Native Voting Rights Discrimination: “States, Be Careful What You Wish For”


By Corin La Pointe-Aitchison

Last week, a United States House Elections subcommittee met on the Standing Rock Sioux reservation to discuss a new North Dakota state voter ID law that disenfranchises Native American voters.  That voter ID law requires a residential street address on all forms of acceptable voter identification, even though most Native Americans living on reservations in North Dakota use only P.O. Box addresses. The result: many Native voters in North Dakota will be turned away at the polls.   Last year, residents challenged the law in federal district court and won an injunction against state election officials from enforcing the new law.   But just before the midterm elections, the Eighth Circuit granted a stay of the injunction, allowing the new law to be enforced.  The United States Supreme Court then refused to vacate the stay. 

The voter ID law resulted from Democratic North Dakota Senator Heidi Heitkamp’s election in 2012.  Commentators argued Heitkamp’s victory was, in large part, thanks to Native American voters.  Reports claim that Republicans in the North Dakota legislature were debating changing voter ID laws within months of Heitkamp’s election in an obvious ploy to disenfranchise those responsible for electing her: Native voters. 

While an attack on anyone’s right to vote is cause for concern, an attack on Native voters is most upsetting due to the relative recency with which Native Americans were allowed to vote.  It was not until 1924 when Native Americans were officially, at least by Congress, granted rights of citizenship, including the right to vote.  As that federal legislation still allowed states to determine voting eligibility, states across the country allowed legislation that discriminated against Native voters until as recent as 1962.

The U.S. Supreme Court once declared “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which…we must live.” Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964). Over the past few decades, the Court has allowed more and more voter disenfranchisement by states, even famously repealing a highly protective section of the Voting Rights Act, in 2013.  Shelby County v. Holder, 570 U.S. 529 (2013).  This trend, which includes upholding state voter ID laws, made the Court’s refusal to stay North Dakota’s voter ID law last fall, unsurprising.  See Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

Also unsurprising, is the resilience and strong reaction of Native communities to voter disenfranchisement.  North Dakota’s attempt to suppress the Native vote backfired in a spectacular way: 2018’s midterm election saw a record turnout of Native voters.  Community activists and groups like Four Directions canvassed, rallied and went door to door to ensure voters would be able to participate in the election.

While states like North Dakota continue their racist ways, record numbers of Native Americans are running for office, including the first two Native American women ever in Congress.  Here in Washington State, John McCoy, the only Native American in the state Senate sponsored The Native American Voting Rights Act, which Governor Jay Inslee signed into law on March 14, 2019.  The Act—the exact antithesis of the North Dakota law—allows for unmarked homes and untraditional residential addresses, the kinds commonly found on Indian Reservations, to be used for voter identification. 

And even in North Dakota, there is hope.  While its discriminatory voter ID law is still in effect, last November’s election caused Ruth Buffalo to become the first Native American Democratic woman elected to the North Dakota Legislature.  Better yet, Buffalo defeated Randy Boehning—the original sponsor of North Dakota’s restrictive voter ID law. While it is unclear if a Congressional subcommittee will help solve North Dakota’s problem, Boehning’s defeat coupled with the surge in Native voters last election sends a message to any other state legislator considering similar laws to be careful what they wish for.  

Corin La Pointe-Aitchison is an Associate in the Seattle office.  His practice focuses on litigation involving tribal governments and enterprises, and Indian civil rights.