                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-1725
                          ___________________________

Richard Brakebill; Dorothy Herman; Della Merrick; Elvis Norquay; Ray Norquay;
                    Lucille Vivier, on behalf of themselves,

                        lllllllllllllllllllllPlaintiffs - Appellees,

                                            v.

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

                        lllllllllllllllllllllDefendant - Appellant.
                                        ____________

                      Appeal from United States District Court
                     for the District of North Dakota - Bismarck
                                    ____________

                   On Renewed Motion for Stay Pending Appeal
                               ____________

                           Submitted: September 10, 2018
                             Filed: September 24, 2018
                                   ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       We are presented with a motion filed by the North Dakota Secretary of State
to stay an order of the district court that enjoined parts of the North Dakota elections
statutes. One aspect of the statutes requires a voter to present at the polls a valid form
of identification that provides the voter’s current residential street address. The
district court enjoined the Secretary from enforcing this provision. The court required
instead that the Secretary must deem a voter qualified if the voter presents
identification that includes a voter’s current mailing address, such as a post office
box, that may be located in a different voting precinct from the voter’s residence. We
conclude that the Secretary has demonstrated a likelihood of success on the merits in
his challenge to this aspect of the injunction, that the State would be irreparably
harmed by the injunction during the general election in November, and that a stay
should be granted after consideration of all relevant factors. We therefore grant the
motion to stay the district court’s order in relevant part.

        North Dakota has no voter registration requirement, so a resident may appear
at the polls on election day and cast a ballot without any previous expression of desire
to vote. Election officials at the polls are charged with determining whether a person
who appears is qualified to vote.

       Effective August 1, 2017, the North Dakota legislature provided that a
qualified elector must provide a “valid form of identification” to the proper election
official before receiving a ballot. N.D. Cent. Code Ann. § 16.1-01-04.1(1). A valid
form of identification is a driver’s license or nondriver identification card issued by
the North Dakota department of transportation or “[a]n official form of identification
issued by a tribal government” to a tribal member residing in North Dakota. Id.
§ 16.1-01-04.1(3)(a)(2).

       To qualify a voter to receive a ballot, an identification must provide the voter’s
(1) legal name, (2) current residential street address in North Dakota, and (3) date of
birth. Id. § 16.1-01-04.1(2). If the identification does not include all three pieces of
information, then the voter must provide the missing information by supplementing
the identification with one of several documents: a current utility bill, a current bank

                                           -2-
statement, a check issued by a federal, state, or local government, a paycheck, or a
document issued by a federal, state, or local government. Id. § 16.1-01-04.1(3)(b).

       If a prospective voter is unable to show a valid form of identification but
asserts qualifications as an elector in a particular precinct, then the voter may mark
a ballot, and the election officials must set it aside in a sealed envelope. Id. § 16.1-
01-04.1(5). The voter then has six days to present a valid form of identification either
to an official at 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. Id.

       Six plaintiffs in a pending lawsuit against the Secretary challenged the 2017
statute on the ground that it violates the Equal Protection Clause of the Fourteenth
Amendment and Section 2 of the Voting Rights Act. These plaintiffs, all Native
Americans and residents of North Dakota, sued in January 2016 to enjoin a previous
version of the North Dakota statute and obtained relief. After the legislature amended
the law, the plaintiffs moved in February 2018 to enjoin the current statute.

       The district court enjoined the Secretary from enforcing the requirement of
§ 16.1-01-04.1(2)(b) that a voter produce identification or a supplemental document
with a “current residential street address,” and ordered that the Secretary accept
“another form of identification that includes either a ‘current residential street
address’ or a current mailing address (P.O. Box or other address) in North Dakota.”
The court also ordered the Secretary to accept any form of tribal identification that
sets forth a name, date of birth, and current residential street address or mailing
address. Similarly, the court required that if a voter’s identification does not include
a current residential street address, then the Secretary must accept supplemental
documents from a tribal government that include either a current residential street
address or a mailing address. The court relied exclusively on constitutional grounds
and did not address the Voting Rights Act.



