Sean Foss: North Dakota's Voter ID Law Is Unconstitutional

voter id

Last week, a lawsuit funded by the Native American Rights Fund drew statewide headlines for alleging that North Dakota’s voter ID law was unconstitutional under the Voting Rights Act of 1965, U.S. Constitution, and North Dakota Constitution. The lawsuit claims the voter ID law places an undue burden on the Native American plaintiffs, perpetuates historical racial discrimination against Native Americans, and violates the plaintiffs’ equal protection and due process rights.
However, the lawsuit included a final claim alleging the state’s voter ID law also violates the North Dakota Constitution by imposing a new qualification upon residents to qualify to vote. This last claim did not generate any headlines, but it presents the Native American Rights Fund’s greatest chance of success at overturning North Dakota’s voter ID law.

For purposes of this article, the question is not whether the voter ID law passed by the Legislature in 2013 is sound as a matter of public policy (or politics for that matter). The question is whether the law is constitutional, and the simply answer is no. As part of such analysis, one must keep in mind that constitutions are intended to protect individual rights by placing limits upon governmental authority. In this case, the Legislature went beyond its authority and infringed upon individual rights by requiring residents present a qualifying ID in order to be able to vote, despite the fact that such residents meet the constitutional requirements to vote.

Article II, Section 1 of the North Dakota Constitution provides:

Every citizen of the United States, who has attained the age of eighteen years and who is a North Dakota resident, shall be a qualified elector. . . . The legislative assembly shall provide by law for the determination of residence for voting eligibility, other than physical presence. No elector shall lose his residency for voting eligibility solely by reason of his absence from the state.

The state constitution also provides: “The provisions of this constitution are mandatory and prohibitory unless, by express words, they are declared to be otherwise.” N.D. Const. Art. I, § 24.

Thus, the state constitution provides three basic requirements for voting eligibility: (1) a United States citizen; (2) at least 18-years old; and (3) a North Dakota resident. The state constitution also provides the Legislature with the power to “provide by law for the determination of residence for voting eligibility . . .” Id. Therefore, the state constitution provides the Legislature the authority to pass laws to establish a voter’s residency, but the constitution does not provide the Legislature with the authority to pass laws limiting a resident’s right to vote.

Pursuant to the constitutional directive, the Legislature has passed laws providing for the determination of residency. Section 54-01-26, N.D.C.C., is captioned “Residence – Rules for determining,” and provides in whole:

residencyThe North Dakota Supreme Court has specifically cited N.D.C.C. § 54-01-26 as providing the “rules” to determine legal residence for the purposes of voting qualification. See Dietz v. City of Medora, 333 N.W.2d 702, 704 (N.D. 1983). Section 54-01-26, N.D.C.C., does not provide any indication that possession of state-issued identification is necessary or even relevant in determining legal residence.

North Dakota has another statute, N.D.C.C. § 16.1-01-04, that further addresses voter qualifications and embraces the definition of “resident” from N.D.C.C. § 54-01-26. See Dietz, 333 N.W.2d at 704 (“The rules to be used to determine legal residence for voting eligibility (according to § 16.1-01-04(3), N.D.C.C.) are set forth in § 54-01-26 . . . .”).

Section 16.1-01-04, N.D.C.C., “Qualification of electors,” states in full:

qualficationsLike N.D.C.C. § 54-01-26, N.D.C.C. § 16.1-01-04 does not provide any indication that possession of state-issued identification is necessary or even relevant in determining legal residence.

In 2013, the Legislature amended the statute regulating poll clerks and the conduct of elections to require persons to show a state-issued identification before a poll clerk is authorized to provide a ballot. The amendment did not change the requirements regarding residency and only related to the provision of ballots to voters.

Before the 2013 amendment, N.D.C.C. § 16.1-05-07 provided:

  • Before delivering a ballot to an individual according to section 16.1-13-22, the poll clerks shall request the individual to show identification, which includes the individual’s residential address and date of birth. The identification may include:
    • An official form of identification issued by the state;
    • An official form of identification issued by a tribal government;
    • A form of identification prescribed by the secretary of state; or
    • A combination of any of the forms of identification under subdivisions a through c.
  • If an individual offering to vote does not have or refuses to show an appropriate form of identification, the individual may be allowed to vote without being challenged according to section 16.1-05-06 if the individual provides to the election board the individual’s date of birth and if a member of the election board or a clerk knows the individual and can personally vouch that the individual is a qualified elector of the precinct.
  • If an individual offering to vote does not meet either of the options set forth in subsection 1 or 2, the election board shall challenge the individual’s right to vote and the individual may not vote unless the individual executes a voter’s affidavit, as provided in section 16.1-05-06.

