Voter affidavits will be an option at election, ND agency says

BISMARCK -- The North Dakota Secretary of State's Office plans to offer affidavits to voters who don't bring a valid identification to the polls in November, although a legal battle over the state's voter ID laws is still ongoing.


BISMARCK - The North Dakota Secretary of State's Office plans to offer affidavits to voters who don't bring a valid identification to the polls in November, although a legal battle over the state's voter ID laws is still ongoing.

The move follows a ruling from a federal judge that prevented the state from implementing its current voter ID laws without also using some kind of "fail-safe" provision, such as an affidavit. The Aug. 1 order granting a preliminary injunction stemmed from a lawsuit brought against Secretary of State Al Jaeger by seven members of the Turtle Mountain Band of Chippewa who argued the North Dakota's laws disproportionately burden Native Americans.

The lawsuit focused on changes made by the Republican-controlled Legislature in 2013 and 2015. The 2013 change eliminated the option for voters who didn't provide an ID to use an affidavit to swear, under penalty of perjury, that he or she was a qualified elector in a particular precinct.

Roughly a week after U.S. District Court Judge Daniel Hovland's order, Jaeger said reverting back to the pre-2013 law was "not as easy as the judge may have made it sound in his ruling." Jim Silrum, the deputy secretary of state, said Monday, Sept. 19, the identification requirements that came with the recent law changes are still in effect, but his office has added the voter affidavit option to comply with Hovland's order.

But in late August, the plaintiffs submitted a proposed order based on the voter ID laws that were in place during the 2012 election, restoring previously recognized forms of ID. They argued the state also provided "no real justification" for excluding a provision to allow poll workers to verify a voter's eligibility in its proposed order.


"Defendant underestimates how significant the option is in Native American communities and small precincts, where poll workers personally know many of the eligible voters," the tribal members' attorneys wrote. The state responded that poll worker vouching provides opportunities for allegations of abuse and discrimination and added the judge did not order a rollback to the 2012 election law.

A status conference is scheduled for this afternoon, less than two months before the November election. County election officials must know how to comply with the injunction by Friday, the state of North Dakota said in an Aug. 31 filing.

Using an affidavit

Silrum said election officials are encouraging voters to make sure their identification contains their current residential address.

"As in the past, a voter with ID will check in, the voter's name and current residential address will be found in the poll book, and he or she will be given a ballot to vote. It's that simple," he said in an email Monday.

"For those voters that do not have one of the valid forms of ID, or the ID is not current and for some reason the voter chooses not to update it before the election, these voters will be given a voter's affidavit to execute," Silrum added. "Utilizing an ID to vote will remain the fastest method to move through the voting process."

After the election, county auditors will send a postcard verification to people who voted by affidavit, Silrum said. Affidavits will be available to both in-person voters and those who vote absentee or by mail.

Silrum said the affidavit will "remain an option to voters until such time as the court makes a final ruling on the voter ID lawsuit from which the preliminary injunction stems."


Valid forms of identification are a current driver's license, a North Dakota non-driver's ID card, a tribal government-issued ID and a long-term care certificate, according to the Secretary of State's website, which also lists a voter's affidavit as an option. Absentee or by-mail voting requires one of those pieces of ID, an affidavit, a military ID for those stationed away from North Dakota, a passport for North Dakota residents outside the U.S. or someone to attest to a voter's eligibility.

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