Filed Date: Jan. 20, 2016
Clearinghouse coding complete
This case centers around an attempt to block enforcement of certain provisions in North Dakota’s voter ID laws adopted in 2016 and then amended in 2017. The plaintiffs were six individuals, all of whom were members of the Turtle Mountain Band of Chippewa Indians, a native American tribe in North Dakota (the “Plaintiffs”). The individuals were all residents of and qualified electors in North Dakota. The defendant was Alvin Jaeger, the secretary of state of North Dakota, sued in his official capacity (the “Defendant” or the “Secretary”). The Plaintiffs were able to obtain preliminary injunctions from the United States District Court of the District of North Dakota that prevented certain aspects of the laws being applied in the 2016 and 2018 elections but the United States Court of Appeals for the Eighth Circuit ultimately vacated the applicable injunction in 2019.
The Complaint for Declaratory Judgment and Injunctive Relief was filed on January 20, 2016. The Plaintiffs sought a determination that the voter ID requirements in two North Dakota laws that made voter ID requirements more restricted, specifically HB 1332 and HB 1333, disproportionately burdened and disenfranchised Native Americans and: (a) had a discriminatory result in violation of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301; (b) impose substantial and unjustified burdens on the fundamental right to vote in violation of the Fourteenth Amendment; (c) deny qualified voters equal protection under the law in violation of the North Dakota Constitution; and (d) make ownership of a voter ID a precondition and qualification to vote in violation of the North Dakota Constitution. As a result, the Plaintiffs asked the District Court to declare those portions of the laws unlawful and enjoin their enforcement.
Defendant moved to dismiss the Complaint. The Court denied its motion, as well as a subsequent motion to reconsider. On June 20, 2016, the Plaintiffs made a motion for a preliminary injunction. Specifically, the motion for preliminary injunction sought to enjoin the Defendant from enforcing, during the pendency of the action, voter identification requirements enacted in HB 1332 and HB 1333 and order that Defendant conduct elections according to the laws and practices in force before the enactment of HB 1332 and HB 1333.
2016 Preliminary Injunction Order (2016 WL 7118548) - On August 1, 2016, the District Court entered an order granting the preliminary injunction requested by the Plaintiffs. The Court considered the balance of harms and the public interest Dataphase factors and found that the right of voting-age Native Americans to cast a ballot outweighs any interest North Dakota may have in refusing to implement certain “fail-safe” provisions that would allow voters who did not have a qualifying identification card. It noted that although most voters in North Dakota either possessed a qualifying identification card or could obtain some form of acceptable identification, a safety net was needed for those voters who could not obtain a qualifying ID with reasonable effort.
The court found that the record developed by the Plaintiffs was “thorough and unrefuted.” Given the lack of any evidence presented by the Defendant to the contrary, the Court gave the findings of the studies and data presented by the Plaintiffs, considerable weight. That undisputed evidence revealed that Native Americans face substantial and disproportionate burdens in obtaining each form of identification deemed acceptable under the new law. The Plaintiffs also presented evidence of disenfranchisement of voting-eligible Native Americans in the elections that have taken place since the amendments to N.D.C.C. § 16.1-05-07 in 2013 and 2015.
The Court found that this record distinguished the case from the Supreme Court’s plurality decision in Crawford upholding an Indiana voter identification law, which the Defendant relied on almost exclusively. The Court noted that law was upheld primarily because of a poorly developed record by the plaintiffs in that case. In contrast, the Plaintiffs developed a very thorough record that clearly apprised the Court of the significant number of voting-age Native Americans who reside in North Dakota whom lack a qualifying voter identification under N.D.C.C. § 16.1-05-07. The record was replete with concrete evidence of significant burdens imposed on Native American voters attempting to exercise their right to vote in North Dakota. The Court found that the undisputed evidence in the record revealed that N.D.C.C. § 16.1- 05-07 imposed “excessively burdensome requirements” on Native American voters in North Dakota that far outweighed the interests put forth by the State of North Dakota.
The Court also noted that the Defendant did not offer any purported compelling state interest as to why North Dakota no longer provided any “fail-safe” mechanisms which would enable a person who could not produce a required voter ID to nevertheless be able to vote. The Defendant failed to present any evidence showing that “fail-safe” provisions or provisional have resulted in voter fraud in the past, or are particularly susceptible to voter fraud in the future. The Court noted that, to the contrary, the record contained no evidence that voter fraud had ever been a problem in the state..
