Voting has never been easy for Native Americans living on rural reservations in Montana, which are often geographically isolated, with limited access to postal service and transportation. The passage of the Montana Ballot Interference Prevention Act (BIPA) has made these obstacles even greater, severely inhibiting Native Americans’ access to the ballot. That’s why we’re suing.

In a state where the majority of individuals vote by mail, rural tribal communities often work with get-out-the-vote organizers who collect and transport ballots to election offices that would otherwise be inaccessible. These ballot collection efforts are often the only way Native Americans can access the vote. BIPA would effectively end the practice of ballot collection efforts, and would thus disenfranchise Native American voters en masse.  

The legacy of suppressing the Native American vote

The United States has a long history of suppressing the voting rights of Native Americans. Despite being indigenous to the land, for centuries they were not considered citizens and thus were not afforded the right to vote. Victories for civil rights and civil liberties during the Reconstruction Era, like the Civil Rights Act of 1866, specifically excluded Native Americans. The 14th Amendment also excluded Native Americans since they were not considered citizens at the time of its drafting.

Federal law granted Native Americans citizenship and in turn the right to vote in 1924, but many states — including Montana — continued to actively prevent Native Americans from voting. For example, in 1937 Montana passed a law requiring that all voters be taxpayers. Because Native Americans living on reservations were exempt from some local taxes, they could not register to vote. These laws remained on the books until 1975.

What it’s like to vote on a reservation in Montana

Suppression of the Native American vote is not merely a chapter from our history books. Native Americans continue to face barriers to voting, including in Montana.

Throughout much of the United States, absentee ballots are provided as an alternative method of voting, but in Montana, there’s often no other option. The state conducts local elections by mail only, and even in elections that allow voting in person, the vast majority of Montanans vote by absentee ballot. That’s because in-person voting is logistically challenging for many people who live in remote, rural areas of the state.

Few areas are as remote as Native American reservations. Many reservations lack access to public transportation, which makes it difficult to reach distant county election offices, and those who are able to get there have experienced discrimination. But transportation is by no means a guarantee of accessibility. In Montana, blizzards can begin as early as the fall. During last election season much of the state was covered with up to 40 inches of snow. Nor have satellite polling locations been sufficient to provide equal access to the ballots. These locations are open for only a few days within the 30-day early voting period, whereas election county offices are open for the full 30 days.

It’s not always possible to vote without assistance using an absentee ballot. Many Native Americans living in rural Montana lack home mail service. Non-traditional and informal mailing addresses along with the scarcity of post offices, post office boxes, P.O. boxes, and drop-off mail boxes result in limited access to regular mail. Many people rely on P.O. boxes, but these boxes can be as far as 40 miles away, are irregularly checked, and are often shared between large extended families who pool their mail.

Further, sizable numbers of Native Americans on reservations live in poverty which impedes access to transportation, money for gasoline, and car insurance.

Organized get-out-the-vote ballot collection efforts developed under this backdrop. As part of these efforts, ballot collectors distribute absentee ballots, collect them, and transport them to county election offices.   

The impact of BIPA

BIPA imposes severe restrictions on who can collect ballots and how many ballots can be collected, effectively ending organized ballot collection in rural tribal communities across Montana. Under BIPA, ballot collectors are limited to just six ballots per collector. Organizers would previously collect up to 100 ballots each. 

A violation of BIPA is subject to penalties ranging from $500 per ballot collected to perjury penalties of up to 10 years in prison and $50,000 in fines. These penalties will have a very real and foreseeable chilling effect on ballot collection efforts, and as a result many people on reservations will be unable to vote.

Compliance with BIPA is complicated by unclear definitions about who exactly can collect a ballot. Organizers may or may not fit into its provisions, depending on which interpretation law enforcement officials adopt. 

BIPA’s provisions are also incompatible with Native family structures and relationships. BIPA defines a “family member” as “an individual who is related to the voter by blood, marriage, adoption, or legal guardianship.” But that definition does not reflect family relationships in tribal communities, where family includes members of the extended community.  

