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In October 2018, with the November mid-term elections just weeks away, reports emerged that the U.S. Supreme Court had issued a ruling that would keep in place North Dakota laws which, according to their critics, could prevent thousands of Native Americans -- who favor Democratic candidates -- from casting their ballots. On 12 October, the NDN Collective, a group that advocates on behalf of the rights of indigenous peoples, posted a widely-shared meme with the message that The government [says] if you’re a tribal resident, you get a PO Box, not a street address. Also the government [says] you can only vote with a street address. THIS is voter suppression, North Dakota: As NDN indicated, these words were originally published by the social justice activist Brittany Packnett, in a tweet the previous day: On 13 October, the progressive writer Brandon Weber posted the same meme along with his own introductory message: The U. S. 'Supreme' Court this week agreed to allow the elimination of voting rights for 70,000 Native Americans in North Dakota alone. This is an attack on all voters. North Dakota is the only state in the U.S. without voter registration. Instead, voters have historically been able to verify their identity at a polling station by presenting a subset of many different types of identification showing a date of birth and home address, as documented by the U.S. District Court for North Dakota. These forms of identification included driver's licenses (in- or out-of-state), a U.S. passport, a tribal ID, a non-driver's license ID, a federal agency ID, a student ID, a military ID, a recent utility bill, and the like. A single ID presented by a voter did not have to contain both a birth date and a home address; instead, a voter could present two forms of ID which in combination established a date of birth and address. If a voter could not meet this standard, North Dakota law allowed for two fail-safes at polling stations. First, a poll worker could simply vouch for the identity of a given voter. This method was particularly useful and relevant in many of the smaller, rural voting precincts where poll workers would be quite likely to personally know many voters. Second, a voter lacking any acceptable form of ID could sign an affidavit at the polling station, swearing under penalty of perjury to being a legitimate voter in that particular precinct. In 2013, the North Dakota legislative assembly passed a new law (H.B. 1332) which got rid of the two fail-safes and also limited the number of acceptable forms of ID to just three: an in-state driver's license, a North Dakota state-issued ID card, and a tribal ID card. The law allowed the North Dakota Secretary of State to designate other forms of alternative ID, which included student IDs and long-term care IDs. In 2015, the legislative assembly imposed even more restrictions on voter ID options with H.B. 1333. That law denied the Secretary of State the ability to choose additional alternative forms of ID, removed a student ID card as an acceptable option, and stipulated that driver's licenses and North Dakota ID cards must not be expired. The 2013 and 2015 restrictions were codified in Section 16.1-05-07 of the North Dakota Century Code. In January 2016, seven Native American voters led by Richard Brakebill, a U.S. Navy veteran and member of the Turtle Mountain Band of Chippewa Indians, filed a motion against North Dakota's Secretary of State Alvin Jaeger, asking the U.S. District Court in that state to declare that the 2013 and 2015 voter ID restrictions violated the Equal Protection clauses of both the U.S. and North Dakota constitutions, as well as Section 2 of the Voting Rights Act. Brakebill had been prevented from voting in the November 2014 elections because his tribal ID did not contain his address and his North Dakota state ID was expired, thus running afoul of the new restrictions imposed under H.B. 1332. He had tried to obtain a form of ID containing his residential address, but had not been able to do so because of difficulty in getting a copy of his Arkansas birth certificate. The January 2016 lawsuit began a near two-year period of legal wrangling and appeals between the group of seven Native American voters and North Dakota's Secretary of State, which ultimately came before the nation's highest court in October 2018. The plaintiffs, who were later joined by lawyers from the Native American Rights Fund, argued that the restrictions disproportionately disenfranchised Native American voters because many Native Americans had P.O. box addresses rather than residential addresses, and the comparatively high levels of homelessness and poverty among Native Americans also meant that the requirements of obtaining the increasingly limited forms of identification were more likely to be prohibitive for them. The group also argued that no compelling public interest justified imposing additional voter ID restrictions, since (contrary to the claims of Jaeger and others) no significant pattern of voting fraud had existed to begin with. In their civil complaint, lawyers for the Native American voters wrote: In August 2016, U.S. District Court Judge Daniel Hovland ruled in favor of the Native American voters, ordering the state of North Dakota not to implement