One key requirement is preventing many from voting in North Dakota: the possession of a home address. In the only state that does not require citizens to register before voting, many Native Americans living on reservations lack a traditionally recognized home address, but instead used a P.O Box as their address needed to prove residency in a state. This was sufficient proof of residency when voting in the state’s elections until the North Dakota Secretary of State changed voter identification requirements to require a traditional home address. A group working on behalf of the Native Americans in North Dakota, the Native American Rights Fund (NARF), tried to fight this change, but ultimately failed.  

NARF challenged North Dakota’s voter ID requirement — which affected the ability of numerous Native Americans to cast a ballot in the November midterm elections — in the courts. Their first step was submitting an appeal to their local district court, the U.S. District Court for the District of North Dakota, as a preemptive measure before the law was passed. That district court temporarily blocked the Secretary of State’s new law, which did not allow those without a home address matching their IDs to be able to vote during the primary election. The group who submitted the appeal used the rationale that the law disproportionately harms Native Americans residing on reservations, a population far more unlikely to possess a home address on their IDs than the average North Dakota voter. More specifically, NARF’s argument was predicated on the Fourteenth Amendment’s Equal Protection Clause and Section 2 of the Voting Rights Act, which states that the government may not discriminate against a minority group based on ethnicity, race, or membership to a group that speaks a certain language, when pertaining to voting. North Dakota Native Americans feel as if their right to vote is being taken away based on their ethnic identity, a direct violation of the Voting Rights Act.

After the district court temporarily blocked the law from being implemented, the Eighth Circuit Court of Appeals ordered a stay on that block, which allowed the law to come into effect during the 2018 midterm elections. The court’s rationale in its decision rested on the many means that are available for North Dakotans seeking a compliant ID with an address. Since 2013, residents of the Peace Garden State could no longer use a P.O. box as proof of residence, but instead, could receive a non-driver’s identification that includes a home address free of charge. Additionally, if the identification lacks a home address, a utility bill, paycheck, or banking statement will suffice for proof of residency. However, 48.7 percent of the Native Americans who lack the adequate form of identification, including a residential address, also lack these supplemental means of identification. Additionally, while the identification is issued free of charge, the cost of travel to centers where the ID is issued remains another obstacle for those living on remote reservations.

The Circuit Court ultimately decided to allow the law to be implemented on the basis of how the state could be “irreparably harmed” if the law were to not be implemented. The law’s purpose is to prevent voter fraud through stricter identification requirements. The court also reasoned that, after making the ruling in early September, there remained adequate time for both those affected to obtain the necessary means of identification, as well as for the state to train poll officials about the new law.

Dissatisfied by this Court of Appeals ruling and the feeling that this new voter law was discriminatory, NARF submitted an emergency application to the Supreme Court of the United States of America to seek a stop for what they view as the discriminatory voter identification law. On October 9th, 2018, this application was denied. NARF was extremely dissatisfied with the 8th Circuit Court’s decision to overturn the district court’s ruling in which they found the identification law to be discriminatory. This dissatisfaction with the Circuit Court’s ruling was due to the fact that the ruling was close to the election date, and early voting had already begun. The request was submitted to Justice Neil Gorsuch, the second newest member to the court. He denied the request without a statement regarding why.

Justice Ruth Bader Ginsburg filed a dissenting opinion, and Justice Elena Kagan joined her dissent. The dissent has a few main points, which include timing and confusion. The Circuit Court’s ruling came less than two months before the midterm election, which the Justices consider to be “last-minute.” Additionally, with the eligibility requirements for voting being different for the midterm election as they were for the primary elections, and the requirements being new, there is a great possibility that the voter turnout will be diminished due to confusion. Also found in the dissent is the belief that due to this lack of intervention and the ruling by the 8th Circuit Court, the amount of voter disenfranchisement will be large. The Justices also cite the case of Purcell v. Gonzalez to be used as a precedent for court rulings close to election days.

In Purcell v. Gonzalez, the 9th Circuit Court of appeals prevented a proposition in Arizona that changed voter identification requirements from being implemented. This was due to the proximity to the election date and the fact that voting was about to begin. The Supreme court made their ruling in 2006 on October 20th, which was less than a month before election day. The Supreme Court decided to not hear the North Dakota case this year on October 9th, which is a very similar time frame to the Purcell case, especially when considering the time it would take for the Supreme Court to hear the case and reach a decision. In the case of Purcell v. Gonzalez, Arizona citizens needed to have a photo ID to be able to register to vote, which parallels the requirement of a home address needed to be able to cast a ballot in North Dakota. Another similarity between the Purcell case and the current case in North Dakota is how the petition for a restraining order to stop the law from being implemented came from an advocacy group including Native American tribes. The main difference between the two cases is how the Supreme Court chose to hear the Purcell case, and ultimately stopped the change in voter ID laws, and how the Supreme Court chose to not hear the North Dakota case.  

As it stands currently, many Native Americans in North Dakota have become disenfranchised for the midterm elections happening on November 9th. Advocacy groups such as NARF have been working every day to find a solution in North Dakota, which has included everything from enlisting tribal leaders to issue identification cards to filing a lawsuit against the voter new identification laws. NARF has started a Native American Voting Rights Coalition which aims to ensure the continued security of and remove barriers for Native American voting rights across the country, as North Dakota and Arizona are far from being the only states where these voting identification issues occur. While the fight continues against the new law, it seems as if with so little time left before the election that there was nothing that could be done to change what had already been implemented. Nonetheless, there is a precedent that has been set for future elections, and the legal battle will surely ensue.