CLOSED
U.S. District Court District of North Dakota (Eastern) CIVIL DOCKET FOR CASE #: 3:20-cv-00071-PDW-ARS

Self Advocacy Solutions N.D. et al v. Jaeger et al Assigned to: Chief Judge Peter D. Welte Referred to: Magistrate Judge Alice R. Senechal Cause: 42:1983 Civil Rights Act

Date Filed: 05/01/2020 Date Terminated: 08/28/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff Self Advocacy Solutions N.D.

represented by Derrick L. Braaten Braaten Law Firm 109 N 4th Street Suite 100 Bismarck, ND 58501 701-221-2911 Email: derrick@braatenlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah M. Vogel 1203 North 2nd Street Bismarck, ND 58501 701-355-6521 Email: sarahvogellaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aseem Mulji Campaign Legal Center 1101 14th Street NW Suite 400 Washington, DC 20005 714-418-6219 Email: amulji@campaignlegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Carey A. Goetz Braaten Law Firm

Plaintiff
League of Women Voters of North Dakota

109 North 4th Street, Suite 100 Bismarck, ND 58501 701-221-2911 Email: carey@braatenlawfirm.com ATTORNEY TO BE NOTICED
Dana Paikowsky Campaign Legal Center 1101 14th Street NW Suite 400 Washington, DC 20005 202-650-5171 Email: dpaikowsky@campaignlegalcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Marie Lang Campaign Legal Center District of Columbia 1101 14th St. NW Suite 400 Washington, DC 20005 267-205-0578 Email: dlang@campaignlegalcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Gaber Campaign Legal Center 1101 14th Street NW Suite 400 Washington, DC 20005 202-736-2200 Email: mgaber@campaignlegalcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Derrick L. Braaten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Maria Fallon Romo

Sarah M. Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aseem Mulji (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carey A. Goetz (See above for address) ATTORNEY TO BE NOTICED
Dana Paikowsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Marie Lang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Gaber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Derrick L. Braaten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah M. Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aseem Mulji (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carey A. Goetz

V. Defendant Alvin Jaeger in his official capacity as Secretary of State
Defendant Debbie Nelson in her official capacity as County Auditor of Grand Forks County

(See above for address) ATTORNEY TO BE NOTICED
Dana Paikowsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Marie Lang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Gaber (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David R. Phillips ND Office of the Attorney General 500 North 9th Street Bismarck, ND 58501-4509 701-328-3640 Email: drphillips@nd.gov ATTORNEY TO BE NOTICED
Matthew A. Sagsveen ATTORNEY GENERAL'S OFFICE NATURAL RESOURCES DIV. 500 N 9TH STREET BISMARCK, ND 58501-4509 701-328-3640 Email: masagsve@nd.gov ATTORNEY TO BE NOTICED
represented by Howard D. Swanson Swanson & Warcup, Ltd. PO Box 12909 Grand Forks, ND 58208-2909 701-772-3407 Email: hswanson@swlawltd.com ATTORNEY TO BE NOTICED

Date Filed 05/01/2020
05/01/2020 05/04/2020
05/04/2020
05/04/2020
05/04/2020
05/05/2020 05/05/2020

# Docket Text

COMPLAINT against Alvin Jaeger, Debbie Nelson (Filing fee: TBD,

1

receipt number: 320000279) filed by Self Advocacy Solutions N.D.,

League of Women Voters of North Dakota, Maria Fallon Romo.

(Attachments: # 1 Exhibit A - 2018 Election Official Manual,

# 2 Exhibit B - Absentee/Mail Ballot Application, # 3 Exhibit C -

Voter Affidavit, # 4 Exhibit D - Voter Qualifications, # 5 Civil Cover

Sheet)(js) Modified on 5/13/2020o add receipt number. (as) (Entered:

05/01/2020)

2 Summons Issued as to Alvin Jaeger, Debbie Nelson. (js) (Entered: 05/01/2020)

3 MOTION to Appear Pro Hac Vice Attorney Dana Paikowsky (Filing fee $150, receipt number: ANDDC-1949450) by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D. (Paikowsky, Dana) (Main Document 3 replaced on 5/5/2020 with non-fillable pdf; modified on 5/5/2020 to add receipt # - NEF Regenerated) (js). (Entered: 05/04/2020)

4 MOTION to Appear Pro Hac Vice Attorney Aseem Mulji (Filing fee $150, receipt number: ANDDC-1949452) by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Mulji, Aseem) (Main Document 4 replaced on 5/5/2020 with non-fillable pdf; modified on 5/5/2020 to add receipt # - NEF Regenerated) (js). (Entered: 05/04/2020)

5 MOTION to Appear Pro Hac Vice Attorney Mark Gaber (Filing fee $150, receipt number ANDDC-1949455) by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Gaber, Mark) Modified on 5/5/2020 to add receipt number (am). (Main Document 5 replaced on 5/5/2020 with non-fillable PDF) (am). NEF regenerated on 5/5/2020 (am). (Entered: 05/04/2020)

6 MOTION to Appear Pro Hac Vice Attorney Danielle Lang (Filing fee $150, receipt number ANDDC-1949457) by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Lang, Danielle) Modified on 5/5/2020 to add receipt number (am). (Main Document 6 replaced on 5/5/2020 with non-fillable PDF) (am). NEF regenerated on 5/5/2020 (am). (Entered: 05/04/2020)

7 (Text Only) ORDER by Magistrate Judge Alice R. Senechal granting 5 Motion to Appear Pro Hac Vice for Attorney Mark Gaber; granting 6 Motion to Appear Pro Hac Vice for Attorney Danielle M. Lang. (am) (Entered: 05/05/2020)

8 (Text Only) ORDER by Magistrate Judge Alice R. Senechal granting 3 Motion to Appear Pro Hac Vice for Attorney Dana

