One Man, No Vote: How Native Americans in North Dakota Lost the Right to Vote and Fought for Its Return

Voting rights advocates gained new ground in North Dakota in the fight to protect Native Americans from disenfranchisement. In early February, state officials announced that they had settled a lawsuit concerning the state's voter identification laws, which the plaintiffs (including the Spirit Lake Nation and the Standing Rock Sioux Tribe) had argued place an undue hardship on many living on reservations.

The law in question would place tighter restrictions on acceptable IDs by requiring a street address. As a result, IDs that had previously been accepted at polling places would no longer be accepted. This would be particularly problematic because North Dakota residents are eligible to vote without advance voter registration, so as a result, voters might not have realized their ID was no longer valid until they arrived to cast their ballot. Under the proposed law, IDs must display a "current residential street address" or other supplemental documentation that provides proof of such an address. 

The law disproportionately affects Native Americans, most of whom live in residences that lack street addresses, also known as physical addresses or residential addresses. In the past, they had put their mailing addresses on their IDs. since USPS does not provide residential mail delivery to remote areas, they have a separate mailing address (such as P.O. boxes). These addresses would not be acceptable according to the proposed guidelines. Only with supplemental documentation, such as a utility bill or a bank statement, are mailing address IDs acceptable. Even still, many Native Americans lack these documents due to homelessness or poverty. These restrictions are further exacerbated by a 2013 law that removed a provision allowing voters who did not have an ID to sign an affidavit attesting to their eligibility. State Republicans overturned this provision after Democrat Heidi Heitkamp narrowly won the Senate seat in 2012 with the help of Native Americans, who make up 5 percent of the state's population and tend to vote for Democrats, in an effort to strengthen their party.

One study found that over 72,000 voting-eligible North Dakota citizens—out of a total population of around 750,000—lack an ID that meets the new regulations. The same study found that Native Americans are more than twice as likely as non-Native Americans to lack a qualifying ID. These numbers were the impetus for the 2018 lawsuit Brakebill, et al v. Jaeger and the ensuing court case, Spirit Lake Tribe v. Jaeger. The law discounts mailing addresses as a legitimate way of obtaining a state ID, which are commonly used by Native American voters in lieu of a physical address. Furthermore, long distances and limited operating hours at state driver licensing centers closest to Native American populations make it more burdensome for Native Americans to obtain a state ID, and obtaining the documents required for the IDs requires paying fees, which are more difficult for Native Americans because of economic disparities. On some reservations, the unemployment rate tops 70 percent, and incomes of Native Americans are on average half of what non-Natives earn in North Dakota.

Fighting for indigenous rights has always been an uphill battle. In 1868, when the 14th Amendment was passed granting African Americans citizenship, the Supreme Court interpreted the law in such a way that it would not apply to indigenous people. In 1887, the passage of the Dawes Act allowed individual Native Americans to acquire "allotments" of tribal land and bestowed US citizenship to any Native American who left the reservation for "civilized life." It was not until 1924 that indigenous people won the right to full citizenship with the Snyder Act (which Coolidge only signed into law in order to break up tribes and forcibly assimilate them into US society), and even then they had yet to receive voting rights. Suffrage for indigenous people was fought state by state, until 1962, when Utah became the last state to remove formal barriers for them to vote.

The Voting Rights Act of 1965 increased protections for Native American voting rights, particularly through the mechanism of preclearance. Preclearance meant that states with a history of discriminatory voting practices were required to get approval from the Department of Justice or the DC district court before implementing any voting changes. Many of the areas that were "precleared" had sizable Native American communities, including Alaska and Arizona. Preclearance provided a temporary relief from disenfranchisement for Native Americans. That ended with the 2013 Supreme Court decision Shelby County v. Holder. Previously covered jurisdictions were free to put new voting restrictions in place. After the end of preclearance, the National Congress of American Indians put out that the turnout rate of American Indian and Alaskan Native registered voters was between five and fourteen points lower than turnout rates of other racial and ethnic groups.

In addition to limiting the ability of tribal members to participate effectively in local, state, and national elections, systematic discrimination against indigenous peoples has fostered lower socioeconomic statuses for Native Americans. According to the Urban Institute, Native Americans are overrepresented in the homeless population, which means that not only will they not have the street addresses necessary to obtain acceptable IDs, but they also won't have the money to obtain other acceptable documents. Even if street addresses weren't a requirement, the combined cost of obtaining documents, travel expenses, and waiting time to vote has been estimated to be between $75.00 and $175.20.

