North Dakota Secretary of State Al Jaeger said last week it’s too early to say what forms of identification will be accepted for voting in November’s election, but a plan is being developed after a federal judge recently ruled against the state’s new voter ID laws.
On Aug. 1, U.S. District Court Judge Daniel Hovland issued a preliminary injunction requested by seven members of the Turtle Mountain Band of Chippewa who sued Jaeger in January, arguing the voter ID laws passed by the Republican-controlled Legislature in 2013 and 2015 were unconstitutional and disenfranchised tribal members.
Jaeger, a Republican, said “the process of reverting back to the pre-2013 law is not as easy as the judge may have made it sound in his ruling.” He said he wasn’t able to say yet which IDs will be accepted at the polls come November.
However, the state will comply with Hovland’s order, Jaeger said.
“There are many unanswered questions and laws that were changed beginning in 2013 that are outside of the specific section of law that the judge cited in his ruling,” Jaeger said in an email. “They all impact our ability to conduct the election in 2016 using pre-2013 laws.”
Jaeger said his office has met with Republican Attorney General Wayne Stenehjem and is in the process of developing a plan, which he hopes will be completed by Friday.
“We have a lot of work to do to make sure what we will be doing is the best and right way under the circumstances while maintaining the high standards of election administration,” Jaeger said, pointing to a recent Pew Charitable Trusts study that found North Dakota was the top state for election administration in the 2014 cycle, the fourth straight time the state has earned the top spot.
“We must have a uniform ID process for all voters whether they vote at the polls or by mail or absentee, and that is challenging because of the many law changes that have been made,” Jaeger added.
‘Fail-safe’
In an effort to prevent voter fraud, the North Dakota Legislature passed laws that required voters bring an acceptable form of ID showing their current address and birth date to the polls. The law that passed in 2013 eliminated “fail-safe” provisions that allowed a poll clerk to vouch for a voter’s eligibility and allowed a voter to sign an affidavit swearing, under penalty of perjury, that he or she was eligible to vote in a particular precinct.
Hovland’s order prevents the state from implementing the current voter ID laws without some kind of fail-safe provision.
Kylie Oversen, chairwoman of the North Dakota Democratic-NPL Party, said she expects voters will be able to use affidavits again if they don’t have the proper identification.
“Regardless of the plan that Secretary Jaeger is coming up with, we fully expect that the state of North Dakota will comply with the federal judge’s ruling,” she said.
North Dakota was among several states to have its voter ID laws blocked in recent weeks.
Response
Meanwhile, Stenehjem is defending his office’s legal defense of North Dakota’s voter ID laws.
The longtime attorney general was criticized in a piece posted online Monday by the National Review, a conservative publication. In it, author and former member of the Federal Election Commission Hans A. von Spakovsky pointed to sections of Hovland’s ruling that indicated North Dakota didn’t dispute or challenge certain claims from the plaintiffs.
“In other words, the state of North Dakota did not bother to put up an actual defense in this lawsuit,” von Spakovsky wrote. He also suggested Stenehjem was too busy running for governor to defend the voter ID laws.
In a letter to the editor of the National Review dated Wednesday and provided by Stenehjem’s office, the attorney general said the author “chose to ignore that North Dakota’s case is unique and as a result, started with a different legal strategy,” pointing to the North Dakota’s status as the only state without voter registration.
“Unlike other states, North Dakota sought a clarification of the laws before arguing about facts,” Stenehjem wrote. “Because there was no law that required ‘fail-safe mechanisms’ such as affidavits or provisional ballots, North Dakota wanted the judge to clarify that this is a brand-new legal requirement before arguing about how and when it should apply.”
Stenehjem called the preliminary injunction “only the first battle in a long struggle.”