                                          -3-
      In support of its orders, the district court stated as follows:

      The State has acknowledged that Native American communities often
      lack residential street addresses or do not have clear residential
      addresses. Nevertheless, under current State law an individual who does
      not have a “current residential street address” will never be qualified to
      vote. This is a clear “legal obstacle” inhibiting the opportunity to vote.
      The State can easily remedy this problem by simply eliminating the
      absolute need for a “current residential street address” and allowing for
      either a residential address, a mailing address (P.O. Box), or simply an
      address.

R. Doc. 99, at 8-9 (citations omitted).

       The court also found that 4,998 otherwise eligible Native Americans (and
64,618 non-Native voters) did not possess a qualifying identification. The court cited
“statistical data” showing that 19% of Native Americans lacked qualifying
identifications. And the court found that 48.7% of Native Americans who lack a
qualifying identification also lacked “the supplemental documentation needed,” such
that 2,305 Native Americans would not be able to vote in 2018 under the North
Dakota statute. To remedy these concerns about obtaining identification, the court
ordered the Secretary to accept various documents issued by a tribal authority to a
tribal member. The Secretary does not seek to stay these portions of the injunction.

       The Secretary has appealed the injunction and also moved to stay one aspect
of the injunction. Specifically, the Secretary seeks to stay the district court’s order
that voters must be deemed qualified if they present identification or a supplemental
document with a current mailing address rather than a current residential street
address. Under Federal Rule of Appellate Procedure 8(a), we consider four factors
in determining whether to issue a stay pending appeal: “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)


                                          -4-
whether the applicant will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
The most important factor is likelihood of success on the merits, although a showing
of irreparable injury without a stay is also required. Brady v. NFL, 640 F.3d 785, 789
(8th Cir. 2011).

       The Secretary contends that he will succeed on appeal because none of the six
plaintiffs has Article III standing to challenge the statute’s requirement that a voter
provide a current residential street address. The Secretary observes that each of the
six plaintiffs has a current residential street address, and argues that the statute did not
cause any of them to suffer an injury in fact. The district court concluded that the
plaintiffs had standing to sue, because “the burden of having to obtain and produce
an ID itself has been found sufficient to confer standing, regardless of whether the
Plaintiffs are able to obtain an ID.” See Common Cause/Ga. v. Billups, 554 F.3d
1340, 1351 (11th Cir. 2009). The court reasoned that all of the plaintiffs were injured
in fact by “the requirement to maintain a ‘current residential street address,’ and thus
an interest in real property, and the burden to maintain an ID or supplemental
documents to prove he or she has a ‘current residential street address.’”

       We conclude that at least one of the plaintiffs has standing to raise a facial
challenge to the statute. While it is true that all six plaintiffs have a current
residential street address, the statute at issue does not merely require a citizen to
maintain a residential street address. The statute requires a voter to present a valid
form of identification, or a supplemental document, that includes a current residential
street address. Even where a person has a residential street address, the burden of
obtaining a qualifying identification or supplemental document is sufficient to
constitute an injury that gives a citizen standing to sue. Id. In this case, plaintiff
Elvis Norquay presented evidence that he currently resides at a homeless apartment
complex in Dunseith, but that his tribal identification lists a “prior” address in

                                            -5-
Belcourt. To vote in the precinct where he currently resides, therefore, Norquay must
either obtain a new form of identification with his current residential street address
or a supplemental document that includes his current address. That burden is
sufficient to give him standing to challenge the residential street address
requirement.1

       On the merits of the facial challenge to the statutory requirement of a
residential street address, however, we conclude that the Secretary has established a
likelihood of success on appeal. A plaintiff seeking relief that would invalidate an
election provision in all of its applications bears “a heavy burden of persuasion,”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 200 (2008) (opinion of Stevens,
J.), as facial challenges are disfavored. Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449-51 (2008). Even assuming that a plaintiff can
show that an election statute imposes “excessively burdensome requirements” on
some voters, Crawford, 553 U.S. at 202 (opinion of Stevens, J.) (internal quotation
marks omitted), that showing does not justify broad relief that invalidates the
requirements on a statewide basis as applied to all voters. As the lead opinion in
Crawford explained, “[w]hen evaluating a neutral, nondiscriminatory regulation of
voting procedure, we must keep in mind that a ruling of unconstitutionality frustrates
the intent of the elected representatives of the people.” Id. at 203 (internal quotation
marks and brackets omitted).

