Brakebill et al v. Jaeger
Filing
99
ORDER by Chief Judge Daniel L. Hovland granting 80 Motion Dissolve Preliminary Injunction; granting 89 Motion for Preliminary Injunction; granting 95 Motion to Expedite. (MM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Richard Brakebill, Dorothy Herman,
Della Merrick, Elvis Norquay,
Ray Norquay, and Lucille Vivier,
on behalf of themselves,
)
)
ORDER GRANTING PLAINTIFFS’
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MOTION FOR SECOND
)
PRELIMINARY INJUNCTION
)
IN PART
Plaintiffs,
)
)
vs.
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Case No. 1:16-cv-008
)
Alvin Jaeger, in his official capacity as the )
North Dakota Secretary of State,
)
)
Defendants.
)
______________________________________________________________________________
Before the Court is the Defendant’s “Motion to Dissolve Preliminary Injunction” filed on
January 16, 2018. See Docket No. 80. The Defendants seek to set aside the “Order Granting
Plaintiffs’ Motion for Preliminary Injunction” issued on August 1, 2016. Also before the Court
is the Plaintiffs’ Second Motion for Preliminary Injunction filed on February 16, 2018. See
Docket Nos. 89 and 92.
In August 2016, this Court carefully considered the Dataphase factors and concluded the
public interest in protecting the right to vote for thousands of Native Americans who lacked a
qualifying ID and cannot obtain one, outweighed the purported interests and arguments of the
State. As a result, the North Dakota Secretary of State was enjoined from enforcing N.D.C.C. §
16.1-05-07 without any adequate “fail-safe” provisions that had been provided to all voters in
North Dakota prior to 2013. In the past, North Dakota allowed all citizens who were unable to
provide acceptable ID’s to cast their vote under two types of “fail-safe” provisions which were
repealed in 2013.
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In response to the preliminary injunction issued August 1, 2016, the North Dakota
Legislative Assembly amended and enacted a new election law (House Bill 1369). Effective
July 1, 2017, North Dakota law now permits individuals who do not present a valid ID when
appearing to vote to mark a ballot that is then set aside until the individual’s qualifications as an
elector can be verified. See N.D.C.C. § 16.1-01-04.1(5). The new law provides in relevant part
as follows:
1. A qualified elector shall provide a valid form of identification to the proper
election official before receiving a ballot for voting.
2. The identification must provide the following information regarding the
elector:
a. Legal name;
b. Current residential street address in North Dakota; and
c. Date of birth.
3. a. A valid form of identification is:
(1) A driver's license or nondriver's identification card issued by the North
Dakota department of transportation; or
(2) An official form of identification issued by a tribal government to a
tribal member residing in this state.
b. If an individual's valid form of identification does not include all the
information required under subsection 2 or the information on the identification is
not current, the identification must be supplemented by presenting any of the
following issued to the individual which provides the missing or outdated
information:
(1) A current utility bill;
(2) A current bank statement;
(3) A check issued by a federal, state, or local government;
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(4) A paycheck; or
(5) A document issued by a federal, state, or local government.
5. If an individual is not able to show a valid form of identification but asserts
qualifications as an elector in the precinct in which the individual desires to vote,
the individual may mark a ballot that must be securely set aside in a sealed
envelope designed by the secretary of state. After the ballot is set aside, the
individual may show a valid form of identification to either a polling place
election board member if the individual returns to 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 before the meeting of the canvassing board
occurring on the sixth day after the election. Each ballot set aside under this
subsection must be presented to the members of the canvassing board for proper
inclusion or exclusion from the tally.
6. The secretary of state shall develop uniform procedures for the requirements
of subsection 5 which must be followed by the election official responsible for the
administration of the election.
N.D.C.C. § 16.1-01-04.1 (2017).
The State of North Dakota seeks an “expedited review” and ruling on its motion to
dissolve the earlier injunction because another statewide election will occur on June 12, 2018.
See Docket No. 95. The Plaintiffs seek to enjoin the enforcement of the new law for the same
reasons outlined in their original request for injunctive relief back in 2016. The new law was
passed in April 2017, and became effective on July 1, 2017. No action was taken by the State
until January 16, 2018, to seek to dissolve the preliminary injunction. Both parties were fully
aware of the impact of the new law dating back to April 2017, but waited until mid January
2018, to take any legal action to address the impact of the new law. If the need for an immediate
and expeditious ruling was critically necessary, both parties could have easily filed, and should
have filed, motions to address the new law in the summer of 2017, and avoided these last minute
heroics and demands for an expeditious ruling. The parties had more than nine (9) months to
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take legal action on the new law. The Court has now carefully reviewed the entire record
without the benefit of having nine (9) months to cerebrate on the matter as the parties have done.
