Monday, May 1, 2006

The Voting Rights Act and Alaska

The Native American Rights Fund, in conjunction with the National Congress of American Indians, is working with a coalition of civil rights organizations under the direction of the Lawyers Committee For Civil Rights (LCCR) to ensure that Congress reauthorizes certain remedial provisions within the Voting Rights Act (VRA) that are scheduled to expire in 2007. In preparation for upcoming legislative hearings, NARF prepared testimony and authored a comprehensive report that was submitted to members of Congress. This report, the first of its kind, details Alaska’s experience under the VRA and concludes, rather surprisingly, not only that Alaska should continue to be covered under the VRA but also that Alaska has never complied with the current mandate under the VRA with respect to Alaska Natives. The following is the executive summary to the report, which was authored by Natalie Landreth of the Alaska office, Richard Guest of the DC office, and Boalt Hall law student Moira Smith.

General Report Findings

The 1965 Voting Rights Act (VRA) is arguably one of the most important pieces of legislation ever adopted by Congress. The state of Alaska, which has the single largest indigenous population in the United States, is covered by section 5 (the preclearance provision) and sections 4(f)4 and 203 (the language assistance provisions) of the VRA. Yet, little is known about the impact of the VRA in Alaska over the past 40 years, including whether state voting practices or procedures discriminate against minority voters, or how well the state is complying with the minority language assistance provisions.

“Rural” Alaska is a term of art, qualitatively distinct from rural Nebraska or rural Montana. As the state with the largest land area and with the lowest population density of any state in the United States, rural Alaska includes nearly 200 Native villages and communities that are not accessible by road. They are only accessible by small propeller plane. The fewer than 300 Alaska Natives who reside in each of these villages still practice their traditional way of life – living off the land through subsistence fishing, hunting and gathering. Alaska Natives are by far the largest minority population in Alaska, currently making up 19 percent of the total state population, with numbers growing in both urban and rural Alaska. Despite certain gains, Alaska Natives are still the largest group of the total Alaskan population to live in poverty, with the highest unemployment and the lowest level of education.

Voting in rural Alaska can be a very different experience than voting elsewhere in the country. Voting can involve crossing a river, or asking your grandchildren to translate for you and explain what is on the ballot. One example is Kasigluk, a Yup’ik village fifteen minutes from Bethel by air. There, the local election official announces through a borrowed marine radio that anyone who wants to vote has to come down to the community center by 11:30 a.m. At 11:30, she promptly collects the election materials, packs up the single ballot machine, drives it down to the river by four-wheeler and loads it onto a boat (there is no bridge) to cross over to the other side of the river to the old village site where she sets up the ballot machine again at the school. The principal then announces on the radio that the poll is open. The State Division of Elections says there are about 150 communities like Kasigluk. It is also important to note that 24 Native villages did not even have polling places in 2004.

Alaska Natives not only inhabit a unique geographical place, they also possess a unique political status in the landscape of Alaska. Following the adoption of the 1971 Alaska Natives Claims Settlement Act (ANSCA) terminating aboriginal title to lands in Alaska, three different types of Native groups or organizations emerged in co-existence: (1) 231 federally recognized Indian tribes; (2) 13 for-profit Native corporations; and (3) 12 regional non-profit corporations. These Native groups intersect with the internal political structure of Alaska, which is divided into 16 boroughs and one large area referred to as the unorganized borough (an area encompassing most of the rural Native villages). Those who reside in the 16 boroughs generally receive their services through their organized and state-funded regional governments, while those who reside in the unorganized borough must generally rely on the local Native village tribal government for services.

A History of Discrimination and Section 5 Preclearance

In the early years of the twentieth century, the burgeoning Alaska Territory passed laws limiting the ability of Alaska Natives to be citizens, to participate in the political process, and to enter certain public establishments. In 1924, when the U.S. Congress conferred citizenship on “all noncitizen Indians born within the territorial limits of the United States,” the Territorial Legislature responded by enacting a literacy law the next year requiring that “voters in territorial elections be able to read and write the English language.” Alaska’s Constitution, which became operative with the Formal Declaration of Statehood on January 3, 1959, also included an English literacy requirement as a qualification for voting which was not repealed until 1970.

During World War II, the Aleuts were forcibly relocated from their island homelands and interned in overcrowded “duration villages” with no electricity, plumbing, clean water or medical care. After the war, there were still signs in stores and restaurants that read “No Natives Allowed” and “No Dogs or Indians.” This history of discrimination is indicative of why Alaska is a covered jurisdiction under Section 5 of the VRA.

