PHOENIX — The fate of a voting rights lawsuit could depend on whether a federal judge believes current practices discriminate against Native Americans in particular or rural residents in general.
Bret Healy, an expert witness for members of the Navajo Nation, testified Tuesday about how much more time it takes for an early ballot to be received at reservation addresses than in urban centers.
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 the attorney for Navajo Nation members, 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 until days later. He contends the current state deadline violates federal voting rights laws because it discriminates against Native Americans.
The judge, 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, Latinx.”
“It’s a matter of geography,” Snow said.
McClure did not dispute that point. But he said 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 states may not take actions that have a “disparate effect” on groups that have been historic victims of discrimination. Without evidence of disparate effect, McClure cannot use the Voting Rights Act to demand changes to state election procedures.
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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.
He said the shorter time they have to return their ballots isn’t their fault.
“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.”
Secretary of State Katie Hobbs is asking Snow to dismiss the lawsuit.
Hobbs’ attorneys did not dispute that mailings from many reservation addresses take longer. But Marty Harper, one of her lawyers, 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.
There’s another factor Snow has to consider, Harper added.
“Plaintiffs must show a discriminatory intent or purpose, or a substantial or motivating factor behind the law” that 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 that gives them the same opportunity as those who are not Native Americans.
And he said there is clear evidence that non-reservation residents can mail ballots at the last minute and have them counted, while voters living on the reservation not only get their early ballots later, but then have less time to mail them back.
That factor, McClure said, is amplified by the fact that many reservation addresses have no home mail service. Those residents have to drive somewhere to pick up their ballots, bring them home, fill them out and then get them back to the post office, he said.