When the Supreme Court fails to take up a case, it’s generally not front-page news, but this is a story that may carry significant consequences.
The Supreme Court on Tuesday allowed North Dakota to implement a voter ID law for the November midterm election, turning down a petition arguing that the measure would harm Native Americans who are less likely to live at standardized addresses or possess the identification cards required by the statute.
Native Americans are a reliably Democratic constituency, making Tuesday’s order unfortunate news for Sen. Heidi Heitkamp, a Democrat struggling to hold off a challenge from Republican Rep. Kevin Cramer in the deep red state.
In so sparsely populated a state, “it could be that a couple of hundred votes matter,” said Robert Wood, a political-science professor at the University of North Dakota.
Some background is in order. Six years ago, Heidi Heitkamp was widely expected to lose her Senate race in North Dakota. It’s generally a very red state – a Democratic presidential ticket hasn’t won in North Dakota in over four decades – and polls showed her trailing then-Rep. Rick Berg (R), the state’s sole U.S. House member.
But Heitkamp narrowly pulled off an upset, thanks in large part to support from Native American voters.
Soon after, the Republican-run state legislature decided it was time to overhaul the state’s incredibly easy system of voting. Under the newly imposed model, North Dakota would enforce a GOP-friendly voter-ID system, which would – you guessed it – make it harder for Native American voters to cast ballots.
Lower courts struck down the system as discriminatory, but just last month, the 8th Circuit, in a 2-1 ruling, rescued the Republican policy. The Supreme Court this week passed on taking up the case, which means the appeals court ruling will be binding and the state law – which wasn’t in place during North Dakota’s primary elections – will be enforced for Heitkamp’s tough re-election fight next month.
By practically every fair measure, the incumbent was already an underdog. This week’s court developments make matters just a little worse for the senator.
Slate’s Mark Joseph Stern did a nice job highlighting the practical implications:
The appeals court allowed the state to implement the part of the law that compels voters to provide an ID that includes his or her current residential street address. This provision is controversial because it seems to directly target Native Americans. The U.S. Postal Service doesn’t provide residential delivery in rural reservations, so most tribal members use a P.O. box, which is listed as their address on tribal IDs. To remedy this problem, the district court had ordered the state to accept IDs that list a current mailing address. But the 8th Circuit scrapped that compromise, permitting the state to reject IDs that include a mailing address but no street address – that is, a huge number of tribal IDs.
How many, exactly? The district court found that at least 4,998 otherwise eligible Native Americans do not have an ID with a current street address. They are not alone: About 65,000 non–Native American voters also lack the necessary ID. The law does allow voters to provide “supplemental documentation” to prove their identity, such as a utility bill or bank statement. But once again, Native Americans are disproportionately unlikely to have these materials, due in part to poverty and homelessness within their communities. Thus, at least 2,305 Native Americans may not be allowed to cast a ballot in the 2018 election.
For context, let’s not forget that Heitkamp won in 2012 by 2,936 votes.
In fairness, it’s important to emphasize that Native voters without a proper residential address can jump through some bureaucratic procedural hoops in order to try to cast a ballot. But to put it mildly, they’ll face an additional burden that most other voters won’t have to deal with.
What’s more, voters who participated in North Dakota’s recent primaries may not realize that a different system will be in place now. This week, Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan warned of “grand-scale voter confusion” in North Dakota.
For Republicans eager to take Heidi Heitkamp’s Senate seat – and solidify the GOP’s Senate majority – it’s apparently a small price to pay.
Postscript: At the 8th Circuit, the two judges who restored the voter-ID law were appointed by George W. Bush. The dissenter was appointed by Barack Obama.
As Donald Trump and Senate Republicans dramatically shift the federal courts to the far-right, Americans should expect to see a whole lot more rulings like this one for the next several decades.