Montana Public Radio

Shared State Episode 07: Equality Of Opportunity

Oct 13, 2020

For the first time, almost every county in Montana is using all-mail in ballots this election season. Voters can still drop off their ballots in person if they want. But experts say mailing ballots is the best way to make the election accessible during the pandemic. This new system is bringing with it all kinds of uncertainties about logistics, reliability and the timeframe of the results. Still, election officials are trying to figure out how to make it work for everybody.

This is Shared State, a podcast about what's driving Montana's 2020 elections and where the outcomes could lead us. This week, "Equality of Opportunity."

Sarah Aronson There's a voter registration table in front of a laundromat in Crow agency just off the interstate in southeast Montana. Workers wearing masks and carrying clipboards greet drivers as they pull alongside bright orange traffic cones. This is one way our elections look different in 2020 as COVID-19 shapes where people go and how they interact.

To a lot of us, voting feels like a complete mess right now as the country decides between voting by mail or standing in long lines at polling places. Health experts say voters will need to weigh the risks.

[voice montage] "You have been charging for months that mail-in balloting is going to be a disaster. You say it's rigged and said it's going to lead to fraud ..."

"But if we're in a position where hundreds of thousands or millions of ballots in decisive states can't be counted until after election night, that is going to be an explosive situation and I don't think ..."

Aronson For the first time, almost every county in Montana is using all-mail in ballots this election season. Voters can still drop off their ballots in person if they want. But experts say mailing ballots is the best way to make the election accessible during the pandemic. This new system is bringing with it all kinds of uncertainties about logistics, reliability and the timeframe of the results. Still, election officials are trying to figure out how to make it work for everybody.

I'm Sarah Aronson and this is Shared State, a podcast about what's driving Montanans 2020 elections and where the outcomes could lead us. This week, "Equality of Opportunity."

Instead of looking at a political race or an issue on the ballot, we're focusing on the act of voting, participating in the democratic process here in Montana. In theory, the ability to vote is a promise that each and every person can make their voice heard and impact how government functions. But this promise hasn't always been kept. As long as we've had elections we've had groups fighting to be heard equally. And right now, indigenous voters and activists in Montana are pushing to make sure that promise turns into reality this November at the ballot box -- or rather, the mailbox.

Whose voice is heard and who gets left out?

[voice montana] We, the people of Montana, grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity, and to secure the blessings of liberty for this and future generations, do ordain and establish ... do ordain and establish this constitution.

Aronson Kaitlyn Nichloas is a reporter for Yellowstone Public Radio and Report for America. She's gonna take it from here.

Kaitlyn Nicholas The 2020 election is just the latest chapter in a long saga of voting in Indian country. The federal government technically gave Native Americans the right to vote almost a century ago, back in 1924. After years of claiming their land and forcing them onto reservations, Congress finally offered Indigenous peoples citizenship. But lots of states found loopholes to keep those rights from being realized here in Montana. A law passed in the '30s said in order to vote, you also had to pay taxes. Native Americans on reservations were exempt from property taxes because of treaty laws and the fact that the land was theirs in the first place. So, many of them still couldn't vote. That law was on the books for decades. Then a game changer came in the 1960s.

[Lyndon Johnson] "It is wrong, deadly wrong to deny any of your fellow Americans the right to vote in this country"

Nicholas That's President Lyndon B. Johnson in March of 1965. He's talking to Congress about a piece of legislation called the Voting Rights Act.

The Civil Rights Act had passed one year earlier, but racial inequality was still rampant. One place where it was especially blatant was the voting process. This legislation would explicitly ban any sort of racial discrimination at the polls.

[Lyndon Johnson] "There is no issue of states rights or national rights. There is only a struggle for human rights."

Nicholas Montana Senator Mike Mansfield jointly introduced the bill. Johnson signed it a few months later. It was a landmark law that helped expand voting rights all across the country. But in his speech, LBJ was clear this was just one step in what would be a long and hard fought process.

[Lyndon Johnson] "But even if we pass this bill, the battle will not be over."

Nicholas And here in Montana, more than 50 years later, that battle is still going on. I'm focusing on three big voting rights cases in Montana history. Cases that show how one vote can be made to have less value than another, or be blocked from getting to the ballot box at all. Two of those cases happened in our past and one is happening right now.

