Voter ID rulings in North Dakota, Missouri could have serious implications in key Senate races

The fate of Missouri and North Dakota’s controversial voter identification laws were decided in court Tuesday, as Democratic senators in both states face tough battles in the November midterm elections.

A state judge in Missouri struck down parts of a law requiring Missourians without valid identification to sign an affidavit, while the United States Supreme Court allowed a law in North Dakota to remain in place for the November midterm elections despite the potential widespread voter disenfranchisement that could result.

The two rulings could have an effect on the battle for control of the U.S. Senate. Sens. Heidi Heitkamp (D-N.D.) and Claire McCaskill (D-Mo.) are fighting for re-election in the predominantly Republican states, and both races are currently considered to be toss-ups by the nonpartisan Cook Political Report.

According to data cited by FiveThirtyEight and the American Civil Liberties Union, voter identification laws are found to disproportionately impact voters of color and elderly voters.

Missouri

The Circuit Court of Cole County, Missouri, granted a permanent injunction against certain aspects of Missouri’s voter ID law Tuesday. The regulation that was struck down stated that if voters cannot present valid photo identification at the polls, they could provide another nonphoto form of identification and sign a sworn affidavit under pain of perjury that they are the person on the identification.

Senior Circuit Judge Richard G. Callahan noted in his ruling that the affidavit, which requires voters to swear they “do not possess a form of identification approved for voting” while simultaneously requiring voters to show a form of approved identification, was “contradictory and misleading.”

Callahan said that while he did not find requiring voters to sign an affidavit in general to be an “unreasonable burden,” requiring voters to execute the language of this particular affidavit “impermissively infringes on a citizen’s right to vote as guaranteed under the Missouri constitution.”

The judge also struck down an aspect of the law mandating a media campaign that informed the public of the photo identification requirement, which “strongly implied that a photo identification card was required for voting,” despite options that allow voters to cast a ballot without the proper ID.

“No compelling state interest is served by misleading local election authorities and voters into believing a photo ID card is a requirement for voting,” Callahan wrote, citing instances showing the misleading advertisements resulted in “qualified voters being turned away at the polls” and “not even showing up at the polls” in the first place.

“As desirable as a Missouri-issued photo ID might be, unlike an American Express card, you may leave home without it, at least on Election Day,” Callahan wrote.

Callahan upheld a separate aspect of the law, which requires voters who cannot provide photo identification to sign a provisional ballot that will only be counted if the voter returns with valid photo identification or if their signature on the ballot matches their signature on file.

PrioritiesUSA chairman Guy Cecil, whose organization filed the lawsuit against the law, said in a statement the ruling was “an important victory for voting rights that will ensure that future elections in the state are open and accessible to every eligible voter.”

“With this injunction in place, hundreds of thousands of eligible voters in Missouri who do not possess photo ID — and who could have otherwise been disenfranchised due to the law’s highly confusing and burdensome requirements — will once again be able to cast their ballots free from unnecessary obstacles.”

Missouri Secretary of State Jay Ashcroft has vowed to appeal the ruling ahead of the November elections, the Associated Press reported. Should the ruling remain in place, however, giving greater voting access to even just the 5% of Missouri voters who don’t have valid photo identification could have an impact. The race between McCaskill and current state Attorney General Josh Hawley is currently at a dead heat; a Reuters/Ipsos/UVA Center for Politics poll released Wednesday found that 44% of likely voters backed McCaskill as compared with 45% who supported Hawley.

North Dakota

The U.S. Supreme Court denied an application to vacate a stay on Thursday regarding North Dakota’s election law, leaving the contested law in place for the November midterms. Under the now-upheld requirements, a voter ID or supplemental documentation must show the voter’s “current residential street address.”

The law had previously been struck down in April ahead of the state’s primary election, as a district court expanded the requirement to include a P.O. Box or other mailing address. The regulation was then reinstated in an appeals court ruling on Sept. 24, changing the requirements after early voting in North Dakota had already begun.

Justices Ruth Bader Ginsburg and Elena Kagan dissented in the court’s decision, while recently confirmed Justice Brett Kavanaugh did not participate. Ginsburg noted in her dissent that the “risk of disenfranchisement is large” under the appeals court’s ruling.

“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,” Ginsburg wrote. “Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election.”

The law could have widespread effects for North Dakota voters. Ginsburg noted in the dissent that 70,000 North Dakota residents — almost 20% of the state’s normal voter turnout — lack qualifying identification under the law, and approximately 18,000 of those voters lack supplemental documentation that would allow them to vote without the correct identification.

In his application for the Supreme Court to vacate the injunction, Native American Rights Fund attorney John Echohawk wrote the law “imposes impossible and severe burdens on the franchise for Native American voters” in particular, as many lack a current residential street address. Tribal IDs often do not list residential addresses, and many Native Americans live on reservations or other areas without residential addresses to begin with.

Native American voters are also disproportionately homeless and there are few driver’s license centers in or near Native reservations, Echohawk noted.

The disenfranchisement of Native American voters could have a detrimental effect for Heitkamp, who trailed opponent Kevin Cramer by approximately 10 points in recent polls and is facing increased opposition after voting against Kavanaugh’s Supreme Court confirmation. Heitkamp won her initial 2012 Senate campaign by less than 3,000 votes, and Native Americans were likely crucial to her victory. She won 80% of the vote in the two counties with the largest Native populations and carried all of the districts with large Native populations, according to the West Fargo Pioneer.