A federal appeals court Monday blocked a lower court ruling expanding the kinds of proof of identity that voters can use in North Dakota elections, siding with state officials over tribal members who say the state's rules disenfranchise Native Americans.
A three-judge panel of 8th U.S. Circuit Court of Appeals stayed an injunction that would have required the state to accept forms of identification and supporting documents that included a "current mailing address," such as a post office box, as opposed to requiring a "current residential street address."
The distinction is important because street addresses aren't always assigned on American Indian reservations. So members of the Turtle Mountain Band of Chippewa sued the state, alleging its ID requirements discriminated against Native Americans. U.S. District Judge Daniel Hovland agreed in April.
But the appeals panel backed the state, which objected because a voter's mailing address could be in a different precinct from his or her residence. State officials argued that that could lead to people voting in the wrong precinct, potentially affecting the outcome of local elections, and that it could lead to fraud by residents of other states who have North Dakota post office boxes.
The panel ruled that the state is likely to win on a fuller argument on the merits of its appeal, which remains pending, and that the state would be irreparably harmed by requiring the acceptance of mailing addresses in the November election.
Secretary of State Al Jaeger welcomed the stay and said it means the upcoming election can be conducted according to state law.
North Dakota doesn't require voter registration, so voters are allowed to show up at the polls on election day and vote if they present valid identification. Drivers' licenses and tribal ID cards are accepted if they bear a current residential street address. If an ID lacks a current street address, other documents such as utility bills, bank statements or government documents with a current street address can provide the required proof.
Hovland found that nearly 5,000 otherwise eligible Native Americans and nearly 65,000 other voters didn't possess a qualifying ID. He added that nearly 49 percent of Native Americans who lacked a qualifying ID also lacked sufficient supplemental documentation, so around 2,300 would be prevented from voting.
In a dissent, Judge Jane Kelly agreed with the lower court that the burdens on certain groups of voters, including Native Americans and the homeless, are excessive. While "some portion" of the affected Native Americans may be able to obtain proper identification, she wrote, "it is likely that many eligible voters will still be disenfranchised."
Matthew Campbell, staff attorney for the Native American Rights Fund, called the decision disappointing.
"The Court acknowledged that thousands of Native American voters will not be able to vote under the State's system, and that certain North Dakota communities lack residential addresses," Campbell said in a statement Monday. "Given that absentee voting is scheduled to begin very soon and given the Court's invitation in its decision that the courthouse doors remain open if any voters are being prevented from voting, we plan to continue our fight for Native American voters in North Dakota."
American Indians tend to vote for Democrats. Their strong support for Heidi Heitkamp was a big factor in her election to the U.S. Senate in 2012 by fewer than 3,000 votes. But her re-election bid this year is complicated because some Indians are disappointed that she didn't join them in opposing the Dakota Access pipeline. The state's Republican led legislature began tightening voter ID laws shortly after her win but GOP lawmakers have said it had no bearing on their legislation.