BISMARCK — After years of litigation, the state of North Dakota and American Indian tribes have agreed to settle two lawsuits over the state's voter identification requirements.
The lawsuits brought by the tribes allege that the state requirement to provide an identification with a valid residential street address is discriminatory against Native Americans living on reservations. Residential addresses often do not exist on the state's five reservations, and the plaintiffs argue many of those who do have addresses don't know them or have trouble finding them out. Others stay with friends or family and do not have an address of their own.
The agreement announced Thursday, Feb. 13, in a joint statement by the Standing Rock Sioux Tribe, the Spirit Lake Nation and Secretary of State Al Jaeger focuses on the tribes' concerns over voting access and the address requirement. The proposed court-ordered consent decree "will ensure all Native Americans who are qualified electors can vote," according to the statement.
If the Spirit Lake and Standing Rock tribal councils approve the agreement as expected, it would stop a federal trial scheduled for May from moving forward. U.S. District Court Judge Daniel Hovland ruled Monday that the lawsuit brought by the tribes and six individual tribal members could continue after the state asked for the case to be dismissed.
The new deal shifts the burden for assigning and verifying street addresses from the tribes to the state and county governments, said Tim Purdon, a lawyer for the tribes.
The major terms of the proposed consent decree include:
Native American voters who do not know their residential street address will be now permitted to mark their residence on a map. Voters who use this method may set a "set-aside" ballot to be verified shortly after the election. State and county officials will then work with tribal governments to assign street addresses to voters who are given this new information.
The secretary of state will work with the Indian Affairs Commission and the state Department of Transportation to implement a program for distributing free non-driver state ID cards on all five of North Dakota's reservations within 30 days of statewide elections.
The secretary of state will work with the Office of Management and Budget and the Governor's Office to seek and provide up $5,000 to each tribal government that incurred costs by producing and distributing tribal IDs to voters.
The tribes and secretary of state agree to meet regularly and maintain a line of communication.
Purdon said the agreement will make voting "a lot easier" for Native Americans living on reservations. He said the push to improve relations between the tribes and the secretary of state is cause for "renewed optimism."
Jaeger said he couldn't comment in too much detail Thursday due to the pending nature of the agreement, but he said the agreement doesn't change anything in state law or the agency's rules. Jaeger maintained that the goal of his office is to encourage voting.
"It's always been our guiding principle that everyone who is qualified to vote has the opportunity," Jaeger said.
Native Americans make up a little more than 5% of North Dakota's population, but the demographic contributed key votes to Democrat Heidi Heitkamp's successful bid for U.S. Senate in 2012. Several months later, the Republican-led state Legislature passed laws tightening voter ID requirements, which originally came on the books in 2004. Lawmakers have said the requirement is meant to prevent voter fraud and does not aim to suppress any voters.
The latest lawsuit was filed a week before the Nov. 6, 2018 election.
In a separate but related 2016 case, members of the Turtle Mountain Band of Chippewa sued Jaeger, making similar allegations of intentionally suppressing Native American voters. Hovland ruled that the requirement of a street address was "excessively burdensome" on Native Americans and that the state must accept IDs and supplemental documentation with a current mailing address, which would have allowed post office boxes to be used.
However, the 8th U.S. Circuit Court of Appeals overturned Hovland's injunction, and the U.S. Supreme Court upheld the appellate court's decision. The agreement announced Thursday would also settle this lawsuit.
Jaeger announced an "emergency rulemaking" order last week that will allow tribal officials to verify set-aside ballots cast by enrolled tribal members. The ballots could then be counted after members prove their eligibility to vote. Previously, voters had up to six days to return with proof of their identity, which critics said deterred some from following through.
The order also aims to ensure that electronic poll books are prepared to process tribal IDs that meet the state's requirements. The state plans to roll out 990 new electronic poll books, which are used to check voters in at the polling places, for the June 9 primary election.
Tribal leaders from Standing Rock and Turtle Mountain expressed their support for the order.