Above Photo: North Dakota is one step closer to ensuring thousands of Native American residents will never be able to vote. SCOTT OLSON / GETTY IMAGES
The Eighth Circuit Court of Appeals last week upheld a law that strips nearly 10 percent of all voting-age Native Americans living in North Dakota of their right to vote.
The case is as much about local infrastructure and lack of regard for North Dakota’s indigenous population as it is about voter suppression and a state forcing voters to comply with a requirement that the state itself has made impossible to follow.
Thousands of Native Americans who do not have residential addresses through no fault of their own have been affected by the law, HB 1369. What’s worse is that these Native voters may be disenfranchised permanently should HB 1369 remain in place—something the three-judge panel that ruled on the lawsuit challenging the law seems OK with. That should trouble us all.
The Native American Rights Fund initially filed the lawsuit, Brakebill v. Jaeger, in 2016 on behalf of Turtle Mountain Band of Chippewa tribe members. The lawsuit alleges the law discriminates against Native American voters in violation of the Equal Protection Clause and Section 2 of the Voting Rights Act.
The primary dispute is over a provision of North Dakota’s law called the current residential street address requirement, which requires voters to present qualifying identification to cast a ballot. An ID card isn’t valid unless it contains the voter’s legal name, current residential street address, and date of birth. If a voter’s ID lacks any of these three things, the voter may still cast a ballot if they can provide the missing information using one of several supplemental documents: a current utility bill, a current bank statement, a paycheck, or a check or other document issued by a federal, state, or local government. Notably, ID cards with mailing addresses aren’t sufficient, and documents issued by tribal leaders, such as tribal IDs, aren’t either.
If the voter cannot provide a valid form of ID, then officials at the polling place set that voter’s ballot aside, counting it only if one of two things happens: the voter returns to the polling place and shows a valid form of ID or, if they cannot make it back with the requisite ID, the voter presents a valid ID within six days to “an employee of the office of the election official responsible for the administration of the election,” according to the law.
At first blush, these requirements may seem reasonable. After all, most ID cards contain your name, DOB, and residential street address, right? So what’s the big deal, you may be thinking.
Well, most identification cards do not require a residential street address, but rather a mailing address. North Dakota is the only state to require a residential street address for a voter ID card to be valid. And since many Native Americans in North Dakota don’t have residential addresses—they have their mail delivered to a post office box—North Dakota’s requirement puts them at a disadvantage.
As the Native American Rights Fund explains on its website:
[M]ost 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.
To make their case, the plaintiffs presented evidence of the discriminatory impact of the residential street address requirement, which prompted U.S. District Court Judge Daniel L. Hovland to issue two injunctions—one in 2016 and another in 2018—blocking the residential street requirement. Judge Hovland ordered North Dakota’s secretary of state, Alvin A. Jaeger, to accept identification that includes either “a current residential street address or a current mailing address (P.O. Box or other address) in North Dakota.”
The judge also ordered Jaeger to accept “an official form of identification issued by a tribal government, the Bureau of Indian Affairs (BIA), any other tribal agency or entity, or any other document, letter, writing, enrollment card, or other form of tribal identification issued by a tribal authority,” as long as the document has the voter’s name, date of birth, and current residential address or mailing address on it.
Judge Hovland explained that at least 4,998 otherwise eligible Native American voters lacked a valid ID under the law, and that about 48.7 percent of those individuals lacked the supplemental identification documentation. This means that at least 2,305 eligible Native American voters would be disenfranchised under this law which, according to Census data cited it in the court documents, amounts to approximately 10 percent of all voting-age Native Americans in the state.
And disenfranchised they were. After a bitter legal battle, which I reported on back in October, at least 2,305 Native Americans in the state were unable to vote in the November 2018 election.
Now that the Eighth Circuit vacated the district court’s preliminary injunction last week, North Dakota is one step closer to ensuring that these Native American voters will never be able to vote.
