Tribes alarmed after Supreme Court refuses to help Native voters

Thursday, October 11, 2018  

Thousands of Native voters in North Dakota will be disenfranchised ahead of a critical election unless they take action to protect their rights.

That's the urgent message tribal leaders are spreading after the U.S. Supreme Court this week refused to intervene in a closely-watched voting rights dispute. They are stepping up efforts to help their citizens obtain residential addresses, which were never needed until a new state law went into effect.

"Why is it getting harder and harder for Native Americans to vote?" Chairman Mike Faith of the Standing Rock Sioux Tribe asked on Thursday.

"This law clearly discriminates against Native Americans in North Dakota," Faith said in a press release. "Our voices should be heard and they should be heard fairly at the polls just like all other Americans."

In regards to the #SCOTUS decision on North Dakota voter ID requirements, official statement: pic.twitter.com/9oC4Cw1euG

— Standing Rock Sioux (@StandingRockST) October 11, 2018

Tribes aren't the only ones concerned. Democrats in the U.S. Senate have introduced S.3543, the Native American Voting Rights Act, in hopes of protecting those who live on reservations across the nation.

"After the Supreme Court declined to hear an emergency appeal based on the confusion created by reverting back to North Dakota’s burdensome voter ID law that makes it harder for Native Americans to vote, our bill is especially needed to prevent Native voters from being disenfranchised," Sen. Heidi Heitkamp (D-North Dakota), one of the co-sponsors of S.3543, said in a press release on Wednesday.

"Given the number of Native Americans who have served, fought, and died for this country, it is appalling that some people would still try and erect barriers to suppress their ability to vote," she added.

For Heitkamp, a long-serving member of the Senate Committee on Indian Affairs, the issue is extremely pressing. She is running for re-election and is facing a tough fight against Rep. Kevin Cramer, a Republican who doesn't have much of a record on tribal issues.

Polls show Cramer ahead of Heitkamp in a state where President Donald Trump won by 36 points in the 2016 election. And the non-partisan Cook Political Report has labeled North Dakota as a "Toss Up," a sign of the difficulties facing the Democratic incumbent in this year's race.

Voting should be accessible, simple & fair for everyone—but Native American communities face unique challenges in our electoral process. Today I helped intro the Native Voting Rights Act to address these barriers to voting in Indian Country to make sure their voices are heard. pic.twitter.com/5B6iTME0b0

— Sen. Heidi Heitkamp (@SenatorHeitkamp) October 10, 2018

With the November 6 election less than a month away, Heitkamp needs all the support she can get in Indian Country. She won her first race, in 2012, by less than 3,000 votes, according to the North Dakota Secretary of State.

During that race, the reservation vote overwhelmingly favored Heitkamp. In Sioux County, where a portion of the Standing Rock Sioux Tribe is based and where 82 percent of the population is Native, she secured 83 percent of the vote.

Similar results were seen in other reservation counties. In Benson, home to much of the Spirit Lake Nation and where 55 percent of the population is Native, Heitkamp secured 67 percent of the vote.

The votes show that Heitkamp benefited from a strong level of support in Indian Country. But advocates fear the new state law burdens, which weren't in place at the time of the 2012 election, will suppress Native turnout next month.

"North Dakota Native American voters will now have to vote under a system that unfairly burdens them more than other voters," said Jacqueline De León, an attorney with the Native American Rights Fund. "We will continue to fight this discriminatory law.”

On behalf of several citizens of the Turtle Mountain Band of Chippewa Indians, NARF had won important victories in the case. A federal judge has twice found that the new voting law requirements discriminated against Native Americans.

The state has acknowledged that Native American communities often lack residential street addresses," Judge Daniel L. Hovland wrote in an April 3 decision that barred the enforcement of the newer burdens. "Nevertheless, under current state law an individual who does not have a ‘current residential street address’ will never be qualified to vote. This is a clear ‘legal obstacle’ inhibiting the opportunity to vote.”

But Secretary of State Al Jaeger, a Republican, wasn't happy with the outcome. He asked the 8th Circuit Court of Appeals to put a hold on the favorable ruling, which is exactly what happened in a split 2-1 decision on September 24, less than two months before the general election.

NARF then filed an emergency appeal with the Supreme Court. But, in another divided decision, the justices refused to grant the Native voters' application.

The vote on the matter was apparently 6-2, with newly-arrived Justice Brett Kavanaugh, whose nomination drew heated opposition in Indian Country, bowing out of the matter. His first official day at work was Tuesday, the same day the court denied the emergency appeal. All of the briefs had already been submitted by October 3, before he arrived.

But in a dissent, Justice Ruth Bader Ginsburg said the application should have been granted. She agreed that Native voters, an even other North Dakotans, are at risk of being disenfranchised, and pointed out that the residential address requirements weren't even in place during the recent primary election in June.

"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 ID requirements as they existed under that injunction," Ginsburg wrote. "Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election."

"If the Eighth Circuit’s stay is not vacated, the risk of disfranchisement is large," Ginsburg added.

The dissent was joined only by Justice Elena Kagan. According to the Supreme Court's rules, they would have needed the votes of at least two more of their colleagues to grant the stay requested by the Native voters.

North Dakota Native voters who do not have a residential address: here are instructions so you can vote in the midterms. Please print this off and share with others who don’t have internet. Call this number if you have questions: 1-701-255-0460 pic.twitter.com/AYQWmx0uU2

— Ruth H. Hopkins (@RuthHHopkins) October 9, 2018

Overall, Native Americans represent about 5.5 percent of the population in North Dakota, according to the U.S. Census Bureau. In order to participate in the November 6 election, the Secretary of State says they must possess an identification card with their name, date of birth and a "residential address."

Tribal identification cards are accepted but reservation residents have long relied on a mailing address, such as a post office box, so the must provide supplemental documents, such as a current utility bill or a current bank statement, to show their residential address.

"As representatives of tribal governments or other tribal agencies or entities in North Dakota, you can provide the necessary information you know to be true for the tribal members who look to you for assistance in being able to vote," Jaeger's office wrote in a September 28 memo to tribes.

Tribes are doing just that in response to the ruling. The Turtle Mountain Band of Chippewa Indians began helping people obtain identification cards on Thursday and Standing Rock will be helping citizens now and on election day.

Reservation residents can also start the free process to obtain a residential address by calling their county 911 coordinator. The county will respond by providing a letter with the residential address, and this letter can be used at the polls to satisfy the state's voting requirements.

The voting rights case is Brakebill v. Jaeger.

Voting in ND is easy! You just need a ND government-issued ID — like a driver’s license — with your residential address, and you’re set. That’s what I talked about this evening at Turtle Mountain Community College. Thanks for welcoming me! pic.twitter.com/ynhWawXA82

— Heidi Heitkamp (@HeidiHeitkamp) October 8, 2018

Brakebill v. Jaeger (September 24, 2018)

Native voters ask Supreme Court to intervene ahead of key election (October 3, 2018)
Native voters dealt setback ahead of key Senate election (September 25, 2018)
Native vote at issue as North Dakota faulted for 'discriminatory' law (May 31, 2018)
'She chose oil over Indians': Native voters upset with Sen. Heidi Heitkamp (May 29, 2018)