Chilling the Native American vote will significantly impact the electorate in Montana. Nearly 70,000 Native Americans live in the state, from tribes including the Blackfeet Nation, Crow, Flathead, Fort Belknap, Fort Peck, Northern Cheyenne, and Rocky Boy. Montana’s last Senate race was decided by only 17,913 votes and notably, one of BIPA’s sponsors is running for election as governor in 2020.

Why we’re suing

The ACLU, the ACLU of Montana, and the Native American Rights Fund (NARF) are suing the state of Montana on behalf of the Native American led get-out-the-vote grassroots activist group Western Native Voice, whose ballot collection initiatives would no longer be possible under BIPA, and three of the tribal nations. The new law violates the state constitutional right to vote,  freedom of speech and freedom of association, and its vague and over-broad restrictions violate due process.

Today, Native communities in Montana aren’t alone in their struggle to vote. Reservations throughout the country lack access to polls and election resources, and the federal government still fails to accommodate nontraditional addresses. And after the U.S. Supreme Court gutted protections in the Voting Rights Act, states with a history of racial discrimination are no longer required to get federal clearance before enacting discriminatory legislation like BIPA.

Voter suppression disproportionately affects minority groups across the country. As a result, minority groups overall have lower turnout rates than whites. Native Americans face unique barriers that impede having a voice in our government.

Our lawsuit seeks to change that by dismantling the additional barriers that BIPA creates — barriers that are unfair, unconstitutional, and hinder the ability of groups like Western Native Voice to reach the communities they serve. Their work is vital as we head into the 2020 election cycle. Every vote should count, and everybody should have a voice.

Alora Thomas-Lundborg, Senior Staff Attorney, ACLU Voting Rights Project,
& Lillian Alvernaz, Indigenous Justice Legal Fellow, ACLU of Montana

Coronavirus should not be a political issue, but with presidential primaries and the general election coming up, it could soon directly impact our politics. We should protect not only our health, but our civil liberties at this time — and one of those civil liberties is our fundamental right to vote. 

For many, the best way to vote while safeguarding your health during this time may be to vote by mail. It’s easy to request an absentee ballot and there’s still enough time to do so for most states with upcoming primaries. While some states limit who can vote absentee — for example, to people with health issues, disabilities, or other circumstances that may prevent them from voting in person — most states allow anyone to vote this way. If you live in a state with an upcoming primary where it is still possible to apply to vote absentee, find the date by which your application for an absentee ballot must be received and other requirements below.* 

Remember that public health officials recommend that you not lick absentee ballot envelopes, but instead use a wet sponge or cloth to seal them.

Connecticut**

Date of primary: April 28

• Deadline: Application must be received by April 27; if you fax the form, make sure to also submit the original copy (with a wet signature) by April 28.
• How to apply: Apply by mail. To ensure faster receipt, fax your application in addition to mailing the original. If you apply after April 22, use an emergency form in addition to your application.
• Who can vote absentee: Excuse required.

Delaware

Date of primary: April 28

• Deadline: Application must be received by April 24.
• How to apply: Request a ballot online or by mail, fax, or email.
• Who can vote absentee: Excuse required.

Florida

Date of primary: March 17

• Deadline: Application must be received by March 16 or 17 (details below).
• How to apply: Request in person, or through a representative.
• Who can vote absentee: Everyone until March 16; emergency is required to apply for an absentee ballot on election day (March 17).

Georgia

Date of primary: March 24

• Deadline: Application must be received by March 20.
• How to apply: Request by mail, fax, or email to your county Board of Registrars.
• Who can vote absentee: Everyone.

Illinois

Date of primary: March 17

• Deadline: Application must be received by March 12.
• How to apply: Request by mail.
• Who can vote absentee: Everyone.

Indiana

Date of primary: May 5

• Deadline: Application must be received by April 22.
• How to apply: Request by mail, fax, or email.
• Who can vote absentee: Excuse required.

Kansas 

Date of primary: May 2

• Deadline: Request between April 3 and April 17. Voters who register as Democrats by March 9 should automatically receive an absentee ballot; the state’s Republican presidential primary has been canceled.
• How to apply: Request online.
• Who can vote absentee: Everyone.

Kentucky

Date of primary: May 19

• Deadline: Application must be received by May 12.
• How to apply: Request by contacting county clerk.
• Who can vote absentee: Excuse required.