The North Dakota secretary of state argued that the residential address requirement is intended to combat voter fraud—the go-to defense used by elected officials to take away voting rights. The three-judge panel agreed, ruling that the requirement furthers North Dakota’s legitimate interest in preventing voter fraud and safeguarding voter confidence, even though, as the district court noted in its 2018 ruling, Jaeger had produced “no evidence of voter fraud in the past, and no evidence of voter fraud in 2016.”
Indeed, the secretary’s rationale for the voter ID law is pure nonsense. Jaeger argued that permitting a voter to use a mailing address as opposed to a residential street address would allow fraudulent voting of people who reside outside North Dakota but who maintain a P.O. Box in the state. But, as Circuit Judge Jane Kelly, an Obama appointee, pointed out in her dissent, that nonresident would still have to obtain a tribal or state-issued identification card, and neither are issued to people who aren’t residents of North Dakota.
The bad faith of Jaeger’s argument is stunning: No one suggested that a simple proof of mailing address would suffice. Not even the law suggests that.
And in any event, while North Dakota may have an interest in guarding against, as the district court put it, “the theoretical possibility of voter fraud [that] exists with every election nationwide,” that interest does not justify stripping the right to vote from some of the state’s Native American residents.
The three-judge panel disagreed. It criticized the district court’s injunction, implying that a statewide injunction is overbroad and unwarranted because the law would only negatively affect “a relatively small percentage of eligible voters.” But that “relatively small percentage of eligible voters” includes a historically disenfranchised population, which ostensibly should be unacceptable.
The three-judge panel, with George W. Bush-appointee Steven Colloton writing for the majority, simply shrugged in the face of this evidence. Irrespective of the district court’s finding that nearly 5,000 eligible Native American voters and 64,000 non-Native voters lacked qualifying identification, the panel said that the plaintiffs had not shown the remaining 88 percent of eligible voters in the state lacked qualifying identification.
In other words, who cares about that remaining 12 percent of voters?
“Even assuming that some communities do not have residential street addresses, that fact does not justify a statewide injunction that prevents the Secretary from requiring a form of identification with a residential street address from the vast majority of residents who have them,” Judge Colloton wrote.
But the plaintiffs shouldn’t have to present evidence that the residential street address requirement imposes a substantial burden on “most” North Dakota voters. As Judge Kelly pointed out in her dissent, “[a] barrier to voting may be unconstitutional even if most voters can overcome it.”
If the argument about “substantial burdens” sounds uncannily familiar to you, that’s because Judge Kelly borrowed it from Planned Parenthood v. Casey, the seminal abortion rights case that gave us the “undue burden” standard. As laid out in Casey (and followed by myriad abortion cases thereafter), a court will determine whether or not a law is an undue burden based on the population that the law will affect, not based on the population writ large. As the U.S. Supreme Court noted in Casey, “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”
For example, a law that restricts abortion access may be an undue burden on people seeking an abortion, not on people of reproductive age, or even pregnant people, because not all pregnant people or people of reproductive age are seeking an abortion. Therefore, at least according to the ruling, the idea is that an abortion restriction will have nothing to do with those people.
The same principle applies in this North Dakota case. The thinking goes, a law requiring an ID with a residential street address is irrelevant to people who already have ID with a residential street address, because the law doesn’t burden those people. But it may burden people who don’t have an ID if the reason those people don’t have one is that they don’t have a residential street address. As the district court noted in frustration, “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 is hard to argue that the law does not target Native American voters. Given that North Dakota is the only state with such a requirement, there truly is no rational reason to require a residential street address unless the state is simply trying to make it impossible for people without a residential street address to vote.
The panel’s decision is a bad one, but there’s still hope. The court’s ruling related only to the tribe members equal protection claims under the U.S. Constitution. Their claims under the North Dakota Constitution and the Voting Rights Act are still alive. The appeals court did not rule on whether the North Dakota law violates the Voting Rights Act, which leaves open the possibility of the district court ruling in favor of the plaintiffs on that basis.
However, given the ultra-conservative nature of the trumped-up Eighth Circuit, there’s no guarantee that the court will preserve the estimated 10 percent of eligible Native Americans’ right to vote.