues are nowhere on the social radar. What is missed in this lackluster approach is the ease with which the federal government is placing socio-political pressure on tribal people. If this amount of strain is easily applied to Native communities, this will give an unrealistic impression to the federal government that they can do the same, or similar, to all American voters — and what’s to stop them from doing so? Without critical attention given to the Turtle Mountain Band of Chippewa Indians v. Michael Howe case, Americans may find themselves in a similar situation, facing the loss of the right to honestly vote in the future and wonder, “How did I get here?”
Alan Lechusza Aquallo