In one sense, North Dakota’s voting laws are lax as North Dakota is the only state without voter registration requirements. In another sense, North Dakota’s voting laws are anything but lax as a federal district court recently found North Dakota’s voter identification law (also referred to as “HB 1332”) to be unduly burdensome.
In his opinion in Brakebill v. Jaeger, District Judge Daniel L. Hovland determined HB 1332 to be unduly burdensome to North Dakota’s Native American population, writing that “[t]he public interest in protecting the most cherished right to vote for thousands of Native Americans who currently lack a qualifying ID and cannot obtain one, outweighs the purported interest and arguments of the State.” Judge Hovland granted a motion for a preliminary injunction against the law, barring North Dakota from enforcing the law (but not striking the law down).
Judge Hovland’s decision was only one of a string of decisions leading up to the 2016 elections that invalidated or halted enforcement of state voter identification laws. Specifically, voter identification laws in Texas, North Carolina, Wisconsin, and Kansas all met similar fates to North Dakota’s. In some of these cases, including in North Dakota, the fact that the states had no history of voter fraud impacted the decisions to identify the voter identification laws as unduly burdensome.
But North Dakota’s voter identification law involved more than the state not having a history of voter fraud. There are two factors that specifically make the downfall of North Dakota’s voter identification requirements unique in the wake of multiple voter identification laws being determined unconstitutional. First, the unconstitutional burden in the North Dakota case focused on the disenfranchisement of the state’s Native American population. Second, the omission of North Dakota’s previously codified “fail-safe” provisions imposed further burdens on disenfranchised voters that made the law essentially impossible for North Dakota to successfully defend.
To show that Native Americans were particularly burdened by North Dakota’s new voter identification law, plaintiffs cited a statistical survey that provided stark contrasts between North Dakota’s Native American and non-Native American populations. According to the survey, 23.5% of Native Americans currently lack an acceptable voter ID, compared to only 12% of non-Native Americans. The survey also pointed out the difficulties in obtaining proper voter identification. For example, 47.7% of Native Americans that lack an acceptable voter ID do not have the documents needed to obtain an acceptable voter ID. The survey even considered travel, as, for example, Native Americans have to travel twice as far as non-Native Americans to visit a driver’s license site.
The aforementioned statistics highlight just some burdens that plaintiffs used to argue that HB 1332 was unduly burdensome to Native American voters. Noting that the State did not contest the statistics, Judge Hovland took them seriously. Judge Hovland found that Native Americans faced burdens in providing proof of identification, obtaining proper identification cards, and travelling to obtain said identification cards. In particular, Judge Hovland even noted that many tribal government issued IDs do not satisfy the North Dakota voter identification law because they do not provide residential addresses.
Along with the significant burden that HB 1332 placed on North Dakota’s Native American population, Judge Hovland also found the elimination of North Dakota’s fail-safe voting mechanism troubling. Under prior voting law, if a voter did not have a photo identification, he or she could still vote if one of two situations were met. First, the election board or a poll clerk could vouch that the voter was qualified to vote. Second, the voter could execute an affidavit swearing that he or she was a qualified voter. However, the new voter identification law amended the previous North Dakota voting statute to eliminate these two fail-safe provisions. Judge Hovland noted that North Dakota appeared to be the only state in the country without any type of fail-safe provision for voters.
Taken all together, Judge Hovland determined that North Dakota’s voter identification requirements essentially disenfranchised Native American voters, and such voters were further burdened by the lack of any fail-safe provisions in North Dakota voting law. Such a severe burden on Native American voters meant that North Dakota must have a compelling interest to justify the severe burdens.
Judge Hovland found that North Dakota could not prove a compelling interest. While the voter identification law was intended to stop voter fraud, the lack of voter fraud in North Dakota meant that preventing voter fraud was not compelling interest. Even a history of voter fraud may not have justified the severe burdens that the law would have on Native American voters. As Judge Hovland stated, “[t]he Court cannot envision a compelling reason or a governmental interest which supports not providing … an avenue of relief for potentially disenfranchised voters.”
The State of North Dakota has stated that it does not intend to appeal Judge Hovland’s decision. Therefore, North Dakota cannot enforce its new voter identification law without offering fail-safe provisions for voters without appropriate photo identification. To meet Judge Hovland’s order, North Dakota intends to enforce voting laws as they existed before the passage of HB 1332.
News outlets have reported Judge Hovland’s decision as a victory for voting rights advocates, but it is left to be seen what North Dakota’s full response will be and whether the State will attempt to pass another voter identification law or amend HB 1332.