If Native Americans Can’t Vote, Can Heidi Heitkamp Win?

The United States Court of Appeals for the Eighth Circuit covers a swath of the heartland, including the states of Arkansas, Missouri, Iowa, Nebraska, Minnesota and both Dakotas. It has eleven circuit judges and an additional seven judges who hear cases despite having already taken senior status. Of these eighteen judges, only one was appointed by a Democratic president. Given that, it doesn’t really matter which three judges you draw to hear your case, there’s a guarantee that at least two of them are friendlier to the Republican Party than to the Democrats. So, it was wasn’t shocking when in late September a panel of Eighth Circuit judges overruled a lower district court on the matter of North Dakota’s new voting laws that are designed to disenfranchise Native Americans.

North Dakota is one of the few states that doesn’t have party registration, but they do require people who want to vote to provide a home mailing address. Many Native Americans live on reservations and utilize post office boxes rather than home delivery. The District Court had held that the law was discriminatory for this reason, as anyone lacking a home mailing address would not be allowed to cast a ballot.

The Eighth Circuit merely shrugged at this suggestion:

“Even assuming that some communities lack residential street addresses, that fact does not justify a statewide injunction” of a statute requiring “identification with a residential street address from the vast majority of residents who have residential street addresses,” the appeals court said.

Notice that they didn’t say “some people,” as if the group losing their right to vote was random. They explicitly acknowledged that they were signing off on disenfranchising “some communities.”

The residential street address requirement wasn’t the sole basis for the challenge. It’s also true that Native Americans disproportionately lack the required identification needed under the law. This was shrugged off, too.

Under the previous District Court ruling, Native Americans were not impacted for the primaries.

North Dakota’s 2017 voter law ID was challenged by Native residents who alleged that the law disproportionately blocked Native Americans from voting. In April, a federal district court judge blocked large portions of the law as discriminatory against Native voters. “The State has acknowledged that Native American communities often lack residential street addresses,” Judge Daniel Hovland wrote. “Nevertheless, under current State law an individual who does not have a ‘current residential street address’ will never be qualified to vote.” According to the website of the Native American Rights Fund, which represents the plaintiffs, many native residents lack residential street addresses because “the U.S. postal service does not provide residential delivery in these rural Indian communities.”As a result, tribal IDs use P.O. boxes, which are not sufficient under North Dakota’s new law—a specification that seems designed to disenfranchise native voters. Hovland’s ruling was in place during the primaries this spring.

On Tuesday, the Supreme Court essentially upheld the original law by declining to intervene. Because Native Americans are an important Democratic constituency in North Dakota, this ruling makes it much less likely that Senator Heidi Heitkamp can be reelected:

[North Dakota] urged the justices to stay out of the dispute, emphasizing that the law is intended to combat voter fraud and guarantee that voters (who, unlike in most states, are not required to register in advance) get the right ballots when they go to the polls. The state argued that the street-address requirement is easy to satisfy: Voters can provide proof of address through their IDs or, if necessary, through other documents like a pay stub or a utility bill. If the district court’s order were reinstated, the state warned, nonresidents could vote in the state’s election simply by renting a P.O. box there. At a minimum, the state predicted, there would be “confusion and mistakes” when a voter’s P.O. box is not in the same precinct where he actually lives. And in any event, the state added, because each of the challengers in this case has a street address, there is no reason for the district court to block North Dakota from applying the law anywhere in the state.

To put this in plain language, in order to prevent someone from renting a P.O. Box in North Dakota for the sole purpose of casting a single fraudulent vote, it is necessary to take away the votes of many Native American “communities.” Thus, one small and unlikely and purely theoretical problem is addressed by creating a large, assured, and wholly unjustifiable problem.

Republican judges are completely fine with this because it helps Republicans and may help them unseat an incumbent Democratic senator and possibly prevent their party from losing control of both chambers of Congress in the midterm elections.

There is not the slightest pretense to impartial justice here, nor any concern for the fact that they’re perpetuating a nasty history of mistreating our Native American population.

It’s absolutely shameless, and just a small taste of the indignities to come from our new far right courts.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.