A group of Native American voters urged U.S. Supreme Court Justice Neil Gorsuch last Friday to stay a recent Eighth Circuit ruling that would allow North Dakota to require proof of a current residential address to vote, saying that thousands of Native Americans will be disenfranchised if the ruling is allowed to stand.
The voters asked Gorsuch, who is the appointed justice to deal with issues arising from the Eighth Circuit, to vacate that court’s Sept. 24 stay on a district court injunction that would’ve blocked the residential address provision of North Dakota’s voting law. In a divided decision, a circuit panel majority found the state was likely to prevail on claims that a statewide ban on the residential address requirement isn’t warranted.
In their application, the voters said that “emergency relief from the panel’s stay is urgently required to prevent irreparable harm to applicants’ fundamental right to vote,” as “the North Dakota election law here imposes impossible and severe burdens on the franchise for Native American voters.”
The Eighth Circuit panel majority made several errors in granting the stay that “are by themselves reason enough” to overturn that decision, “but those errors are exacerbated by the timing of the ruling” since voting has already begun for absentee voters in this fall’s election, the voters said.
The stay “will cause confusion and discord at the polls” that will cause voters to stay away at election time, according to the application.
And the Supreme Court is likely to review the case eventually in order to “assess the lawfulness of voter identification laws that have repeatedly come before the federal courts” since the high court’s 2008 ruling upholding a photo ID law for voters in Indiana in Crawford v. Marion County Election Board.
In a statement Thursday, Native American Rights Fund Executive Director John Echohawk, whose group represents the voters, said the North Dakota law also illegally requires residents to pay for identification.
“Having a fixed residential street address and being able to pay fees for an ID are not related to an individual’s right to vote,” Echohawk said in the statement. “This litigation has been going on since 2016 and the facts are clear: thousands of Native American (and non-Native) voters lack an address or a qualifying voter ID under the new law. With the Court of Appeals’ decision, these voters have lost their ability to vote.”
North Dakota initially enacted a law in 2013 limiting the types of acceptable IDs voters could use to establish eligibility and requiring them to show a residential address, but U.S. District Judge Daniel L. Hovland blocked the statute in August 2016, saying it imposed an undue burden on Native American voters.
North Dakota came back with an amended law that went into effect last summer, which the Native American voters asked to block in February. Judge Hovland agreed in April, saying that by requiring an ID with a residential address, the new law “still requires voters to have one of the very same forms of a qualifying ID in order to vote that was previously found to impose a discriminatory and burdensome impact on Native Americans.”
North Dakota Secretary of State Alvin Jaeger went to the Eighth Circuit to challenge the order, asking first to stay the part dealing with the residential address requirement. Though an appellate panel rejected the request on June 8 — pointing out that primaries were slated to take place a few days later — the judges left room for Jaeger to seek a stay again after briefings on the merits were completed.
Jaeger subsequently stood behind the law, telling the court that the changes came about as an attempt to address problems with the alternatives voters used when they couldn’t show a residential street address. For example, he said, accepting affidavits led to the inclusion of unverifiable votes with no means of separating them out after the fact.
In response, the voters claimed that while the state offered no actual evidence of fraud that would justify the law, they had “submitted significant and unchallenged evidence of disenfranchisement and severe burdens caused by the new system.”
After the parties traded reply briefs, Jaeger renewed his request for a stay, ultimately winning over an Eighth Circuit majority last week.
“North Dakota, having adopted a system that requires no advance voter registration, maintains a legitimate interest in requiring identification and a showing of current residence to prevent voter fraud and to safeguard voter confidence,” the majority said.
However, U.S. Circuit Judge Jane Kelly said in her dissent that the district court made several factual determinations showing that the law is burdensome on certain voter groups, particularly Native Americans and the homeless.
In the voters’ application to Justice Gorsuch on Friday, they said the Eighth Circuit’s ruling came “with military voting for the November elections already underway and just days before absentee ballots” were to be mailed on Sept. 27.
“This Court should not permit a rule change after the election has already started, with voting rights of thousands of Native Americans in North Dakota hanging in the balance,” according to the application.
And granting a stay would provide “an ideal vehicle to settle the unresolved questions in Crawford,” at a time when “voter ID laws continue to grow in this country and proper application of Crawford is an issue that calls for this court’s review,” the voters said.
The Eighth Circuit majority committed multiple errors in its decision, including “ignoring the invidious nature” of North Dakota’s voting requirements, specifically the residential street address provision that has nothing to do with a voter’s qualifications to vote, they said.
The panel majority also erred by finding the state would suffer an irreparable injury, as the only injury it might suffer is residents voting in the wrong precinct, and there’s already a state law requiring poll workers to rely on precinct maps to prevent that, the voters said.
Justice Gorsuch requested that North Dakota respond to the application by 5 p.m. Eastern Standard Time on Tuesday.
Representatives for the parties were not immediately available for comment Monday.
The Native American voters are represented by John Echohawk, Matthew Campbell, Jacqueline De León, Joel West Williams and Daniel David Lewerenz of the Native American Rights Fund, Richard de Bodo of Morgan Lewis & Bockius LLP, and Tom Dickson of the Dickson Law Office.
Jaeger is represented by Elizabeth Ann Fischer and James E. Nicolai of the North Dakota Office of the Attorney General.
The case is Brakebill et al. v. Jaeger, case number 18A335, in the Supreme Court of the United States.