Janine Pease played a key role in one of those court cases back in the 1980s. It was all about how lines that group voters together get drawn in local elections. But it would become one of the most influential cases on Native American voting rights in the country.

Janine Pease Good to finally, meet you Kaitlyn ...

Nicholas I talked to Janine on her mom's porch in Billings. She's a voting rights advocate who's worked in public education for over 50 years.

Pease We don't ignore the experience of our grandparents and our great-grandparents. It's a collective memory that sort of weaves its way into the voting experience.

Janine, is a Crow tribal member back in the early 80s, she was living on the Crow reservation where she started noticing troubling patterns of discrimination.

Friends and neighbors talked about their driveways being filled with snow while nearby white farmers' roads were cleared.

She heard complaints of trash services that wouldn't operate on the reservation and school bus routes that didn't include reservation pickups.

There were election officials who didn't allow the Crow language to be spoken at the polls, even though not all Crow Nation's citizens spoke English.

Pease This stuff is rotten to the core. Rotten I tell you.

Nicholas To Janine, this was all connected to elections and who held political power. Big Horn County, where she lived, has two reservations partially within its boundaries. The Crow and Northern Cheyenne. At the time 46 percent of the county's population was Indigenous. But all the election commissioners and local representatives were white.

Pease We don't live in a hierarchy of government. We don't. Most of our lives are dependent on very local, the lowest level, the lowest common denominator government.

Nicholas That you elect into place.

Pease That's right.

Nicholas She wondered why did the local government look that way? She started looking at the districts and precinct lines in Bighorn County and she realized the district lines cut straight through the reservations where native voters were the majority. That meant tribal members were split apart, making them look like the minority in each part of the county.

So when it came time to vote for county commissioners of each district -- the people who oversee road maintenance, law enforcement, trash collection and most everyday services -- white voters had a much larger say than native voters. As a result, there had never been a native county commissioner for Big Horn County. Another term for this is "diluting a vote"; watering down the power of a voting bloc by putting those people in different districts.

Janine started organizing community meetings and pointed this out to the election officials.

Pease We went to the county commissioners and said, you know, we think you should redraw the lines because after all ...

Nicholas The commissioners refused.

After more meetings and hearing more stories of Indigenous people being ignored by their representatives, Janine took the county to court with the help of the American Civil Liberties Union. It's a nonprofit that represents groups fighting for their civil rights. The case went on for more than three years. And during that time, Jeanine said she wasn't on everyone's good side.

Pease I mean, this is serious stuff. You are persona non grata. You're rocking the boat. You're going to change the system. People call you names.

Nicholas Finally, in 1986, the court ruled in favor of Jeanine and the ACLU. The reasoning came back to the Voting Rights Act. The judge found the county intentionally discriminated against Native Americans. The federal Justice Department made election officials redraw the lines in Big Horn County so districts would reflect what the population actually looked like. There would be one majority Native district, one majority white districts and one split. Just a year later, a Crow tribal member was elected as county commissioner, the first in Big Horn County's history.

But the Voting Rights Act we heard LBJ talking about earlier didn't just cast a magical spell that suddenly solved voting access across the country. After going to court, Janine understood that actually getting to vote and knowing that it counts would never be a given.

Pease The thing that I was so amazed about all of this is that there is no enforcement of the Voting Rights Act unless it comes up through the courts.

Nicholas In other words, exercising the right to vote is kind of like whack-a-mole. Every time advocates like Janine tackle one problem, another barrier pops up and usually it takes a lawsuit to get the government to pay attention. In the years after Janine won, there were many other cases that addressed the same problem of diluting votes in Indian country for legislative districts and school boards all around Montana. Through these lawsuits, the maps that make up our voting landscape keep getting redrawn to be more fair. Bit by bit.

Let's go to 2012. We're still in Big Horn County, and another court case that would shape voting rights in Montana is about to begin. But this time, instead of hashing out the lines that group us together in different districts, it's all about where people can actually cast their ballots; as in the physical polling locations.

Dulcie Bear Don't Walk was pretty new to being Big Horn County's election administrator when she was given an envelope.

Dulcie Bear Don't Walk Six months on the job and I got served with papers for the lawsuit.