05/11/2020 05/11/2020 05/11/2020

Paikowsky; granting 4 Motion to Appear Pro Hac Vice for Attorney Aseem Mulji. (js) (Entered: 05/05/2020)
9 ACKNOWLEDGMENT OF SERVICE Executed filed by Self Advocacy Solutions N.D., League of Women Voters of North Dakota, Maria Fallon Romo. Alvin Jaeger served on 5/11/2020, answer due 6/1/2020. (Gaber, Mark) (Entered: 05/11/2020)
10 NOTICE of Appearance by Carey A. Goetz on behalf of League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D. (Goetz, Carey) (Entered: 05/11/2020)
11 MOTION for Preliminary Injunction by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Attachments: # 1 Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Gaber Declaration, # 3 Mulji Declaration,

# 4 Exhibit 1: EAVS Data, # 5 Exhibit 2: 2020 Election Officials'

Manual, # 6 Exhibit 3: Compiled County Training Materials, # 7 Exhibit 4: McKenzie County Nov. 2018 Canvassing Board Minutes, # 8 Exhibit 5: McLean County Nov. 2018 Canvassing Board Minutes, # 9 Exhibit 6: Traill County Nov. 2018 Canvassing Board Minutes, # 10 Exhibit 7: Kidder County Nov. 2018 Canvassing Board Minutes, # 11 Exhibit 8: Dickey County Nov. 2018 Canvassing Board Minutes, # 12 Exhibit 9: Mar. 25, 2019 Email from Barnes County Auditor, # 13 Exhibit 10: Absentee Ballot Application, # 14 Exhibit 11: Voter Affidavit, # 15 Exhibit 12: Sec'y of State Absentee Voting Instructions, # 16 Exhibit 13: Mohammed Declaration, # 17

Exhibit 14: Romo Declaration, # 18 Exhibit 15: Culver Declaration, # 19 Exhibit 16: Marx Declaration, # 20 Exhibit 17: Lynch Declaration, # 21 Exhibit 18: EO 2020-13, # 22 Exhibit 19: ND Health Announcement, # 23 Exhibit 20: Article re Incremental Opening, # 24 Exhibit 21: Article re Grand Forks COVID-19 Outbreak, # 25 Exhibit 22: CDC Guidance for At-Risk Populations, # 26 Exhibit 23: Pembina County Canvassing List, # 27 Exhibit 24: Grand Forks County Auditor Absentee Voting for June 2020 Primary

05/12/2020 05/12/2020

Announcement, # 28 Exhibit 25: Grand Forks District 17 Rejected Ballots (Nov. 2018 Canvass))(Braaten, Derrick) (Entered: 05/11/2020)

NOTICE of Appearance by David R. Phillips on behalf of Alvin

12

Jaeger (Phillips, David) (Entered: 05/12/2020)

13 MOTION to Expedite (Assented Motion to Expedite Briefing Schedule re Motion for Preliminary Injunction) by League of Women Voters of

05/12/2020 05/12/2020 05/13/2020 05/13/2020 05/14/2020 05/22/2020 05/22/2020 05/22/2020 05/22/2020
05/25/2020 05/26/2020 05/26/2020

North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Gaber, Mark) (Entered: 05/12/2020)
14 NOTICE of Appearance by Howard D. Swanson on behalf of Debbie Nelson (Swanson, Howard) (Entered: 05/12/2020)
15 NOTICE of Appearance by Matthew A. Sagsveen on behalf of Alvin Jaeger (Sagsveen, Matthew) (Entered: 05/12/2020)
16 (Text Only) ORDER by Magistrate Judge Alice R. Senechal granting unopposed 13 Motion to Expedite Briefing Schedule re 11 Motion for Preliminary Injunction. Responses are due by 5/22/2020. Replies are due by 5/25/2020. (LF) (Entered: 05/13/2020)
Set/Reset Deadlines as to 11 MOTION for Preliminary Injunction . Responses due by 5/22/2020. Replies due by 5/25/2020. (js) (Entered: 05/13/2020)
17 ACKNOWLEDGMENT OF SERVICE Executed filed by Self Advocacy Solutions N.D., League of Women Voters of North Dakota, Maria Fallon Romo. Debbie Nelson served on 5/13/2020, answer due 6/3/2020. (Gaber, Mark) (Entered: 05/14/2020)
18 RESPONSE to Motion re 11 MOTION for Preliminary Injunction filed by Debbie Nelson. (Attachments: # 1 Declaration of Debbie Nelson)(Swanson, Howard) (Entered: 05/22/2020)
19 MOTION for Videoconference or Telephonic Oral Argument by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Gaber, Mark) (Entered: 05/22/2020)
20 MOTION for Videoconference or Telephonic Oral Argument (Corrected) by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Gaber, Mark) (Entered: 05/22/2020)
21 RESPONSE to Motion re 11 MOTION for Preliminary Injunction filed by Alvin Jaeger. (Attachments: # 1 Affidavit of Silrum, # 2 Exhibit 1 to Affidavit of Silrum (Mail Ballot Application), # 3 Exhibit 2 to Affidavit of Silrum (Ballot Affidavit and Envelope))(Phillips, David) (Entered: 05/22/2020)
22 REPLY to Response to Motion re 11 MOTION for Preliminary Injunction filed by League of Women Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D.. (Gaber, Mark) (Entered: 05/25/2020)
23 (Text Only) ORDER by Chief Judge Peter D. Welte granting 20 Motion for Telephonic Hearing and Oral Argument on Motion for Preliminary Injunction. (EA) (Entered: 05/26/2020)
24 NOTICE of Hearing on 11 MOTION for Preliminary Injunction: Motion Hearing set for 6/1/2020 at 02:30 PM CT by telephone before

05/26/2020 06/01/2020 06/01/2020
06/03/2020 06/03/2020 06/05/2020 06/05/2020 06/15/2020
07/23/2020

Chief Judge Peter D. Welte. Counsel provided conference call dial-in information for the hearing via e-mail. (EA) (Entered: 05/26/2020)
25 (Text Only) ORDER by Chief Judge Peter D. Welte finding as moot 19 Motion for Telephonic Oral Argument in light of 23 Order granting Motion for Telephonic Oral Argument and 24 Notice of Hearing on Motion. (EA) (Entered: 05/26/2020)

26

ANSWER to 1 Complaint, by Alvin Jaeger.(Phillips, David)

(Entered: 06/01/2020)

