Elvis Aden Norquay

For the first time in the state’s history, a new law was enacted requiring all tribal IDs (and other forms of identification) to list a home address in order to be a valid form of identification. While the rule change may seem innocuous on the surface, many indigenous people in rural parts of the state use post office boxes if their local government hasn’t assigned residential addresses for their homes. In previous elections, North Dakota voters could show up without an ID to vote as long as a poll worker recognized them or they signed an affidavit swearing to their eligibility.

Norquay was caught off guard, not knowing that Republican lawmakers had passed the new rule. 

“It is my right to vote for whomever I want. I shouldn’t be turned away just because I didn’t have my address listed.”

In reaction to U.S. Senator Heidi Hiedkamp’s 3,000-vote statewide victory in 2012, Republicans passed a discriminatory voter ID law, which systematically cut about 5,000 tribal residents out of the voting process for not having mailing addresses on their IDs. The law was passed without any debate or hearings about the final text of the bill. “I felt bad about being turned away from the polls at the last election,” Norquay told Indian Country Today in 2016. “It is my right to vote for whomever I want. I shouldn’t be turned away just because I didn’t have my address listed.” In 2015, the law was amended to disqualify student IDs, military IDs for persons stationed in North Dakota, and limited use of absentee ballots without ID.

This targeted voter suppression impacts all North Dakotans, but it has a disproportionate impact on the most vulnerable: the poor, indigenous communities, students, and those who live at those intersections.

Poverty is prevalent on North Dakota reservations

Elvis Norquay grew up in the Dakotas where he attended the notorious Flandreau Indian School in South Dakota before joining the Marines and serving in Vietnam. After the war, he came home to North Dakota, where he lived for over twenty-five years, struggling with bouts of homelessness and working as a blackjack dealer for a time at the Sky Dancer Casino. Norquay built a family while living on Turtle Mountain reservation, where he would vote at the local Knights of the Columbus bingo hall in Belcourt. 

Poverty on Norquay’s reservation, like on the Standing Rock Sioux reservation, is catastrophic, with unemployment at nearly 70%. On average, indigenous persons in North Dakota make about $25,000 less in annual income than non-indigenous communities. Those who lack voter ID (22.3%) make less than $10,000 a year. In addition, about 10.5% of indigenous persons don’t have access to a vehicle and must travel twice as far to the nearest site to get a drivers license compared to non-indigenous persons. 

When you begin to understand the level of poverty on reservations, lack of access to transportation, and distances that must be traveled to collect government documents and updated IDs, the discriminatory impact of the Republican law is clear.

Almost half (47.7%)  of indigenous persons who don’t have a qualifying ID also do not have the underlying documents needed to obtain one, including nearly a third who don’t have a birth certificate. Nearly a quarter of indigenous persons don’t have two documents that show their home addresses because of the regular use of post office boxes in tribal communities.

Nearly a quarter of indigenous persons don’t have two documents that show their home addresses because of the regular use of post office boxes in tribal communities.

Like Norquay, Dorothy Herman, a tribal elder and retired teacher, was turned away from voting at the 2014 election. She had an expired state ID. When she visited the Drivers License Services (DLS) office to get a new one during the advertised open hours, it was closed. When she came again, she was told she needed a birth certificate to renew it. Finally, she made a third trip and paid $8 to obtain a new state document. 

Alva Cottonwood-Gabe, a 57-year-old woman supporting four grandchildren on $393 a month, couldn’t afford the $5 needed to replace her invalidated tribal ID. As reported in the Guardian, she is an environmental activist who’s voted in every election since 1984. 

Though the new law disenfranchised indigenous people, especially those living in poverty, the community fought back. Norquay and Herman became two of six plaintiffs in the “Brakevill v. Jaeger” lawsuit that challenged and struck down the discriminatory voter ID law in a federal district court, before both an appeals court and the U.S. Supreme Court allowed it to stay in place.

Extreme federal judges are a threat to voting rights

On August 1, 2016, a federal district court judge who had been appointed by George W. Bush did the right thing. He temporarily blocked the discriminatory Republican voter ID law, rejecting the state’s rhetoric that it somehow worked to prevent so-called “voter fraud.” “The undisputed evidence before the Court reveals that voter fraud in North Dakota has been virtually non-existent,” he wrote. By blocking the law, he allowed voters without an ID to cast a ballot using methods approved from previous elections. 

In 2017, however, North Dakota’s Republican legislature went back to work and amended the law to replace the signed affidavit option. They proposed a requirement for alternative proof of residency documents to include a paycheck or utility bill. But federal district court judge Daniel Hovland again rejected this law, noting how it would prevent a class of people from ever being able to vote. He ruled that tribes could issue a letter or ID with a home or mailing address to be accepted at polling locations.

