Native voters ask Supreme Court to intervene ahead of key election

Wednesday, October 3, 2018  

Native voters have filed an emergency appeal with the U.S. Supreme Court after losing a ruling affecting their rights in North Dakota.

The plaintiffs, who are citizens of the Turtle Mountain Band of Chippewa Indians, challenged a state law that requires voters to present identification at the polls with their current "residential" street address. They said this was discriminatory because reservation residents often rely on a "mailing" address, such as a post office box.

A divided panel of the 8th Circuit Court of Appeals disagreed and upheld the state law by a 2-1 vote on September 24. But with time running out to seek for a rehearing and take other steps to assert their rights before the November 8 election, the plaintiffs are asking higher powers to intervene.

“Having a fixed residential street address and being able to pay fees for an ID are not related to an individual’s right to vote. This litigation has been going on since 2016 and the facts are clear: thousands of Native American (and non-Native) voters lack an address or a qualifying voter ID under the new law," John Echohawk, the executive director of the Native American Rights Fund, said in a September 27 statement." With the Court of Appeals’ decision, these voters have lost their ability to vote. And changing the rules of an election, rules which have been in place since April, after early voting already has begun, will do nothing but cause voter confusion and harm to the democratic process."

"We are calling on the U.S. Supreme Court to protect the voters of North Dakota and stop the state from disenfranchising thousands of Native American voters on the eve of this year’s election," said Echohawk, who is a citizen of the Pawnee Nation. NARF is representing the plaintiffs in the case, known as Brakebill v. Jaeger.

Four days after the 8th Circuit issued its ruling on September 28, officials in North Dakota confirmed they will enforce the state voting law. News reports said tribal leaders were given a memo and supporting information to inform the about ways for voters to obtain a "residential" street address.

According to Forum News Service, residents of reservations can obtain a residential address at no charge. They can contact 911 coordinators in their respective counties for assistance.

North Dakota is in the spotlight as Sen. Heidi Heitkamp (D), a long-serving member of the Senate Committee on Indian Affairs, seeks another term in office. She won her first election in 2012 by fewer than 3,000 votes so she needs all the support -- Native and otherwise -- she can get in her campaign against Rep. Kevin Cramer (R), who has positioned himself as a close ally of President Donald Trump.

During her tenure, Heitkamp has focused on Native youth, Native women and tribal law enforcement. She has introduced and co-sponsored a slew of Indian Country legislation and a number of them, especially those with Republican support, have become law.

Cramer won his first election in 2012 as well but has less of a favorable record on Indian issues. He has been a prominent defender of the Dakota Access Pipeline, though Heitkamp also has been faulted by Native voters for failing to join the #NoDAPL movement. She even defended the state's harsh treatment of pipeline opponents.

A Gray TV poll has Cramer up by 10 points. Native Americans represent 5.5 percent of the population in North Dakota, according to the U.S. Census Bureau.

Turtle Talk has posted briefs from the 8th Circuit case, Brakebill v. Jaeger, as well as the Supreme Court emergency appeal. The state of North Dakota filed its response on Tuesday, according to Docket No. 18A335.

"To prevent fraud and ensure that voters receive the correct ballots, North Dakota has long required voters to show a document at the polling place that lists their current residential street address," attorneys for Secretary of State Al Jaeger, a Republican, wrote in the response, which urged the Supreme Court not to take up the matter.

ND memo spells out process for obtaining address ahead of election (Forum News Service October 2, 2018)
North Dakota Officials Tell Tribes of Election Requirements (The Associated Press October 1, 2018)
Plaintiffs in ND Native American voter ID case seek Supreme Court appeal (The Fargo Forum September 28, 2018)

Brakebill v. Jaeger (September 24, 2018)