Louisiana

Date of primary: April 4

• Deadline: Application must be received by 4:30 PM on March 31.
• How to apply: Request online or by mail.
• Who can vote absentee: Excuse required.

Maryland

Date of primary: April 28

• Deadline: Application must be received by April 21 for a ballot to be delivered via mail or fax; by April 24 for online ballot delivery. 
• How to apply: Request online or by mail, fax, or email.
• Who can vote absentee: Everyone.

Montana

Date of primary: June 2

• Deadline: Application must be received before 12 PM on June 1.
• How to apply: Request by mail or fax.
• Who can vote absentee: Everyone.

Nebraska

Date of primary: May 12

• Deadline: Application must be received by 6 PM on May 1.
• How to apply: Request by mail or fax to your county election official.
• Who can vote absentee: Everyone.

New Jersey

Date of primary: June 2

• Deadline: Application must be received by May 26.
• How to apply: Request by mail.
• Who can vote absentee: Everyone.

New Mexico

Date of primary: June 2

• Deadline: Application must be received by 5 PM on May 29.
• How to apply: Request online or by mail (applications will be available in early April).
• Who can vote absentee: Everyone.

New York

Date of primary: April 28

• Deadline: Application must be postmarked by April 21.
• How to apply: Request by mail.
• Who can vote absentee: Excuse required.

Ohio

Date of primary: March 17

• Deadline: Application must be received by March 14.
• How to apply: Request by mail.
• Who can vote absentee: Everyone.

Oregon

Date of primary: May 19

• Deadline: Voters will automatically be signed up to receive an absentee ballot upon registration; register to vote by April 28.
• How to apply: Automatic upon registration; register to vote.
• Who can vote absentee: Everyone.

Pennsylvania

Date of primary: April 28

• Deadline: Application must be received by 5 PM on April 21.
• How to apply: Request online or by mail.
• Who can vote absentee: Everyone.

Rhode Island

Date of primary: April 28

• Deadline: Application must be received by 4 PM on April 7.
• How to apply: Request by mail.
• Who can vote absentee: Everyone.

South Dakota

Date of primary: June 2

• Deadline: Application must be received by 5 PM on June 1.
• How to apply: Request by mail.
• Who can vote absentee: Everyone.

Washington, DC

Date of primary: June 2

• Deadline: Application must be received by May 26.
• How to apply: Request online or by mail, fax, or email.
• Who can vote absentee: Everyone.

West Virginia

Date of primary: May 12

• Deadline: Application must be received by May 6.
• How to apply: Request by mail, fax, or email.
• Who can vote absentee: Excuse required.

Wisconsin

Date of primary: April 7

• Deadline: Application must be received by 5 PM on April 3.
• How to apply: Request online or by mail, fax, or email.
• Who can vote absentee: Everyone.

For more details on voting absentee, including information on how to request an absentee ballot in-person, visit vote.org. The nonpartisan Election Protection Hotline (1-866-OUR-VOTE) is also available to answer voting questions or to assist if you encounter problems. And remember, once you receive your absentee ballot: don’t lick the envelope.
 
* In nearly all states, individuals can also request an absentee ballot in person. For most states, the deadline is the same. The deadline to apply to vote absentee for the Alaska presidential primary may have already passed for most voters; we suggest you contact the Alaska Democratic Party directly with any questions at 907-258-3050. The Alaska Republican presidential primary contest has been canceled.
 
**Connecticut requires individuals who distribute five or more absentee ballot applications to people outside of their immediate family to register and obtain those forms from a local town clerk.

Nicole Hansen, Legal Extern, Voting Rights Project, ACLU

Every two minutes, we shed enough skin cells to cover nearly an entire football field. With a single sneeze, we can spew 3,000 cell-containing droplets into the world. And, on average, we leave behind between 40 and 100 hairs per day. As long as we live in the world and leave our homes each day, we can’t avoid leaving a trail of our DNA in our wake.

Every strand of DNA holds a treasure trove of deeply personal information, from our propensity for medical conditions to our ancestry to our biological family relationships. And increasingly, police are accessing and testing the DNA contained in our unavoidably shed genetic material without judicial oversight. That’s why we’re asking a court to require police to get a warrant before collecting the DNA we unavoidably leave behind.

