August 8, 2016

August 8, 2016 | Commentary on Elections, Rule of Law

It Is Hard to Win a Case When You Are AWOL

As my coauthor John Fund explains on the homepage today, in the last few weeks, we have seen federal courts in Texas, Wisconsin and North Carolina throwing out or limiting voter-ID laws.  Those decisions can best be described, to paraphrase the words of dissenting Fifth Circuit Judge Edith Jones in the Texas case, as opinions that misapplied the law and misconstrued the facts. 

While these cases have gotten most of the media attention, there was also a fourth decision out of North Dakota on Aug. 1 on voter ID that ordered the state to provide a “fail-safe” provision that will allow Native Americans to vote even if they have no ID. This despite the fact that a tribal ID is one of the acceptable forms of ID under the law.

Before the opponents of common-sense reforms such as voter ID put too much stock in this North Dakota decision, they might want to read it first. The judge in the case, Daniel Hovland, wrote this in bold typeface on page seven of his decision:

It is important to note that with respect to the Plaintiffs’ request for injunctive relief, none of the affidavits, declarations, surveys, studies, or data submitted by the Plaintiffs in support of their motion have been challenged or refuted by the State of North Dakota.

This is significant because in all of the other cases brought by the Justice Department and so-called civil rights groups such as the NAACP and the League of Women Voters, their experts have wildly exaggerated and inflated the number of individuals who supposedly lack an ID. Those claims have been sharply disputed and credibly challenged by experts hired by the defending states such as North Carolina and Texas. But apparently not in North Dakota.

On the next page of the North Dakota opinion, Judge Hovland summarizes the extravagant claims made about how uneducated Native Americans are about the voter ID requirement and how many of them supposedly don’t have even a tribal ID. He then notes, again in boldface, that the “Defendant neither disputes nor challenges these findings.”

In other words, the state of North Dakota did not bother to put up an actual defense in this lawsuit.  They didn’t hire any experts to review, evaluate or analyze the claims made by the challengers. Such inattention and inaction borders on malpractice.

The attorney general there is Wayne Stenehjem, who in June lost his race for governor in the Republican primary. Perhaps he was too busy running for higher office to do his job as attorney general and defend the state’s voter-ID law. The point, however, is that any reliance on the findings in this case are misplaced, given that the judge really did not have much choice in what he did — it is not his job to defend the state. That is the job of the attorney general, who was apparently AWOL in this case.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

This piece first appeared on National Review Online.