Nicholas The day before, a group of tribal members asked Big Horn County for a closer place to register and cast their votes in the upcoming election. That's because the county is geographically huge. Like, bigger than Connecticut.

Bear Don't Walk So it's not heavily populated, but it's very spread out.

At the time, the only place for late registration and early voting was in Hardin, the county seat. Driving any distance in Montana can be a real pain, especially in November. Tribal members were worried that reservation residents who didn't have access to transportation were going to struggle to vote. But the county said, no, we can't do that.

Bear Don't Walk I don't think it was ever that we disagreed with it. I believe it's that it was funding and staffing, because at the time I did not have any deputy and I was the sole provider, I guess, to be cliche, like the song, I was the sole provider. They were just waiting for a no.

Nicholas Right, they were prepared.

Bear Don't Walk They were prepared. They were prepared, so we got served with a lawsuit.

Nicholas The plaintiffs from the Crow Reservation joined up with residents from Northern Cheyenne and Fort Belknap, too. For them, it was a much bigger issue than adding one alternative election office. They said while it may not have been intentional, the locations and hours of registration and polling sites around those reservations were disenfranchizing Native American voters.

John Ellingsen is retired now, but at the time he was an attorney working on the case from the ACLU of Montana.

Jon Ellingson At stake is, you know, this kind of fundamental issue that we face throughout the United States. You know, even as we speak. Do we want to make the right to vote as easily exercisable as possible, or do we think that the impediments to voting are OK?

Nicholas In this case, those impediments were driving distances. One study done by a geography professor at the University of Wyoming found that in all three counties involved in the case, Native Americans had to travel two to three times as far as whites to get to the county courthouse to vote. In Rosebud County, where Northern Cheyenne residents were voting, they had to drive an average of almost 45 miles to a ballot box each way.

But there's more to the problem than just distance. Driving that far means you need to have a functioning car. It means you need to have money for gas, time off work and so on.

In Montana, voters don't have to register by a certain date before the election. Even on Election Day, you can still register and cast your ballot. But Jon says anyone who has to get in the car and find the time to drive 45 miles to an election office doesn't really get the same benefit of late registration.

Ellingson The theory behind the case was that Native American voters, the Native American vote, was suppressed because a large portion of the Native American population could not take advantage of the ease of late registration and same day voting that the white population could.

Nicholas Jon said the county's originally pushed back on creating remote registration and polling locations because it was going to be expensive and inconvenient.

Ellingson Bear in mind, too, that the a power structure in these counties is typically dominated by white folks and we can not escape our legacy of racism in Montana.

Part of that legacy is that priorities of people in power are built into policies. And John says if a system of law has bias and you're not the one who's missing out or hurt by it; for example, the polls being too far away ...

Ellingson You know, it's not a big problem to you. You don't see it.

Nicholas I talked with another ACLU attorney that worked on the case too: Alex Rate.

Alex Rate On a personal level this was one of the most challenging experiences of my legal career.

Nicholas In the end, the case was settled. All parties agreed there would be alternative election offices on the Fort Belknap Crow and Northern Cheyenne reservations, but they'd only be open two days a week.

Remember, whack-a-mole.

Rate That was a bitter pill to swallow because we felt like the what what Indigenous voters are entitled to is are fully staffed satellite voting locations that are open through the duration of the early voting/late registration period.

Nicholas Alex said still, that settlement was an important first step.

Rate But certainly not the end of the road as it relates to ensuring full and free access to the ballot box for Indigenous voters.

Nicholas That case still looms large for Native American voting rights in Montana, but more recently, another lawsuit took center stage. Not about redistricting or polling locations, but about how mail-in ballots can be collected and transported; and by who. This September, a collection of tribal governments in Montana, and the ACLU, took the secretary of state's office to court again. In the middle of a pandemic a packed courtroom took on a different meaning.

The judge, her clerk and assistant sat at their desks with masks on. Attorneys, tribal members, state officials and native rights activists joined remotely and muted themselves. I sat in the gallery mostly alone, but there was an invisible digital crowd watching online as well, because this case between tribes and Native-rights organizations in the state would have huge implications for voting right now in this election.

To understand the case, we have to go back to this law Montanans voted for in 2018, the Ballot Interference Prevention Act, or BIPA. It says one person can only collect six ballots, and that the person doing the collecting has to know the people they're collecting for. It was meant to protect against voter fraud, and if you violate it, you face a $500 fine. That law was written by Republican State Senator Al Olszewski. We also heard from him back in Episode 03.

