Voter ID law revived in major setback to Native American voters

A court previously found that almost half of North Dakota's Native voters lack the required ID.

Sharon Lewis, a member of the Pueblo of Acoma, breathes a sigh of relief after finally casting her ballot at the Acoma Tribal Center in Acoma, New Mexico. (Photo by Rick Scibelli/Getty Images)
Sharon Lewis, a member of the Pueblo of Acoma, breathes a sigh of relief after finally casting her ballot at the Acoma Tribal Center in Acoma, New Mexico. (Photo by Rick Scibelli/Getty Images)

A federal appeals court on Monday sided with North Dakota in a lawsuit over the state’s voter ID law, presenting a significant burden to Native American voters ahead of the November election.

A three-judge panel of the Eighth Circuit Court of Appeals stayed a lower court’s injunction which had required the state to accept a longer list of potential forms of identification at the polls, including IDs that show a voter’s “current mailing address” instead of their “current residential street address.” The court found that the state would be “irreparably harmed by the injunction during the general election in November, 2018,” according to the order.

Many homes on Native American reservations lack traditional postal addresses. Instead, Native voters often rely on P.O. boxes which could be located outside their precincts. Furthermore, there are no motor-vehicle license offices on North Dakota’s reservations, making it difficult for Native voters to obtain the necessary forms of ID.

Native Americans make up more than five percent of North Dakota and represent a critical demographic in the sparsely populated state, where Sen. Heidi Heitkamp (D-ND) is trailing in the polls as she campaigns for reelection.

According the AP, a federal judge had previously found that “nearly 49 percent of Native Americans who lacked a qualifying ID also lacked sufficient supplemental documentation, so around 2,300 would be prevented from voting.”


In their lawsuit, Native voters alleged that the ID law violated their constitutional right to vote. A federal judge in April 2018 ruled in favor of the plaintiffs, finding that certain parts of the law presented “a clear ‘legal obstacle’ inhibiting the opportunity to vote.” In issuing the injunction, the judge cited the “public interest in protecting the most cherished right to vote for thousands of Native Americans who currently lack a qualifying ID and cannot obtain one.”

But North Dakota’s Republican Secretary of State Al Jaeger appealed, arguing that the law is necessary to protect against voter fraud and that voters may use a mailing address that’s in a different precinct from their residence. The state worried that voters could cast ballots in the wrong precincts and sway local elections.

Studies show that in-person voter fraud is exceedingly rare and that voters have little motivation to cast illegal ballots. Nevertheless, the appeals court sided with the state, finding the state is likely to win on the merits when the full appeals court considers the case at a later date.

Matthew Campbell, an attorney with the Native American Rights Fund who is representing the plaintiffs, expressed his disappointment in a statement Monday.

“The Court acknowledged that thousands of Native American voters will not be able to vote under the State’s system, and that certain North Dakota communities lack residential addresses,” he said. “Given that absentee voting is scheduled to begin very soon and given the Court’s invitation in its decision that the courthouse doors remain open if any voters are being prevented from voting, we plan to continue our fight for Native American voters in North Dakota.”


The lawsuit comes after a similar effort by Native American voters in North Dakota to protect their civil rights. In August 2016, shortly before the presidential election, a court invalidated the state’s previous voter ID law, finding that it disenfranchised minority voters. But the state legislature was able to turn around and in April 2017, enacted another form of the same law.

Although North Dakota was not specifically covered by the Voting Rights Act’s preclearance requirements, the state has similarly seen an increase in suppressive laws since the U.S. Supreme Court gutted the landmark voting law in its 2013 Shelby County v. Holder decision. As a result, Native voters in North Dakota and across the country have had to fight aggressively against efforts to suppress their ballots.

“What has essentially resulted is a lot of expensive and time consuming litigation by civil rights groups… to stop the laws from going into effect,” Jim Tucker, an attorney and member of the Native American Voting Rights Coalition, told ThinkProgress earlier this year.

Since 2013, many of the nine states that previously had to have federal approval to change their voting laws have implemented new laws that created new barriers to voting. According to a ThinkProgress analysis, elected officials in states with large Native American populations have cut voting hours and opportunitiesrefused to add polling places on reservationseliminated language assistance services, and fought to keep Native voters into majority-white gerrymandered districts where they’d never get political representation.