In Court Arguments, State of North Dakota Argues That Heitkamp’s 2012 Election Victory Couldn’t Be Verified


Voters at Holy Family Catholic Church in Grand Forks fill out their ballots early Tuesday for the North Dakota primary election. photo by Eric Hylden/Grand Forks Herald

Attorney General Wayne Stenehjem’s office is in the process of defending North Dakota’s voter ID laws from a legal challenge.

Those laws were enjoined by a federal judge shortly before the 2016 election, and the judge required that the state go back to allowing people without ID’s as long as they sign affidavits saying they are, in fact, legal and eligible voters.

But the reason why lawmakers got rid of those affidavits is that it’s pretty much impossible to verify them. That process allowed for potentially fraudulent voters to cast ballots which count, which can decide elections, with no mechanism to remedy an election outcomes which might not be legitimate.

In fact, in a memo arguing in favor of the court dissolving the injunction of the voter ID law, Deputy Solicitor General James Nicolai points out that Senator Heidi Heitkamp’s very narrow election day victory over Republican Rick Berg in 2012 “could not be verified.”

From the memo’s introduction:

That is the fundamental problem lawmakers have been trying to fix, though they’ve been derailed by the courts which have accepted the argument from plaintiffs (in this case a group of Native Americans from around the state) which holds that the state’s registration-free voting process, absent the option to vote only by filling out an affidavit, is too onerous.

Which is difficult to understand. While on one hand I’m am in favor of making relatively easy to vote – I’d even support the Legislature funding efforts by the DOT to get ID’s into the hands of more North Dakotans who don’t currently have them – I don’t understand how it can be illegal for the state to require verification of a given person’s eligibility to vote.

If a person can cast a ballot, and influence an election outcome, based on nothing more than an affidavit which cannot be verified until well after the election is decided (if it gets verified at all) then what is the point of having any qualifications for voters?

Contrary to what our friends on the left might have you believe, this really can influence election outcomes. Nicolai’s filing (which also references this blog) points out that not only could the 2012 Senate election outcome have been influenced by ballots cast with only affidavits but multiple down-ballot races as well:

These affidavits accomplish exactly nothing, in terms of securing the ballot box, if they cannot be verified in a timely way which ensures legitimate election outcomes.

Here’s the full memo:

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