The Supreme Court handed embattled Senator Heidi Heitkamp an anvil. Photo: Tom Williams

North Dakota voters could determine control of the U.S. Senate on November 6 if other states break a particular way. And the already uphill fight for reelection by Democrat Heidi Heitkamp just got more difficult thanks to a decision by the U.S. Supreme Court, acting without newly sworn in Justice Kavanaugh, as Amy Howe of SCOTUSblog explains:

The Supreme Court today declined to intervene in a challenge to a North Dakota law that requires voters to present identification that includes a current residential street address. Lawyers say that the ruling will prevent thousands of Native American voters (and tens of thousands of North Dakota residents who are not Native Americans) from casting a ballot in the upcoming 2018 election in a state that could play a key role in Democrats’ efforts to retake the U.S. Senate.

A federal district court judge had halted implementation of the new law in April at the request of plaintiffs that included the Native Americans most likely to be affected by its requirements. But the 8th Circuit Court of Appeals put a stay on the district court’s action in September. And without comment, six Justices (Roberts, Thomas, Breyer, Alito, Sotomayor and Gorsuch) let things stand there. They presumably either approved of the new law as a reasonable measure to avoid (non-existent) voter fraud, or didn’t like the idea of SCOTUS intervention this close to an election (even if that meant allowing the 8th Circuit to intervene pretty close to an election, too). Ruth Bader Ginsburg, however, wrote a dissent in which Elena Kagan joined. It got right to the point:

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.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). 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. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election. If the Eighth Circuit’s stay is not vacated, the risk of disfranchisement is large.

Ginsburg went on to note the district court’s finding that “70,000 North Dakota residents–almost 20% of the turnout in a regular quadrennial election—lack a qualifying ID” under the new law’s provisions. These voters–and particularly the Native Americans among them–are likely to be disproportionately Democratic-leaning. As Mother Jones’s Pema Levy observes, Heitkamp won her last race by a spare 3,000 votes. Finding a majority now is going to be tough for her. You have to figure Brett Kavanaugh wishes he could have piled on in helping to thwart a senator who bravely decided to oppose his confirmation late in the process despite her state’s strongly conservative and pro-Trump nature.