27 Minute Entry for proceedings held before Chief Judge Peter D. Welte: Motion Hearing held on 6/1/2020 re 11 MOTION for Preliminary Injunction filed by Maria Fallon Romo, Self Advocacy Solutions N.D., League of Women Voters of North Dakota. (Court Reporter kk) (lh) (Entered: 06/02/2020)

28 ANSWER to 1 Complaint, by Debbie Nelson.(Swanson, Howard) (Entered: 06/03/2020)

ORDER by Chief Judge Peter D. Welte granting 11 Motion for

29

Preliminary Injunction. (MK) (Entered: 06/03/2020)

30

NOTICE by Alvin Jaeger re 29 Order on Motion for Preliminary

Injunction (Phillips, David) (Entered: 06/05/2020)

31

ORDER by Chief Judge Peter D. Welte re 30 Notice filed by

Alvin Jaeger. (MK) (Entered: 06/05/2020)

ORDER for Rule 26(f) Planning Meeting and Rule 16(b) Scheduling

32

Conference, and ORDER regarding resolution of Discovery Disputes

by Magistrate Judge Alice R. Senechal. Scheduling Conference set for

7/28/2020 at 10:00 AM before Magistrate Judge Alice R. Senechal.

(LF) (Entered: 06/15/2020)

33 NOTICE of Hearing: Scheduling Conference RESET for 8/28/2020 at 10:00 AM before Magistrate Judge Alice R. Senechal. (Previously set

08/27/2020 08/27/2020

for 7/28/2020 at 10:00 AM). See written instructions at Doc. 32 . (LF) (Entered: 07/23/2020)

MOTION for Permanent Injunction and Final Judgment (Joint) by

34

League of Women Voters of North Dakota, Maria Fallon Romo, Self

Advocacy Solutions N.D.. (Gaber, Mark) (Entered: 08/27/2020)

35 (Text Only) ORDER by Magistrate Judge Alice R. Senechal. In light

of the parties' 34 Joint Motion for Permanent Injunction and Final

08/28/2020 08/28/2020 09/02/2020 09/03/2020

Judgment, the Scheduling Conference set for 8/28/2020 at 10:00 is CANCELLED. (AS) (Entered: 08/27/2020)

36

ORDER by Chief Judge Peter D. Welte granting 34 Motion for

Permanent Injunction. (MK) (Entered: 08/28/2020)

37

CLERK'S JUDGMENT re 36 Order Granting (Joint) Motion for

Permanent Injunction(pb) (Entered: 08/28/2020)

MOTION for Extension of Time to File Motion for Attorneys' Fees,

38

Expenses, and Costs by League of Women Voters of North Dakota,

Maria Fallon Romo, Self Advocacy Solutions N.D.. (Gaber, Mark)

(Entered: 09/02/2020)

39 (Text Only) ORDER by Magistrate Judge Alice R. Senechal granting

09/24/2020 09/25/2020 10/16/2020

unopposed 38 Motion for Extension of Time to File Motion for Attorneys' Fees, Expenses, and Costs. Plaintiffs' motion is due by 9/25/2020. (AS) (Entered: 09/03/2020)

MOTION for Extension of Time to File Motion for Attorneys Fees

40

and Costs Until October 16, 2020 (Consented) by League of Women

Voters of North Dakota, Maria Fallon Romo, Self Advocacy Solutions

N.D.. (Gaber, Mark) (Entered: 09/24/2020)

41 (Text Only) ORDER by Magistrate Judge Alice R. Senechal Motion for Attorneys' Fees, Expenses, and Costs. Plaintiffs' motion is due by 10/16/2020. (AS) (Entered: 09/25/2020)

MOTION for Attorney Fees (Joint) by League of Women Voters of

42

North Dakota, Maria Fallon Romo, Self Advocacy Solutions N.D..

10/23/2020 43
10/23/2020 44

(Attachments: # 1 10/16/2020)

Proposed Order)(Gaber, Mark) (Entered:

ORDER by Chief Judge Peter D. Welte granting 42 Attorney Fees. (MK) (Entered: 10/23/2020)

Motion for

AMENDED CLERK'S JUDGMENT.(sj) (Entered: 10/23/2020)

PACER Login:

PACER Service Center Transaction Receipt
04/09/2021 12:47:01 CRClearinghouse Client Code: Gillan

Description: Docket Report

Billable Pages:

7

Search Criteria:
Cost:

3:20-cv-00071PDW-ARS
0.70

 
 Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,
v.
ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Case No. ____________________

Defendants.

Plaintiffs, by and through their undersigned attorneys, allege as follows: INTRODUCTION
1. As the COVID-19 crisis stretches into its second month, it is becoming increasingly clear that this pandemic represents not only a threat to our health, but to the health of our democracy. Recognizing the danger of in-person voting, on March 26, 2020, Governor Burgum authorized upcoming elections be held entirely by mail, suspending the requirement that North Dakota counties offer at least one in-person polling location. To date, every county in North Dakota has embraced this safety measure and plans to conduct their June 9, 2020 elections exclusively by mail.
2. As more North Dakotans rely on absentee ballots to exercise their fundamental right to vote, however, they face a growing risk of being disenfranchised by North Dakota’s error-prone signature matching verification process. Under this system, election officials must compare the

1

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 2 of 18
signature on a voter’s absentee ballot with the one on the voter’s absentee ballot application to determine whether the signatures “correspond.” If the official—who is provided no training in signature verification or document examination—believes that the signatures do not match, the ballot is rejected and the vote is not counted. The voter is never informed their ballot is impaired or given an opportunity to resolve the issue and have their vote counted.
3. The State rejects hundreds of ballots cast by eligible North Dakota voters every election because of this unreliable ballot verification process, disproportionately disenfranchising voters prone to signature variability, specifically people with disabilities, non-native English speakers, and both young and elderly voters.
4. North Dakota’s failure to inform these voters that their ballots are impaired or provide them any opportunity to cure the impairment deprives them of their fundamental right to vote in violation of the First and Fourteenth Amendments to the United States Constitution and of their right to due process of law in violation of the Fourteenth Amendment to the United States Constitution. Plaintiffs bring this action to prevent North Dakota from further disenfranchising eligible voters for benign signature issues before the upcoming June 9, 2020 state elections and future elections.
JURISDICTION AND VENUE 5. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. 6. This Court has personal jurisdiction over Defendants, who reside in this district, in their official capacities. 7. Venue lies in this district pursuant to 28 U.S.C. § 1391(b) and in the Eastern Division pursuant to Local Rule 1.1 because Plaintiff Romo resides in Grand Forks County,
2

