By: Daniel Long

This past summer, the Eighth Circuit held that a controversial North Dakota law requiring very specific forms of voter identification could go into effect, vacating a district court’s injunction. The law in question, N.D. Cent. Code § 16.1-01-04.1, requires prospective voters to present identification that includes a North Dakota residential street address. If the prospective voter’s identification does not have a current residential street address, the voter may present other supplemental forms as well, such as a utility bill, provided that these forms contain a current residential address. North Dakota’s voter ID law received fierce backlash from Native Americans, whose IDs typically contain P.O. boxes rather than residential street addresses. The Eighth Circuit’s ruling begs the question, could North Dakota’s voter ID law migrate south to South Dakota?

In its Eighth Circuit brief, North Dakota justifies its new voter ID law based on the fact that it is the only state in the nation that does not require voter registration. In other words, prospective voters in North Dakota can simply show up to the polls on election day and vote without ever pre-registering. Furthermore, prior to 2013, North Dakota law allowed prospective voters to simply sign an executive affidavit certifying that they meet the voting qualifications in North Dakota, i.e., (1) that they were a citizen of the United States, (2) at least eighteen years of age, and (3) a North Dakota resident. During the 2012 general election, Democratic Senate candidate Heidi Heitkamp won by 2,936 votes, and approximately 10,519 total votes were cast via executive affidavit. North Dakota argues that the new voter ID law requiring a residential address is necessary because county auditors had difficulty verifying the votes cast by affidavit in the absence of a voter registration database. However, the state does not list any actual voter fraud prosecutions against individuals who cast votes via the affidavits. Nevertheless, North Dakota’s primary justification for its voter ID law requiring a residential address is that it cannot verify these affidavits after the votes have already been cast, especially without a voter registration database.

Opponents to the North Dakota voter ID law argue that it violates the United States and North Dakota Constitution, as well as Section 2 of the Voting Rights Act by essentially disenfranchising Native Americans who, before this law was enacted, disproportionately relied on the affidavit option. Specifically, opponents argue that North Dakota has offered scant proof of actual voter fraud, and that the law singles out Native Americans for disenfranchisement because North Dakota legislators knew Native Americans typically utilize P.O. boxes on their IDs rather than residential addresses. However, the Eighth Circuit ultimately sided with North Dakota, allowing the law to go into effect.

As it turns out, Native Americans across the country are heavily dependent on the post office because reservations often lack roadside mailboxes and residential street addresses. Therefore, a voter ID law similar to North Dakota’s in a state like South Dakota, with a relatively high Native American population, could be devastating for prospective Native American voters. However, to South Dakota’s credit, there is currently no indication that the state is considering enacting a voter ID law similar to North Dakota’s. Nevertheless, it should be noted that the Pine Ridge Reservation in South Dakota recently started assigning street addresses to reservation homes. While the Pine Ridge Reservation states that the addresses are being installed to assist local law enforcement services, one cannot help but question whether the timing is merely a coincidence.

Nevertheless, it is important to ask the question, could South Dakota pass a voter ID law similar to North Dakota? Perhaps the most important question is, what would be South Dakota’s rationale behind the law? This is where it is important to remember that North Dakota has a unique rationale for requiring a residential street address on a voter’s ID. North Dakota’s rationale is that it is the only state in the nation that does not require voter registration. Therefore, according to North Dakota, a residential address is necessary because county auditors cannot verify the self-certifying affidavits used before 2013 after the individual had already cast their ballot. Whether this is good policy, or the alleged voter fraud actually occurred, is highly contested. Nevertheless, this rationale would not apply in South Dakota, because South Dakota has pre-voting voter registration. Therefore, even though South Dakota still allows prospective voters to vote by affidavit if a voter cannot provide adequate voter ID, individuals must first register to vote before their vote can even be cast. This seems to cut directly against the voter fraud fears present in North Dakota, as South Dakota has a way to “pre-screen” voters and a voter registration database to retrospectively verify that individuals who are not supposed to be voting in South Dakota do not cast a ballot. In summary, North Dakota’s rationale behind its voter ID law seems unique to North Dakota because it is the only state in the nation that does not require voter registration. Therefore, if South Dakota wanted a voter ID law similar to North Dakota’s, it would need to find a different rationale. So, for the time being, it appears North Dakota’s voter ID law will not migrate south.

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