Excerpted from: Hannah Stambaugh, America's Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota after Brakebill V. Jaeger, 69 American University Law Review 295 (October 2019)(Note) (215 Footnotes) (Full Document)


HannahStambaughNorth Dakota's voter ID law made national headlines in the weeks leading to the 2018 midterm elections. Heidi Heitkamp, incumbent U.S. Senator and moderate Democrat from North Dakota, was fighting for her Senate seat in a largely Republican state where many of her former supporters had abandoned her after she voted against Justice Kavanaugh's confirmation to the U.S. Supreme Court. Native Americans, who constitute five percent of North Dakota's population, formed a critical part of Heitkamp's base in the 2012 elections. In 2013, within a year of Senator Heitkamp's reelection, and shortly after a Supreme Court decision gutted the heart of the 1965 Voting Rights Act, the North Dakota legislature enacted one of the strictest voter ID laws in the country.

Under North Dakota's 2013 law and its 2017 modification, a voter must present one of four forms of ID with a residential street address to vote. The state does not provide any fail-safe mechanisms, such as allowing voters to cast provisional ballots, to permit otherwise-qualified individuals without a street address to vote. The law immediately disenfranchised thousands of Native American voters. In several rural portions of the state, including parts of five reservations, the U.S. Postal Service does not deliver to homes, and many residents do not have formal residential street addresses. Residents of these rural areas typically use P.O. boxes to send and receive mail, and P.O. box addresses are not acceptable under the new law. North Dakota is one of only a handful of states without any fail-safe mechanisms that would permit voters without qualifying IDs to cast a provisional ballot. These voters must return within a short specified time period, with the appropriate ID in hand, to cast a vote.

North Dakota's law is a modern iteration of Native American voter disenfranchisement that has been occurring since our nation's founding. This Note's background will begin by outlining this history, starting with Native Americans' long exclusion from U.S. citizenship. Next, this section will address the impact of the Fourteenth and Fifteenth Amendments, the Indian Citizenship Act of 1924, and the Voting Rights Act of 1965. It will describe methods that states have used to deny Native Americans the right to vote, with impunity, for decades following the Indian Citizenship Act. The background will also describe modern barriers to voting faced by Native Americans and outline the history of Native American voting rights litigation.

This Note's analysis will focus on the North Dakota situation through the lens of the recent Brakebill v. Jaeger litigation, which ended when the Supreme Court allowed the voter ID law to stand on the eve of the 2018 midterms. This section will begin with a detailed analysis of Brakebill. It will then critique the Eighth Circuit's constitutional analysis by explaining that the court failed to adequately address the disproportionate burdens of the law on Native Americans, overplayed a hypothetical risk of voter fraud, and did not address the constitutional issues posed by fees for obtaining all-qualifying IDs. Next, this section will examine prospects for a Voting Rights Act section 2 claim in future litigation, which Brakebill did not reach on the merits. Finally, this section will propose that Congress adopt the 2019 Native American Voting Rights Act.

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Despite many state legislatures' best efforts to repress voting rights through enacting discriminatory laws like North Dakota's, voter suppression faces growing backlash across the country. Voters spoke up in the 2018 midterms, leading to the election of the most diverse freshman class in Congressional history--including forty-two women, twenty-two people of color, and the first two Native American women. Outside of North Dakota, Florida overwhelmingly voted to re-enfranchise 1.4 million former felons. Kris Kobach, the former Kansas Secretary of State, notorious for his voter suppression tactics and outspoken fight against alleged "voter fraud," lost the Kansas governor's race. Maryland passed a constitutional amendment allowing election-day registration. Nevada enacted automatic voter registration through the DMV. Michigan enacted a series of changes including election-day registration and no-reason absentee voting. Colorado and Michigan created independent redistricting commissions to handle districting instead of lawmakers. North Carolina Republicans, infamous for gerrymandering, lost their supermajority in the state legislature.

Similarly, North Dakota saw historic Native American turnout in the 2018 midterms, despite the Supreme Court allowing North Dakota's voter ID law to stand. This turnout was in large part due to rapid, large-scale collective action by tribal leaders and community organizers working to mobilize voters in the wake of the national attention drawn by Brakebill. Tribes took immediate action after the Supreme Court decision, rushing to print thousands of new free IDs that included physical addresses. Nevertheless, thousands of Native Americans remain disenfranchised while the law stands, and despite high turnouts, tribal leaders assert that illegal and unfair voter suppression persists.

The new Congress is paying attention. This April, a U.S. House elections subcommittee conducted a field hearing on the Standing Rock Sioux Reservation in North Dakota--part of a series of field hearings on voting rights issues across the country. Here, House members listened to tribe members and local representatives describe ongoing voter discrimination.

Hopefully, shifting public opinion across the country, new members of Congress, and the judiciary will together make progress on Native American voting rights as the 2020 election approaches.

Staff Attorney, United States Court of Appeals for the Second Circuit. Note & Comment Editor, American University Law Review, Volume 68; J.D., 2019, American University Washington College of Law.

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