See Docket Nos. 81, 92, 94, and 98.
Suffice it to say, the new law passed by the Legislative Assembly (House Bill 1369) in
April 2017, still requires voters to have one of the very same forms of a qualifying ID’s in order
to vote that was previously found to impose a discriminatory and burdensome impact on Native
Americans.
In support of the Plaintiffs’ request for a second preliminary injunction, the record has
been supplemented with the following statistical data which has not been challenged by the
State:
a.
Consistent with the findings from the first survey, conducted in 2015,
Native American eligible voters in North Dakota are less likely to possess
a qualifying voter ID under current North Dakota law, as compared to
non-Native Americans. The difference is statistically significant at the 99
percent level, the most rigorous level of social science testing.
b.
In the present survey, 19 percent of Native American eligible voters in
North Dakota do not possess a qualifying voter ID. In contrast, 11.6
percent of non-Native Americans in North Dakota do not possess a valid
ID. In 2015 we found that 23.5 percent of Native American eligible
voters lacked an appropriate ID, compared to 12 percent of non-Native
eligible voters. The findings from the present survey comport with those
from 2015.
c.
Native Americans in North Dakota are significantly less likely to possess
the most common type of ID-a driver's license. Only 64.6 percent of
Native Americans indicated they have a driver's license that meets all
requirements to vote. In contrast, 86.1 percent of non-Native Americans
in North Dakota indicated they have a driver's license which meets all
requirements.
d.
Native Americans face burdens in obtaining a state-issued ID. Many
Native Americans lack the required underlying documents: Among those
without a valid ID, 28.9 percent do not have a birth certificate or other
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proof of identity required by the state, such as a passport or naturalization
card; 56.7 percent do not have two documents showing a residential street
address; 16.7 percent lack a social security card or W2 showing a social
security number. In total, 65.6 percent of Native Americans that currently
do not have a valid voter ID do not have all three types of the underlying
documents they would need to obtain a voter ID.
e.
The North Dakota voter identification law indicate certain documents
bearing one's full name and full residential street address can be presented
in the instance that one has an otherwise valid piece of identification, but
lacks an appropriate residential street address. Native Americans are less
likely to possess several of the accepted documents than are their
non-Native counterparts. Among North Dakota residents who lack a valid
piece of ID because of the address requirement, 48.7 percent of Native
Americans, or an estimated 2,305 Native eligible voters, do not possess at
least one of the supplemental address documents accepted under the law.
Comparatively, only 26.2 percent of non-Natives who lack a valid piece of
identification because of the residential address requirement do not
possess at least one of the supplemental address documents acceptes under
the law. This amounts to 15,908 non-native eligible voters.
f.
Knowledge levels regarding the law are very low in North Dakota,
especially among Native Americans. In fact, 23.0 percent of Native
Americans are not aware that a voter ID law exists, and only 12.7 percent
of Native Americans reported they had heard or seen an official
announcement or advertisement by the State of North Dakota about the
new voter ID law.
g.
Native Americans are less likely than non-Natives to know that a
residential street address is required on an ID to be valid. Among people
who have an ID, but it lacks a residential street address, just 24.7 percent
of Native Americans know that an ID must contain residential street
address compared to 49.5 percent of non-Native Americans.
h.
Native Americans are more likely than are non-Natives to report having
used a failsafe measure to vote in the past. Among all eligible voters, 12.1
percent of Native Americans reported having signed an affadit and 9.7
percent report that a poll worker vouched for them. Comparatively, only
9.1 and 7.4 percent of whites report signing an affidavit or having been
vouched for when they tried to vote in a previous election. Among those
who lack a valid ID, 14.4 percent of Native Americans reported having
signed an affidavit, compared to 7.3 of non-Natives, and an 16.7 percent
of Native Americans report that a poll worker vouched for them,
compared to 6.4 percen of non-Natives for whom the same was true. This
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comports with analysis of the use of affadavits at the county level.
Between 2012 and 2016, among the three counties with the highest
percentage of Native American voters the number of affidavits used
increased from 51 in 2012 to 390 in 2016. By comparison, in the three
counties with the lowest percentage of Native American voters the number
decreased by four affidavit ballots, from 38 to 34.
