Tuesday, August 02, 2016

 I have now read today's opinion enjoining North Dakota's voter ID rules.

It is a devastating critique of the state's position. Plaintiffs had their ducks in a  row, showing that Native Americans on the rez were less likely to have ID's, cars, computers, underlying documents, know about the ID rules or know where the BMV offices were.

The court was concerned that you had to have ID to get ID, and to get ID you had to have a birth certificate, $7, and to get that you had to have ID. Next, he was concerned about the lack of an affidavit option, provisional ballots, or some kind of fail-safe system to prevent poll workers who knew the voters from having to turn them away for not having the right ID.

He used the Anderson test from Crawford, and mentioned Norman v Reed, and distinguished the controlling Stevens opinion in Crawford, requiring a fact based inquiry, from the Scalia concurrence that the state tried to rely on. Since plaintiffs had a strong likelihood of success on the merits for the 14th Amendment equal protection claim, he did not reach the state constitutional claim or the VRA claim.

He found that the state's interests would not be harmed by using a system they've been using for years, and found that the state didn't refute any of plaintiffs' evidence or present much relevant evidence of their own. Although this is only a preliminary injunction, it's clear where he stands on the merits. Relief was not limited to the Native American plaintiff class; everybody will get to use the affidavit option as had previously been used.

This case carries no precedential weight outside North Dakota, and the facts are unique, so it's not much direct help to say an Indiana plaintiff. But there are some killer quotes, and it's part of a strong trend. Due to Purcell reasons, there is a very narrow window before the 2016 elections. It is probably too late, for this cycle, for someone to start a case now and expect to get relief before November. But if there are any cases in the pipeline anywhere this would be a good week to bring a motion for a temporary injunction. The tide is high. Next up I plan to read the most recent Wisconsin decision, which so far I have only skimmed.

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