February 15, 2020

No street address, no vote? ND, Native Americans settle voter ID lawsuit

Native Americans in North Dakota won a significant victory this week with a settlement that guarantees they will be able to vote, even if they lack a permanent home address.

Matthew Campbell, a staff attorney with the Native American Rights Fund, delivered that news Feb. 15 at the American Bar Association Midyear Meeting in Austin. The settlement of a 4-year-old lawsuit was reached just two days earlier.

“We’re very happy with the settlement,” said Campbell, lead plaintiff’s attorney in the case of Brakebill v. Jaeger. “The state finally came to the table and recognized these issues. We have 30 days to get to a final consent decree, we have an agreement in principle and hopefully we are on the way to resolving these issues, at least for North Dakota.”

Campbell recounted the court battle and discussed related issues at a program titled “The Disenfranchised Among Us,” which explored roadblocks to voting nationwide. The program was sponsored by the ABA Judicial Division.

The Brakebill case posed the question: If a citizen has no street address to call home, can he or she still vote?

Six Native American plaintiffs sued the North Dakota secretary of state over a state law that requires each voter to present identification at the polls that includes a current residential street address. The plaintiffs claim this is an unconstitutional burden on many Native Americans and other residents who live in remote areas where there are no street addresses.

The dispute began in 2013 when the North Dakota state legislature passed a law requiring that all voters have a valid identification card with a home address. The Brennan Center for Justice at New York University found that 23% of voting-eligible Native Americans in North Dakota do not have such an ID card, compared with 12% of non-Native Americans. In fact, Campbell said, about half of all Native Americans lack the documents to obtain such an ID card.

Even if they had the documents, Campbell said, many Native Americans live in remote, isolated areas that are far from state motor vehicle office where they could get ID cards. Access to transportation for these citizens is difficult, Campbell said, and so it is also hard for many to reach their polling places, even if they have the required ID. For example, he said, Native American residents of Duckwater, Nevada, must travel between 300 and 360 miles round trip to the nearest county polling place.

In June 2014, 35 Native Americans in Rollette County, ND, were turned away from their polling place because they had only tribal ID cards, which were not considered valid IDs under state voting laws and did not include home address. About 1,200 Native American voters in the state were disenfranchised by the voter ID law, Campbell said.

A lawsuit challenging the law was filed in 2016 and a district judge issued a preliminary injunction. Reacting to this ruling, the state legislature passed a new, slightly different law in 2017, but it had the same problems as the first law, Campbell said. The plaintiffs filed an amended complaint and the federal trial judge again issued an injunction, this time focusing on the problem of requiring voters to provide a home address. The appeals court overturned that injunction, saying it was too broad, and the U.S. Supreme Court refused to intervene.

Earlier this year, the state reached out to the plaintiffs to settle the case and, after mediation, an agreement was reached, Campbell said. The state will allow Native American tribes to issue ID cards that will allow tribal members to vote.

Partly as a result of the dispute, a new group – the Native American Voting Rights Coalition – was created in 2015. It held a series of hearings throughout the country and its report will be issued shortly, Campbell said.

At the Midyear program, Benjamin Griffith, a civil litigation lawyer from Oxford, Miss., and co-editor of the new ABA book, “America Votes! Challenges to Modern Election Law and Voting Rights” also discussed recent voter suppression issues. The program was moderated by Lisa Atkinson, a tribal court judge who lives in Hawaii.