the restrictions contained in HB 1332 and 1333: As a result of Hovland's order, voting in 2016 went ahead under the historical conditions that prevailed in North Dakota before the introduction of HB 1332 and 1333 in 2013 and 2015. However, in April 2017 North Dakota legislators adopted HB 1369, which went into effect on 1 August 2017 and introduced certain backup provisions for voters who did not possess the acceptable forms of ID set out in HB 1332 and 1333: H.B. 1369 also allowed for something called a provisional ballot (or set aside ballot), whereby a voter could mark a ballot with chosen candidate(s) and have that ballot be aside, to be counted if the voter produced a valid form of ID within six days. Brakebill and the six other plaintiffs also challenged the constitutionality of H.B. 1369, filing another motion against Jaeger in February 2018. Once again, U.S. District Court Judge Hovland largely sided with the voters, ruling in April that Jaeger must also allow voters to provide ID cards that showed mailing addresses (e.g., P.O. boxes), must accept as valid ID cards issued by tribal authorities and the Bureau of Indian Affairs, and must carry out a public information program in North Dakota to properly explain to voters how the provisional ballot component of H.B. 1369 works. Jaeger, who wanted the voter ID restrictions in place in time for the June 2018 primary elections, quickly appealed Hovland's ruling to the U.S. Court of Appeals for the Eighth Circuit. The court denied Jaeger's request to stay Judge Hovland's ruling on H.B 1369, meaning the June 2018 primaries went ahead under the voter ID conditions that had been in place up to 2013. However, the Eighth Circuit ultimately sided with Jaeger, ruling on 24 September 2018 that Hovland's order should be stayed, meaning that the state of North Dakota could enforce H.B. 1369 for the time being. Among other conclusions, the court held that allowing anyone who could prove they held a P.O. box in a particular precinct to vote there could cause harm to the state through the potential for voting fraud: The Eighth Circuit also held that the November elections were far enough off for anyone adversely affected by the provisions of H.B. 1369 to make the necessary arrangements required to vote: The Native American voters and their attorneys then took the case to the highest court in the country, filing a motion on 28 September which asked the U.S. Supreme Court to vacate the Eighth Circuit's ruling. This would have left District Court Hovland's order in place, preventing North Dakota from requiring residential address IDs for voting in November. However, on 9 October the Supreme Court voted to deny the motion brought by Brakebill and the other plaintiffs. (Contrary to one viral rumor, Justice Brett Kavanaugh did not take part in the court's deliberations.) This meant that Hovland's order, which required North Dakota to accept IDs that list P.O. box addresses, was suspended, leaving the provisions of H.B. 1369 in place and forcing tens of thousands of would-be voters to obtain acceptable forms of ID by November. Justices Ruth Bader Ginsburg and Elena Kagan both dissented from the court's majority ruling, with Ginsburg writing: It's important to note that, contrary to some news reports, the U.S. Supreme Court did not precisely uphold North Dakota's voter ID laws on 9 October 2018. The court did not issue any ruling on the constitutional or legal merits of H.B. 1369 itself (or 1332 and 1333, which remain on the statute books but are unenforced due to Hovland's 2016 District Court injunction). Rather, the Supreme Court issued a very narrowly defined ruling on a specific legal question, leaving a lower court's ruling in place by declining to reverse the Eighth Circuit's stay of the U.S. District Court's injunction covering the state of North Dakota's enforcement of H.B. 1369. It is true that many tribal members in North Dakota do not have residential street addresses and instead rely upon P.O. boxes, thus leaving them vulnerable to the restrictions implemented under H.B. 1369. However, Secretary of State Jaeger has written to tribal leaders, outlining the process by which anyone without a street address can acquire one and then obtain written confirmation of the new address -- either as a means of obtaining a new form of ID, or as supplemental documentation (as allowed under H.B. 1369) to be brought to a polling station on Election Day: In February 2020, after this fact check was published, Brakebill and the other Native American plaintiffs settled their lawsuit against the state of North Dakota. Under the terms of that settlement, the state was obliged to distribute photo IDs, free of charge, in all tribal reservations, within 30 days of statewide elections and voters could, if necessary, point out their residence on a map at polling stations. This means that voters without a residential street address can, in principle, vote in person in the November 2020 elections. That settlement was not in place in 2018, when the memes and news articles about the U.S. Supreme Court's decision emerged, and although those claims were accurate at the time they were published, that is no longer the case. As a result, we are changing our rating from True to Outdated.
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