Questions surrounding the legality of Stark County's mail-in only voting have resulted in a civil complaint filed against the county's commissioners, canvassing board, state's attorney and election official.
All defendants were served Monday, June 29, with exception for Kay Haag, Stark County auditor and election officer who is currently on paid time off.
"We're saying that their actions were illegal, and they disenfranchised numerous Stark County voters and did that without legal authority," said Riley Kuntz, one of the plaintiffs.
Mail-in only voting
North Dakota Century Code Section 16.1-11.1-01 authorizes county commissions to conduct ballot elections and sets out procedures and requirements for such elections, one of which requires that each county identify a polling location to be open on election day.
Minutes from a special county commission meeting on March 25, 2020 read, "Vote Center — Auditor Kay Haag: The primary election in June will be vote by mail and currently one vote center needs to be open. There are changes trying to be made with this requirement; however, Auditor Haag is requesting to declare the Biesiot Activities Center the open vote center for Stark County."
That exact motion was "to declare the Biesiot Activities Center as the vote center for Stark County if needed during the primary election." The motion was made by Commissioner Jay Elkin, seconded by Commissioner Carla Arthaud and carried unanimously.
Next, a motion was made by Arthaud, seconded by Zander and carried unanimously to authorize mail-in voting.
A day after the meeting, North Dakota Governor Doug Burgum signed executive order 2020-13, which "strongly encouraged" but did not mandate that all county commissions authorize mail-in voting. For those counties that did so, the requirements in North Dakota Century Code 16.1-04-01, which require that each county identify a polling location to be open on election day, were waived.
Due to this executive order, the BAC was no longer needed — despite some commissioners wanting an open polling place.
"Commissioner Arthaud made a motion to go ahead and vote by mail. Here's what I'm understanding from her later on, that she thought there would be both the opportunity to go to the polling place or to mail-in, and that's a typical option most years," said State's Attorney Tom Henning. "I think Commissioner Arthaud believed that we were going to have an option, and that's not what the auditor (Kay Haag) meant. I'm probably at fault for not getting that explained better at the meeting, to say, 'OK. Now we're voting by mail, and so we won't be using the activities center.'"
Despite not having an open polling place for eligible voters to cast their vote, Stark County's turnout in the June 9 election was 29% of all eligible voters, which was the highest it's been since 2010.
Also included in the complaint is the allegation that one of the plaintiffs, Kuntz, was denied access to the courthouse by Haag and Henning to watch the vote counting as an election observer.
An election observer is defined by the Secretary of State's office as "a nonpartisan individual wishing to monitor the administration of the election."
Henning believed Kuntz was referring to poll watching, which remains unclear as to whether or not poll watching is the same as being an election observer.
"In North Dakota, ... the parties that are represented are entitled to have, at the polls, wherever they may be, both a Democrat and a Republican to watch what's going on with the polling," Henning said.
When Kuntz called him, Henning explained to him that there weren't any polls to watch.
"I said, 'Poll watching? There isn't going to be any polls because of the COVID-19 crisis, and the county commission made the decision to vote by mail.' So (Kuntz) said, 'You're not going to let me in to watch that?' I said, 'No. You're another person who we don't know has COVID or not.' I told him, 'They're just going to be counting ballots, and that's not what poll watching is about anyway. Poll watching is actually about being at the polls watching the polls, and they weren't going to be doing that here. They were counting the votes.'"
Henning said Kuntz then requested to watch the vote counting, and Henning said he would just be in the way.
"There's no provision in the law for watching the count," Henning told The Press. "There's a provision in the law for canvassing the votes so that votes that are iffy can be reviewed by a board to see whether — even though they weren't necessary accepted at the polls — they're acceptable or not."
North Dakota Century Code 16.1-05-09 states, "Election observers must be allowed uniform and nondiscriminatory access to all stages of the election process, including the certification of election technologies, early voting, absentee voting, voter appeals, vote tabulation and recounts."
Further allegations in the lawsuit include the placement of political signs on county property, failure to send ballots to eligible voters who mailed a completed application for a ballot and the receiving of ballots for deceased individuals.
Applications were to be sent out by the Secretary of State's office, but one of the plaintiffs alleges she never received an application in the mail.
A May 6, 2020 notice in The Dickinson Press instructed those who did not receive an application by May 15th to contact the Stark County Auditor's Office.
One of the plaintiffs, Loni Doppler, received, completed and mailed an application for a ballot and alleges that she never received a ballot in the mail.
Doppler attempted to vote at the courthouse on election day and allegedly was not allowed inside or to vote. The courthouse was closed to the public until June 10, the day after the election, per a passed motion by the commission.
Minutes from the county commission's meeting on May 5, 2020 read, "Auditor Haag would like to see staying closed to the public until after the primary election on June 9. Since we have no vote centers, the public may think they can come in and vote and will not be able to. This could cause a lot of confusion."
Plaintiff Miki Thompson alleges she received a ballot application for the original owner of her home, who has been deceased for at least 12 years. This could not be confirmed by The Press, as the name of the individual on the application was redacted in a photo included as an exhibit in the filed documents.
Riley Kuntz, Loni Doppler, Miki Thompson, Andrew Lefort, Janette Schrum, Jody Kuntz, Derek and Danielle Monger, Breanna Haspert, Ralph and Kerrie Craig, LeRoy Hendrickson, and others similarly situated have been identified as plaintiffs in the matter and are requesting a trial by jury.
Kay Haag and Stark County Commissioner Carla Arthaud were unable to be reached prior to the publication of this article.