A federal judge in North Dakota on Wednesday declined to grant emergency relief to a Native American tribe and voters who said they are being disenfranchised by North Dakota’s voter identification law.
U.S. District Judge Daniel Hovland ruled that granting an injunction days before the election “will create as much confusion as it will alleviate.”
But Hovland said the allegations contained in the lawsuit, filed Tuesday, “give this Court great cause for concern. The allegations will require a detailed response from the Secretary of State as this case proceeds.”
The judge’s decision comes less than a week before the 2018 midterm election, and North Dakota is home to a heated U.S. Senate race between U.S. Sen. Heidi Heitkamp, a Democrat, and U.S. Rep. Kevin Cramer, a Republican.
Native Americans are the state’s largest minority group, and their votes were critical to Heitkamp’s upset victory in 2012, when she won by fewer than 3,000 votes.
In the lawsuit, the Spirit Lake Tribe and six individual plaintiffs, all Native American, said eligible voters are being denied the right to vote by the state’s voter identification law, which require voters to have identification carrying a residential street address.
Versions of North Dakota’s voter identification law have been the subject of litigation for the past few years. Earlier this year, Hovland found the requirements, including identification carrying a residential street address, disproportionately burdened Native American voters.
He also found that thousands of Native Americans were less likely to possess identification that met the requirements or the documentation required to obtain identification.
A federal appeals court in September lifted the stay that prevented the residential street address requirement from being enforced. The majority opinion noted that “if any resident of North Dakota lacks a current residential street address and is denied an opportunity to vote on that basis, the courthouse doors remain open” — a line the plaintiff cited in the opening of a filing in the lawsuit filed this week.
In October, the Supreme Court declined to stay the appeals court ruling, allowing the street address requirement to go into effect for the November election. In a dissent, Justice Ruth Bader Ginsburg said the “risk of disenfranchisement is large.”
North Dakota officials instructed people without residential street addresses to contact the 911 emergency coordinators in their county to request one.
The lawsuit said voters who live on reservations in North Dakota were struggling to comply, and the Spirit Lake Tribe and other tribes were pouring resources into assisting them and providing free identification to meet the requirements.
Many on the reservation use post office boxes and either don’t know their residential street addresses or haven’t had them assigned.
Some said they had requested absentee ballots using what they believed to be valid addresses, but had the requests rejected.
In an affidavit, Dion Jackson, one of the plaintiffs and a member of the Spirit Lake Tribe, said he had filled out an absentee ballot request on Oct. 14 — his first ever attempt at voting — using the same street address he has used for two years.
Jackson said he has received packages via UPS and FedEx at that address, as well as service calls from Dish Network.
But a week later, he said, he received a letter saying his request for an absentee ballot was rejected because the address “does not match the address in the ND DOT database or is an invalid address.”
In an interview Thursday before Hovland issued his order, Jackson, 35, said he decided to try and vote for for Heitkamp after his drum circle performed at a Heitkamp event on the reservation. The issue with the absentee ballot, he said, “kind of discouraged me not to even try.”
But after talking to other people and considering it, he said, “it made me change my mind. If I don’t stand up for us then who is gonna?”
Corey Goldstone, a spokesman for the nonprofit Campaign Legal Center, one of the organizations representing the plaintiffs, said that, “While we are disappointed with the order, Judge Hovland was correct that the evidence indicates that disenfranchisement will be ‘certain’. We are considering our options.”
North Dakota Secretary of State Al Jaeger said he does not comment on pending litigation.
“We will continue preparing for the election as we have done since September 24, 2018, when the 8th Circuit made its decision that was upheld by the Supreme Court,” he said in an email Thursday afternoon to the Center for Public Integrity.
Voter turnout in Sioux County, composed of the North Dakota side of the Standing Rock reservation, has averaged the lowest in the state between 2008 and 2016, according to a Center for Public Integrity analysis of data from the North Dakota secretary of state’s office.
(Update, Nov. 2, 2018, 2:48 p.m.: The Center for Public Integrity contacted eight North Dakota county auditors to ask how poll workers would respond to voters who come to the polls on Election Day with a comparable situation to Jackson’s — in possession of a valid identification carrying a residential street address, but an address that can’t be found in the state’s system when poll workers check. All eight county auditors oversee elections in counties that include at least part of a Native American reservation.
Half — elections officials from Eddy, Mercer, McLean and Sioux counties — said the voter would be permitted to cast a regular ballot.
“As far as I am concerned, yes, they will be permitted to vote if they have an ID that shows where they live, that shows an address,” said Patty Williams, the Eddy County auditor. Eddy County includes part of the Spirit Lake reservation.
McLean County Auditor Leslie Korgel and Mercer County Auditor Shana Brost also said that as long as voters have identification or supplemental documents that carry an address and meet other existing requirements, they will be given ballots. Parts of the Fort Berthold reservation lie in those counties.
Barbara Hettich, the county auditor in Sioux County, which makes up the North Dakota side of the Standing Rock reservation, said poll workers will update addresses in the poll book as needed.
“As long as they have the tribal letterhead or a supplement” with a residential street address, “we’re not turning anybody away,” Hettich said, adding that voters without the documentation can still vote using a provisional ballot and return with additional documentation.
Hettich said that her office has so far had more than 300 people who have voted using absentee ballots, a significant uptick.
Rolette County Auditor Valerie McCloud said if voters offer an address that “doesn’t appear to be a valid address,” they will be offered a provisional ballot. Alternatively, she said, a tribal representative will be at each polling location on the reservation to help voters correct their addresses and provide necessary documentation, allowing the voter to use a regular ballot that day.
So far, McCloud said, more than 700 voters have cast absentee ballots without a problem.
“We haven’t turned anybody away,” she said.
Update, Nov. 3, 2018, 7:41 p.m.: On Nov. 3, the Campaign Legal Center and Native American Rights Fund sent Jaeger a letter, citing the Center for Public Integrity’s reporting on Nov. 2 in noting that “several discrepancies in how counties in North Dakota are applying the residential address requirement for voting.”
The letter said some county auditors told the Center for Public Integrity that voters with an ID or supplemental documentation showing a residential street address would be permitted to vote using a regular ballot — even if their addresses did not match those in the state system. Meanwhile, Rolette County’s auditor said such voters would be offered not a regular ballot, but a provisional ballot.
The letter also said one voter attempting to cast an absentee ballot in Sioux County had been required to update her address using the state Department of Transportation website before being permitted to do so. Another voter using a tribal ID showing his address was required to also provide supplemental documentation.
“If election officials are requiring voters to update a state database with proof of their qualifications for voting in advance of casting a ballot, they are no longer enforcing a voter identification requirement, but instead are administering a de facto (and unannounced) voter registration requirement, which threatens to disenfranchise unknown numbers of voters,” the letter said.
The letter asks Jaeger to provide updated guidance to all counties by noon Monday to ensure requirements are applied uniformly.)
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