Political Matters – November 2018

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By Mordecai Specktor

Update: Suppressing the Indian vote

In the February 2016 “Political Matters” column, I wrote about a lawsuit challenging North Dakota’s voter ID laws. That case is back in the news in the run-up to the Nov. 6 elections.
“The plaintiffs, represented by attorneys with the Native American Rights Fund (NARF), argue in the suit that ‘Native American voters are disproportionately burdened’ by North Dakota’s 2013 and 2015 voter ID laws,” I wrote more than two years ago. “The voter ID laws specify that only certain types of IDs are acceptable at polling places; and in many cases, tribal members do not possess IDs that meet the strict standards imposed by the new laws.”

The chronology of the lawsuit is complicated: In 2016, months before the elections, Judge Daniel L. Hovland, of the U.S. District Court in North Dakota, “found the [voter ID] law violated the U.S. Constitution and required the state to provide a fail-safe mechanism for the 2016 general election,” according to a summary on the NARF website.

Judge Hovland wrote, “it is clear that a safety net is needed for those voters who simply cannot obtain a qualifying voter ID with reasonable effort.” So the court required North Dakota “to provide a fail-safe and permit voters without a qualifying ID to vote if they signed an affidavit swearing to their qualifications.” according to NARF.

The Republican-controlled North Dakota Legislature passed another restrictive voter ID law in 2017, which especially impacted Native American voters. The legislators came up with a solution to the nonexistent problem of voter fraud. In fact, as I wrote in 2016, these voter ID schemes are being advanced by a group called ALEC, the American Legislative Exchange Council, which is funded by the billionaire Koch brothers. The ALEC model legislation, introduced in state legislatures across the U.S., has the goal of diminishing the ability of blacks and other racial minorities, students, the disabled, and the elderly, to vote. More specifically, the Koch brothers are trying to suppress the vote for Democratic candidates.

(In 2012, Republican lawmakers in Minnesota got a proposal on the ballot, the Voter ID Amendment, which would have put a voter ID requirement in the state constitution. The ballot measure, along with another proposal to put a ban on same-sex marriage in the constitution, failed.)

But back to North Dakota and fast forward to April of this year, when the eight Native American plaintiffs “achieved a substantial victory,” according to NARF, when Judge Hovland barred enforcement of the recently passed voter ID law.

NARF pointed out that Hovland 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.” Hovland’s order also allowed P.O. box addresses – common in reservation communities – to be used to prove residency. And Hovland’s ruling expanded the types of ID available to North Dakota voters “to include any document, letter, writing, enrollment card, or other form of tribal identification issued by a tribal authority to be used in lieu of ID cards, until final resolution of the case.”

Regarding the April court order, Jacqueline De León, a NARF Voting Rights Fellow and one of the attorneys representing the plaintiffs in the case, commented, “Judge Hovland got it. He detailed the unfair nature of the state’s law and again recognized that the law created significant and unnecessary voting obstacles for Native voters in North Dakota. Laws such as these are a direct threat to the functioning of our democracy.”

Unfortunately, the 8th Circuit Court of Appeals subsequently allowed the State of North Dakota to impose the new voter ID and residential address requirements in the 2018 elections, even though early voting already has begun. And on Oct. 9, on a 6-2 vote, the U.S. Supreme Court denied NARF’s emergency application to stop North Dakota from implementing the discriminatory voter ID law.

NARF’s summary of the case quoted Justices Ginsburg and Kagan in their dissent from the majority ruling: “The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the [2018] primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction.”

Tribes in North Dakota have been working on ways to provide legally proper IDs to their members, as national press attention is focused on the state’s critical Senate race between Democratic incumbent Heidi Heitkamp and Republican challenger U.S. Rep. Kevin Cramer, who has been endorsed by Donald Trump.

The Republicans are determined to win and maintain power by hook or crooked voter ID laws.