Yesterday (October 9), marked Brett Kavanaugh’s first day on the Supreme Court. But the decision handed down in Brakebill v. Jaeger was more important than news that the accused sexual offender donned his robes.
In 2013, North Dakota passed a voter ID law that restricted the forms of identification that residents can present at the polls. The law was later amended to further narrow what the state deemed acceptable ID. Per the Native American Rights Fund (NARF), in 2016, a group of eight Native Americans filed a suit to block the law, arguing that the law effectively disenfranchised thousands of Indigenous voters in violation of the Voting Rights Act, the United States Constitution and the North Dakota Constitution. The plaintiffs were all prevented from voting in 2014 because of the law.
In 2017, Judge Daniel Hovland in the U.S. District Court for the District of North Dakota found that it was “undisputed that the more severe conditions in which Native Americans live translates to disproportionate burdens when it comes to complying with the new voter ID laws.” He ruled that the law likely violated the U.S. Constitution and ordered the state to provide a “fail-safe mechanism” that would help people without the required ID vote.
The state subsequently passed House Bill 1369, but the plaintiffs maintain that its requirement that voters present identification at the polls that includes their current address did not solve the problem of discrimination. They then filed an amended claim against Secretary of State Alvin Jaeger that includes the most current version of the voter ID law. They argued that the law has a discriminatory purpose and effect, imposes “substantial and unjustified burdens on the fundamental right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment,” excludes people who don’t hold property from voting, and denies votes equal protection under the law.
According to one study, more than 72,000 voting-eligible North Dakota citizens lack a qualifying ID. (That is in a total population around 750,000). Native Americans are more than twice as likely as non-Native Americans to lack a qualifying ID. Long distances, lack of transportation and limited operating hours at state driver licensing centers closest to Native American populations, make it more burdensome for Native Americans to obtain a state ID. Obtaining the needed documents also requires paying fees, which is more difficult for Native Americans because of economic disparities. On some reservations the unemployment rate tops 70 percent and incomes of Native Americans are, on average, half of what non-Natives earn in North Dakota.
An April order from Hovland barred enforcement of the parts of the law he found discriminatory, added P.O. boxes as a means to prove residency and expanded the types of ID that could be used at the polls to include, per NARF, “any document, letter, writing, enrollment card or other form of tribal identification issued by a tribal authority.”
The state followed the order for this year’s primaries, but the U.S. Court of Appeals for the Eighth Circuit later placed a hold on Hovland’s order. The plaintiffs then asked for an emergency appeal to reinstate the order ahead of the midterm elections, which Justice Neil Gorsuch—who handles emergency appeals from the Eight Circuit, per SCOTUS Blog—then referred to the full Supreme Court.
In yesterday’s opinion, the Court declined to prevent the state from enforcing the voter ID law. Justice Ruth Bader Ginsberg, joined by Justice Elena Kagen, wrote a brief dissenting opinion.
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. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election. If the Eighth Circuit’s stay is not vacated, the risk of disfranchisement is large.