On Tuesday, the Supreme Court delivered a major defeat for Native American voting rights when it declined to vacate a stay of a lower-court ruling that had blocked the implementation of North Dakota’s Republican-backed voter ID law. That law requires voters to present documentation of a residential address instead of just a post office box, a considerable difficulty for many Native voters. And coming so close to Election Day, this decision may further add to voter confusion over the law, because this more restrictive ID requirement was not in place during the June primary.
North Dakota is the lone state that has no voter registration—voters just have to prove their residency and swear they’re eligible citizens—so some form of documentation makes more sense here than in any other state. However, the residential address requirement is a naked attempt to suppress Native American voters, since those living on reservations often lack such an address and instead use a post office box, because the postal service doesn’t deliver mail to often remote reservations. (This provision also makes voting all but impossible for the homeless.)
As a consequence, those who have ID cards issued by tribal governments often only have P.O. boxes listed, so they will have to take additional steps to get the proper documentation. As Justice Ruth Bader Ginsburg noted in her dissent, roughly 70,000 North Dakotans—20 percent of turnout in a presidential electorate—lack a qualifying ID card, and an estimated 18,000 also lack the supplemental documentation, such as a residential address, needed to vote without a qualifying ID. Fortunately, voters who lack a residential address can follow the steps listed here to start a no-charge process to obtain the additional documentation they need to vote.
But with this requirement now in place, thousands of Native American voters may be disenfranchised, which could tip North Dakota’s pivotal 2018 Senate election to Republicans, given that Native voters are expected to strongly support Democratic Sen. Heidi Heitkamp over Republican Kevin Cramer. Indeed, Republicans first enacted their voter ID law in 2013, just months after Heitkamp won an upset victory in her initial 2012 election by fewer than 3,000 votes, with Native Americans likely providing her margin of victory. Yet despite having no voter registration, in-person voter fraud is still practically non-existent in North Dakota.
This ruling was the first big loss for voting rights since Justice Brett Kavanaugh was confirmed to the Supreme Court. Although Kavanaugh recused himself from the case, and at least one liberal justice joined with the GOP to reject the request to vacate the stay, some legal experts believe the outcome would have been reversed if Merrick Garland had been on the court and given liberals a majority. Consequently, we can expect more defeats like this one with conservative hardliners holding a majority on the court.
This story has been updated.