The Supreme Court Just Bulldozed Precedent to Make It Harder for Native Americans to Vote


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Voters at a polling place


When a voter ID law makes it tougher to vote, conservatives are all for it. Even the Supreme Court’s conservatives. Turns out, they won’t so much as uphold a lower court’s decision to temporarily forestall changes that will make voting harder, no matter how strongly precedent suggests they should.

In Brakebill, et al. v. Jaeger, Native American voters challenged North Dakota’s new, restrictive voter ID law, which imposes mandates that will disproportionately affect Native Americans and, in many cases, block them from voting entirely. Anyone who lives on a reservation or in a rural area, for example, will be unable to satisfy the new law’s address requirements.

The district court enjoined the state from putting the law into effect. Voters didn’t have to comply with the it in the primary. Since then, the secretary of state’s office has been operating as if that injunction would remain in place. 

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These assumptions were more than reasonable. Changing the voting process in such a fundamental way at a late date is beyond detrimental to voters. That’s why precedent bars last-minute changes of this nature. By October, anyone would think whatever voting rules were in place would govern the election.

With just a month left, voters might not even have time to try to comply with these requirements before Election Day. Even if they did, it’s not clear the state could keep up. The district court found about 20 percent of those expected to vote wouldn’t meet the new ID requirements. Around 18,000 people wouldn’t be able to provide either adequate ID or supplementary documentation. 

Neither precedent nor policy swayed the Eighth Circuit, which hears federal appeals from Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas.

The Eighth Circuit decided on Sept. 24 that the state law should go into effect after all. The Supreme Court didn’t back the Eighth Circuit until Tuesday, less than one month before the November election.

Understandably, justices Ruth Bader Ginsburg and Elena Kagan dissented from the Supreme Court’s refusal to reverse the Eighth Circuit’s decision. 

[L]ast-minute “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” 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.

Newly sworn-in Justice Brett Kavanaugh did not take part in this decision, but it’s just a matter of time before he begins dealing blows to the Native American community. Remember this gem?

In 1999, Kavanaugh co-wrote an amicus brief, as an attorney, (on behalf of a group that opposes minority rights and affirmative action) he argued that a Hawaii law allowing only Native Hawaiians to vote for trustees of a state office, an original treaty between the US and Native Hawaiians to compensate Native Hawaiians for land that had been taken from their ancestors, was unconstitutional [Rice v. Cayetano, 528 U.S. 495 (D.C. Cir. 2000)].

Native American rights and franchise won’t fare well under Trump’s Supreme Court. This is just the beginning.

 



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