See Docket No. 90-1, pp. 3-6.
In August of 2016, the Court issued a 29-page order that included a careful analysis of
the Dataphase factors as required under Eighth Circuit Court of Appeals case law. The State
never appealed the order of injunction, despite their recent criticisms of the order. Rather than
re-invent the wheel and again restate the same analysis and legal arguments enumerated in the
August 1, 2016, Order (Docket No. 50), the Court expressly incorporates by reference the
entirety of the facts and legal analysis set forth in that earlier order, all of which continue to be
directly relevant to the Dataphase analysis of the new law.
The Court has also carefully reviewed the decisions of the United States Supreme Court
in Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) and the Fourth Circuit Court of
Appeals in Lee v. Va. Bd. of Elections, 843 F.3d 592 (4th Cir. 2016).
In Crawford, the Supreme Court rejected a facial challenge to Indiana’s photo
identification law and upheld its constitutionality. The Indiana law required that registered
voters present a government-issued photo ID’s in order to vote, and voters who did not have
such identification could obtain one only if they presented proof of residence and identity, such
as a birth certificate. Crawford, 553 U.S. at 185-86. No ID is required to register to vote and
Indiana offers free photo ID to qualified voters who establish their residence and identity. Id. at
186. Voters lacking an ID on election day are permitted to cast a provisional ballot which will
be counted if the voter executes an affidavit or brings an ID to the circuit court clerk’s office
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within ten (10) days of the election. Id. The Supreme Court found that Indiana had a valid
interest in adopting standards that aligned with federal election statutes, including the Help
America Vote Act (“HAVA”) wherein Congress had indicated a belief that “photo identification
is one effective method of establishing a voter's qualification to vote.” Id. at 193. The Supreme
Court also found that Indiana had valid interests in preventing voter fraud, even though there
was no evidence of any in-person voter impersonation having occurred in Indiana, and the state
had an independent interest in protecting voter confidence in the integrity of its elections. Id. at
194–97. The Supreme Court concluded that these state interests justified the burdens imposed
by the photo identification requirements in its election law. Id. at 202. For voters who lacked
the required identification, the Supreme Court explained the ability to obtain a free photo
identification meant that the burden was not substantial. The “inconvenience of making a trip to
the BMV, gathering the required documents, and posing for a photograph surely does not qualify
as a substantial burden on the right to vote.” Id. at 198. While the Supreme Court recognized
that for some voters, such as those who lacked a birth certificate or other documentation needed
to obtain a free ID’s, the burden was greater, it nonetheless concluded this greater burden was
not sufficiently substantial to render the statute unconstitutional. Id. at 199–202.
In Lee, the Fourth Circuit Court of Appeals rejected a challenge to Virginia’s photo ID
law. The law in question required that all voters present a photo ID in order to cast a ballot.
Lee, 843 F.3d at 594. Registered voters without an ID were allowed to cast a provisional ballot
and cure their vote by presenting an ID in person, by fax, or by email within three days of the
election. Id. Many types of ID were acceptable, and the Virginia Board or Elections provided
free ID’s to voters without any documentation. Id. To obtain a free ID the voter need only
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provide a name, address, birthdate, and the last four digits of their social security number. Id. at
595. The Fourth Circuit found the burdens imposed by Virginia were lighter than the Indiana
law challenged in Crawford. Id. at 606. The Court explained that Virginia voters were not
required to present any documentation to obtain a free ID and the justifications – preventing
voter fraud, preserving voter confidence in election integrity, and alignment with federal statutes
like HAVA – were the same as those advanced by Indiana. Id. at 607. The burdens imposed by
the law were mitigated by the acceptance of a broad range of ID’s, providing for provisional
ballots, and providing free ID’s without the need for documentation along with other assistance.
Id. at 607-08.
Based on a careful review of Crawford, the updated Barreto/Sanchez statistical data, and
a careful analysis of the Dataphase factors enumerated in detail in the Court’s earlier Order of
August 1, 2016, - which are incorporated by reference - the following problems areas are
identified:
1)
At least 4,998 otherwise eligible Native Americans (and 64,618 non-Native voters)
currently do not possess a qualifying voter ID under the new law. See Docket No. 90-1,
¶ 40.
