As the 2018 midterm election approaches, parties to election and voting-related litigation are asking the Supreme Court to step in. On Tuesday October 10, 2018, for example, the Court ruled on a request to issue a stay in a North Dakota voter ID law challenge, declining to intervene.

The North Dakota law requires that voters have photo identification that includes a current residential address, and it was challenged by a group of Native American voters in North Dakota. They claimed that the street address requirement would disproportionately impact Native Americans, barring many from voting who would be otherwise eligible. They explained that many Native Americans live on reservations or other areas without street addresses, instead having P.O. boxes, and that even qualifying addresses are not often included on tribal IDs.

In April of this year, a federal district court ordered North Dakota to allow voters to present IDs with either a current street address or mailing address (i.e., a P.O. Box). The U.S. Court of Appeals for the Eighth Circuit put a hold on the district court’s order in September. Although the challenge to this hold first went to Justice Gorsuch, who handles emergency appeals from the Eighth Circuit, he referred it to the full Court. (Justice Kavanaugh did not participate.) Challengers to the hold fell short of getting five of the eight justices to vote in their favor, with Justice Ginsburg writing a dissent to the Court’s denial, joined by Justice Kagan. The dissenting opinion, which can be read in full here, noted:

The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election. If the Eighth Circuit’s stay is not vacated, the risk of disenfranchisement is large.

Supporters say that the law is needed to prevent voter fraud, which is a concern because North Dakota does not require voter registration and simply allows voters to go to the polls on Election day with their IDs. The New York Times gives an overview of the law, what supporters are saying, and Native Americans’ response. Bloomberg Politics has more insight into the Eighth Circuit’s decision, and U.S. News discusses the efforts underway to help Native Americans in North Dakota comply with the new voter ID law. The Hill and Fox News have also covered this story.  

 Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS  Co-Director Carolyn Shapiro.