legal history

Supreme Court Decides Brnovich v. DNC (voting rights)

Matthew Campbell

On July 1, 2021, the U.S. Supreme Court released a decision in Brnovich v. DNC that upheld two Arizona voting policies that make it harder for people—and especially people of color and Native Americans—to vote.

BACKGROUND:
On March 2, the US Supreme Court heard arguments in Brnovich v. Democratic National Committee. The case looks at whether two issues of Arizona voting law—restricting out-of-precinct ballots and ballot collection—violate Section 2 of the Voting Rights Act. In 2016, Arizona lawmakers passed laws limiting ballot collection and out-of-precinct voting. Ballot collection is an essential tool that rural Native American communities use to make voting accessible to all eligible voters.

At about 17 minutes into the hearings, Justice Sotomayor addresses the voting burdens in Native communities. The points that Justice Sotomayor raises, echo those found in the National Congress of American Indians’ (NCAI) “friends of the court” amicus brief in the case. NCAI’s brief, which was filed by the Native American Rights Fund in January, explains how American Indian and Alaska Native voters face substantial obstacles and documented discrimination as they try to participate in the American democratic process.

Native Americans are entitled to full access to the political process, but failures rooted in devastating policies and discrimination create needless barriers to the ballot.  Services such as post offices and drivers’ license sites require hours of travel, postal delivery and residential addressing is insufficient or completely absent, poorly maintained dirt roads become impassable during November election season, lack of internet and cell phone coverage abound on reservation, and insufficient economic means and transportation make it impossible to access basic government services. There also have been instances of untrustworthy election officials capitalizing on these inequities to disenfranchise voters and undermine Native American political power.  Section 2 of the Voting Rights Act provides much needed protections against this type of systemic voter disenfranchisement.

Read more about the barriers that Native American voters face in the report, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters.

Ninth Circuit Says Quiet Part Loud: Open Carry Laws Originated to Kill Indians and Slaves

Matthew L.M. Fletcher

Here is the opinion in Young v. State of Hawaii. An excerpt:

Some colonies’ issuance of carry requirements—especially to church, public gatherings, and other travel—reflects “adaptation to the realities of colonial life, especially [considering] the ongoing hostile relationship with Native Americans.” Cornell, 80 Law & Contemp. Probs. at 28. In addition to tense relations with Native Americans, southern colonies also feared the possibility of slave uprisings. Id

page 60, note 16.

Amicus Brief of NCAI in Census Case

Matthew Campbell

Here is the National Congress of American Indians’ (“NCAI”) Amicus Brief in Trump v. New York, which is being argued today and addresses whether unauthorized immigrants should now be excluded from the Census count.

From the brief:

Multiple amici argue, in effect, that unauthorized immigrants are not “persons” to be counted for purposes of apportionment. Because the United States once tried to argue that American Indians were not “persons” under the law, amicus NCAI is compelled to refute these arguments.

….

These arguments are inconsistent with the Constitution’s text and history. Worse still, in a nation where “all persons are created equal,” Matthews v. Lucas, 427 U.S. 495, 516 (1976) (Stevens, J., dissenting), see also Declaration of Independence ¶ 2 (“We hold these truths to be self-evident, that all men are created equal. . . .”), these attempts to deny the very personhood of unauthorized immigrants are morally bankrupt.