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 3 of 18
Plaintiff Self Advocacy Solutions N.D. is based in Grand Forks County, and Plaintiff League of Women Voters of North Dakota is based in Cass County, all in this Division.
8. This Court has jurisdiction to grant both declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES Plaintiffs 9. Plaintiff Maria Fallon Romo is a Grand Forks, North Dakota resident and U.S. citizen. She has lived in Grand Forks for approximately thirty years. She has been an active voter for many years and votes regularly. Ms. Romo is a special education paraeducator. 10. Although Ms. Romo has typically voted in person, in 2018, Ms. Romo chose to vote by absentee ballot for the first time believing it would be easier and more convenient for her. She followed the instructions to submit the absentee ballot application, received her absentee ballot in the mail, and submitted her absentee ballot on October 16, 2018, well in advance of the deadline. 11. Since then, she has assumed that her vote was counted. It was not. Instead, because local election officials determined that her signatures did not “correspond,” her ballot was rejected without providing her any notice or opportunity to confirm her signature. 12. Ms. Romo was diagnosed with multiple sclerosis (“MS”) in 1997. As a result of her MS, it is difficult for her to write neatly or consistently. Difficulty with writing and changes in handwriting are common side effects of MS. 13. Ms. Romo did not know that a signature on her ballot application that did not “correspond” with the one provided on her ballot could invalidate her ballot, particularly without any notice to her beforehand. She only recently discovered that her 2018 ballot was not counted. She has reviewed her absentee ballot application and voter affidavit, and has confirmed that the
3

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 4 of 18
ballot reviewed by the Grand Forks election officials was her own. If she had received any notice of the alleged mismatched signature on her voter affidavit, she would have taken all steps necessary to confirm her signature and ensure her ballot was counted.
14. Ms. Romo wishes to vote in the June 9 election in North Dakota. In order to do so, she will have to vote by mail because Grand Forks, in light of the ongoing pandemic, has shifted to an exclusively vote-by-mail election. On June 9, in addition to the statewide primary contests, her city of Grand Forks is having an election for mayor. She also wishes to vote in future elections, and would likely do so by absentee ballot if she had some assurance her ballot would not be rejected without any notice or opportunity to cure.
15. Ms. Romo now fears that she will be disenfranchised yet again if she votes by mail and an election official determines that her signatures do not “correspond.”
16. Plaintiff Self Advocacy Solutions N.D. (“SAS”) is a nonprofit organization based in Grand Forks, North Dakota with members living across the state. SAS’s mission is to promote human and civil rights for people with disabilities. SAS empowers people with disabilities to advocate for their rights to ensure equal opportunities, access, and inclusion as full members of society. SAS encourages its members to exercise their right to vote in North Dakota elections, and has advocated for its members to vote by absentee ballot.
17. Many SAS members have disabilities that affect their ability to sign their name, and many SAS members’ signatures are not visually consistent across time as a result of their disability. As a result, SAS members are at particular risk of having their absentee ballot signatures deemed to not “correspond” with their absentee ballot applications.
18. Plaintiff League of Women Voters of North Dakota (“LWVND”) is a nonpartisan political organization based in Fargo, North Dakota with members living throughout the state.
4

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 5 of 18
LWVND’s mission is to encourage informed and active participation in government, work to increase understanding of major public policy issues, and influence public policy through education and advocacy. LWVND is an affiliate of the League of Women Voters of the United States which has over 700 state and local Leagues across all 50 states, the District of Columbia, Puerto Rico, Virgin Islands, and Hong Kong.
19. LWVND conducts its activities through two local chapters, one serving the greater Fargo region and another serving Bismarck-Mandan. LWVND encourages its members and the public to exercise their right to vote in North Dakota elections. LWVND also educates its members and the public about how to vote by absentee ballot, at public meetings, online, and during programming on community access channels.
20. LWVND has members whose signatures may not be visually consistent over time, including elderly voters and voters with disabilities, who are at risk of having their absentee ballot signatures deemed not to “correspond” with their absentee ballot application.
Defendants 21. Defendant Alvin Jaeger is the North Dakota Secretary of State and is sued in his official capacity. The North Dakota Secretary of State is the State’s supervisor of elections. The Office of the North Dakota Secretary of State is responsible for “supervis[ing] the conduct of elections,” “implement[ing] uniform training programs for all election officials,” “publish[ing] . . . a manual on election procedures,” and “assur[ing] uniform voting opportunities throughout the state.” N.D.C.C. §§ 16.1-01-01(1), (2)(a), (2)(c), (3). 22. Defendant Debbie Nelson is the County Auditor of Grand Forks County, North Dakota, and is sued in her official capacity. The County Auditor is the “county administrator of elections” and “is responsible to the secretary of state for the proper administration within the
5

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 6 of 18
auditor’s county of state laws, rules, and regulations concerning election procedures.” Id. § 16.101-01(4). Before each primary and general election, the County Auditor must conduct “training sessions on election laws and election procedures for election officials in the county,” including all election board members and poll clerks. Id. § 16.1-05-03(2). The County Auditor must also sit on the county canvassing board, which makes the final determination on ballots rejected due to a signature mismatch. Id. § 16.1-15-15.
FACTS Absentee and Mail Ballots are Crucial to Voter Access in North Dakota 23. The option to vote an absentee ballot has become a crucial means by which North Dakotans cast their ballots. All eligible voters in North Dakota may vote by absentee ballot. Id. § 16.1-07-01. In 2018, nearly thirty percent of all North Dakota voters cast their ballots via absentee ballot. Likewise, in 2016 and 2014, absentee ballots accounted for approximately onefourth of ballots cast. 24. North Dakota has authorized counties to conduct elections by mail ballot so long as counties maintain one polling place open for in person voting on Election Day. Id. §16.1-11.101. In such elections, the county auditor sends an application for a mail ballot to each voter listed in the Central Voter File. Id. § 16.1-11.1-02. Mail ballot elections largely follow the same rules and procedures as the ordinary absentee ballot process, including the form of application and ballot and the manner of verification of ballots. Id. §§ 16.1-11.1-01, et seq. Many North Dakota counties take advantage of this provision to conduct mail ballot elections with very limited in-person voting options. 25. During the national emergency due to the COVID-19 pandemic, voters’ access to and confidence in mail ballots is crucial. In light of social distancing guidelines, in-person voting
6

