Brakebill v. Jaeger

• Decision Date: 24 September 2018
• Docket Number: No. 18-1725,18-1725
• Citation: 905 F.3d 553
• Parties: Richard BRAKEBILL; Dorothy Herman; Della Merrick; Elvis Norquay; Ray Norquay; Lucille Vivier, on behalf of themselves, Plaintiffs-Appellees, v. Alvin JAEGER, in his official capacity as the North Dakota Secretary of State, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

905 F.3d 553

Richard BRAKEBILL; Dorothy Herman; Della Merrick; Elvis Norquay; Ray Norquay; Lucille Vivier, on behalf of themselves, Plaintiffs-Appellees,

v.Alvin JAEGER, in his official capacity as the North Dakota Secretary of State, Defendant-Appellant.

No. 18-1725

United States Court of Appeals, Eighth Circuit.

Submitted: September 10, 2018

Filed: September 24, 2018

Matthew Lee Campbell, Jacqueline De Leon, NATIVE AMERICAN RIGHTS FUND, Boulder, CO, Daniel Lewerenz, Joel West Williams, NATIVE AMERICAN RIGHTS FUND, Washington, DC, Richard DE Bodo, MORGAN & LEWIS, Los Angeles, CA, for Plaintiffs-Appellants.

Elizabeth Ann Fische, James E. Nicolai, Deputy Solicitor, ATTORNEY GENERAL'S OFFICE, Bismarck, ND, for Defendant-Appellant.

Before COLLOTON, BENTON, and KELLY, Circuit Judges.

COLLOTON, Circuit Judge.

We are presented with a motion filed by the North Dakota Secretary of State to stay an order of the district court that enjoined parts of the North Dakota elections statutes. One aspect of the statutes requires a voter to present at the polls a valid form of identification that provides the voter’s current residential street address.

The district court enjoined the Secretary from enforcing this provision. The court required instead that the Secretary must deem a voter qualified if the voter presents identification that includes a voter’s current mailing address, such as a post office box, that may be located in a different voting precinct from the voter’s residence. We conclude that the Secretary has demonstrated a likelihood of success on the merits in his challenge to this aspect of the injunction, that the State would be irreparably harmed by the injunction during the general election in November, and that a stay should be granted after consideration of all relevant factors. We therefore grant the motion to stay the district court’s order in relevant part.

North Dakota has no voter registration requirement, so a resident may appear at the polls on election day and cast a ballot without any previous expression of desire to vote. Election officials at the polls are charged with determining whether a person who appears is qualified to vote.

Effective August 1, 2017, the North Dakota legislature provided that a qualified elector must provide a "valid form of identification" to the proper election official before receiving a ballot. N.D. Cent. Code Ann. § 16.1-01-04.1(1). A valid form of identification is a driver’s license or nondriver identification card issued by the North Dakota department of transportation or "[a]n official form of identification issued by a tribal government" to a tribal member residing in North Dakota. Id. § 16.1-01-04.1(3)(a)(2).

To qualify a voter to receive a ballot, an identification must provide the voter’s (1) legal name, (2) current residential street address in North Dakota, and (3) date of birth. Id. § 16.1-01-04.1(2). If the identification does not include all three pieces of information, then the voter must provide the missing information by supplementing the identification with one of several documents: a current utility bill, a current bank statement, a check issued by a federal, state, or local government, a paycheck, or a document issued by a federal, state, or local government. Id. § 16.1-01-04.1(3)(b).

If a prospective voter is unable to show a valid form of identification but asserts qualifications as an elector in a particular precinct, then the voter may mark a ballot, and the election officials must set it aside in a sealed envelope. Id. § 16.1-01-04.1(5). The voter then has six days to present a valid form of identification either to an official at the polling place before the polls close, or to an employee of the office of the election official responsible for the administration of the election. Id.

