Photo: Charles Rex Arbogast (AP)

The Supreme Court on Tuesday upheld a decision by North Dakota courts to require voters to have a residential street address in order to be eligible to vote in the upcoming midterm elections, a decision which will disproportionately harm Native American citizens living on tribal land.

Justice Brett Kavanaugh, who was sworn in to the court on Saturday, did not participate in the decision. Justices Ginsberg and Kagan dissented, but in votes like this, the full vote tally isn’t required to be disclosed — we just know that a majority of the eight justices involved voted to apply the law.

The decision stems from a 2017 law signed by North Dakota Governor Doug Burgum, which first set the street address requirement. According to the Native American Rights Fund, the organization supporting the plaintiffs in the case that went to the Supreme Court, this disenfranchises thousands of Native residents of the state.

As NARF notes, many Natives living on reservations don’t have residential street addresses, because the U.S. postal service doesn’t deliver to residential addresses in their communities. Instead, they use PO boxes to get their mail, a normal thing that millions of Americans do to receive mail if it’s not convenient for them at the place that they live. But unfortunately, under the new law, that immediately disqualifies them from voting.

And it’s even more complicated — under the law, voters have to have a residential address on an accepted form of ID as well. This ID can be a government drivers’ license or ID card, or a tribal ID — but either way, it has to have a residential street address on it. So people who have a legal tribal ID but use a PO box instead of a RSA are will get turned away at the polls.

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Per the NARF site, “If a tribal ID has an address, it is typically the PO Box address, which does not satisfy North Dakota’s restrictive voter ID law.”

Great.

Adding to the monumental clusterfuck that is voting in North Dakota right now, the law didn’t apply during the primaries. The legal process behind it is a bit complicated, but essentially, the courts had allowed a preliminary injunction that prevented the state from enforcing the new law during the primaries, and making it so people with a PO box could vote.

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After the primaries, in September, the district court issued a stay on that injunction (which would mean the law would be enforced during the general election in November). The NARF and plaintiffs then filed an emergency request to vacate that stay which would mean that the same people who were able to vote in the primaries could vote in the general. The Supreme Court, however, shot down that request to vacate the stay today.

What this means is that some voters who voted in the primaries will turn up to the polls in November and get turned away.

From Ginsberg’s dissent today:

But the confusion arising from vacating the stay would at most lead to voters securing an additional form of ID. That inconvenience pales in comparison to the confusion caused by the Eighth Circuit’s order, which may lead to voters finding out at the polling place that they cannot vote because their formerly valid ID is now insufficient.

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Buzzfeed’s legal editor Chris Geidner has a good thread walking through the different steps with open links to a lot of the legal documents filed, if you want to dive deep. There’s also a pretty good history (albeit a biased on toward the state) in the opposition filing for the most recent Supreme Court decision.

All together, this could add up to some serious consequences for Democratic Senator Heidi Heitkamp in the midterms. Heitkamp’s seat is already in jeopardy because she’s a Democrat running in a deep red state, but reports show that she’s already struggling to secure the Native vote, and disenfranchising thousands more Natives doesn’t bode well for the Democrats.

Update, 11:30 PM 10/09/2018:

Something I probably should have added that a commenter reminded me of: The law actually affects more non-Native voters than it does Natives, but percentage wise is far more likely to affect Natives.

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From a NARF document filed early in the suit (on page 5):

Among North Dakota residents who lack a valid piece of ID because of the address requirement, 48.7 percent of Native Americans, or an estimated 2,305 Native eligible voters, do not possess at least one of the supplemental address documents accepted under the law. Comparatively, only 26.2 percent of non-Natives who lack a valid piece of identification because of the residential address requirement do not possess at least one of the supplemental address documents acceptes under the law. This amounts to 15,908 non-native eligible voters. 

Maybe the ND GOP figures it’s fine to disenfranchise a shitload of non-Native voters if it means they can do heavy damage to a population that consistently votes Democrat — as Mother Jones notes, Heitcamp’s margin of victory in 2012 was less than 3,000 votes, and she relied on the Native vote to win. Further down in the same document, it also notes that awareness of the voter ID law is much lower among Native populations, so that would make sense.