And 48.7% of Native Americans who lack a qualifying ID also lack the
supplemental documentation needed - which means at least 2,305 Native Americans will
not be able to vote in 2018 under the new law. Id. at ¶ 41.
2)
The State has acknowledged that Native American communities often lack residential
street addresses (See Docket No. 97, p. 6) or do not have clear residential addresses
(Docket No. 90-9, at 3-8). 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
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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. Neither the National Registration Voting Act nor any other federal or state laws
the Court is aware of require a “current residential street address” in order to be able to
vote.
3)
The “set aside” ballot process the State proclaims as a “fail-safe” measure will not help
any voter who lacks the means to obtain a qualifying ID to cast a vote. When the Court
issued the preliminary injunction on August 1, 2016, the undisputed evidence revealed
that 23.5% Native Americans did not have a state qualifying ID. Today, the updated and
unrefuted statistical data reveals that 19% of Native Americans still lack qualifying ID’s.
4)
The new law provides that voters who show up at the polls without the required ID’s will
be allowed to mark a ballot which is then set aside by poll workers. This ballot will only
be counted if the voter can produce a satisfactory ID at the polling place before the polls
close on election day, or at an undisclosed office within six (6) days of the election. The
new law is vague and unclear as to where and to whom such a voter is to produce any
documents because as the new law simply states:
After the ballot is set aside, the individual may show a valid form of identification
to either a polling place election board member if the individual returns to 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 before the meeting of the
canvassing board occurring on the sixth day after the election. Each ballot set
aside under this subsection must be presented to the members of the canvassing
board for proper inclusion or exclusion from the tally.
N.D.C.C. § 16.1-01-04.1.
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No reasonable person who reads this statute would have a clue as to where and to
whom they need to report to present a valid ID. (emphasis added). Common sense
requires more than stating the voter needs to return “to an employee of the office of the
election official responsible for the administration of the election before the meeting of
the canvassing board occurring on the sixth day after the election.” The statute is vague
and unclear at best. Further, otherwise qualified voters who cannot produce the required
voter ID (because they have no “current residential street address”) will obviously never
be able to produce the required ID within six days after the election, and as a result will
never be able to vote.
5)
The State asserts that a tribal ID “need be nothing more than a document from tribal
authorities setting forth the tribal member’s name, date of birth, and current residential
street address.” See Docket No. 81, p. 19. The State relies upon the affidavit of Deputy
Secretary of State James Silrum to support this new-found interpretation of the law. See
Docket No. 81-55. The reality is that the text of HB 1369 mirrors the language in HB
1332 and HB 1333, which required “an official form of identification issued by a tribal
government.” Compare N.D.C.C. § 16.1-01-04.1 with N.D.C.C. § 16.1-01-04, amended
by H.B. 1333, 64th Leg. Assemb. Reg. Sess. § 5 (2015) and N.D.C.C. § 16.1-01-04,
amended by H.B. 1369, 65th Leg. Assemb. Reg. Sess. § 5 (2017). The State has
previously interpreted this to mean a tribally-issued ID card. The State’s own marketing
materials only mention a “tribal ID card” and make no reference to a document or letter
from the tribe being sufficient. See Docket Nos. 81-56 through 81-64. Further, it is
unclear under the plain language of the statute that a document or letter would meet the
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requirement of an “official form of identification.” The placement of the tribal ID
requirement with other traditional forms of ID cards such as a driver’s license and a
non-driver’s ID makes this interpretation unlikely. Because it is undisputed not all North
Dakota tribal governments issue tribal ID cards, it is more likely that the plain language
of the statute requires a tribal ID card and not simply a letter from tribal authorities.
Silrum also asserts in his affidavit that the Turtle Mountain Tribal Chairman has
been informed of this letter option since May 2014. See Docket No. 81-55, ¶ 43.
However, there is no explanation of the type of public education campaign conducted to
disclose this letter option, and the Deputy Secretary of State does not indicate whether
the Standing Rock Sioux, Spirit Lake Tribe, or Mandan, Hidatsa & Arikara Nation have
ever been informed of this informal letter option as an alternative to a qualifying ID.
Simply stated, there is no official state administrative rule, regulation, policy,
procedure, memorandum, or any other document or public pronouncement espousing the
Secretary of State’s interpretation of what constitutes a letter option as an alternative to a
qualifying ID. Because there is no official State authority espousing that a letter issued
by a tribal authority would be an acceptable form of identification, and all of the State
materials show an ID card as the acceptable form of tribal ID, it is dangerous for an
elector to trust that poll workers would consistently accept such a letter from a tribe as a
valid form of identification to comply with the new law.
