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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,
v.
Alvin Jaeger, in his official capacity as the North Dakota Secretary of State, Defendants.

          ORDER GRANTING PLAINTIFFS' MOTION FOR SECOND PRELIMINARY INJUNCTION IN PART

          DANIEL L. HOVLAND, CHIEF JUDGE

         Before 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.

         In 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who were unable to provide acceptable ID's to cast their vote under two types of “fail-safe” provisions which were repealed in 2013.

         In 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 follows:

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; or
(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 government.
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 ...

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