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 7 of 18
at the same levels as ordinary elections will not be safe in upcoming elections, particularly for those most vulnerable to the virus.
26. On March 26, 2020, in response to the COVID-19 crisis, Governor Burgum authorized counties to conduct upcoming elections solely by mail by suspending the ordinary requirement that counties conducting mail ballot elections maintain at least one in-person polling location.1 And to further encourage voting by mail, he ordered the Secretary of State to send mail ballot application forms, instructions, and a return envelope to all individuals listed in the state’s Central Voter File. In his executive order, Governor Burgum also noted that 33 of North Dakota’s 53 county commissions had authorized mail ballot elections, and strongly encouraged the remaining counties to follow suit.
27. As of April 23, all counties have authorized mail ballot elections for June 9.2 28. Grand Forks County, where Plaintiff Romo resides, will only offer absentee voting for the June 2020 primary, and will have no in-person voting option available.3 29. The Governor’s executive order will remain in place “for the duration of the declared emergency.” Even after the end of the “declared emergency,” social distancing guidelines and precautions for those most vulnerable will remain of the utmost importance. 30. As such, elections in 2020 will see a substantial increase in vote by mail in North Dakota.
1 The order requires counties to maintain at least one assistive ballot marking device in the county courthouse during normal hours of operation. Exec. Order 2020-13 (Mar. 26, 2020), https://www.governor.nd.gov/sites/www/files/documents/executiveorders/Executive%20Order%202020-13%20Elections.pdf. 2 North Dakota Health, North Dakotans to Receive Ballots by Mail for June Election (Apr. 23, 2020), https://www.health.nd.gov/news/north-dakotans-receive-ballots-mail-june-election. 3 Grand Forks County Auditor, June 9, 2020 Primary Election, http://gfcounty.nd.gov/sites/default/files/pdf/June%209%202020%20Primary%20Election.pdf (last visited Apr. 24, 2020).
7

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 8 of 18
Absentee Voting Process in North Dakota 31. At any time in an election year, any qualified elector may apply—in person or via facsimile or electronic mail—for an absentee ballot. N.D.C.C. § 16.1-07-05(1). The applicant can choose to apply for all statewide elections in the calendar year or only the next proximate election. Id. 32. There is no deadline to apply for an absentee ballot, but it must be submitted “in a timely manner so as to allow the applicant to receive, complete, and mail the absentee ballot before the day of the election.” Id. § 16.1-07-05(3). 33. The absentee ballot application collects, inter alia, the following information: the applicant’s name, current residential address, mailing address, telephone number (if applicable), date of birth, and identification number from one of the applicant’s valid forms of identification. Id. § 16.1-07-06. Except where the applicant is unable to do so,4 the application must be signed by the applicant. Id. 34. Upon receipt of a valid and complete absentee ballot application, the appropriate election official—ordinarily the county auditor—must send or personally deliver the voter an absentee ballot along with a return envelope, secrecy envelope, and set of instructions. Id. § 16.107-07. 35. The return envelope for an absentee ballot includes a voter affidavit that requires the voter’s precinct, name, residential address, and voter’s signature. Id. 36. Absentee ballots must be postmarked by the day before Election Day and received before the county canvassing board meets on the sixth day after Election Day. Id. §§ 16.1-07-09,
4 In this case, the voter can place a mark on the application and a disinterested individual must sign as a witness to the application. Id. § 16.1-07-06(2).
8

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 9 of 18
16.1-15-17. 37. For absentee ballots received by the close of polls on Election Day, the election
board members and poll clerks of the relevant precinct, or any designated absentee ballot precinct, must “compare the signature on the application for an absent voter’s ballot with the signature on the voter’s affidavit . . . to ensure the signatures correspond.” Id. § 16.1-07-12. The statute provides no instruction or guidance for how to determine if the signatures “correspond.”
38. If the signatures do not “correspond,” “the vote may not be allowed” and the election inspector or election judge is instructed to mark the ballot as rejected and forward to the county canvassing board for a final determination. Id. §§ 16.1-07-12, 16.1-15-19. If the canvassing board agrees that the signatures do not “correspond,” the ballot is rejected. As a practical matter, this additional “check” by the canvassing board often provides no winnowing effect. For example, in Kidder County, seven ballots cast in the 2018 election were sent to the canvassing board for mismatched signatures; all of them were rejected by the canvassing board. In that election, the canvassing boards in at least three more counties—McKenzie, McLean, and Traill—also rejected every mismatched signature ballot sent to the canvassing board for a final determination.
39. For absentee ballots received after the close of polls on Election Day but received before the canvassing board meets, the ballots are forwarded to the canvassing board and if they are timely (i.e. postmarked by the day before Election Day), the canvassing board determines whether “the signatures on the absentee ballot application and the voter’s affidavit were signed by the same person before allowing the ballot to be tallied.” N.D.C.C. § 16.1-07-09. The statute provides no instruction or guidance for how to determine if the signatures “were signed by the same person.” Id. In 2018, the McLean County canvassing board declared 6 of the 52 late-arriving ballots—over ten percent—void due to alleged signature mismatch.
9