Warrantless access to unavoidably shed DNA is just one part of a troubling trend in police investigations involving DNA. Already, in more than 60 criminal cases across the country over the last two years, police have uploaded DNA evidence found at a crime scene to enormous consumer genetic databases — such as GEDmatch and FamilyTreeDNA — in order to search for family members of a possible suspect. The databases often return likely relatives as distant as the suspect’s third cousins. Using this list of likely relatives, police start building out massive family trees based on marriage certificates, death records, and more.

Police then pare the tree down, usually by age and location, in order to identify a likely suspect (or several). Finally, police follow the suspects around until those individuals discard items containing their DNA — anything from a Baskin-Robbins spoon to a napkin to a colostomy bag adhesive patch. Without getting a warrant from a judge, police extract and test the DNA on those items, and use the resulting genetic profile to determine whether that suspect’s DNA matches the original crime scene evidence.

This practice raises profound civil liberties and privacy concerns. Law enforcement is searching through databases of thousands upon thousands of people’s highly revealing DNA profiles, and then surreptitiously collecting and testing people’s DNA without the protections and constraints of a warrant.

In a friend-of-the-court brief we filed this week together with the ACLU of South Dakota and the Electronic Frontier Foundation, we argue that law enforcement must first get a warrant before extracting and analyzing unavoidably shed DNA. The genetic blueprint we inadvertently leave behind as we discard coffee cups, toss crumpled tissues, spit out gum, or even lose hair is entitled to the full protection of the Fourth Amendment.

In the case at hand, State v. Bentaas, a South Dakota state criminal case, South Dakota police sent a DNA sample to Parabon Labs, which created a genetic profile and then ran it against GEDMatch’s database of over one million genetic profiles. The lab uncovered a few family names in South Dakota’s Sioux Falls and Hutchinson County areas and identified possible third cousins. Using this information, South Dakota detectives embarked on their own research to build out a family tree. Eventually, based on these findings, investigators identified the defendant, Ms. Bentaas, as a possible suspect.

Without first obtaining a warrant, investigators went to Ms. Bentaas’s residence and took garbage left outside for the trash collector. From the trash bag, police retrieved cigarette butts, cotton swabs, Kleenex with hair, earplugs, water bottles, glass bottles, beer cans, and dental floss. The government then extracted and analyzed the DNA found on these items. Based on the results, investigators arrested Ms. Bentaas.

To defend its warrantless search and seizure, the state is asserting that people do not have a reasonable expectation of privacy in their trash, and, therefore, people also do not have a privacy interest in the DNA they leave on discarded items. The government’s argument relies on a decades-old, flawed precedent holding that when we leave our garbage on the curb to be collected, we relinquish our Fourth Amendment privacy rights in the items contained in our opaque trash bags.

Whatever the merits of that rule as applied to physical items in the trash, it should not be stretched to permit warrantless searches of DNA. As the Supreme Court recently made clear in Carpenter v. United States, a case argued by the ACLU, old rules permitting warrantless searches cannot be automatically extended to new police capabilities made possible by modern technologies. The scope and types of information that might be discovered through a search of one’s physical trash pale in comparison to the deeply sensitive and highly personal information our genetic blueprints can reveal. And though people might sometimes be able to avoid discarding certain physical items, they cannot avoid shedding DNA on virtually every surface and object they touch. Our DNA requires greater protections under the Fourth Amendment.

The implications of the government’s argument are chilling. If police are allowed to surreptitiously extract and sequence our DNA without a warrant anytime they wish, there is little stopping them from grabbing every person’s trash, secretly extracting our DNA from it, and building a massive database containing our most sensitive genetic information. Already, local law enforcement officers have tried to track anti-pipeline protesters by swabbing cigarette butts left behind at protest sites. 

As our ability to decode DNA improves, the scope of sensitive, private information that is discernable will only increase. As it does, so will the need for strong Fourth Amendment protections to keep this information safe from warrantless searches and unconstitutional intrusion.

Alexia Ramirez, Fellow, ACLU Speech, Privacy, and Technology Project