With regard to the affidavit that a person could execute in order to vote without identification, N.D.C.C. §16.1-05-06 stated:

  • If after an election board member has requested that the individual offering to vote provide an appropriate form of identification to address any of the voting eligibility concerns listed in subsection 2 and the identification is not provided or does not adequately confirm the eligibility of the challenged individual, the challenged individual may not vote unless the challenged individual executes an affidavit, acknowledged before an election board member, that the challenged individual is a legally qualified elector of the precinct.
  • The affidavit must include:
    • The name of the affiant.
    • The address of the affiant.
    • The birth date of the affiant.
    • The contact telephone number of the affiant.
    • The address of the affiant at the time the affiant last voted.
    • The previous last name of the affiant if it was different when the affiant last voted.
    • The identification number and state of any state-issued identification regardless of the state in which the identification was issued, if available.
    • A recitation of the qualifications for voting as set forth in section 16.1-01-04 and the rules for determining residence.
    • Notice of the penalty for making a false affidavit and that the county auditor is required to verify the affidavit.
    • A notice indicating that the affidavit is not an open record, but that information identifying who voted after executing an affidavit is an open record as part of the pollbook, except for any individual listed as secured active in the central voter file under section 16.1-02-13.
    • A place for the affiant to sign and swear to the affiant’s qualification as a voter.

Therefore, prior to the 2013 amendment, state law provided a statutory framework where any person qualified to vote under Article II, § 1 could do so with or without valid identification. To meet the constitutional requirement, a person needed to be a citizen of the United States, at least eighteen years old, and a resident of the state. Under N.D.C.C. § 16.1-01-04, to qualify as a “resident” for purposes of voting, the person generally needed to have resided in the state for at least 30 days prior to the election. Residency could be established either through identification, a pollworker or clerk vouching for the person’s residency, or the execution of an affidavit.

The 2013 amendment changed the requirements for voting, but not the rules for determining residency. As amended, N.D.C.C. § 16.1-05-07(1) now provides: “Before delivering a ballot to an individual according to section 16.1-13-22, the poll clerks shall require the individual to show identification, which includes the individual’s residential address and date of birth.” (Emphasis added). The statute continues to explain the permissible forms of identification, including “[a] driver’s license or nondriver identification card issued by the department of transportation or other official form of identification issued by the state,” “[a]n official form of identification issued by a tribal government,” “[a]n alternative form of identification prescribed by the secretary of state, if the individual does not possess” a North Dakota driver’s license, nondriver identification card, or official tribal identification. N.D.C.C. § 16.1-05-07(1)(a)-(c). The 2013 amendment to N.D.C.C. ch. 16.1-05 also repealed N.D.C.C. § 16.1-05-06 regarding the ability for a person to execute an affidavit swearing their qualifications to vote.

The Legislature’s 2013 amendment runs contrary to clear jurisprudence from the North Dakota Supreme Court regarding the Legislature’s inability to add or subtract from the constitutional requirements for persons to qualify to vote. “[W]e recognize the force of the principle, which, so far as our observation goes, is universally adhered to, that where the Constitution prescribes the qualifications of electors the Legislature is powerless to add to or subtract from those qualifications.” Spatgen v. O’Neil, 40 N.D. 618, 169 N.W. 491, 494 (1918). “It is unquestioned that the Legislature can neither enlarge nor diminish the qualifications necessary to entitle one to vote at a constitutional election. . . . The people in adopting the Constitution containing these provisions recognized the necessity of stability and uniformity in such qualifications, and thereby protected all citizens from being subjected to the uncertainty which would arise if the standard of citizenship and qualifications for voting were left to the whims and caprice of the different legislative assemblies, governed, as they might be, by varying purposes and ideals.” Johnson v. Grand Forks County, 16 N.D. 363, 113 N.W. 1071, 1072 (1907). “If we once admit the power of the Legislature to make even the smallest additions not contemplated by the Constitution to the qualifications required to entitle one to vote, there is no limit to the requirements which may be added.” Id., at 1074.

