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ND voter ID law violates federal law

Last Word | November 24th, 2015

By Bob Valeu

North Dakota voter ID requirement is the most restrictive voter ID law in the nation. It is corrupted, violates federal law and threatens to disenfranchise thousands of voters in 2016.

In their zeal to gain political advantage, the Republican-controlled legislature managed to push through a new law without any significant vetting.

The law comingles voter ID procedures with driver’s licensing ID rules. Voters are required to “register” if using a driver license form of ID thirty days before the election, creating de facto voter registration while denying registration protections such as “provisional balloting” or voting by affidavit.

The result is a very convoluted and corrupted voting system that violates the federal HAVA law.

Here are some of the more glaring issues:

North Dakota in 2013 and again in 2015 eliminated the provisional ballot option also referred to as “challenge ballots” or “affidavit ballots,” which is required by the federal Help America Vote Act of 2002 (HAVA). When there is uncertainty about a voter’s eligibility -- the potential voter’s name is not on the voter rolls, a required identification document isn’t available or other issues -- the election official is required to offer the voter a provisional ballot instead of a regular ballot.

The ND law has been changed several times since 2003 and not once has the secretary of state promulgated rules under the Administrative Procedures Act. That failure has led to one of the most misunderstood and corrupted voter ID systems in the nation.

The secretary of state has allowed the Motor Vehicle Department to become the gatekeeper that determines who is eligible to vote in North Dakota. Yet, North Dakota rules for obtaining a driver’s license or renewing a driver's license are not the same for those governing eligibility to vote. The two different processes are commingled and will result in hundreds, if not thousands, of North Dakota citizens finding themselves denied the right to vote in 2016.

Driver’s license updates can be made online and you do not need a new driver’s license ID card to be legal to drive. However, under the current voter ID law, if you do not change both your address and obtain a replacement ID card (at a cost) you will be denied the right to vote.

Why? Because the law appears to be silent as to whether the "database" or your physical driver's license "ID" card governs at the polling booth on Election Day. So, if you follow the motor vehicle rules and change your address online, but keep your old driver’s license ID card, then on Election Day which one is correct?

The secretary of state also refuses to address the issue of how the state verifies that a citizen has lived in their precinct 30 days preceding an election. Under the old system (one that really worked just fine prior to the 2013 changes), if a citizen was challenged as provided by law, then he or she could sign an affidavit and still vote. That provision assured voters that they would not be denied their constitutional right to vote due to some administrative glitch in the system. We are now the only state that has eliminated the provisional ballot safety net for voters.

The secretary of state has not promulgated rules as to what constitutes a DMV-issued driver's license ID for voting purposes. There is such a thing as a "temporary" driver license issued to foreign nationals who are not citizens of the U.S. Where are the rules that give us assurance that election workers know the difference between a "temporary" license and a permanent license? The current law only stipulates “driver license.” It makes no distinction regarding a “temporary” license.

With the introduction of the "nursing home certificate" as a means of voter identification the secretary of state has granted thousands of nursing home employees the authority to determine who can vote. That is more authority than county auditors or election day officials have at the polling booth.

In the last general election, county auditors were not consistent in public statements about when voters should get their driver license information updated. Those types of confusing statements create a "corrupted" system.

The apparent political motivation of the current law, along with the refusal by the secretary of state to promulgate rules has resulted in a significant corruption of the voter ID process since 2003. And each year more and more voters will be denied their constitutional right to vote. It’s not the American way!

What should happen? First, the attorney general should step in and clean up the administrative mess the legislature and the secretary of state have created. If that doesn't work then the legislature should be called into a special session to get it right. If that fails then the courts need to mandate full compliance with federal law and action that cleans up the corrupted mess we find ourselves in under current state law.

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