Al Olszewski I represent a Senate District six, which is the confluence of the Flathead and Lake counties.

Nicholas Olszewski said he wrote the bill after one of his constituents, an elderly woman, told him this story about two men coming to her door and demanding her ballot.

Olszewski She felt intimidated and was scared, and so she filled out her ballot and gave it to him. And then after they left, she called the police. And the police told her that there's no law, and you didn't have to give up your ballot.

It's hard to know what exactly happened with this woman in the Flathead, or who these men were and why they wanted her ballot. But in our interview, the senator spoke at length about the threat of out-of-state ballot collectors who deliberately harass and intimidate vulnerable populations and don't have their best interests in mind.

Olszewski felt BIPA was a solution. This kind of intimidation and fraud hasn't been explicitly proven in Montana. We'll dig into that a bit later. But in 2018, BIPA was a ballot initiative that more than 60 percent of Montana voters supported.

Olszewski The people have spoken through the highest form of democracy, called an election process, through an initiative.

Nicholas But for a lot of other groups, BIPA created a whole bunch of new problems. Some advocates said it could negatively impact vulnerable voters who have fewer resources and can't deliver their own ballot; like elderly citizens and nursing homes, college students living on campus without a car, or tribal members living on reservations far from the polls. So several tribes and advocacy groups sued Secretary of State Corey Stapleton's office. Which brings us to early September.

Sitting in court, I watched the nitty-gritty proceedings unfold. The trial went on for almost a full week. Here's what stood out: The plaintiffs needed to set up what Ballot collection actually looks like on reservations. Alex Rate, the attorney on the last case we heard about, was also involved in this one. He questioned Marci McLean, the head of Western Native Voice, a nonprofit that advocates for Native American representation in Montana politics.

[Alex Rate] "And what is ballot collection?"

[Marci McLean] "It's where we pick up ballots from people in the community when asked to do so, and deliver them to the county election office.

[Alex Rate] "And do you hire community organizers in the communities where they live?"

[Marci McLean] "Yes. "

[Alex Rate] " And why is that important?"

[Marci McLean] "Because they're a trusted voice and they know their communities, as opposed to somebody from the outside coming in."

Nicholas So, people collect absentee ballots from tribal members, often their own neighbors, many of whom live far from ballot boxes at the county courthouse or the post office, and take them to where they need to be.

Marci went on to say that in the 2018 election, community organizers with Western Native Voice collected and delivered almost 1,000 ballots. That's nearly 10 percent of all absentee ballots cast in precincts containing reservations.

To advocates for native voting rights, ballot collection means something very different than it does to Senator Olszewski. They say it's a critical part of increasing voter access in Native American communities. Without ballot collection voters would have to physically get to the polls or the post office. That can be tough. It's an example of voter costs, the things that make it harder for someone to cast their ballot. And lots of these costs overlap with other challenges on reservations.

Shelly Fyant is chairwoman of the Confederated Salish and Kootenai Tribes. In court she said poverty impacts a lot of decisions being made on the reservation.

[Shelly Fyant] "And I think moreso at the end of the month when people's funds run out, sometimes we have to make choices between buying a tank of gas or, you know, buying food for a family.

Nicholas Many of BIPA's supporters suggested that if driving was a problem, then citizens could just vote by mail. But witnesses testified that mail-in voting was nearly as difficult an option as driving to the county seat.

Delina Cuts The Rope is the chief administrative officer and an enrolled member in the Gros Ventre Tribe of the Fort Belknap Indian Community. She talked about the lack of mail delivery on the reservation.

[Delina Cuts The Rope] "Most folks don't just live alone. They live with multiple families. And so those folks will share a box at the post office."

Nicholas Putting a ballot in the mailbox isn't as simple as it sounds. Just like going to the polls, Indigenous voters often have to go far from home just to check or send mail.

[Daniel McCool] "The important takeaway about the literature on vote-by-mail is that like all these other variables, vote by mail reduces voter costs for most people. But for Native Americans it increases voter costs.

