69 Am. U. L. Rev. 295 (2019).

* Staff Attorney, United States Court of Appeals for the Second Circuit. Note & Comment Editor, American University Law Review, Volume 68; J.D., 2019, American University Washington College of Law. I would like to thank Professor Herman Schwartz of American University Washington College of Law for his invaluable guidance on this subject. The views expressed in this Note are my own and are not representative of my position as a federal judiciary employee.

In 2013, North Dakota passed one of the country’s most restrictive voter ID laws. This law requires voters to present a photo ID containing a residential street address to vote and does not contain any fail-safe mechanisms to allow voting without a qualifying ID. The North Dakota law was part of a wave of new, restrictive voter ID laws passed throughout the country in the wake of Shelby County v. Holder, a 2013 Supreme Court decision that eliminated the heart of the 1965 Voting Rights Act—the preclearance regime of sections 4(b) and 5, which required certain jurisdictions with histories of voting discrimination to obtain federal preclearance for any changes to their voting laws. North Dakota is home to over 31,000 Native Americans, many of whom live in rural areas where residential street addresses are not required and where the U.S. Postal Service does not deliver. These individuals typically send and receive mail by P.O. box, which does not qualify as a residential street address under the 2013 voter ID law. This law immediately disenfranchised thousands of North Dakotans, with a disproportionate impact on Native Americans. In 2016, Native American litigants challenged the law in Brakebill v. Jaeger on equal protection and Voting Rights Act section 2 grounds. Reversing the District of North Dakota, the Eighth Circuit Court of Appeals upheld the law, and the Supreme Court affirmed the decision on the eve of the 2018 midterm elections.

North Dakota’s voter ID law is a modern iteration of Native American voter disenfranchisement that has been occurring systematically since the nation’s founding. This Note details this history and explains the modern methods that states use to disenfranchise Native Americans. Considering this history and context, this Note argues that the Eighth Circuit’s equal protection analysis in Brakebill was flawed in that the court failed to adequately address the law’s disproportionate burden on Native Americans, overplayed a hypothetical risk of voter fraud, and skirted the constitutional issues posed by fees for obtaining qualifying IDs. It then argues that future litigants should raise a Voting Rights Act section 2 claim to challenge the law, an issue that Brakebill did not reach on the merits. Finally, it proposes that Congress adopt the 2019 Native American Voting Rights Act.