In September 2018, however, the 8th Circuit Court of Appeals, which has the highest percentage of judges appointed by Republicans, reversed the district court’s ruling. 

The 8th Circuit Court is one of the most conservative courts in the country. There are rumors that lawyers, aware of the political bias of the court, file discrimination cases in state courts when they can because “they’re more fair than the Eight Circuit.” As of 2023, all but one of the 11 judges were appointed by Republican presidents, including four by Donald Trump. In a study published in 2012, University of Arkansas Law Professor Robert Steinbuch (who is also a member of the conservative Federalist Society) found that the 8th Circuit reversed Democratic trial court judges rulings about one and half times more often than those of Republican-affiliated judges. The study describes a relationship between “‘political ideology’ and judicial judgements” that reflects the Eighth Circuit’s biases towards a republican political agenda. The study also looked at the Ninth Circuit, the most liberal in the country, and found no statistically significant correlation between party affiliation and reversal of trial judges’ decisions. As Steinbuch wrote, “…the Eighth Circuit has a political-party bias, while the Ninth Circuit does not.”

Given the national effort by many Republicans to mask voter suppression underneath the veneer of so-called protections against “voter fraud,” the decision by the appeals court was not surprising.

Given the national effort by many Republicans to mask voter suppression underneath the veneer of so-called protections against “voter fraud,” the decision by the appeals court was not surprising. The legal team for the “Brakevill v. Jaeger” lawsuit challenged the reversal at the US Supreme Court, but conservative justices there, under the leadership of John Roberts, affirmed the appeals court’s decision allowing the discriminatory law to take effect. 

In his book, Give Us the Ballot: The Modern Struggle for Voting Rights in America, voting rights expert Ari Berman documents Chief Justice John Roberts’ efforts to invalidate components of the Voting Rights Act throughout most of his legal career. This includes his time as a special assistant to President Reagen’s Attorney General, where he worked to preserve loopholes in Section 2 of the Voting Rights Act that allowed for “discriminatory outcomes” as a result of biased voting laws. More recently, his 2013 Shelby County v. Holder decision as Chief Justice invalidated Section 5 of the Voting Rights Act, which has enabled extremist legislatures across the nation to pass discriminatory voter ID laws. Prior to this change, localities with a history of discrimination towards voters of color were required to get preclearance from the U.S. Justice Department before they could change voting laws. 

While North Dakota wasn’t previously required to get preclearance, Justice Robert’s helped clear the way for the current culture of Republican state legislatures pursuing discriminatory voter restriction laws.  As of 2023, a majority of the states have done this. Like the North Dakota law, these efforts come from the same voter suppression playbook and attempt to siphon off potential voters who are unlikely to vote Republican.

Federal action is needed to constrain extremists and stop voter suppression efforts

Voter suppression through discriminatory restrictive laws is becoming a more popular Republican strategy to maintain power. By systemically preventing and cutting off potential Democratic voters from the voting process, Republicans are working in legislatures across the nation to make it just slightly more difficult for voters outside of their base to vote. 

In 2020, North Dakota tribal advocates and leaders were able to secure a binding agreement with the state of North Dakota to ensure “tribal IDs and tribally designated street addresses are accepted as valid.” This essentially enshrined the protections prescribed by the federal district court ruling in 2017. But while some level of access has been restored for indigenous people, the Republican law has still succeeded in eliminating student IDs, military IDs, and limiting absentee ballot access to only those with IDs. 

…while some level of access has been restored for indigenous people, the Republican law has still succeeded in eliminating student IDs, military IDs, and limiting absentee ballot access to only those with IDs.

The John R. Lewis Voting Rights Advancement Act is an updated voting rights law that passed the U.S. House of Representatives in 2021. Amongst other important enhancements, it restores the preclearance requirement that was struck down by the Robert’s Court, utilizing a new formula to determine localities that would need approval before passing new voting laws. Under the VRAA, Republican legislatures would be held accountable for creating restrictive voter laws, including those that suppress votes by “imposing stricter requirements for documentation or proof of identity.” Further, indigenous communities, like those in North Dakota, would have a special protective carve outs to ensure their tribal IDs are valid and tribal communities are empowered to designate addresses for individuals who may reside in a residence without one.

Absent the restoration of key provisions of the Voting Rights Act of 1965 or passage of a new voting rights law all together, indigenous and other communities will be susceptible to disenfranchisement by extremist legislatures.

On March 12, 2021, Elvis Norquay passed away. Those who knew him described him as “generous” and a “family man.” The work he and the other plaintiffs and advocates did to protect voting rights for tribal communities in North Dakota will forever be remembered as a part of the legal history and fight for democracy in our country.

Artwork and essay by Joe Ward, published on April 10, 2023

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