That's Daniel McCool, a political science professor at the University of Utah. He also testified as an expert witness, one of seven people who took the stand for the plaintiffs over nearly four days. The defense, the secretary of state's office, only called two people to the stand. Their testimony took about half a day. One of those people was Dana Corson, the director of elections.

[Dana Corson] "The integrity of the election, for me, is measured by voter participation, giving people the opportunity to vote, but have the ability to vote within the confines of the law, making sure that votes that are cast count."

Nicholas When he said "within the confines of the law," he had very particular things in mind. He talked about voting by mail or driving to a polling station or county election office; not collecting dozens of ballots. Basically, Corson said BIPA helped make it clear who was picking up ballots and how they were collected, and that builds more confidence in the election system.

Senator Olszewski, who wrote the bill, said BIPA would protect the election system from fraud. But in the court case, voter fraud was barely discussed at all. That's because since the 1980s, there's only been one documented instance of fraud in the state, and it didn't involve ballot collection.

The state's expert witness was their last to take the stand. MV Hood, a political science professor at the University of Georgia testified that state governments have the right to regulate elections to be free of fraud, even if that fraud is only theoretical.

[MV Hood] "I don't argue with the fact that there seems to be little or no evidence directly of absentee ballot return fraud. But in my opinion, again, it doesn't prevent the state from implementing a regulation to prevent that in the future."

Nicholas So this was the heart of the case. On one side, tribal members saying that BIPA made it harder to vote, and on the other, the state saying it was the government's job to run elections and increase security however it sees fit.

As the trial started to wrap up, the clock began to tick.

[Jessica Fehr] "And the court is painfully aware of the timeline that we are under. "

Nicholas That's Judge Jessica Fehr just before the court adjourned. The way she ruled would shape how the election unfolded in October and November and how Indigenous voters would be able to participate.

After Fehr banged her gavel, I went home. For a while I kept refreshing Yellowstone County Court updates, waiting for a decision. Nothing came. And then on a Friday afternoon, two weeks later, just over a month before the election, it happened.

[news report] "But first, we start in Yellowstone County, where a judge has tossed a 2018 Montana law restricting the number of ballots that can be dropped off at an election office. Judge Jessica Fehr ruled today that the ballot interference ..."

Nicholas In her decision Judge Fehr didn't focus on the Voting Rights Act. She talked about the state Constitution. Here's part of what she wrote: "The questions presented relate back to the basic and fundamental rights set forth by those intrepid Montana pioneers that convened Montana's Constitutional Convention and arrived at a document that protects all Montanans irrespective of race, color or creed." Based on that, Fehr found that BIPPA was unconstitutional. She ruled that it disproportionately suppressed Native votes and would have a chilling effect on providing vital services to increase voter turnout. Because of this ruling, ballot collection this October and November can continue.

The case made me think back to native rights activists Janine Pease. Since that case about how district lines diluted votes in Big Horn County more than 30 years ago, she hasn't stopped working for voting equality.

Pease You know, if we had just done that 1982, you know what, that's all we'd have. But guess what? We started there and we're still working hard on it. It takes a lot of vigilance. And that's just not vigilance for a year, it's for decades.

By some metrics, that vigilance is paying off. In 1989 less than one percent of Montanas state lawmakers were Native. Today there are 11, which is over seven percent. That just about matches the Indigenous population in Montana as a whole. We're one of the few states with so-called racial parity in the state Legislature. But Native representation in statewide positions has much further to go. This effort to increase Native voter turnout and representation, it isn't going to happen overnight, as Janine puts it. That work is ongoing.

Pease My recognition, my revelation, is that voting rights takes vigilance in Indian country. There is no way you can not pay attention to it. You have to study. You have to get into the details. You have to get into the weeds.

Aronson Shared State is made by Montana Free Press, Yellowstone Public Radio and Montana Public Radio. This episode was reported by Kaitlin Nicholas. Nick Mott is our editor. Mark Silvers is our producer. Editorial assistance comes from Nicky Ouellet, Corin Cates-Carney, Brad Tyer and John Adams.

Next week: "The Blessings of Liberty." How are competing ideas of freedom and choice influencing Montana politics?

If you're just joining us, check out our podcast feed for more episodes. And if you like what you hear, share them on Facebook, Twitter or by email. And you can also leave us a review on iTunes. It helps other people become part of this conversation.

I'm Sarah Aaronson. Thanks for listening.