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How North Dakota’s Voter ID Law Will Disenfranchise Native Americans

The burden will fall most heavily on communities that are historically marginalized.

October 18, 2018

In North Dakota, a hotly contested U.S. Senate race could determ­ine which party controls the cham­ber. But the rules that will now be in place are likely to disen­fran­chise Native Amer­ican voters.

For years, the North Dakota Legis­lature has tried to imple­ment a burden­some voter ID law. While proponents claim that these types of laws help to prevent in-person voter fraud, numer­ous stud­ies have docu­mented that this type of fraud rarely occurs. At the same time, they create very real burdens on legit­im­ate voters. Voter ID laws disen­fran­chise the many Amer­ic­ans who do not possess the required ID, and the burden falls dispro­por­tion­ately on communit­ies that are already the most margin­al­ized. In North Dakota, that means its large Native Amer­ican popu­la­tion.

In 2013, the North Dakota Legis­lature enacted a voter ID law that required voters to present one of a short list of IDs at the polls in order to vote and got rid of any fail-safe options for people who didn’t possess the requis­ite ID. The Native Amer­ican Rights Fund (NARF) repres­en­ted seven Native Amer­ican voters in a chal­lenge to the law in federal court. NARF made clear that the law would dispro­por­tion­ately impact Native Amer­ican voters and also docu­mented the long history of discrim­in­a­tion against Native Amer­ic­ans in North Dakota — in voting, but also in other areas like educa­tion, loss of Native Amer­ican land, and govern­ment lend­ing.

The voters won. The court recog­nized that, without any fail-safe for voters without ID, the law could disen­fran­chise thou­sands of Native Amer­ican voters. There­fore, it blocked the state from imple­ment­ing the law without a fail-safe.

That should have been the end of the story, but the North Dakota Legis­lature wasn’t finished. When the Legis­lature returned to session in 2017, it tried again, enact­ing a similar ID law to the one that was previ­ously blocked. 

The same voters, still repres­en­ted by NARF, chal­lenged the law, and the district court again direc­ted the state to expand the options avail­able to voters. Among other things, the court blocked the state from requir­ing ID to have a resid­en­tial street address, as opposed to a current mail­ing address, because Native Amer­ican communit­ies often don’t have street addresses. The modi­fic­a­tions ordered by the district court were in place for the 2018 primary elec­tion.

The state appealed part of the district court’s order. And in Septem­ber the Eighth Circuit Court of Appeals put an emer­gency halt to part of the order — in partic­u­lar, the court of appeals permit­ted the state to proceed with requir­ing resid­en­tial street addresses on IDs, despite the poten­tial effect on Native Amer­ican voters. The plaintiffs asked the Supreme Court to over­turn the court of appeals and to return to the rules that were in place for the primar­ies. But on Octo­ber 9 — less than a month before the elec­tion — a major­ity of the Supreme Court denied that request. Justice Ruth Bader Gins­burg dissen­ted, point­ing out that the last-minute rule change was likely to cause signi­fic­ant confu­sion to voters.

The upshot of all this back and forth is that new, more burden­some voting rules will be put in place at the last minute in North Dakota’s elec­tion. This outcome is doubly bad: The new obstacles to voting imposed by the law are likely to disen­fran­chise voters, and the confu­sion around their imple­ment­a­tion may disen­fran­chise even more voters. Further­more, the law’s effects will fall most heav­ily on Native Amer­ican communit­ies that have histor­ic­ally seen their voices margin­al­ized. 

For now, the state must make an urgent and good-faith effort to educate voters about the rules that will be in place, and it must care­fully train poll work­ers to apply those rules. More gener­ally, Amer­ic­ans must demand elec­tions that are free, fair, and open to all eligible voters.

(Image: Shut­ter­