The Court held that no legal remedy other than enjoining the State of North Dakota from implementing N.D.C.C. § 16.1-05-07 without any “fail-safe” provisions will be sufficient to ensure Native Americans, and any other citizens struggling to comply with the new voter identification requirements, would have an opportunity to vote. The Court noted that many states that have voter photo-identification requirements allow those who lack qualifying identification to vote by signing an affidavit or other statement or declaration to that effect and the Defendant never suggested the laws of those states fail to prevent fraud and promote voter confidence. The Court held it was a minimal burden for the State to conduct the upcoming election in the same manner it successfully administered elections for decades before the enactment of the challenged voter identification law.
In response to the preliminary injunction and after the 2016 election, the North Dakota Legislative Assembly amended and enacted a new election law (HB 1369). Effective July 1, 2017, the North Dakota law permitted individuals who did not present a valid ID when appearing to vote to mark a ballot that is then set aside until the individual’s qualifications as an elector can be verified. See N.D.C.C. § 16.1-01-04.1(5).
The Plaintiffs filed an amended complaint on December 27, 2017. Shortly thereafter, the Defendant moved to dissolve the preliminary injunction. In response, the Plaintiffs filed a response and a motion for a new preliminary injunction with respect to the new 2017 voter identification law. The parties sought and were granted expedited review of the competing motions.
2018 Preliminary Injunction Order (2018 WL 1612190) - On April 3, 2018, the District Court entered an order that both dissolved the prior preliminary injunction and granted a new preliminary injunction against enforcement of the new 2017 voter identification law. The Court held that the new law still required voters to have one of the very same forms of a qualifying ID’s in order to vote that was previously found to impose a discriminatory and burdensome impact on Native Americans.
The Court noted that the State never appealed the 2016 preliminary injunction order and, accordingly, it incorporated by reference the entirety of the facts and legal analysis set forth in that earlier order, all of which continue to be directly relevant to the Dataphase analysis of the new law. The Court also noted the State’s acknowledgement that Native American communities often lack residential street addresses or do not have clear residential addresses while the prevents an individual who does not have a “current residential street address” from being qualified to vote. The Court held that represents a clear “legal obstacle” inhibiting the opportunity to vote. The Court held that the State could easily remedy this problem by simply eliminating the absolute need for a “current residential street address” and allowing for either a residential address, a mailing address (P.O. Box), or simply an address.
The Court also concluded that the “set aside” ballot process the State proclaims as a “fail-safe” measure will not help any voter who lacks the means to obtain a qualifying ID to cast a vote. The Court further found that the new law was vague and unclear as to where and to whom a voter that voted by affidavit was to produce any documents to verify their eligibility to vote.
Ultimately, the Court held that the Dataphase factors, when viewed in their totality, weighed in favor of the issuance of a very limited preliminary injunction. Specifically, the Secretary was enjoined from enforcing only certain subsections of N.D.C.C. § 16.1-0104.1 and only to the limited extent as follows:
(1) The Secretary was enjoined from enforcing Section 16.1-01-04.1(2)(b) which mandates the need for a “current residential street address” and required to allow a qualified voter to receive a ballot if they provide a valid form of ID as recognized in Section 16.1-01-04.1(3)(a) or another form of identification that includes either a “current residential street address” or a current mailing address (P.O. Box or other address) in North Dakota.
(2) The Secretary was enjoined from enforcing N.D.C.C. § 16.1-0104.1(3)(a)(2) which mandates only certain valid forms of identification and instead was required to allow and accept as a valid form of identification an official form of identification issued by a tribal government; the Bureau of Indian Affairs (BIA), any other tribal agency or entity, or any other document, letter, writing, enrollment card, or other form of tribal identification issued by a tribal authority so long as those other forms of identification, (documents, letters, writings) set forth the tribal members name, date of birth, and current residential street address or mailing address.
(3) The Secretary was also required to allow and accept any documents issued by a tribal government, the Bureau of Indian Affairs (BIA), other tribal agencies or authorities, or any other document, letter, writing, enrollment card, or other forms of tribal identification which provide the missing or outdated information, i.e., name, current residential street address or mailing address, and date of birth.
Finally, the Secretary was required to launch a state-wide pre-election campaign to inform voters of the ID requirements. but the method of doing so was left to the discretion of the Secretary of State.