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 10 of 18
40. Defendant Jaeger’s Election Officials’ Manual provides no further guidance on the signature matching process. Indeed, the sum total of its guidance on this process is as follows: “Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.” Ex. A (2018 Election Officials’ Manual).
41. Upon information and belief, election officials receive no training on signature matching, and the process is entirely unregulated from county to county. For example, training materials developed by McKenzie County simply instruct election officials to “compare signatures.”
42. Some county canvassing boards consider the voter’s “situation and history” in assessing signatures, leaving the voter’s ballot at the discretion and personal knowledge of the county canvassing board officials. For example, according to 2018 minutes of the Dickey County canvassing board, the board rejected two ballots outright for mismatched signatures, but for at least one other ballot, considered the “situation and history” of the voter, including the fact that the voter was “a long-term care resident that had signed on the application in June.” Because the board happened to know and recall extrinsic facts about that particular voter, the ballot was accepted.
43. When an absentee ballot is flagged due to any perceived signature “mismatch,” the election board and/or the canvassing board do not use the available contact information to notify the voter of the problem. Therefore, the voter is given no opportunity to confirm their signature and ensure their ballot is counted. Indeed, the voter is never notified of the rejection, even after the final canvassing.
44. Nothing on the absentee ballot application warns voters that the signature on the application must match the signature on their voter affidavit. See Ex. B (absentee ballot
10

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 11 of 18
application). Likewise, nothing on the voter affidavit warns the voter that their signature must “correspond” with their signature on the absentee ballot application in order for their ballot to count. See Ex. C (voter affidavit). Likewise, nothing in the Secretary of State’s instructions for absentee voting alerts voters to this disenfranchising danger. Ex. D (Secretary of State Absentee Voting Instructions).
North Dakota’s Flawed Signature Matching Procedure Deprives a Significant Number of Voters of Their Right to Vote and Procedural Due Process
45. Reliance on signature verification is an inherently flawed means of determining whether an absentee or mail ballot was fraudulently or inappropriately cast. No two signatures are identical, even if provided by the same signer. Indeed, courts and experts agree that a person’s signature will vary from one signing (i.e., the absentee ballot application) to another (i.e., the voter affidavit) for any number of intentional or unintentional reasons, including factors like age, change in physical or mental condition, disability, stress, and means of signing. Saucedo v. Gardner, 335 F. Supp. 3d 202, 205 (D.N.H. 2018). Digital signatures or those provided with a stylus, for example, will often appear different from a “wet-ink” signature done by hand. But such to-beexpected variations are difficult to discern from fraudulent variations even for a trained and certified Forensic Document Examiner (“FDE”), especially where the reviewer has only two exemplars to compare.
46. This is particularly so for untrained and lay evaluators like election officials with no expertise in forensic handwriting analysis. Laypersons—as compared to FDEs—have a significantly higher rate of error in determining whether signatures are genuine. Lay elections officials are more likely than trained examiners to make an incorrect signature-comparison determination and are especially likely to incorrectly decide that the signatures do not “correspond.” According to one study, laypeople are more than 3 ½ times more likely than FDEs
11

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 12 of 18
to deem authentic signatures to be non-genuine. 47. As a result of this flawed process, year after year, election after election, hundreds
of North Dakotans are disenfranchised without their knowledge. As described above, Plaintiff Romo is one such voter. Kourtney Culver is another such voter. Ms. Culver was born and raised in North Dakota and started voting in the state as soon as she turned 18. Although she has since moved out of state for work, in 2018, Ms. Culver was a North Dakota resident who attended school out-of-state. As such, she sought to vote by mail. She submitted an absentee ballot application, received her ballot, and returned it on time. But her vote was not counted. Ms. Culver did not discover that her vote did not count until this year. She has reviewed her absentee ballot application and voter affidavit and confirmed her signature on both.
48. In 2018, according to the Election Administration and Voting Survey (“EAC Survey”) conducted by the Election Assistance Commission,5 334 North Dakota ballots were rejected for an alleged signature mismatch.6 This accounted for over 60 percent of all rejected absentee ballots. And rejection rates varied significantly across counties; while many reported no signature match issues and others rejected less than .25% of ballots for signature issues, Morton County rejected 1.14% of its absentee ballots for alleged signature mismatches, and Nelson County rejected 1.74% of its absentee ballots for alleged signature mismatches. Id.
49. It is not uncommon for elections in North Dakota to be decided by far fewer votes
5 The Election Administration Commission is a federal agency created by the Help America Vote Act in 2002. It is charged with, among other things, studying election issues and providing resources to states for election administration. It also conducts a biennial survey of all 50 states to collect data on their elections. See About the U.S. EAC, http://eac.gov/about-the-useac. 6 The EAC Survey is based on self-reported survey data from each county. Based on a comparison of county-level canvassing minutes in some counties to the EAC survey data, it appears that some of the reported survey data may be underinclusive. Therefore, these figures may underreport the actual number of votes affected.
12

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 13 of 18

than those rejected for signature match in the November 2018 election. In the same November

2018 election, Senate District 25 was decided by 21 votes; House District 43 was decided by 35

votes; House District 27 was decided by 189 votes;7 a Rolette County Commissioner race was

decided by 31 votes;8 and a Grand Forks County Commissioner race was decided by 49 votes.9 In

June 2018, a West Fargo School Board race was decided by fewer than twenty votes.10 In 2016,

the Senate District 46 race was decided by fewer than forty votes.11 Likewise, in 2004 and 1996,

the statewide Commission of Agriculture election was decided by a mere 122 votes and 283 votes,

respectively.12

CAUSES OF ACTION

Count I:

Denial of Procedural Due Process in Violation of the Fourteenth Amendment, 42 U.S.C. § 1983

50. Plaintiffs reallege and incorporate by reference the allegations in the preceding

paragraphs.

7 ND Voices, Official 2018 General Election Results, Legislative District Results (Dec. 11, 2019),

https://results.sos.nd.gov/resultsSW.aspx?text=Race&type=LG&map=DIST.

8 ND Voices, Official 2018 General Election Results, Rolette County (Dec. 11, 2019),

https://results.sos.nd.gov/resultsSW.aspx?text=All&type=CTYSPEC&map=CTY&cty=40&nam

e=Rolette.

9 ND Voices, Official 2018 General Election Results, Grand Forks County (Dec. 11, 2019),

https://results.sos.nd.gov/resultsSW.aspx?text=All&type=CTYSPEC&map=CTY&cty=18&nam

e=Grand%20Forks.

