The U.S. Supreme Court on Tuesday rejected a Hail Mary appeal filed by a group of Native American voters in North Dakota late last month in the hopes of preserving their right to vote in the upcoming November elections.
Native American Rights Fund (NARF) originally filed Brakebill v. Jaeger in 2016 on behalf of a group of the Turtle Mountain Band of Chippewa tribe, alleging that North Dakota’s voter identification law discriminates against Native voters in violation of the Equal Protection Clause and Section 2 of the Voting Rights Act. U.S. District Court Judge Daniel L. Hovland agreed—twice, once in 2016 and again in 2018—and both times issued injunctions blocking portions of the law.
Late last month, however, the Eighth Circuit Court of Appeals sided with North Dakota and gave the state the green light to enforce the law in next month’s elections. This could potentially throw the elections into chaos since, according to NARF, early voting has already begun. And on Tuesday, the Supreme Court upheld the Eighth Circuit’s order—thus ensuring, according to court documents, that nearly 2,300 Native Americans won’t be able to cast their ballot in November.
Justices Ruth Bader Ginsburg and Elena Kagan dissented; Justice Brad McBeer, who was just sworn in on Monday, did not participate in the decision.
The primary dispute is over two provisions of North Dakota’s law: the current residential address requirement and the fail-safe provision.
First, the law requires that voters present qualifying ID in order to cast a ballot. An ID card isn’t valid unless it contains the voter’s current residential street address. This requirement disproportionately burdens Native Americans, plaintiffs pointed out, since many do not have residential addresses; they have their mail delivered to a post office box rather than to a physical address.
And on reservations, where many Native Americans live, the residential address system is unreliable. As NARF explains on its website:
While North Dakota claims that tribal IDs qualify under its law, most tribal IDs do not have a residential address printed on them. This is due, in part, to the fact that the U.S. postal service does not provide residential delivery in these rural Indian communities. Thus, most tribal members use a PO Box. If a tribal ID has an address, it is typically the PO Box address, which does not satisfy North Dakota’s restrictive voter ID law. In both the primary and general election in 2014, many qualified North Dakota tribal electors were disenfranchised because they only had a tribal ID.
In her dissent, Ginsburg pointed out that the risk of voter confusion is severe, and that the Court’s order runs counter to something called the Purcell principle—taken from the 2006 case Purcell v. Gonzalez—which says that courts should not issue orders changing voting rules in the period close to an election.
“The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction,” Ginsburg wrote. “Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election.”
Second, the law’s fail-safe provision—the protocol for dealing with voters who show up to vote without the requisite ID—is hopelessly confusing. When Republicans in North Dakota first passed its voter ID law in 2013, there was no fail-safe provision at all. In his August 2016 order blocking portions of the law, Judge Hovland pointed out that North Dakota was the only state in the country that did not have a fail-safe provision. There was nothing that a would-be voter could do if they didn’t have the requisite ID on Election Day. No filling out a provisional ballot. No signing an affidavit. The voter was just shit out of luck.
In an apparent effort to rectify that problem, North Dakota amended the law in 2017 to allow individuals who don’t present an ID at the ballot box to mark a ballot, which the poll worker will set aside. If the individual returns to show a valid form of ID to the poll worker before the polling place closes, that individual’s ballot will be counted.
The individual’s ballot will also be counted if within six days of the election, they find “an employee of the office of the election official responsible for the administration of the election” and show that person a valid ID. The law doesn’t say where such an employee can be found, or even the job title of the employee; the law is confusing and virtually impossible to comply with.
“No reasonable person who reads this statute would have a clue as to where and to whom they need to report to present a valid ID,” Judge Hovland wrote in his April 2018 order after the plaintiffs challenged the amended law. “Common sense requires more than stating the voter needs to return ‘to an employee of the office of the election official responsible for the administration of the election before the meeting of the canvassing board occurring on the sixth day after the election.’ The statute is vague and unclear at best.”
Moreover, the law didn’t fix one of the plaintiffs’ primary grievances: “[T]he new law… still requires voters to have one of the very same forms of qualifying ID’s in order to vote that was previously found to impose a discriminatory and burdensome impact on Native Americans.” (An ID with an individual’s current residential address on it.)
In his April 2018 order, Judge Hovland issued an injunction containing common-sense remedies that would have enabled Native Americans to cast their ballot. He ordered the state to clarify the fail-safe provision: “[V]oters need to know, where, when, and to whom a voter needs to present a valid form of identification if their ballot was set aside,” Hovland wrote.