       Here, the district court thought the statutory requirement to produce an
identification with a current residential street address posed a legal obstacle to the
right to vote for Native Americans, because Native American communities often lack
residential street addresses. The Secretary disputes whether street addresses are truly


      1
       It is unnecessary to address the broader theory of standing adopted by the
dissent, post, at 12, that a requirement merely to produce a form of identification
already in a voter’s possession causes an injury in fact.

                                          -6-
lacking in those communities, and complains that the district court mistakenly relied
on outdated evidence about two counties that had not finished assigning addresses as
of 2011. But even assuming that some communities lack residential street addresses,
that fact does not justify a statewide injunction that prevents the Secretary from
requiring a form of identification with a residential street address from the vast
majority of residents who have residential street addresses.2

       The plaintiffs argue that the call for a residential street address is “invidious on
its face” because it dictates that every voter must have “an interest in property.” The
statute, however, does not require a voter to present identification that shows an
interest in property. A person may reside at a street address without having an
interest in the property where he resides: Elvis Norquay himself resides at a homeless
shelter with a street address. Young adults living with parents and elderly parents
living with children need have no interest in property. A voter need only show where
he or she resides. North Dakota, having adopted a system that requires no advance


      2
        The dissent posits that all state-issued forms of identification in North Dakota
require payment of a fee, and that the State has therefore erected an unconstitutional
barrier to voting. Post, at 14. The district court’s “mailing address” injunction,
however, does not relieve a voter of the need to obtain a valid form of identification;
it merely allows use of a mailing address rather than a street address in conjunction
with the valid form of identification. The disputed portion of the injunction,
therefore, is not justified as a remedy for any barrier arising from state-imposed fees.

       In any event, North Dakota law has provided since August 1, 2013, that a
resident may obtain a nondriver identification card without payment of a fee. N.D.
Cent. Code Ann. § 39-06-03.1(4). The district court said that the North Dakota
department of transportation website revealed a fee for a nondriver identification
card. The judicially-noticed website is not in the record, but even assuming that the
website then provided for a fee, the current website shows—consistent with the
statute—that a nondriver identification card is available without payment of a fee.
N.D. Dep’t of Transp., ID Card Requirements, https://www.dot.nd.gov/divisions/
driverslicense/idrequirements.htm (last visited Sept. 21, 2018).

                                           -7-
voter registration, maintains a legitimate interest in requiring identification and a
showing of current residence to prevent voter fraud and to safeguard voter
confidence.3

       Crawford left open the possibility that a subset of voters might bring as-applied
challenges against a regulation, and that a court might have authority to enter a
narrower injunction to relieve certain voters of an unjustified burden. Compare id.
at 199-200 (opinion of Stevens, J.), with id. at 204-05 (Scalia, J., concurring in the
judgment). See Frank v. Walker, 819 F.3d 384, 386-87 (7th Cir. 2016). The district
court in this case, however, did not limit its injunctive relief to the six plaintiffs. The
injunction applied across the board to all voters and effectively declared the street
address requirement unconstitutional in all cases. By definition, therefore, an as-
applied theory cannot support the district court’s injunction. Each of the plaintiffs,
moreover, has a current residential street address, so an injunction allowing voters to
present identification with a mailing address rather than identification with a
residential street address did not relieve any excessive burden of the statute as applied
to these plaintiffs.

      We are satisfied that the State would be irreparably harmed without a stay. If
the Secretary must accept forms of identification that list only a mailing address, such


      3
        The dissent, citing a North Dakota department of transportation website,
asserts that a person must present one of six enumerated documents bearing her name
to prove residence when obtaining a state identification card. Post, at 13-14. The
same website, however, allows a person to prove a resident address by furnishing one
of nine different documents, including a bank statement, credit card statement, pay
stub, or school transcript/report card. N.D. Dep’t of Transp., Acceptable Proof of
Residential Address, http://www.dot.nd.gov/divisions/driverslicense/docs/ proof-of-
address-documents.pdf (last visited Sept. 21, 2018). The governing statute requires
only that a person provide “satisfactory evidence” of legal presence, and that the
director of the department may require “proof of residence address,” without limiting
methods of proof. N.D. Cent. Code Ann. § 39-06-03.1(3).