Silrum also states — without any supporting authority — that the “State accepts
Tribal IDs issued by a Tribe or by the Bureau of Indian Affairs as valid forms of ID as
long as it includes the required information.” See Docket No. 81-55, ¶ 43. However, HB
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1369’s plain language requires that the identification be “issued by a tribal government”
and makes no mention of the Bureau of Indian Affairs (“BIA”) which is a federal agency.
N.D.C.C. § 16.1-01-04.1(3)(a)(2). The Legislature was informed before the passage of
the new law that the ID’s of those living on the Standing Rock Reservation were issued
by the BIA and not their tribal government. See Docket No. 50, p. 16. Despite these
expressed concerns, the Legislature never changed the law’s language.
The plain
language of the statute requires identification to be issued by a “tribal government” and
not the BIA in order to be acceptable under HB 1369. N.D.C.C. § 16.1-01-04.1(3)(a)(2).
The Secretary of State has now adopted a different interpretation of the new law, and the
various types of identification and ID’s that will be accepted at the polls, but no official
announcement of this interpretation has been made to date.
6)
Although the theoretical possibility of voter fraud exists with every election nationwide,
the record before the Court has revealed no evidence of voter fraud in the past, and no
evidence of voter fraud in 2016.
7)
The parties have stated that North Dakota is the only State in the country without voter
registration. Common sense and simplistic revisions to the existing law; the launching of
a state-wide pre-election campaign informing all voters of the ID requirements, as now
broadly interpreted by the Secretary of State; or a system of voter registration like that
used in the other 49 states which allows for verification before the election rather than
afterward would be an easy solution. North Dakota already maintains a Central Voter
File in the Secretary of State’s office.
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8)
The current law (N.D.C.C. § 16.1-01-04.1) completely disenfranchises anyone who does
not have a “current residential street address.” This includes homeless persons as well as
many persons living on Native American reservations. The “current residential street
address” requirement is not required by the North Dakota Constitution, and is not
required for registering or voting in other states. Under Crawford, this requirement is
unquestionably a legal obstacle inhibiting the right to vote.
9)
State non-driver ID cards still cost $8, (See N.D.C.C. § 39-06-49(2)(a)) whereas most
states provide such ID’s at no cost. There is no apparent reason North Dakota cannot
provide free photo ID’s to all voters. For example, Virginia requires a photo ID for all
voters in all elections. However, a free photo ID is available without requiring the voter
to provided any documents. Voters can obtain free photo ID’s by simply providing his or
her name, address, birthdate, and last four digits of their social security number.
10)
Section 16.1-01-04.1(3)(a) does not permit the use of other tribal documents as a valid
ID. More important, as previously noted the new law again fails to recognize that the
BIA - rather than a tribal government - actually issues ID’s to many Native Americans.
This was a problem previously identified by the Plaintiffs and the Court in August 2016,
but was never addressed by the Legislature in the enactment of the new law. Further,
Section 16.1-01-04.1(3)(b) does not permit the use of any other forms of tribal
government documents (or letters from tribal authorities) or BIA-issued ID’s to be used
to supplement an invalid ID.
11)
Deputy Secretary of State James Silrum stated in his affidavit (Docket No. 81-55, ¶ 14)
that State non-driver ID cards are issued at no charge but offers no authority for this
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statement - and this fact is contradicted by the North Dakota DOT website which reveals
a fee for the ID. Silrum also stated that the State will accept ID’s issued by the BIA or a
letter from a tribal official that lists the tribal members’ name, residential street address
(which often does not exist), and date of birth as an acceptable ID. See Docket No. 8155, ¶ 43. However, as previously noted, the State fails to cite any authority permitting
such rule making or demonstrating that any such rules have actually been promulgated by
the Secretary of State.
After a review of the entire record, and careful consideration of all of the Dataphase
factors, the Court finds the Dataphase factors, when viewed in their totality, weigh in favor of
the issuance of a very limited preliminary injunction. There is no need to invalidate the entire
new law passed by the Legislature in April 2017. However, the public interest in protecting the
most cherished right to vote for thousands of Native Americans who currently lack a qualifying
ID and cannot obtain one, outweighs the purported interest and arguments of the State. No
eligible voter, regardless of their station in life, should be denied the opportunity to vote.
