Courts

Supreme Court Swings North Dakota Senate Race Towards Republicans

Voter ID ruling should suppress the votes of Native Americans, just as the right wing on the Court intends.

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Heidi Heitkamp and some creepy Daywalker with no soul. (Photo by Chip Somodevilla/Getty Images)

One benefit of the Brett Kavanaugh experience, I hope, is that we can start talking about the Supreme Court honestly. The mask of the Court as “just calling balls and strikes” has been ripped away. No longer do we have to pretend that these people don’t have political outcomes they prefer.

The conservative majority, their preferred political outcome is that Republicans win elections. They know that Republicans cannot win elections if everybody votes. The GOP is a shrinking, minority party. They cannot prevail at the polls, unless the votes of the majority of Americans are suppressed or discounted in some way.

The Electoral College does most of that work on the national level. Gerrymandering accomplishes much of the work at the local and Congressional level. But Senate races are tricky. Statewide elections can overcome local gerrymandering, without the mollifying effects of political apartheid represented by the Electoral College.

Enter voter ID laws. Voter ID requirements are a good way to suppress the votes of non-whites in statewide elections. For a host of reasons, many of them economic, non-white voters are less likely to have the specific identification requirements imagined by Voter ID crusaders, and they’re less likely to have the time to go get the right identification before election day. Sure, some poor white voters are caught in this vortex as well. But the GOP goal is for fewer people to vote. Whether they use an ax or a scalpel, fewer eligible voters is better for the GOP.

If you understand the political goals of the Supreme Court, you can understand the Court’s decision in Brakebill v. North Dakota. The Court yesterday declined to intervene to stop North Dakota’s voter ID laws from going into effect. This November 6th, people who go to North Dakota will have to present ID that also has their address on it.

The law is designed specifically to disenfranchise Native-American voters. Some forms of tribal IDs do not have a street address listed on them. They could, but they don’t. North Dakota could have made this law take effect in future years, after all agencies that issue identification knew that they had to put an address on the document. But it didn’t. It wanted this law for this election as North Dakota Republicans try to unseat Democrat Heidi Heitkamp, which is crucial for helping Republicans hold onto the Senate.

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It’s a very obvious political ploy, and SCOTUS going along with it is a very obvious example of the Supreme Court picking political winners (and losers) as opposed to having any fealty to “the law.” The Supreme Court could have easily stayed the implementation of this law until after the election, allowing time for considered argument and giving tribal agencies enough lead time to implement new policies if necessary. They didn’t because the conservative majority wants Heitkamp to lose. We no longer have to pretend that their decision was based on any jurisprudence other than “whatever helps Republicans win.”

Brett Kavanaugh himself did not participate in the decision, but his specter hung over the ruling. The case was a simple denial to stay a lower court ruling, upholding the voter ID law, so the justices were not required to explaining their reasoning. Justice Ruth Bader Ginsburg wrote a short dissent, which was joined by Justice Elena Kagan.

Justices Sonia Sotomayor and Stephen Breyer joined with the Republicans, to make the decision 6-2. Why? Well, we can only speculate but here are some issues to consider:

A. A 4-4 decision would have left the lower court ruling in place. So long as the four non-Kavanaugh conservatives were committed to helping Heitkamp’s Republican challenger, Kevin Cramer, there was nothing the progressives on the Court could do to stop it anyway.

B. Strategic voting is something we’ve seen progressives do more and more, since the occasionally gettable Sandra Day O’Connor was replaced by the hardcore partisan stylings of Samuel Alito. A 4-4 case might have inspired re-argument from conservatives once Kavanaugh was ready for action. And a 5-4 voter ID decision, whether it was written by Kavanaugh or one of the others, could have torpedoed challenges to voter ID challenges across the country. There will be a time for the progressives to make a last stand against voter ID laws, but it wasn’t here.

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C. Making any kind of precedential decisions based on the voting laws of North Dakota is dangerous. North Dakota, I only recently learned, is all kinds of weird with its voting laws. There is no voter registration in North Dakota! Which is kind of great, but also deeply strange. Voters can just show up on election day, give their address to figure out which precinct they’re in, and vote. So while a proof of address law in North Dakota is an attack on the Native-American population in that state, its function is colorably different than a proof of address law in say, New York, where you have to be pre-registered at your address anyway in order to vote.

If Merrick Garland had been on the Court instead of Neil Gorsuch, it’s likely that Breyer and Sotomayor would have fell in line and struck down this North Dakota law. And I say that not because I know anything about Merrick Garland’s opinions on state voter ID laws, but because Merrick Garland could ostensibly be counted on to be just as partisan as Neil Gorsuch, just in the opposite direction. I have no doubt that if there had been a change in election law that helped Heitkamp, the progressives and conservatives would have switched sides, and Heitkamp still would have been screwed by the conservative majority.

If Heitkamp loses (and she might not, because again, voting in North Dakota is weird!), a lot of people are going to point to her “no” vote on Brett Kavanaugh. Republicans will push this narrative, because Republicans are invested in making Democrats afraid to stand up for what they believe in.

I won’t be buying what they’re selling. If Heitkamp loses, it will be in no small part because the Supreme Court ordered her to. The Supreme Court has preferred political outcomes. It’s time to stop pretending like they don’t.

Brakebill v. North Dakota (dissent)

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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