Navajo Nation members contend the slow mail service to and from the reservation imposes a discriminatory burden on their ability to vote by mail and meet Election Day deadline. 

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Federal appellate judges said Tuesday they may not be able to give Navajo Nation residents more time to submit their ballots, even if they do suffer from poor mail service.

Judge Margaret McKeown said she understands that those living on the remote reservation have less time to mark and return their ballots to be sure they arrive by the current statutory deadline of 7 p.m. on Election Day. Challengers instead want the judges to say that any ballot from the reservation postmarked by then must be counted.

But McKeown said there is no evidence that ballot envelopes actually get a postmark despite an order to the U.S. Postal Service in a separate case out of New York to do that.

And then there are sorting questions.

Even if county recorders figure out which ballots come from reservation addresses, that does not mean they all come from Native Americans who are entitled to “protected status” under federal voting laws. Challengers conceded there are non-native residents living there, too.

The 9th Circuit Court of Appeals judges gave no indication when they will rule — nor whether that will come in time for this year’s election.

Attorney Steven Sandven, who represents the six Navajo tribal members who sued, argued that federal Judge Murray Snow got it wrong last month. Snow found that the burden on reservation residents in meeting the 7 p.m. Election Day deadline is no greater than that faced by residents of other rural areas of the state. As such, Snow said, the deadline does not violate the federal Voter Protection Act.

Sandven told the appellate judges the test is whether Native Americans, as a “protected class” under federal law, have the same opportunity to vote as all other non-Indians in the state, regardless of where they live. The record shows that is not the case, he said.

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He said this is more than just the fact that mail to and from rural areas takes longer, leaving reservation residents less time to consider the issues than non-Indian voters before they have to send their ballots back.

For example, Sandven said, there is one Election Day polling place for every 13.4 square miles in Scottsdale, versus one location on the Navajo Reservation for 306 miles.

Moreover, he said, there is no home delivery for most of the reservation, the post office is distant, and “many Navajo Nation members have insufficient funds to travel to a post office.”

“There’s no dispute as to the nature of those conditions and the effect that those conditions have in terms of making it more difficult for these voters to access the ballot,” he said.

But an attorney for Democratic Secretary of State Katie Hobbs told the appellate judges there are basic questions. For one thing, the lawsuit filed on behalf of six members of the Navajo Nation names only Hobbs as the defendant.

Hobbs has nothing to do with receiving or counting ballots, and can’t tell the county recorders what to do, said her attorney, Roopali Desai. She said anyone seeking to change the deadline must also sue the recorders.

Desai also questioned whether the six plaintiffs have legal standing to sue in the first place because they never claimed any actual injury from the deadline.

“There are no allegations in the complaint, nor did any of the plaintiffs testify at the injunction hearing about the fact that they intend to participate in the 2020 election, that they are planning to use themselves a vote-by-mail ballot,” she said. “And there is no evidence in the record that they have ever previously submitted a ballot that was rejected because they suffered from some sort of mail delay or the fact that their ballot was too late to be counted.”

Desai said Hobbs acknowledges the hardships faced by many members of the Navajo Nation including poverty, isolation, problems with traveling on the reservation and unreliable mail service.

“But those harms are not traceable to the secretary or, more importantly, to the (ballot) receipt deadline,” she said.

Also, the lawsuit specifically seeks the extra time solely for those living on the Navajo Reservation. If the appellate judges were to grant that request, it likely would result in confusion, Desai said.

“What if somebody who is a member of the Pascua Yaqui tribal nation in Southern Arizona thought that the order ... intended to allow all Native Americans in Arizona to postmark their ballot as opposed to having it returned on the Election Day receipt deadline?” she asked. “Would it apply to one Native American voter versus another?”

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