Accordingly, the Plaintiffs’ Motion for a Second Preliminary Injunction (Docket No. 89)
is GRANTED in limited part until further order of the Court. Specifically, the North Dakota
Secretary of State is enjoined from enforcing only certain subsections of N.D.C.C. § 16.1-0104.1 and only to the limited extent outlined below:
(1) The Secretary of State is enjoined from enforcing Section 16.1-01-04.1(2)(b)
which mandates the need for a “current residential street address.” The Court is
unaware of any other state that imposes such a requirement to vote. Neither the
North Dakota Constitution nor the National Registration Voting Act imposes such
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a strict requirement. Instead, the Secretary of State shall allow a qualified voter
to receive a ballot if they provide a valid form of ID as recognized in Section
16.1-01-04.1(3)(a) or 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.
(2) The Secretary of State in enjoined from enforcing N.D.C.C. § 16.1-0104.1(3)(a)(2) which mandates only certain valid forms of identification. Instead,
the Secretary of State shall also allow and accept as a valid form of identification
an official form of identification issued by a tribal government; the Bureau of
Indian Affairs (BIA), any other tribal agency or entity, or any other document,
letter, writing, enrollment card, or other form of tribal identification issued by a
tribal authority so long as those other forms of identification, (documents, letters,
writings) set forth the tribal members name, date of birth, and current residential
street address or mailing address. As previously noted, the affidavit of James
Silrum submitted by the State reveals that the Secretary of State has already
interpreted the new law to allow for these other valid forms of identification.
(3) The Secretary of State is enjoined from enforcing N.D.C.C. § 16.1-0104.1(3)(b)(5) which allows for supplemental documents from a federal, state, or
local government.
The Secretary of State shall also allow and accept any
documents issued by a tribal government, the Bureau of Indian Affairs (BIA),
other tribal agencies or authorities, or any other document, letter, writing,
enrollment card, or other forms of tribal identification which provide the missing
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or outdated information, i.e., name, current residential street address or mailing
address, and date of birth. Again, the Secretary of State has already interpreted
the new law to allow for those other forms of supplemental documents.
(4) The Secretary of State shall provide clarification as to the meaning of
N.D.C.C. § 16.1-01-04.1(5). Specifically, voters need to know where, when, and
to whom a voter needs to present a valid form of identification if their ballot was
set aside. The Court notes that N.D.C.C. § 16.1-01-04.1(6) provides that the
Secretary of State shall develop uniform procedures to implement subsection 5.
As a result, all that is needed are plans, procedures, rules, regulations, or some
public pronouncement to inform voters of what they need to do.
In summary, the implementation of only a few selected subsections of N.D.C.C. § 16.101-04.1 is enjoined, in limited part, and only to the extent that the Secretary of State develop
uniform policies, procedures, rules and regulations that incorporate the above-identified
requirements. There is no need to invalidate the entire law. Further, nearly all of the aboveidentified requirements are based on the Secretary of State’s own interpretations of the new
election laws as revealed in the affidavit of Deputy Secretary of State James Silrum. See Docket
No. 81-55.
The State needs to launch a state-wide pre-election campaign to inform voters of the ID
requirements. The State of Virginia had no problem educating its voters in 2016 when the state
was faced with similar challenges to its voting laws. See Lee v. Virginia Board of Elections, 843
F.3d 592, 596 (4th Cir. 2016). The educational campaign in Virginia involved the public posting
of 500,000 posters describing the law and sending 86,000 postcards to persons on the active
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voter list who did not possess a DMV-issued ID. The State of Virginia, as well as many other
states, provide free photo ID’s for all voters without requiring any documentation. This Court is
not suggesting the North Dakota Secretary of State implement the same educational measures
used in Virginia. The need to educate the voting public is obvious, but the method of doing so is
left to the discretion of the Secretary of State.
In summary, common sense and a sense of fairness can easily remedy the aboveidentified problems to ensure that all residents of North Dakota, including the homeless as well
as those who live on the reservations, will have an equal and meaningful opportunity to vote.
The Defendant’s “Motion to Dissolve Preliminary Injunction” (Docket No. 80) which relates to
the August 1, 2016, Order - and the now repealed N.D.C.C. 16.1-05-07, is GRANTED as the
earlier order is now moot. The Defendant’s “Motion for Expedited Review” (Docket No. 95) is
also GRANTED.
IT IS SO ORDERED.
Dated this 3rd day of April, 2018.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court
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