                                           -8-
as a post office box, then voters could cast a ballot in the wrong precinct and dilute
the votes of those who reside in the precinct. Enough wrong-precinct voters could
even affect the outcome of a local election. The dissent’s suggestion that the State
protect itself from this harm by using maps or affidavits would require North Dakota
to reinstate self-certification methods that the legislature already deemed
insufficiently reliable when it adopted the residential street address requirement. The
inability to require proof of a residential street address in North Dakota also opens the
possibility of fraud by voters who have obtained a North Dakota form of
identification but reside in another State while maintaining a mailing address in North
Dakota to vote. The dissent deems this impossible, because only a resident of the
State is supposed to receive a form of identification, but the injunction prevents
election officials from verifying that a voter with such an identification has a current
residential street address in the State. Even if the State can prosecute fraudulent
voters after the fact, it would be irreparably harmed by allowing them to vote in the
election.

       We have considered the timing of the motion and whether proximity to the
general election in November 2018 precludes the entry of a stay that otherwise is
warranted. See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam); Williams
v. Rhodes, 393 U.S. 23, 34-35 (1968). In this case, we denied a previous motion for
stay based on timing when the briefing was completed only one week before the
primary election on June 12, 2018, but provided that the Secretary could file a
renewed motion for stay after briefing on the appeal was completed on July 17. The
Secretary complicated the timing question by waiting until August 16 to file a
renewed motion, but we conclude that there is still sufficient time before election
activity to make a stay permissible. Although the Supreme Court sometimes frowns
on changes in election procedure when they come too close to an election, see Veasey
v. Perry, 769 F.3d 890, 892-95 (5th Cir. 2014), there is no universal rule that forbids
a stay after Labor Day. See Mich. State A. Philip Randolph Inst. v. Johnson, No.
18A240, 2018 WL 4285989 (U.S. Sept. 7, 2018) (order denying application to vacate

                                          -9-
stay); Mich. State A. Philip Randolph Inst. v. Johnson, No. 18-1910, 2018 WL
4214710 (6th Cir. Sept. 5, 2018) (order granting stay).

        Election day is November 6, and early voting in North Dakota does not begin
until fifteen days before then. N.D. Cent. Code Ann. § 16.1-07-15(2)(a). Any North
Dakota resident who might have relied on the district court’s order allowing a voter
to present identification with a mailing addresses has more than a month to adapt to
the statute’s requirement to present identification, or a supplemental document, with
a current residential street address. The Secretary also should have sufficient time to
educate and train election officials about that single change; counsel assured us at
oral argument on September 10 that the Secretary could do so. We are informed that
absentee ballots will not issue until September 27, see id. § 16.1-07-04; N.D. Sec’y
of State, 2018 North Dakota Election Calendar at 11 (Nov. 2017), https://
vip.sos.nd.gov/pdfs/Portals/electioncalendar.pdf (last visited Sept. 21, 2018), so no
absent voter should have received a ballot based on an identification with current
mailing address only.

       The plaintiffs argue that if this court stays the district court’s injunction on
mailing addresses, then we should reinstate a different injunction entered by the
district court in August 2016. That order enjoined the election statute as it read in
2015 and required the State to reinstate so-called “fail-safe” provisions that were
repealed by the North Dakota legislature in 2013. Under those provisions, a voter
could obtain a ballot by executing an affidavit declaring under penalty of perjury that
the voter was a qualified elector in the precinct or by having a member of the election
board or poll clerk vouch for the voter. No form of identification was required. In
its order enjoining the 2017 statute, the district court granted the Secretary’s motion
to dissolve the injunction of the 2015 statute, because the earlier order was “moot.”

