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Court stays out of North Dakota voting dispute

The Supreme Court today declined to intervene in a challenge to a North Dakota law that requires voters to present identification that includes a current residential street address. Lawyers say that the ruling will prevent thousands of Native American voters (and tens of thousands of North Dakota residents who are not Native Americans) from casting a ballot in the upcoming 2018 election in a state that could play a key role in Democrats’ efforts to retake the U.S. Senate.

A group of Native American voters in North Dakota have challenged the law, telling the courts that the requirement that voters present identification bearing a street address could pose an obstacle to voting for Native Americans in several ways. Native Americans often live on reservations or in other rural areas where people do not have street addresses; even if they do, lawyers for the challengers argue, those addresses are frequently not included on tribal IDs. Moreover, the lawyers add, Native Americans in North Dakota are “disproportionately homeless.”

In April, a federal district court in North Dakota ordered the state to allow voters to cast ballots as long as they could show IDs that had either a current street address or a current mailing address, such as a P.O. box. The state followed that order in the June primaries, but in September the U.S. Court of Appeals for the 8th Circuit put the district court’s order on hold.

The challengers went to the Supreme Court last week to ask the justices to step in. They told the court that a change in the voting rules “so close to the election—after voting has actually started—will irreparably injure Native American voters and cause serious voter confusion.”

The state urged the justices to stay out of the dispute, emphasizing that the law is intended to combat voter fraud and guarantee that voters (who, unlike in most states, are not required to register in advance) get the right ballots when they go to the polls. The state argued that the street-address requirement is easy to satisfy: Voters can provide proof of address through their IDs or, if necessary, through other documents like a pay stub or a utility bill. If the district court’s order were reinstated, the state warned, nonresidents could vote in the state’s election simply by renting a P.O. box there. At a minimum, the state predicted, there would be “confusion and mistakes” when a voter’s P.O. box is not in the same precinct where he actually lives. And in any event, the state added, because each of the challengers in this case has a street address, there is no reason for the district court to block North Dakota from applying the law anywhere in the state.

The dispute came to the court just a little over a month before the 2018 midterm elections, in which Democrats are hoping to retake the Senate. Incumbent Democratic Sen. Heidi Heitkamp appears to face an uphill battle in her re-election campaign: A recent poll indicated that she is currently trailing her opponent, Rep. Kevin Cramer, by 10 points, 51 percent to 41 percent, in a state with only roughly 600,000 voting-age residents.

The challengers’ request went originally to Justice Neil Gorsuch, who handles emergency appeals from the 8th Circuit, but he referred it to the full Supreme Court — a fairly common practice. To stay the 8th Circuit’s ruling and prevent the state from enforcing the ID requirement, the challengers needed at least five of the eight justices (Justice Brett Kavanaugh did not participate) to vote in their favor. But they apparently fell short. Justice Ruth Bader Ginsburg dissented from the court’s decision not to intervene, in a brief opinion that was joined by Justice Elena Kagan. Ginsburg complained that 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 identification requirements as they existed under that injunction.” Ginsburg acknowledged that, as the 8th Circuit had emphasized, the elections are still a month away. However, Ginsburg stressed, tens of thousands of North Dakotans don’t have an ID bearing their residential street address. As a result, she warned, the 8th Circuit’s order “may lead to voters finding out at the polling place that they cannot vote because their formerly valid ID is now insufficient.”

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court stays out of North Dakota voting dispute, SCOTUSblog (Oct. 9, 2018, 4:57 PM),