Hovland also expanded the types of identification that the election officials must accept as valid. He ordered election officials to accept any form of tribal documentation that sets forth the tribal member’s name, date of birth, and current residential street or mailing address. The documentation can be an ID card or it can be a letter or other writing, Hovland ruled—as long as it is issued by a tribal government, the Bureau of Indian Affairs, or any tribal agency.
He also blocked North Dakota from enforcing the provision of the law that requires a “current residential street address.” He ordered the secretary of state to allow a qualified voter to receive a ballot if they provide an ID that includes either a current residential street address or a current mailing address, whether a P.O. box or other address in North Dakota.
Hovland seemed most frustrated by North Dakota’s refusal to fix its “residential street address problem”: “The State has acknowledged that Native American communities often lack residential street addresses . . . Nevertheless, under current State law an individual who does not have a ‘current residential street address’ will never be qualified to vote. This is a clear ‘legal obstacle’ inhibiting the opportunity to vote.” (emphasis in original.)
It’s not a coincidence that North Dakota Republicans have implemented a voting regime that ensures that Native Americans—or any other people—who don’t have residential addresses will never be able to vote. Notably, North Dakota’s laws disenfranchise students as well, since students are unlikely to have ID with their current residential address on it.
No other state or federal voting statute requires a “current residential street address” in order to be able to vote, Hovland noted. The North Dakota Constitution doesn’t require it, nor does the National Voter Registration Act. So why include a “current residential street address requirement,” if not to target the very people who would be disadvantaged by a such a requirement?
This is a question that didn’t bother the Eighth Circuit Court of Appeals, which stayed Hovland’s injunction, thus permitting North Dakota to enforce the law. (If you don’t know what it means when a court “stays” an order, check out this handy explainer I wrote.) And by affirming that order, it seems that the Supreme Court is equally unbothered.
The Supreme Court’s order permits North Dakota to enforce its discriminatory law and eviscerates the practical protections that Hovland put in place in order to protect Native Americans’ right to vote. It also ensures, according to Judge Jane L. Kelly, who dissented from the Eighth Circuit majority opinion, that at least 2,305 Native Americans will not be able to vote in 2018.
And considering that Democratic Sen. Heidi Heitkamp squeaked out a victory in 2012—backed by strong support among Native American voters—by 2,994 votes, those 2,305 votes likely doom her reelection chances.
But that was always the point. Within two months of Heitkamp’s victory, Roey Hadar reported for the Nation earlier this year, “Republicans in North Dakota adopted a flurry of legislation that effectively revoked the right to vote for thousands of Native Americans and other Democratic voters.”
Proponents of the North Dakota law would probably argue that the flurry of legislation was meant to combat voter fraud. North Dakota is the only state without a voter registration system. In other words, North Dakotans don’t have to register in advance to vote. And prior to 2013—when Republicans evidently decided to take back a Senate seat by disenfranchising voters—voting in North Dakota was a pretty laid-back affair, according to court documents. North Dakota used a system of small voting precincts and election boards, and poll workers in those precincts knew who was and was not an eligible voter. If the poll worker didn’t know the voter, they could ask the voter to produce ID with the person’s address and birthday on it. Acceptable forms of ID included driver’s licenses, cell phone bills, student ID cards, tribal ID cards, or even a utility bill dated 30 days before Election Day. If a voter could not produce the requested ID, the poll worker could simply vouch for the voter and let them vote, or the voter could sign an affidavit swearing under penalty of perjury that they are qualified to vote in the precinct.
After Heitkamp’s win, that all changed. North Dakota Republicans imposed new voter ID laws narrowing acceptable forms of ID to require the types that many Native American voters don’t have and can’t acquire. In addition to hurdles imposed by poverty or homelessness, there are also bureaucratic obstacles: In order to get ID, North Dakotans have to go to a “Drivers License Site,” but there are no such sites on any reservation in North Dakota. According to lawyers for plaintiffs at NARF, “Native Americans on the Lake Traverse Reservation, Fort Berthold Reservation, and Standing Rock Reservations have to travel an average of almost an hour just to access a Drivers License Site, some of which are only open for very limited hours.”
These new rules were supposed to combat double voters, non-citizens, and out-of-state or out-of-precinct individuals. But there is no evidence of rampant voter fraud in North Dakota (or in any state in this country, for that matter). “The record before the Court has revealed no evidence of voter fraud in the past, and no evidence of voter fraud in 2016,” Judge Hovland wrote in his April 2018 order.
“Voter fraud” has simply become the Republican mantra used to mask the true purpose of these laws, which is to disenfranchise reliably Democratic voters. North Dakota Republicans almost certainly knew that the law would disenfranchise Native Americans, and they passed it anyway. And now the Supreme Court has decided not to do anything about it.