      The plaintiffs suggest that we should reinstate the affidavit option from the
previous injunction, but that injunction was entered based on a challenge to a

                                         -10-
different statute, and the district court granted a motion to dissolve it. The North
Dakota legislature amended the 2015 statute in response to the previous injunction
and added, among other things, the opportunity for a voter to cast a set-aside ballot
and to provide a proper form of identification within six days. N.D. Cent. Code Ann.
§ 16.1-01-04.1(5). The district court did not suggest that the affidavit option was an
appropriate remedy for any injury caused by the requirement to obtain and present a
form of identification with a current residential street address under the 2017 statute.
In any event, as discussed, the Secretary is likely to succeed on his argument that the
record does not justify a statewide injunction of the residential street address
requirement, so there is no basis for substitute relief of equivalent breadth.

       For these reasons, the motion for stay pending appeal is granted. The portions
of the district court’s order requiring the Secretary to accept forms of identification
and supplemental documents that include a current mailing address rather than a
current residential street address are stayed pending disposition of this appeal or
further order of the court. The Secretary does not move to stay the remainder of the
injunction, and it remains in effect. The appeal remains under submission, and an
opinion on the merits will be filed in due course. We have not relied on any exhibits
submitted with the renewed motion for stay, response, or reply, so the pending motion
to strike is denied as moot.

       In its order granting injunctive relief, the district court highlighted its concern
that under current state law, a resident who does not have a “current residential street
address” will never be qualified to vote. No plaintiff in this case falls in that
category. If any resident of North Dakota lacks a current residential street address
and is denied an opportunity to vote on that basis, the courthouse doors remain open.




                                          -11-
KELLY, Circuit Judge, dissenting.4

       On several issues, I agree with the court’s opinion. I agree that plaintiffs have
standing regardless of whether they currently “possess[] an acceptable form of . . .
identification,” because the statute’s requirement that they “produce . . . identification
to cast an in-person ballot” constitutes an injury-in-fact. Common Cause, 554 F.3d
at 1351. I also agree that the “courthouse doors remain open” to provide additional
relief should other individuals who lack the necessary identification come forward
before the November election.

       But I would deny the motion to stay because (1) the Secretary has not made the
requisite strong showing that he is likely to succeed on the merits, (2) the Secretary
is unlikely to suffer irreparable injury absent a stay, (3) plaintiffs and other interested
parties are likely to suffer substantial injury under a stay, and (4) the public interest
favors continued injunctive relief. See Hilton, 481 U.S. at 776. For these reasons,
I respectfully dissent from the grant of a stay.

       “The party requesting a stay bears the burden of showing that the circumstances
justify an exercise of [our] discretion.” Nken v. Holder, 556 U.S. 418, 433–34
(2009). The first and most important requirement is that a stay applicant make a
“strong showing that he is likely to succeed on the merits.” Brady, 640 F.3d at 789
(quoting Hilton, 481 U.S. at 776). For several reasons, the Secretary has not
overcome this hurdle.

       First, as the court correctly notes, the issue is not that North Dakota law
requires voters to maintain a current residential street address, it is that voters must
obtain and maintain certain forms of identification reflecting that address. The
district court found that all state-issued identification cards in North Dakota require


       4
           I concur in the denial of the motion to strike as moot.

                                            -12-
payment of a fee. The Secretary has countered that state law requires the Department
of Transportation to provide free non-driver’s identification cards, but the evidence
before the district court demonstrated that this was not North Dakota’s actual
practice. At least one plaintiff testified that she was charged a fee to obtain one of
these cards in spite of the statute. The district court also found that the Department
of Transportation’s website stated that a fee is required to obtain the card. These
factual findings are not clearly erroneous.5

      In addition to incurring a cost, an eligible voter must also present certain
documentation to obtain an identification card from the state. The governing statute
allows the Department of Transportation to require “proof of residence address.”
N.D. Cent. Code § 39-06-03.1(3). Currently, the Department’s website states, “All
applicants must present proof of current name, date of birth, and legal presence in the
United States.”       N.D. Dep’t of Transp., Identification Requirements,
https://www.dot.nd.gov/divisions/driverslicense/docs/proof-of-identification-
documents.pdf (last visited Sept. 21, 2018). They must also provide their social
security number, which they may be required to prove by presenting official
documentation. Finally, “[p]roof of North Dakota residence address . . . may be