The Defendant appealed the District Court’s grant of a preliminary injunction to the Eighth Circuit.
Eighth Circuit Opinion Vacating Preliminary Injunction (932 F.3d 671) - The Circuit Court panel concluded that the alleged burdens on voters did not justify a statewide injunction and they therefore vacated the District Court’s order granting a preliminary injunction and remanded for proceedings consistent with the opinion.
First, the panel judged that the Plaintiffs’ facial challenge to the residential street address requirement would likely fail, and that the statewide injunction as to that provision could not be justified as a form of as-applied relief. The panel held that the residential street address requirement furthers North Dakota’s legitimate interest in preventing voter fraud and safeguarding voter confidence, and so unlike a poll tax, it was not invidiously “unrelated to voter qualifications.”
Second, the court also held that the fact that the residential street address requirement placed severe burdens on some Native Americans’ right to vote was not sufficient to justify a statewide injunction on that issue. The panel held that the plaintiffs did not present evidence that the residential street address requirement imposes a substantial burden on most North Dakota voters, which is the relevant inquiry for a statewide injunction. It noted that, even assuming that some communities do not have residential street addresses, that fact does not justify a statewide injunction that would prevent the Secretary from requiring a form of identification with a residential street address from the vast majority of residents who have them.
Third, the panel also concluded that the statute’s requirement to present an enumerated form of identification did not impose a burden on voters that justified a statewide injunction requiring acceptance of additional forms of identification. The District Court’s findings do not address how many voters attempted to acquire the proper identification but were unable to do so with reasonable effort. The panel held that is the relevant question for assessing whether a voter is substantially burdened. The panel found the evidence to be insufficient to show that the valid form of identification requirement places a substantial burden on most North Dakota voters and that the require was not invidious on its face. As a result, the panel held that an injunction that forbids the Secretary from enforcing the requirement statewide was not warranted.
Fourth, the panel also found the record to be insufficient to justify enjoining the Secretary from enforcing statewide the provisions of the statute that prescribed supplemental documents that could be provided. The findings did not detail how many voters attempted to obtain a supplemental document and were unsuccessful. The panel concluded that the findings therefore did not establish that the statute placed a substantial burden on most North Dakota voters, and a statewide injunction against the supplemental document requirement is unwarranted.
Finally, the panel indicated that the District Court’s ruling that the statute needed to provide more clarity on which official a voter would need to submit identification to after an election to substantiate an affidavit vote was not supported by evidence that any voter is unable to identify the appropriate election official to whom identification should be submitted after an election. As a result, the panel held that there was an insufficient basis to enjoin the Defendant to offer formal clarification of the statute.
The panel observed that the District Court enjoined entirely the statutory requirements concerning a residential street address, valid form of identification, and supplemental documents. If the District Court had instead required the plaintiffs to proceed with as-applied challenges based on their individual circumstances, then there may well have been time before the relevant election to consider whether narrower relief was justified. The panel suggested that more limited relief could still be an option.
A dissent was filed by Judge Kelly. The dissent noted that unrebutted evidence demonstrated that the North Dakota law would have a particularly devastating effect on eligible Native American voters, thousands of whom will effectively lose the right to vote. The dissent further noted that North Dakota proffered no evidence to justify the law’s imposition. As a result, the dissent viewed the district court’s conclusion that the law likely runs afoul of the Equal Protection Clause as “eminently reasonable” and not an abuse of discretion. As a result, the dissent would have affirmed the district court’s order granting a preliminary injunction.
Following the appeal judgment, the case was returned to the District Court but no further proceedings appear to have occurred.
Chris Newcomb (11/4/2022)
Chris Newcomb (11/4/2022)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4305697/parties/brakebill-v-jaeger/
Bodo, Richard de (North Dakota)
Campbell, Matthew Lee (North Dakota)
Dickson, Thomas A. (North Dakota)
Leon, Jacqueline D. (North Dakota)
Lewerenz, Daniel David (North Dakota)
See docket on RECAP: https://www.courtlistener.com/docket/4305697/brakebill-v-jaeger/
Last updated Feb. 5, 2024, 3:12 a.m.
State / Territory: North Dakota
Filing Date: Jan. 20, 2016
Case Ongoing: Yes
Six individuals, all of whom were members of the Turtle Mountain Band of Chippewa Indians, a native American tribe in North Dakota
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Content of Injunction: