Huge Victory for Tribes: Federal Courts Overturn Voter ID Laws

“There is no right that is more precious in a free country.”

By Suzette Brewer

Indian Copuntry Today, Aug 4, 2016 —

From left, Native American Rights Fund attorneys John Echohawk (Pawnee) and Matthew Campbell (Native Village of Gambell) look over a voting-rights complaint just filed in I.S. District Court in North Dakota. (Courtesy Native American Rights Fund)

On August 1, U.S. District Judge Daniel Hovland struck down a North Dakota law (see (1) below) requiring photo IDs in order to vote, ruling that the law unfairly burdens the Native American voters who comprise one-fourth of the state’s electorate. Hovland rejected the state’s argument that the law was “necessary” to prevent voter fraud, writing that “[t]he undisputed evidence before the Court reveals that voter fraud in North Dakota has been virtually non-existent.”

In January, the Native American Rights Fund filed Brakebill v. Jaeger (see (2) below) on behalf of seven tribal plaintiffs in response to North Dakota House Bills 1332 and 1333, which allowed only four types of IDs to verify identity―disallowing even passports and military IDs. During the 2014 elections, lead plaintiff Richard Brakebill, who is a veteran, said that he and other tribal members were disenfranchised because his address was not listed on his ID.

“I felt bad about being turned away from the polls at the last election,” said co-plaintiff Elvis Norquay, who is also a military veteran. “It is my right to vote for whomever I want. I shouldn’t be turned away just because I didn’t have my address listed.”

In their suit, the plaintiffs argued that the new laws imposed a substantial burden on tribal members since there are no drivers license (DMV) sites on any of the five Indian reservations in North Dakota. Further, some DMV sites are hours away, which created an additional obstacle for tribal members―many of whom live below the poverty line―to afford the necessary travel to obtain IDs.

North Dakota was the only state in the country that did not have a “fail-safe” clause, such as provisional balloting that would allow voters to sign an affidavit of identity.

“The 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,” Hovland wrote. “No eligible voter, regardless of their station in life, should be denied the opportunity to vote.”

“A Cure Worse Than The Disease”

Monday’s decision is the latest in a series of recent federal circuit court decisions rejecting restrictive new voter ID and “proof-of-citizenship” laws that have been brought under Section Two of the Voting Rights Act that arose after the U.S. Supreme Court struck down key provisions of the federal law in 2013. Since the passage of the VRA in 1965, state and local governments with historically bad voting rights records were required to seek federal “preclearance” before implementing any changes to their election laws.

Under the 5-4, controversial ruling in Shelby County v. Holder, Chief Justice John Roberts declared that preclearance was no longer necessary and was based on “outdated” information. Since then, litigation has emerged in over 16 states in which tribal nations and/or individual tribal citizens have had to sue to ensure their right to vote.

On July 29, a three-judge panel in the Fourth Circuit Court of Appeals rejected voter ID laws in North Carolina, ruling that the court said the state legislature had passed new legislation not only with discriminatory intent, but had “targeted African-Americans with almost surgical precision.”

On the same day, U.S. District Court Judge James Peterson struck down Wisconsin’s new voter ID and restrictive election laws (see (3) below), ruling that, “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”

In Kansas, which is home to the Kickapoo Tribe of Indians and the Prairie Band of Potawatomi Nation, Shawnee County District Judge Larry Hendricks overturned an administrative rule from Secretary of State Kris Kobach that forced voters to show a “proof of citizenship,” which was imposed without public hearing.

“There is no right that is more precious in a free country,” Hendricks said as he made his ruling just before Tuesday’s primary election in Kansas.

The order will be in place through September 21, when Hendricks will have another hearing to determine whether to enforce the court order through the November election.

In Texas, the Fifth Circuit Court of Appeals also declared the state’s voter ID laws as “discriminatory” and ordered the state to fix its voter ID law in advance of the general election in November.

“The Shelby County decision contained the implicit assumption that racial discrimination has disappeared in the U.S. The recent string of decisions demonstrate that presumption is wrong and that, unfortunately, strong enforcement mechanisms are still needed to combat pernicious forms of voter discrimination,” NARF attorney Matthew Campbell told ICTMN. “Without preclearance, voters have to bring case-by-case challenges after the fact rather than getting an opportunity to oppose a law before it goes into effect, which can have an impact on elections because litigation can take longer than two years and be extremely expensive. Congress should do its job and update the Voting Rights Act to address the loopholes created by Shelby County and reinstate necessary protections for minority voters.”

In the meantime, Brakebill v. Jaeger represents the second victory for NARF in protecting voting rights for Indian people in the last year. In 2015, NARF reached an agreement with the State of Alaska in a historic voting rights victory that required the state to provide voting materials and ballots in the Gwich’in and Yup’ik dialects.

“What we asked for is that all qualified voters have the opportunity to cast a ballot―particularly Native Americans,” said Campbell. “This ruling is an incredible victory for North Dakota voters as it will ensure that fail-safe mechanisms will be in place in November to protect them.”

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