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Brakebill v. Jaeger
United States District Court, D. North Dakota
April 3, 2018
Richard Brakebill, Dorothy Herman, Della Merrick, Elvis Norquay, Ray Norquay, and Lucille Vivier, on behalf of themselves, Plaintiffs,
Alvin Jaeger, in his official capacity as the North Dakota Secretary of State, Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR SECOND
PRELIMINARY INJUNCTION IN PART
L. HOVLAND, CHIEF JUDGE
the Court is the Defendant's “Motion to Dissolve
Preliminary Injunction” filed on January 16, 2018.
See Docket No. 80. The Defendants seek to set aside
the “Order Granting Plaintiffs' Motion for
Preliminary Injunction” issued on August 1, 2016. Also
before the Court is the Plaintiffs' Second Motion for
Preliminary Injunction filed on February 16, 2018.
See Docket Nos. 89 and 92.
August 2016, this Court carefully considered the
Dataphase factors and concluded the public interest
in protecting the right to vote for thousands of Native
Americans who lacked a qualifying ID and cannot obtain one,
outweighed the purported interests and arguments of the
State. As a result, the North Dakota Secretary of State was
enjoined from enforcing N.D.C.C. § 16.1-05-07 without
any adequate “fail-safe” provisions that had been
provided to all voters in North Dakota prior to 2013. In the
past, North Dakota allowed all citizens who were unable to
provide acceptable ID's to cast their vote under two
types of “fail-safe” provisions which were
repealed in 2013.
response to the preliminary injunction issued August 1, 2016,
the North Dakota Legislative Assembly amended and enacted a
new election law (House Bill 1369). Effective July 1, 2017,
North Dakota law now permits individuals who do not present a
valid ID when appearing to vote to mark a ballot that is then
set aside until the individual's qualifications as an
elector can be verified. See N.D.C.C. §
16.1-01-04.1(5). The new law provides in relevant part as
1. A qualified elector shall provide a valid form of
identification to the proper election official before
receiving a ballot for voting.
2. The identification must provide the following information
regarding the elector:
a. Legal name;
b. Current residential street address in North Dakota; and
c. Date of birth.
3. a. A valid form of identification is:
(1) A driver's license or nondriver's identification
card issued by the North Dakota department of transportation;
(2) An official form of identification issued by a tribal
government to a tribal member residing in this state.
b. If an individual's valid form of identification does
not include all the information required under subsection 2
or the information on the identification is not current, the
identification must be supplemented by presenting any of the
following issued to the individual which provides the missing
or outdated information:
(1) A current utility bill;
(2) A current bank statement;
(3) A check issued by a federal, state, or local government;
(4) A paycheck; or
(5) A document issued by a federal, state, or local
5. If an individual is not able to show a valid form of
identification but asserts qualifications as an elector in
the precinct in which the individual desires to vote, the
individual may mark a ballot that must be securely set aside
in a sealed envelope designed by the secretary of state.
After the ballot is set aside, the individual may show a
valid form of identification to either a polling place
election board member if the individual returns to 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 before the meeting of the
canvassing board occurring on the sixth day after ...