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North Dakota Voter ID Law Stands After Last-Ditch Lawsuit

Robin Smith, enrollment director for the Spirit Lake Tribe, gave Merle White Tail a new identification card last month.Credit...Kristina Barker for The New York Times

A federal judge on Thursday rejected a last-ditch attempt to block North Dakota’s requirement that voters have a residential address.

The judge, Daniel L. Hovland of the United States District Court for the District of North Dakota, wrote in a brief, two-page order that it was simply too close to Election Day to do so. He noted that “federal courts are unanimous in their judgment that it is highly important to preserve the status quo when elections are fast approaching.”

His order was in response to a lawsuit that the Campaign Legal Center and the Native American Rights Fund filed Tuesday on behalf of the Spirit Lake Tribe and six individuals. The suit described mass confusion and bureaucratic obstacles as Native Americans tried to obtain the addresses and corresponding identification now required.

North Dakota officials maintain that any voter without a residential address can obtain one easily from their county’s 911 coordinator. But the lawsuit identified multiple instances in which people were unable to obtain an address through that process; obtained one but were denied an absentee ballot because election officials deemed the state-issued address invalid; or were denied an absentee ballot because the address they had used for years could not be found in the state’s database.

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Inside A North Dakota Tribe’s Fight to Vote

On the Turtle Mountain Reservation in North Dakota, Native American voters are scrambling to comply with a restrictive voter ID law in time to cast ballots for a crucial Senate election.

“I’ve lived here my whole life, so I know where everybody lives on a reservation. We don’t even have physical addresses. If somebody told me to go to BIA Number 8, I wouldn’t even know where that is. But tell me who lives on BIA Number 8 and I can get there.” Here on this North Dakota reservation, the Turtle Mountain Band of Chippewa Indians don’t use residential addresses. “Do you have your ID?” But if they want to vote in the midterm election, they need to have one printed on their ID card. “They’re giving free IDs right now.” “Yeah.” “And you should get the word out to everybody around here.” That’s because of a recent Supreme Court ruling that lets a controversial North Dakota voter ID law stand. The fight against the North Dakota law started after Richard Brakebill and other members of the Turtle Mountain tribe were turned away from the polls in 2014. “They said that because my ID didn’t have my address, and I didn’t really have a North Dakota ID or anything — that was really a letdown to me, you know? I felt bad, you know, when they refused me.” Now a seasonal laborer, Brakebill is also a Navy veteran, who says he’s voted steadily since he was 18. “That’s what kind of upset me too, you know, you go serve our country and then to be treated like that, you know?” With the Native American Rights Fund and others representing them, the Turtle Mountain members tried to block the law. They argued that it was discriminatory, in part because reservations don’t use physical addresses. They won their case. A federal judge ruled the law unconstitutional in 2016. But their fight wasn’t over. The next year, the North Dakota governor signed a new law with essentially the same rules. Turtle Mountain tried to block the law again. And that case made its way up to the Supreme Court of the United States. “I didn’t hear a lot of conversation about the Supreme Court decision when it first came down. I think it was when people started realizing, a day or two after, that it really meant suppression of our votes.” Jamie Azure has been meeting with other tribal leaders and advocates to figure out how to get people the documentation they need. “We came up with a tribal letterhead in — when we met at Spirit Lake. I mean, they have everything on there. They have post office box, physical address, enrollment number. They have a photo ID.” Proponents of the law say it’s necessary to stop fraud, especially since North Dakota doesn’t require voters to register in advance. But according to the Native American Rights Fund, native voters are more than twice as likely as others to lack a qualifying ID. “Come on. Bring it into your heart and bring it over your head.” With the midterms fast approaching, the tribes are not alone in feeling the pressure. The Democratic Party is also rallying to get the word out in native communities here. [chanting] [drumming] The reservations in North Dakota are patches of blue in a sea of red. This is a very conservative state. Democratic Senator Heidi Heitkamp barely won in 2012. Her margin of victory was only about 3,000 votes. “You need to vote. And you need to vote in record numbers. Let’s send a message that the highest turnout of any group in North Dakota is Native Americans because they won’t mess with you again.” [applause] Now, Heitkamp is trailing her Republican opponent in the polls. If Democrats are to have a chance of flipping the Senate, Heidi Heitkamp needs to win. And her winning depends on getting native North Dakotans out to vote. They’re depending on her too. “The most important issues on the federal level for the Turtle Mountain Band of Chippewa are federal programs and federal grants. It’s scary knowing that we don’t have control over our own future right now.” The Democratic Party has field organizers working on four reservations across North Dakota. Anna Giron focuses on Turtle Mountain, where she’s from. “Thank you.” “The new tribal ID, right?” No one knows exactly how many people here lack the proper ID. “And I’ll give you a ride to go and get your —” “O.K. —” “ID.” Younger residents are more likely to have a state-issued driver’s license, which always has an address on it. The problem is bigger for the elderly. “Miss Wally, are you up for a little bit of company? The voter name — Eugene — Oh, you did it already? You don’t have any type of North Dakota ID that has a physical address on it?” “No.” “Joe, do you have any of your ID on you? All right. Now see, this is an old tribal ID that we have. This has no address on it.” New tribal IDs usually cost $10. That may not sound like a lot, but this reservation has a 59 percent unemployment rate. In response to the voter ID law, all the tribes in North Dakota are now issuing IDs for free. “One, two, three.” “That’s nice.” “Yep, it’s nice.” The county generates the addresses. “I look like a criminal here.” In Turtle Mountain, there will also be a machine at each polling place on Nov. 6, ready to print new cards for those who still need them. “Back in the 1800s, we fought the same battles. The only difference between the 1800s and now is, 1800s, we have guns. Now we have a pen.” “Yep.” “And the pen is what we need to use —” “So now, we are in 2018. And we are reengaged back into the fight. We’re not going to let anybody stop us from voting. This is the power that we have. And we have a very unique power for this specific election. And I just want people to understand the importance of that.”

