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Appeals court ruling a setback for Native Americans challenging North Dakota's voter ID law

Voters at Holy Family Catholic Church in Grand Forks fill out their ballots for the 2018 North Dakota primary election. North Dakota is the only state that does not require voter registration. (Eric Hylden / Forum News Service)

BISMARCK — A federal appeals court halted part of a lower court’s ruling in the long-running battle over North Dakota’s voter identification laws Monday, Sept. 24, citing the potential for fraud in the state’s elections.

In a split decision representing a setback for Native Americans challenging the law, the U.S. Court of Appeals for the 8th Circuit suspended a federal judge’s April ruling mandating that the state accept IDs and supplemental documentation with a current mailing address. The suspension, known as a stay, will be in effect while the court case moves forward.

The appeals court noted North Dakota is the only state without voter registration and has a “legitimate interest in requiring identification and a showing of current residence to prevent voter fraud and to safeguard voter confidence.” It said the state would be “irreparably harmed” without a stay as requested by Secretary of State Al Jaeger, a Republican.

“If the secretary must accept forms of identification that list only a mailing address, such as a post office box, then voters could cast a ballot in the wrong precinct and dilute the votes of those who reside in the precinct,” the appellate court said.

Dissenting Circuit Judge Jane Kelly said eligible voters may be required to provide a property tax form, mortgage document or utility bill in order to obtain an ID card from the state.

“Unless the individual is a minor (in which case voting is not an issue), each of these documents requires the individual to maintain some type of an interest in physical, residential property,” Kelly wrote. “These facts, standing alone, would demonstrate that North Dakota has erected unconstitutional barriers for prospective voters.”

Matt Campbell, an attorney for the tribal members challenging the law, expressed disappointment with the ruling in an emailed statement but said they “plan to continue our fight for Native American voters in North Dakota.”

Jaeger’s office issued guidance Monday describing voter ID requirements. North Dakota residents must provide ID that includes their name, current residential address and date of birth, but they can use supplemental documents like a utility bill to prove their eligibility. Valid forms of ID include one issued by the state Department of Transportation, tribal government or U.S. Bureau of Indian Affairs, as well as a long-term care certificate.

Eligible voters who can’t show a valid form of ID can mark a ballot that’s set aside until they provide one.

The case originated in early 2016, when seven members of the Turtle Mountain Band of Chippewa sued Jaeger over changes made by the Republican-led Legislature that they said disenfranchised Native Americans. They notched a victory just before that year’s election, and lawmakers passed a new law last year that sparked another round of legal battles.

In April, U.S. District Judge Daniel Hovland issued an order preventing the state from requiring that IDs include a residential street address because Native American communities “often lack” them. He also expanded the valid forms of ID to include more tribal documents, but that portion of the order was unaffected by Monday’s ruling.

Monday’s ruling came about six weeks before a general election that will see Democratic Sen. Heidi Heitkamp attempt to defend her seat from Republican Rep. Kevin Cramer in a race that has national implications for control of the Senate. Native American voters helped propel Heitkamp to the Senate in 2012, and she has criticized the state’s voter ID laws.

The appellate court said it considered the nearing election, but said there’s enough time for voters to adapt and for Jaeger to educate and train election officials about the change.

Jaeger himself is up for re-election against Democratic state Rep. Joshua Boschee, who has been critical of the longtime incumbent’s decision to appeal the case with scant evidence of voter fraud. Jaeger has said nine “suspected cases of double voting” prompted the Legislature to act after the 2012 election.

Jaeger welcomed Monday’s order in an interview and said it will make it easier to administer the election.

“We can operate North Dakota law the way it was intended,” he said.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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