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Published — October 5, 2020

In North Dakota, Native Americans have overcome barriers to vote

Introduction

For the first time since the state settled a lawsuit over a photo identification requirement that made North Dakota the center of a nationally watched battle over Native American voting rights, North Dakota voters will be going to the polls in a general election. 

North Dakota is the only state that doesn’t require voter registration, but that means voters must prove their eligibility at the polls. Photo identification requirements passed by the state Legislature have created hurdles for Native American voters and others seeking to ensure equal access to the ballot.

Here are voting access issues to watch in North Dakota: 

Voting rights settlement

In 2018, the Supreme Court allowed a long-delayed photo identification law to go into effect shortly before the midterm elections, though a federal judge had previously found the law’s requirements would disproportionately burden Native American voters. The decision prompted a backlash, supercharging efforts to help Native Americans vote that year. 

The court’s decision didn’t end the lawsuit, but the state settled it earlier this year. Under the settlement, the state Department of Transportation must work with tribal governments to distribute free, non-driver photo identification on every reservation in the state within 30 days of statewide elections, something North Dakota Deputy Secretary of State Jim Silrum confirmed the agency is doing before the November election.

Native Americans in North Dakota are also permitted to mark their residence on a map if they don’t have a street address, according to the settlement, and the county government, with assistance from the state, will then be responsible for verifying the voter’s residential street address, providing the information to the voter and the tribe and making sure the ballot is properly counted.

Mark Gaber, director of trial litigation for the Campaign Legal Center and one of the lawyers involved in the settlement, said he and others had hoped the primary would serve as a trial run for the alternative address provisions allowed for in the settlement. But because of the pandemic, the primary was conducted by mail and those provisions were envisioned primarily for use at polling places, he said. 

“I think we’ll get a better sense of how everything is going in November, but we are keeping our eye on that,” Gaber said.

Curing absentee ballot problems

Earlier this year, a federal judge ruled local election officials must notify mail ballot voters of signature mismatch issues that would lead to rejection of their mail ballots, and give voters a chance to remedy the problem.

The ruling applies for the general election, said Gaber and Jan Lynch, president of the League of Women Voters of North Dakota, one of the parties that brought the lawsuit. About 766 primary ballots were flagged by election officials for mismatched signatures and 445 of those ballots — 58% —  were counted because of the so-called “cure” process once voters were contacted, according to a Campaign Legal Center analysis of data provided by the North Dakota secretary of state’s office. 

“That percentage still tells me that we have some work to do, but that 58% would not have been counted at all,” Lynch said.

Postmark deadline

North Dakota doesn’t require an excuse to vote absentee. The state mailed absentee ballot applications to all voters before the all-mail primary in June and voters could use that application to apply for the November ballot if they chose. In addition, in the North Dakota counties that vote by mail, officials also sent applications to each potential voter who had not already requested one for the November election. 

The state does require mail-in ballots to be postmarked by the day before the election rather than Election Day itself. The National Vote at Home Institute, a nonpartisan nonprofit that advocates for vote-by-mail options and recommends best practices, recommends accepting ballots postmarked through Election Day. 

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