Six plaintiffs in a pending lawsuit against the Secretary challenged the 2017 statute on the ground that it violates the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act. These plaintiffs, all Native Americans and residents of North Dakota, sued in January 2016 to enjoin a previous version of the North Dakota statute and obtained relief. After the legislature amended the law, the plaintiffs moved in February 2018 to enjoin the current statute.

The district court enjoined the Secretary from enforcing the requirement of § 16.1-01-04.1(2)(b) that a voter produce identification or a supplemental document with a "current residential street address," and ordered that the Secretary accept "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." The court also ordered the Secretary to accept any form of tribal identification that sets forth a name, date of birth, and current residential street address or mailing address. Similarly, the court required that if a voter’s identification does not include a current residential street address, then the Secretary must accept supplemental documents from a tribal government that include either a current residential street address or a mailing address. The court relied exclusively on constitutional grounds and did not address the Voting Rights Act.

In support of its orders, the district court stated as follows:

The State has acknowledged that Native American communities often lack residential street addresses or do not have clear residential addresses. Nevertheless, under current State law an individual who does not have a "current residential street address" will never be qualified to vote. This is a clear "legal obstacle" inhibiting the opportunity to vote. The State can 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.

R. Doc. 99, at 8-9 (citations omitted).

The court also found that 4,998 otherwise eligible Native Americans (and 64,618 non-Native voters) did not possess a qualifying identification. The court cited "statistical data" showing that 19% of Native Americans lacked qualifying identifications. And the court found that 48.7% of Native Americans who lack a qualifying identification also lacked "the supplemental documentation needed," such that 2,305 Native Americans would not be able to vote in 2018 under the North Dakota statute. To remedy these concerns about obtaining identification, the court ordered the Secretary to accept various documents issued by a tribal authority to a tribal member. The Secretary does not seek to stay these portions of the injunction.

The Secretary has appealed the injunction and also moved to stay one aspect of the injunction. Specifically, the Secretary seeks to stay the district court’s order that voters must be deemed qualified if they present identification or a supplemental document with a current mailing address rather than a current residential street address. Under Federal Rule of Appellate Procedure 8(a), we consider four factors in determining whether to issue a stay pending appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). The most important factor is likelihood of success on the merits, although a showing of irreparable injury without a stay is also required. Brady v. NFL , 640 F.3d 785, 789 (8th Cir. 2011).

The Secretary contends that he will succeed on appeal because none of the six plaintiffs has Article III standing to challenge the statute’s requirement that a voter provide a current residential street address. The Secretary observes that each of the six plaintiffs has a current residential street address, and argues that the statute did not cause any of them to suffer an injury in fact. The district court concluded that the plaintiffs had standing to sue, because "the burden of having to obtain and produce an ID itself has been found sufficient to confer standing, regardless of whether the Plaintiffs are able to obtain an ID." See Common Cause/Ga. v. Billups , 554 F.3d 1340, 1351 (11th Cir. 2009). The court reasoned that all of the plaintiffs were injured in fact by "the requirement to maintain a ‘current residential street address,’ and thus an interest in real property, and the burden to maintain an ID or supplemental documents to prove he or she has a ‘current residential street address.’ "

We conclude that at least one of the plaintiffs has standing to raise a facial challenge to the statute. While it is true that all six plaintiffs have a current residential street address, the statute at issue does not merely require a citizen to maintain a residential street address. The statute requires a voter to present a valid form of identification, or a supplemental document, that includes a current residential street address. Even where a person has a residential street address, the burden of obtaining a qualifying identification or supplemental document is sufficient to constitute an injury that gives a citizen standing to sue. Id . In this case, plaintiff Elvis Norquay presented evidence that he currently resides at a homeless apartment complex in Dunseith, but that his tribal identification lists a "prior" address in Belcourt. To vote in the precinct where he currently resides, therefore, Norquay must either obtain a new form of identification with his current residential street address or a supplemental document that includes his current address. That burden is sufficient to give him standing to challenge the residential street address requirement.¹

On the merits of the facial challenge to the statutory requirement of a residential...