North Dakota made news earlier this month when the Supreme Court failed to act on a decision of the Eighth Circuit which found that a new state law did not discriminate against Native Americans who live in remote areas of the state.
Judges in the Eighth Circuit overturned the North Dakota District Court ruling that a voter ID law (HB 1369 ) signed by Republican Gov. Doug Burgum in April 2017 is discriminatory. In its failure to act, the Supreme Court (4-2) changed the rules for voters less than four weeks before the general election.
Voter ID and (non-existent) voter fraud
North Dakota does not require that voters register to vote. Anyone can vote on election day with an ID that includes name, date of birth and residential address.
Prior to this election, there was a wider range of acceptable documents. For example, an ID with PO Box was sufficient or a voter could take an oath affirming their identity, a judicial requirement in 2016.
The argument for a more restrictive voter ID law: voter fraud.
In an undated document, North Dakota Secretary of State Alvin A. Jaegar states that voter fraud is a non-issue for the state :
The North Dakota state legislature began debating a voter ID law within months of Democratic Sen. Heidi Heitkamp’s victory in November 2012. It passed voter ID laws in 2013 and 2015 as well as in 2017. Sen. Heitkamp is in a close race for re-election.
Six months ago, the North Dakota district court enjoined the voter ID law and pointed out that it was discriminatory and that the state had not provided evidence of voter fraud, ostensibly the reason for the new law:
The record is replete with concrete evidence of significant burdens imposed on Native American voters attempting to exercise their right to vote… [moreover] the record before the court reveals that the secretary of state acknowledged in 2006 that he was unaware of any voter fraud in North Dakota.
According to Supreme Court Justice Ruth Bader Ginsburg, writing in her dissent, a non-trivial percentage of North Dakota voters are affected by the voter ID law:
Rejecting the claim that voters can easily “adapt” to the new requirement—in the few weeks between now and the election—Ginsburg wrote in a dissent joined by Justice Elena Kagan: “That observation overlooks specific fact findings by the District Court: (1) 70,000 North Dakota residents—almost 20 percent of the turnout in a regular quadrennial election—lack a qualifying ID; and (2) approximately 18,000 North Dakota residents also lack supplemental documentation sufficient to permit them to vote without a qualifying ID.”
In addition, Justice Ginsburg pointed out that “reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election.”
Residences on reservation land have no street addresses
The challenge for Native Americans living on reservation land: they have no “fixed” street address.
Maggie Astor, a New York Times reporter, detailed that reality in a Twitter thread:
Waiting for my flight in Bismarck, so it's story time. I've spent the past three days in North Dakota reporting on the voter ID law here, which requires residential addresses. Many Native Americans, especially those living on reservations, don't have residential addresses. 1/
— Maggie Astor (@MaggieAstor) October 24, 2018
Because of poor cell coverage, she was using a dedicated GPS unit for navigation:
I plugged in the Spirit Lake tribal office, which is in Fort Totten, ND. The GPS took me to the city limits of Fort Totten. And then it stopped. It told me I had reached my destination. I had not. I was in the middle of a highway with a lake on one side and fields on another. 4/
— Maggie Astor (@MaggieAstor) October 24, 2018
Absentee voting will not help with a voter ID issue
Anyone in North Dakota can request an absentee ballot if the county they live in does not vote by mail. But this won’t help Native Americans who live in remote areas, a prime demographic for absentee voting.
In its directions to counties in 2016, the North Dakota Secretary of State reminded county staff who were processing absentee ballots that:
Not all tribal IDs include a residential address, but the default is to take the voter at his or her word that the tribal ID does include the residential address, which is the same as what has been listed on the request.
This new law is a major policy change.
ND Secretary of State materials not up-to-date
The absentee ballot information currently available on the North Dakota Secretary of State website has a revision date of August 2017. Its link to a “voter affidavit” to use in place of voter ID leads to a 404 error page.
The Vote.ND.gov website provides details about voter ID requirements. It does not note that this is a change from the primary.