While many argue that voter ID laws protect against voter fraud, in-person voter fraud is exceedingly rare, and most instances of fraud are honest mistakes. Since 2000, there have only been thirty-one credible allegations of voter impersonation, which is the only type of fraud that photo IDs protect against. Photo IDs are generally inefficient considering the taxpayer dollars they require. States incur sizeable costs when implementing voter ID laws—Texas spent nearly $2 million following the passage of its voter ID law, and Indiana spent over $10 million to produce free ID cards between 2007 and 2010.

More importantly, though, North Dakota's voter ID law is reminiscent of a wider trend of weaponizing voter ID laws in order to disenfranchise minority populations. Studies show that up to 25 percent of African American citizens lack government-issued voter IDs, compared to only 8 percent of white citizens. A Caltech/MIT study found that minority voters are questioned more frequently about their IDs than are white voters. Strict photo ID laws have been proven to reduce turnout across the board, and they disproportionately affect minority turnout. Strict ID laws are also used as a form of gatekeeping to determine who will have an easier time getting into the booth. Texas, for example, accepts concealed weapons permits for voting but does not accept student ID cards. In the case of North Dakota, voter ID laws disproportionately affect Native Americans, as 19 percent of Native American voters lack a qualifying voter ID.

Voter ID laws are just one of the ways that states have subtly encroached on voting rights. In 2018, there was widespread voter suppression in Georgia that involved the purging of voter rolls due to the “exact match” law. If the information on voter registration applications didn't exactly match the information on other state databases, Georgian voters were sent a letter stating that their applications were pending and that they needed to provide more information to election officials. While this only meant that people would have trouble mailing in a vote, and could still vote in person, people assumed that they weren't eligible to vote, leading to confusion. The exact match law also disproportionately affected minority voters. One study found that 80 percent% of Georgia voters blocked by the state's exact match law were people of color. 

Native Americans are continually disenfranchised because states have done very little to accommodate their lack of traditional street addresses or IDs. Not only have their voter registration applications been rejected in many states over the address requirement, but states with voter ID laws often do not accept tribal IDs as a valid form of ID. 

The North Dakota state government has also proven to be inefficient in helping its citizens to meet the standards. In 2017, North Dakota failed to provide a physical address to many Native Americans, and when they did provide the address, the information was often not communicated to the individual or they were provided with multiple conflicting addresses. Even with the assigned addresses, absentee ballot applications were still rejected for their "invalid" addresses due to bureaucratic confusion. 

Native Americans also continue to be disenfranchised through a lack of election resources for Native American communities, including polling sites, infrastructure for early voting, and other Election Day resources. A 2017 survey found that 32 percent of respondents in South Dakota said that the distance needed to travel to the polls affected their decision to cast a ballot; on some reservations, that distance was as far as 150 miles.

The legal victory in North Dakota has provided new hope for those negatively affected by the 2013 law. The settlement includes a legally-binding consent decree to ensure that Native American voters are not disenfranchised. To do this, the North Dakota secretary of state will be required to ensure that Native Americans can vote even if they don't have a residential address, or if they have one but don't know what it is. The Secretary of State will also work with the North Dakota Department of Transportation to issue free IDs on every reservation before each statewide election, reimbursing tribal governments up to $5,000 apiece per election for the administrative costs of issuing addresses and IDs. The decree will be enforced by a court order and will require the state to take specific steps to inform voters of the changes and train poll workers to account for these situations. Furthermore, the state will be required to provide official addresses to the voters and their tribes, which could then issue tribal IDs for use in future elections. Native American voters will be allowed to mark their homes on a map, and it will be the state's responsibility to verify their original addresses and make sure that their ballots are counted.

There is hope that this improvement will extend to a federal level. The state of Washington has already passed the Native American Voting Rights Act, which allows Native Americans to use nontraditional addresses if they live on a reservation, and permits tribes to request more election resources from the state. And last year, a bill was proposed in the House of Representatives to protect the voting rights of Native American and Alaskan Native voters. Perhaps similar steps will be taken to dismantle discriminatory voter ID laws at the federal level, increasing the possibility of equal political participation.

Gabby Meyers is a Contributing Writer for The Gate. The image featured in this article is licensed under the Creative Commons Attribution-ShareAlike 2.0 Generic. The original photo was taken by Rick Danielson and can be found here.