But continuing attempts by the state to dilute the Alaska Native vote speak to the need for reauthorization of Section 5 of the VRA. Following the 1990 census, the state adopted a legislative redistricting plan that was harshly criticized on the grounds that it diluted Native votes, disregarded the differences between Alaska Native groups, and was prepared in secret under the influence of some questionable dealings. A coalition of Native interests appealed to the U.S. Department of Justice (DOJ) imploring DOJ not to preclear the plan under Section 5 of the VRA and identified some of the discriminatory components of the proposed “anti-Native” plan. DOJ requested more information and ultimately declared the plan legally unenforceable because of its negative effects on Alaska Native voters. Thus, throughout the redistricting process and litigation, the VRA and DOJ stood as the last lines of defense. Without Section 5 preclearance, retrogressive practices would have been implemented with the approval of the Alaska courts.

As a general matter, the 2000 redistricting proceeded without significant problems. However, three aspects of the 2000 redistricting are relevant to the need for reauthorization: (1) compliance with the VRA was clearly the driving force behind several of the State’s new districts; (2) the redistricting board hired a national voting rights expert whose report revealed that certain areas in Alaska still have racially polarized voting; and (3) in the litigation following the 2000 redistricting, the Alaska Supreme Court set forth a new standard of deviation that will require future monitoring by the DOJ.

Finally, in both the 2000 and 2004 elections, the state made significant changes to its elections laws shortly before the election, including changing absentee ballot requirements, acceptable forms of identification and polling places. None of these changes were “precleared” prior to the election and the state later withdrew some of these changes. While the change of a polling place may not raise a red flag in most jurisdictions, in rural Alaska it can have a significant impact on the ability of Native voters to get to the right poll. In short, the Section 5 preclearance provision has resulted in some important changes in Alaska’s districts and election laws.

Native Languages and Sections 4(f)(4) and 203 Language Assistance

There are 20 different languages still spoken in Alaska. The largest groups of language speakers are Iñupiaq (more than 3,000 speakers), Siberian Yup’ik (about 1,100 speakers), and Central Yup’ik (about 10,000 speakers). Siberian Yup’ik and Central Yup’ik are particularly important here because they are still the primary language of many of the villages and the first language that children learn at home. Maintaining and preserving these languages is critically important to the Native population because language expresses a culture’s world view, and is, according to the Alaska Native Languages Center, “the glue that sticks everything together.”

There is and has always been a significant disparity in educational opportunities for Alaska Natives, resulting in many Native language speakers having limited English proficiency (“LEP”). Beginning in the early territorial days, official government policy established a segregated school system, ultimately leading to a boarding school policy that resulted in the State of Alaska not building high schools in rural villages. Native students had to travel hundreds of miles, sometimes out of state, to obtain a high school education. At the time the VRA was extended in 1975, only a total of 2,400 Alaska Natives had graduated from high school. As a result of litigation, educational opportunities and graduation rates have improved for Alaska Native students. But further litigation has revealed that the state still discriminates, providing inadequate funding to rural Alaska schools.

Although Congress amended the VRA in 1975 to remedy the discrimination faced by language minorities in voting, there is little evidence of compliance with sections 4(f)(4) and 203 by the State of Alaska in the past 30 years. While voter registration and turnout appear to be relatively high in Alaska, Alaska Native turnout is difficult to discern because the State chooses not to collect racial data.

Although there are no formal barriers to registration such as literacy tests, there are still barriers. Alaska continues its practice of English-only elections, adversely impacting the ability of Alaska Natives to exercise their right to vote. Alaska only provides registration materials printed in English and many Alaska Natives find the English-only ballot language confusing. Further, Alaska has a re-registration requirement that disproportionately affects Alaska Natives, who are the most mobile segment of the population.

In short, Alaska appears to have not complied with its obligations to provide minority language assistance to Alaska Native voters. The state offers intermittent oral language assistance and no written assistance for Alaska Natives. While Alaska seems to provide translators upon request in many places, this reflects a commitment to fulfill its obligations under state law to assist qualified voters needing assistance in voting. By contrast, Alaska does provide written election materials for the 2 percent of the Alaska population that is Filipino.

Thus, Alaska is arguably out of compliance with the VRA and has been since the mandate was imposed on the state 30 years ago. As Congress contemplates reauthorization of the language provisions, it should take into account this non-compliance and the ongoing need for some assistance demonstrated in this report. Alaska Native voters still experience what the VRA was meant to eradicate 30 years ago.

Related News Stories:

• • Groups push for continued federal oversight of Alaska elections (Anchorage Daily News) 3/29/06

• • Reports: Election oversight still needed (News-Miner) 3/28/06

Voting Rights in Alaska 1982-2006: A Report of RENEWTHEVRA.ORG, prepared by Natalie Landreth and Moira Smith, March 2006

Press release 8/24/06 - Voting Rights Act Reauthorization

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