      5
        The district court properly took judicial notice of the state’s official website.
See Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 793 (8th Cir. 2016)
(citing Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011), for
“the authority of a court to take judicial notice of government websites”). The
Secretary was on notice since at least 2016 that the district court might rely upon this
website: plaintiffs cited to it in their initial motion for a preliminary injunction, and
the Secretary did not object. See R. Doc. 44 at 10, 12. It appears that the Department
of Transportation has since changed its website such that it no longer reflects a fee
for those 18 years old or older. Compare N.D. Dep’t of Transp., ID Card
Requirements, https://www.dot.nd.gov/divisions/driverslicense/idrequirements.htm
(last visited Sept. 21, 2018), with N.D. Dep’t of Transp., ID Card Requirements,
https://web.archive.org/web/20180218061057/https://
www.dot.nd.gov/divisions/driverslicense/idrequirements.htm (archived Feb. 18,
2018).

                                          -13-
required by presenting” at least one of the following documents, which “must contain
[the applicant’s] name and current physical residence address”: (1) a government-
issued property tax form; (2) a mortgage, lease, or rental document; (3) a
homeowner’s or renter’s insurance policy; (4) a utility bill; (5) a non-cellular phone
bill; or (6) a parent’s proof of address for a minor child.6 Id. at 3. Unless the
individual is a minor (in which case voting is not an issue), each of these documents
requires the individual to maintain some type of an interest in physical, residential
property.

       These facts, standing alone, would demonstrate that North Dakota has erected
unconstitutional barriers for prospective voters. See Harper v. Va. State Bd. of
Elections, 383 U.S. 663, 670 (1966) (“[W]ealth or fee paying has, in our view, no
relation to voting qualifications; the right to vote is too precious, too fundamental to
be so burdened or conditioned.”). But the district court made several other factual
findings demonstrating that the burdens on certain groups of voters, especially Native
Americans and the homeless, are excessive. The court does not dispute that the
district court concluded (based on unrebutted evidence) that at least 69,616 eligible
voters—including 4,998 Native Americans—currently lack the identification required
to vote. That group comprises nearly twenty percent of the total number of
individuals who vote in a regular quadrennial election in North Dakota. See N.D.
Sec’y of State, 2010-2018 Election Results, https://vip.sos.nd.gov/PortalList
Details.aspx?ptlhPKID=62&ptlPKID=4 (last visited Sept. 21, 2018) (showing
349,945 ballots cast in 2016 general election). And the district court further found
that roughly half of eligible Native American voters lack proper supplemental


      6
       The court cites a different document from the Department’s website listing
nine “[a]cceptable documents for proof of North Dakota resident address,” but the
document does not explain whether these can be used to obtain an identification card.
It would be speculation to suggest that this more expansive list supercedes the
express requirements for obtaining an identification noted above. At best, the issue
is unclear.

                                         -14-
documentation, such that “at least 2,305 Native Americans will not be able to vote in
2018 under the new law.” Although some portion of those Native American voters
may be able to obtain proper identification under the aspects of the district court’s
injunction not covered by the stay, it is likely that many eligible voters will still be
disenfranchised.

       That the election provision at issue burdens only some voters does not preclude
relief. If the district court’s injunction was indeed overbroad, the appropriate
response would be to narrow it to cover only individuals who lack a valid form of
identification reflecting a current residential street address. And the relief that
plaintiffs originally requested was not as broad as what the district court provided.
Plaintiffs asked the court to reinstate the “affidavit option” to allow individuals who
could not show a valid form of identification to vote by executing an affidavit
swearing to the individual’s qualifications as a voter. As I understand it, the affidavit
option under the first injunction would not be available to all voters, but only those
who cannot produce one of the forms of identification required by the statute—that
is, only those whose right to vote would be unconstitutionally burdened by the statute.
These are exactly the sort of “as applied” remedies contemplated by Crawford. See
553 U.S. at 199–203 (opinion of Stevens, J.); see also Frank, 819 F.3d at 386–87
(“Plaintiffs now accept the propriety of requiring photo ID from persons who already
have or can get it with reasonable effort, while endeavoring to protect the voting
rights of those who encounter high hurdles. This is compatible with our opinion and
mandate, just as it is compatible with Crawford.”).7