10 Danielle Church, West Fargo School Board Could Be Doing An Election Recount, KVRR Local

News (June 13, 2018), https://www.kvrr.com/2018/06/13/west-fargo-school-board-could-be-

doing-an-election-recount.

11 ND Voices, Offiial 2016 General Election Results, Legislative District Results (Nov. 18, 2016),

https://results.sos.nd.gov/ResultsSW.aspx?text=Race&type=LG&map=DIST&eid=292.

12 State Canvassing Board, North Dakota’s Official Abstract of Votes Cast at the General Election

Held

on

November

2,

2004,

https://vip.sos.nd.gov/pdfs/Abstracts%20by%20Year/2000%20through%202008%20Statewide%

20Election%20Results/2004/General%20Election%2011-02-2004.pdf; State Canvassing Board,

Official Abstract of Votes Cast at the General Election Held November 5, 1996,

https://vip.sos.nd.gov/pdfs/Abstracts%20by%20Year/1990%20through%201998%20Statewide%

20Election%20Results/1996/General%20Election%2011-05-1996.pdf.

13

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 14 of 18
51. An individual has a liberty interest in the fundamental right to vote that is protected by the doctrine of procedural due process. See, e.g., Cook v. Randolph Cty., 573 F.3d 1143, 1152 (11th Cir. 2009) (noting that “[t]he Constitution guarantees procedural and substantive due process when a liberty interest is at stake,” including “the right to vote”); Barefoot v. City of Wilmington, 306 F.3d 113, 124 n.5 (4th Cir. 2002) (“The right to vote . . . is certainly a protected liberty interest.”).
52. And North Dakotans have a statutorily protected liberty interest in voting by mail. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“A liberty interest may arise from the Constitution itself . . . or it may arise from an expectation or interest created by state laws or policies.”).
53. At an absolute minimum, where a protected interest is at stake, due process requires notice and the opportunity to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (“[T]here can be no doubt that at a minimum [Due Process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing.”).
54. And notice and opportunity to be heard must be pre-deprivation. United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
55. That is particularly true when the deprivation will result in irreparably injury. See Winegar v. Des Moines Indep. Comm. Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994); League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
56. North Dakota’s use of an inherently flawed system of signature verification to determine the validity of mail-in ballots without any notice or any opportunity to cure fails the
14

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 15 of 18
most basic requirements of procedural due process. 57. In order to determine how much process is due in any given situation, a court must
consider and balance three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
58. Here, the “private interest” is nothing less than the fundamental right to vote, “preservative of all rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
59. The risk of erroneous deprivation because of benign signature discrepancies or technical errors is significant. Election officials are not trained handwriting experts; many intentional and unintentional factors lead to benign signature discrepancies; and the standardless process is designed to disenfranchise voters due to nothing more than poor penmanship.
60. Implementing procedures to provide absentee voters with notice and an opportunity to cure would not impose an undue burden on the State. Defendant and local boards of elections already maintain records during the ordinary course of business, including in the Central Voter File, that contain voter contact information, including addresses, phone numbers, and e-mail addresses. Indeed, all this information is included on the absentee ballot application that officials compare when assessing signatures. The additional burden to provide voters with timely notice that their absentee ballot may be rejected, and an opportunity to cure the error, is minimal.
61. North Dakota’s current signature verification procedure denies North Dakota voters procedural due process in violation of the Fourteenth Amendment.
15

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 16 of 18
Count II: Deprivation of the Fundamental Right to Vote in Violation of the First Amendment and Fourteenth Amendments, 42 U.S.C. § 1983.
62. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs.
63. “There is no right more basic in our democracy than the right to participate in electing our political leaders.” McCutcheon v. FEC, 134 S. Ct. 1434, 1440-41 (2014). The Supreme Court has recognized that “voting is of the most fundamental significance under our constitutional structure.” See Burdick v. Takushi, 504 U.S. 428, 433-44 (1992).
64. When analyzing the constitutionality of a restriction on voting, the Court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
65. Defendant’s flawed and standardless signature verification process rejects a significant number of validly cast ballots every election cycle as a result of benign discrepancies or technical errors. Defendant denies these individuals the right to vote without any pre-deprivation notice or opportunity to confirm their ballots. Such a system imposes a severe burden on voters’ fundamental right to vote.
66. The severity of this burden is exacerbated by voters’ increasing need to rely on mail ballots to effectively cast a ballot while safeguarding their health. Voters should not be required to risk their health or lives to cast a ballot they can be confident will count.
67. Defendant can proffer no justification for this standardless and procedurally deficient system that can outweigh the injury of the rejection of thousands of ballots each election
16

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 17 of 18
without any assurance those ballots were fraudulent or improper. 68. North Dakota’s signature verification system is not designed to carefully ferret out
fraud but rather is set up to sweep hundreds of eligible voters into its net. Each time a county board of elections—comprised of laypersons with no expertise in handwriting analysis—subjectively believes there is a mismatch between the signature accompanying the voter’s absentee ballot and the signature in the voter’s file, that ballot is not counted, notwithstanding the many benign factors that can cause signature variation. And those factors—which may include age, disability, national origin, or educational background—can place particularly vulnerable voters at heightened risk.
69. North Dakota’s current signature verification procedure unduly burdens the right to vote in violation of the First and Fourteenth Amendments.
REQUESTED RELIEF WHEREFORE, Plaintiffs request that this Court:
1. Enter a declaratory judgment that N.D.C.C. §§ 16.1-07-09, 16.1-07-12—insofar as they mandate a signature verification process for mail-in ballots without providing voters with notice and opportunity to cure—deprive voters of procedural due process in violation of the Fourteenth Amendment to the Constitution of the United States;
2. Enter a declaratory judgment that N.D.C.C. §§ 16.1-07-09, 16.1-07-12—insofar as they mandate a signature verification process for mail-in ballots without providing voters with notice and opportunity to cure—imposes an undue burden on the right to vote in violation of the First and Fourteenth Amendments to the Constitution of the United States;
3. Enter preliminary and permanent injunctions enjoining Defendants, their agents,
17

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 18 of 18

employees, and successors, and all those persons acting in concert or participation with them from rejecting voters’ ballots on the basis of signature verification failure without providing affected voters with adequate and meaningful notice and an opportunity to cure; and requiring Defendant Jaeger to issue guidance to North Dakota’s county election officials instructing them to provide all voters with adequate and meaningful notice and opportunity to cure before rejection on the basis of signature verification; 4. Award Plaintiffs their costs and reasonable attorneys’ fees incurred in this action; and 5. Grant such other relief the Court may deem just and proper.