In this case, by requiring persons who qualify as an “elector” under the state constitution to also show identification in order to actually vote, the Legislature has added a requirement beyond those dictated by the North Dakota Constitution. Under the basic principles of constitutional supremacy, as well as the above case law, such action is unconstitutional.

The State of Arkansas recently confronted a nearly identical situation, and the Arkansas Supreme Court held the state’s voter identification law violated its state constitution. As the Arkansas Supreme Court explained:

On March 19, 2013, both houses of the Arkansas General Assembly passed Act 595, which required Arkansas residents to provide ‘proof of identity’ when voting at the polls. . . . Specifically, section 1 of Act 595 requires proof of identity in the form of a voter-identification card or a document or identification card showing the voter’s name and photo issued by the United States, the State of Arkansas, or an accredited post secondary educational institution in Arkansas with an expiration date.

Martin et al v. Kohls et al, 444 S.W.3d 427 (Ark. 2014).

The Plaintiffs argued the Arkansas voter identification law violated Article III, § 1 of the Arkansas Constitution, because it added an additional qualification to vote beyond those proscribed by its state constitution. The Arkansas Constitution provides:

  • Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
    • A citizen of the United States;
    • A resident of the State of Arkansas;
    • At least eighteen (18) years of age; and
    • Lawfully registered to vote in the election [as amended by Const. Amend. 85].

Martin, at 851. Therefore, the first three qualifications to vote under the state constitutions of both North Dakota and Arkansas are the same. Arkansas has a fourth qualification, registering to vote, which North Dakota does not.

The Arkansas Supreme Court considered its prior jurisprudence regarding the ability of its legislature to establish requirements for voting eligibility. This case law is effectively identical to the jurisprudence in North Dakota, as it holds the Arkansas legislature does not have the authority to add any additional qualifications for voters beyond those proscribed by its state constitution. See, e.g., Rison v. Farr, 24 Ark. 161 (1865); and Faubus v. Miles, 377 S.W.2d 601 (Ark. 1964).

The Arkansas Supreme Court then held the state’s voter ID law was facially invalid as a violation of their state constitution. As the Court stated:

Section 1 of article 3 [of the Arkansas Constitution] plainly states that any person may vote in an election who is (1) a U.S. citizen, (2) an Arkansas resident, (3) eighteen years of age, and (4) lawfully registered to vote in the election before voting in an Arkansas election. Ark. Const. art. 3, § 1. These four qualifications set forth in our state’s constitution simply do not include any proof-of-identity requirement. . . . Therefore, we hold that [the Arkansas voter ID law] requiring proof of identity is unconstitutional on its face and imposes a requirement that falls outside the ambit of article 3, section 1, of the Arkansas Constitution.

Martin, at 852-53. The Court also specifically rejected the argument that the voter ID requirement was “procedural” and not a new, substantive requirement to establish voter qualification. Id., at 15. Not a single justice on the Arkansas Supreme Court believed the voter ID law was constitutional under their state constitution.

I expect North Dakota’s voter ID law will ultimately see the same fate as that of the Arkansas law. The law violates the North Dakota Constitution, because it imposes a new requirement to qualify to vote in this state. While the legal basis for such decision may not be as headline grabbing as the current allegations of discrimination in the pending lawsuit, the impact will be the same. Once found unconstitutional, North Dakota residents will once again be able to vote without necessarily showing any qualifying identification.

The question will then become whether the Legislature or petitioners will seek to initiate a constitutional amendment to adopt the voter ID requirements. Considering the strength of the Legislature’s vote in favor of the voter ID law in 2013, as well as the recent swell in the number of initiated ballot measures, it seems likely to be an issue that goes to the voters of this state. But those voters will be able to vote without showing an ID, only to be asked whether they should be constitutionally required to do so the next time they go to the polls.

Sean Foss is an attorney at O’Keeffe, O’Brien, Lyson & Foss, Ltd. in Fargo. He previously served as a law clerk to the Honorable Carol Kapsner at the North Dakota Supreme Court.

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