Sen. Heidi Heitkamp (D-ND) won her 2012 race by less than 3,000 votes — in no small part due to support from Native Americans. Not long thereafter, North Dakota’s Republican legislature passed a law that effectively strips many of these Native Americans of their voting rights.

Yet, according to an order handed down by a federal judge on Thursday, this voter suppression law cannot be challenged prior to next week’s election. The practical impact is that numerous Native Americans will not cast a ballot — and a Democratic senator may lose her seat as a result.

The voter suppression law requires voters to present an ID at the polls which lists their residential mailing address. It’s a devious scheme because residents of many Native reservations live at homes without an official street address — Slate’s Mark Joseph Stern tells the story of one voter whose street is listed as “Unknown2” in a state database. So, for these voters, it may be impossible to obtain the ID they need to vote.

In April, a federal trial court blocked this law, noting that “at least 4,998 otherwise eligible Native Americans (and 64,618 non-Native voters) currently do not possess a qualifying voter ID under the new law.” That trial court’s decision was stayed in late September, however, by a panel of three appellate judges. Both of the judges who voted to reinstate the North Dakota law are Republicans. The sole judge in dissent is a Democrat.


The two Republicans argued that North Dakota’s law must remain in effect because a 2008 Supreme Court decision siding with an Indiana voter ID law established that “a plaintiff seeking relief that would invalidate an election provision in all of its applications bears ‘a heavy burden of persuasion.'” Thus, to challenge this particular law, lawyers seeking to block it had to identify specific plaintiffs who were especially likely to be disenfranchised by this law.

Bear in mind that the appeals court handed down that decision in late September, forcing voting rights lawyers to hunt for plaintiffs that would meet this narrow criteria. They eventually found them, and filed a suit on October 30 — but that turns out to be too late.

In an order handed down Thursday, Judge Daniel Hovland concludes that “it is highly important to preserve the status quo when elections are fast approaching.” To support this proposition, he cites the Supreme Court’s decision in Purcell v. Gonzalez, which held that courts should be reluctant to hand down decisions impacting a state’s election law as the election itself draws close.

If Purcell were applied fairly and neutrally to all parties, this could possibly be considered a fair outcome, but there’s another twist. Recall that the original order halting North Dakota’s law was handed down in April, and the appeals court waited until late September to reinstate the law.

That appeals court order was appealed to the Supreme Court, where Justice Ruth Bader Ginsburg wrote a dissenting opinion arguing that the April order halting the law should remain in effect. “I would grant the application to vacate the Eighth Circuit’s stay because last-minute ‘[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.’” Ginsburg also cited Purcell to support this claim.


It’s difficult to escape the conclusion, in other words, that courts are applying Purcell selectively. When Republican judges make it harder to cast a ballot shortly before an election, Purcell did not stop them. But now that voting rights plaintiffs want to restore their voting rights, Purcell is suddenly an insurmountable barrier.