The American Indian Law Clinic
University of Colorado Law School
On Tuesday, November 6, 2018, we awoke to a cold black sky moved by gusting winds and snow flurries touching down on the already frozen prairie ground. We had come to North Dakota as nonpartisan election observers from Colorado, Utah, Minnesota, Nebraska, New York, and Tennessee to help Native Americans exercise their rights to vote in the wake of a new law requiring proof of physical address in order to vote in the state. We came not knowing what to expect at the more than thirty polling locations across the state. There were so many unknowns - whether or not we would be permitted to stand inside the buildings, how the election workers would receive us, how many voters would turn out or would be turned away. We brought thermoses full of coffee, hand warmers and granola bars, clipboards, heavy coats and gloves, pens and intake forms, and, most of all, a desire to help.
Our group had a set of experiences that spanned a spectrum as diverse as the political viewpoints across North Dakota. On the Fort Berthold reservation, in Parshall, North Dakota, one of us met several female senior citizens who were there to work all day in service to the electoral process. All of the election workers there were caucasian, although Parshall itself is on the reservation. There, all voters were able to vote and Election Day ran smoothly.
But just twenty miles away, in New Town, North Dakota, we observed Native Americans in long lines and waits attributable to caucasian election workers rigorously checking addresses and IDs for Native American voters but less so for the non-native voters in the adjacent precinct that they often knew by name. At that site, we helped many Native American voters who otherwise would have been turned away. We insured that the election workers provided set-aside ballots so that those without physical address identification under the new law could return to cure the deficiency as allowed by North Dakota law. We informed voters of the additional documentation they would need to vote, and we directed tribal members to on-site tribal staff to receive physical address verification. In two cases that day, those same tribal workers also were happy to print out proof of physical address for non-native voters who had apartment leases and utility bills that were only accessible on their smartphones.
We learned that day that most reservation polling locations had never before had non-partisan election observers, and that our presence was not well understood and sometimes less than welcome. However, it became clear Tuesday in North Dakota that election volunteer presence was critical to ensure that voters who otherwise were being turned away were in fact able to return and vote.
Unfortunately, we also acutely experienced the realities of living in a highly divided nation. Many of our election volunteers experienced outright hostility at their very presence in North Dakota, even away from the polls. Several of our volunteers, all of whom came voluntarily and without pay, were asked how much they were getting paid and who was paying them. One group was greeted with a lewd gesture when arriving at their hotel, as well as a person muttering to them, “I f****** hate liberals.” He didn’t give them the chance to explain that our presence was wholly apolitical.
In Selfridge, a town bordering the Standing Rock reservation, voting took place at a community school, and our election observers learned that a school employee made a loud derogatory comment expressing their confusion about why voters needed rides to the polls if, in their words, those same voters had no problem getting to state offices to receive public benefits.
There were better moments. In Cannon Ball, on the Standing Rock reservation, our election observers had a mostly uneventful day. The election workers shared their soup during lunch and community members brought the volunteers hamburgers and fries for dinner. There, election workers questioned our presence, but listened with open ears and worked to ensure that every ballot would be counted.
Although North Dakota has been steadfast in protecting its restrictive voter identification law in court by stating its interest in protecting elections, it is clear that the state has not invested in appropriate infrastructure to adequately protect elections. Across the board and across locations, we observed a high level of voter confusion about voting requirements and documentation, along with concerning election practices. Unfortunately, this confusion seemed to also plague election workers, who, in many cases, were improperly telling voters that their identification must match the address they had on file on their paper poll records on-site in order to cast a ballot. Most voting locations lacked any online connectivity.
There were other problems that, while not implicating the voter identification law, could have affected the integrity of the election. In Fort Yates, also on the Standing Rock reservation, one of our volunteer groups observed an election worker putting a stack of blank paper ballots into a garbage bag and then hand it to an individual who was not an election worker to drive to another location that was running low on ballots.
Finally, across the board, it is clear to us that Native American voters turned out in this election in record numbers, likely in response to their sense that the state was attempting to prevent them from voting. In Bismarck, we assisted a Native American woman who was turned away twice from the polls due to lack of address documentation. The first time, the voter walked over a mile to her car in freezing temperatures and howling winds to return with the documentation that she believed would enable her to vote. After being turned away a second time, she again walked out into the cold, returning an hour later with a hospital bill to successfully vote on her third attempt. For us, we will never forget the determination of these voters and the look of pride on their faces after their ballots were finally cast.
The American Indian Law Clinic at the University of Colorado Law School volunteered as election observers and coordinated election volunteers from across the country who sought to provide assistance to voters on Indian reservations in North Dakota. They worked with Common Cause and Election Protection to provide training and assistance and coordinated efforts with Native American Rights Fund, counsel for the plaintiffs who challenged the North Dakota Voter ID law. Carla Fredericks, Director of the American Indian Law Clinic at the University of Colorado Law School, is an enrolled member of the Mandan, Hidatsa and Arikara Nation in North Dakota.