      7
         I do not read the court’s opinion to foreclose these options, which would apply
beyond the six plaintiffs. This court is not in a position to review the propriety of the
affidavit option, because even though the district court reinstated the affidavit option
in its first injunction and the Secretary did not appeal that decision, that injunction
was dissolved upon the passage of new legislation and the granting of the second
injunction.

                                          -15-
       The remaining stay factors do not favor the Secretary. The only irreparable
injury North Dakota could face is the possibility that voters might cast a ballot in the
wrong precinct under the district court’s injunction. There is no evidence in the
record properly before us that this outcome is likely. Cf. Brady, 640 F.3d at 789
(“The movant must show that it will suffer irreparable injury unless a stay is
granted.”). Furthermore, nothing in the district court’s injunction requires a voter to
vote in the precinct attached to his current mailing address. The injunction does not
change the definition of “residence” used to determine the voter’s precinct, see N.D.
Cent. Code § 16.1-01-04.2(1); it modifies only the requirements of the voter’s
identification. Nothing in the injunction prevents an election official from accepting
a North Dakota identification bearing a mailing address from a different precinct, and
verifying that the voter is in the correct precinct by other reliable means—perhaps by
using a map or an affidavit to confirm his “residence.” See N.D. Cent. Code
§ 16.1-05-07(3) (requiring election officials to “direct an individual who is attempting
to vote in the incorrect precinct . . . to the proper precinct and polling place”).

       It seems unlikely that the injunction would enable voter fraud by someone who
resides outside North Dakota but maintains a P.O. Box within the state. In order to
vote, such a person would still need either a tribal identification “issued by a tribal
government to a tribal member residing in [the] state,” id. § 16.1-01-04.1(3)(a)(2)
(emphasis added), or an identification issued by the state itself, id. §
16.1-01-04.1(3)(a)(1). Neither of these documents could be issued to a non-North
Dakota resident.

       In contrast, the injury to plaintiffs and other North Dakota voters is likely to be
severe and irreparable. “[T]he right of suffrage is a fundamental matter in a free and
democratic society.” Reynolds v. Sims, 377 U.S. 533, 561–62 (1964). “[T]he right
to exercise the franchise in a free and unimpaired manner is preservative of other
basic civil and political rights,” and therefore “any alleged infringement of the right
of citizens to vote must be carefully and meticulously scrutinized.” Id. at 562. I

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disagree that plaintiffs are unlikely to be injured simply because they all have
residential street addresses. As the court notes, “the statute at issue does not merely
require a citizen to maintain a residential street address,” but to obtain and produce
identification reflecting that address. And the court does not dispute that several
plaintiffs testified that they lack a valid form of identification under the statute. As
noted above, the evidence indicates that many other eligible voters will be
disenfranchised absent further equitable relief.

       The final stay factor is the interest of the public. We previously denied the
Secretary’s request for a stay in this very case because there was an election only a
week away. And absentee voting for the November election begins in less than a
week. To grant a stay now fails to properly weigh the unique “considerations specific
to election cases” that apply when a party seeks to upset the status quo “just weeks
before an election.” Purcell, 549 U.S. at 4. The stay will require North Dakota to
reevaluate its training of election officials, training which may again change should
the district court enter further injunctive relief. See R. Doc. 45 at 12–15 (the
Secretary explaining that revising election training materials takes several months).
The confusion that may result from these “conflicting orders,” Purcell, 549 U.S. at
4–5, could be easily avoided by keeping the injunction in place until resolution of the
appeal after the November election.

      For the foregoing reasons, I would conclude that the Secretary has not met his
burden of establishing that a stay is warranted.
                       ______________________________




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