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On the Turtle Mountain Reservation in North Dakota, Native American voters are scrambling to comply with a restrictive voter ID law in time to cast ballots for a crucial Senate election.

Judge Hovland has been sympathetic to the tribes’ arguments in the past and in fact blocked the law’s enforcement earlier this year, ruling that it unconstitutionally discriminated against Native Americans, who often don’t use addresses on their reservations. The Eighth Circuit Court of Appeals reversed that injunction in late September, in a decision quickly upheld by the Supreme Court.

In its ruling allowing the requirement to take effect, the appeals court wrote that opponents had not identified any instance in which a North Dakotan was actually disenfranchised as a result of the requirement. If a voter were so disenfranchised, it wrote, “the courthouse doors remain open.” The latest lawsuit was essentially a response to that invitation.

Judge Hovland, who was appointed by President George W. Bush in 2002, again indicated that he found the tribes’ arguments compelling. He wrote on Thursday that the allegations gave him “great cause for concern” and would “require a detailed response from the secretary of state as this case proceeds.” But he concluded that halting the law’s enforcement now, with the election five days away and early voting in progress, would “create as much confusion as it will alleviate.”

Mark Gaber, senior legal counsel at the Campaign Legal Center, said he and the other lawyers were reviewing their options. He emphasized that Judge Hovland’s order concerned only the request to block the law before the election, and had no bearing on the ultimate outcome of the challenge to the law’s constitutionality.

Mr. Gaber urged Native Americans to go to the polls on Tuesday and, if turned away for lack of identification, to demand a provisional ballot. The Campaign Legal Center and other groups could then ask the courts to order that the provisional ballots be counted.

“The court’s concern was with creating confusion before the election,” he said. “Those same concerns don’t apply after the election is over.”

Follow Maggie Astor on Twitter: @MaggieAstor.

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