Dated: May 1, 2020

Respectfully submitted,

Mark Gaber* Danielle Lang* Dana Paikowsky*
Licensed in C.A. only; supervision by Danielle Lang, a member of the D.C. Bar. Aseem Mulji* Licensed in C.A. only; supervision by Danielle Lang, a member of the D.C. Bar. CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 mgaber@campaignlegal.org dlang@campaignlegal.org dpaikowsky@campaignlegal.org amulji@campaignlegal.org
* Motions for admission pro hac vice forthcoming

/s/ Derrick Braaten Derrick Braaten (ND#06394) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911 derrick@braatenlawfirm.com
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521 sarahvogellaw@gmail.com
Counsel for Plaintiffs

18

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 1 of 26
Exhibit A

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 2 of 26
2018
_____________________
ELECTION OFFICIALS’ MANUAL
Revised October 2018
North Dakota
9otes
2018

SECRETARY OF STATE
Alvin A Jaeger State of North Dakota 600 E Boulevard Ave Dept 108 Bismarck ND 58505-0500
ELECTIONS UNIT (701) 328-4146 soselect@nd.gov Vote.ND.Gov

;

Alternate formats for persons with disabilities are available upon request.

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 3 of 26
Table of Contents
Section 1 – Polling Places and Poll Workers .............................................................. 3
Section 2 – Election Worker Responsibilities Before Polls Open ............................. 5
Section 3 – Voter ID ....................................................................................................... 7
Section 4 – Election Worker Responsibilities After Polls Open ................................ 9 Voting Procedure ........................................................................................................ 9 Set Aside Ballot Process ............................................................................................10 Other Election Worker Duties While Polls are Open...................................................10 Processing Absentee Ballots Delivered to Precincts ..................................................12
Section 5 – Election Worker Responsibilities After Polls Close ............................. 13
Section 6 – Special Precincts (Early Voting, Absentee, Vote By Mail) ................... 15
Section 7 – Frequently Asked Questions and Answers ........................................... 17
Section 8 – Prohibitions, Crimes, and Election Offenses ........................................ 19
Section 9 – Voters With Disabilities ........................................................................... 21 Common-Sense Guidelines That Apply to All Voters..................................................21 Voters with Mobility Impairment..................................................................................21 Voters with Speech or Hearing Impairments ..............................................................21 Voters with Visual Impairment ....................................................................................21
Checklists for Election Day ........................................................................................ 23 Before the Polls Open ................................................................................................23 After the Polls Open ...................................................................................................23 After the Polls Close...................................................................................................23

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 1

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 4 of 26
FOREWORD
According to North Dakota Century Code (NDCC) § 16.1-05-03, the Secretary of State is required to provide an instruction manual detailing the responsibilities of election officials. This 2018 Election Officials’ Manual is intended to fulfill the requirements of the law by providing comprehensive instructions and procedures for election officials to look to for guidance in conducting elections in North Dakota after September 24, 2018.
CONTACT
If you have questions regarding the 2018 Election Officials’ Manual, please contact:
Elections Unit North Dakota Secretary of State 600 East Boulevard Avenue Dept 108
Bismarck ND 58505-0500
(701) 328-4146 – Phone (800) 352-0867, ext. 328-4146 – Toll Free
(701) 328-3413 – Fax
soselect@nd.gov – Email Vote.ND.Gov – Website
This website contains election publications, connections to other helpful election websites, and state election forms, which can be completed online before printing and signing.
DISCLAIMER
The following excerpts and summaries of North Dakota law are taken or derived from the NDCC and pertain to elections, election procedures, and the duties and responsibilities assigned to election officials. Although every attempt has been made for accuracy, the reprint, summarizations, or paraphrasing of these laws does not carry the same authority as the actual NDCC and should not be equated with the official NDCC. This compilation is intended as a helpful resource and reference for consolidated election related laws. For official and legal purposes, the official NDCC should be used.
The following excerpts of North Dakota law do not contain the material found in the legal notes following the various sections contained in the NDCC. These notes found in the NDCC may contain temporary provisions and effective dates along with valuable summaries of applicable court rulings.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 2

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 5 of 26
Section 1 – Polling Places and Poll Workers
Polling Places: Upon a decision by the county commissioners, a county may utilize multiple precinct polling places. The county commissioners may also decide, if it is in the best interest of the county, to use one election board to supervise all or a portion of the precincts voting in the same polling place even if the precincts fall within different legislative districts so long as each district chairperson of each qualified political party is given the opportunity to have representation on the election board if desired. (NDCC §§ 16.1-04-02 and 16.1-05-01)

Inspectors: The county auditor, with county commissioners’ approval, shall appoint election inspectors, except in polling places containing city precincts only established by NDCC Chapter 16.1-04 where the city governing board appoints the inspectors. The inspector selection is to be made on the basis of the inspector’s knowledge of the election procedure. Appointments must be made forty days before the election. (NDCC § 16.1-05-01) Inspectors serve as the polling place supervisor. (NDCC § 16.1-05-04)

Judges: The election judges for each precinct or polling place are appointed in writing by the district chairs representing the two political parties that cast the most votes in the state’s last general election. For special elections involving only no-party offices, the election official responsible for the administration of the election, with the approval of the majority of the members of the applicable governing body, shall appoint the election judges for each polling location. (NDCC § 16.1-05-01) The inspector or judges initial and deliver ballots to the voters and the judges perform other responsibilities assigned by the inspector. (NDCC § 16.1-13-22)

Composition of the Election Board: The election board for each precinct or polling place must consist of an inspector and at least two election judges. (NDCC § 16.1-05-01)

Clerks: The election official responsible for the administration of the election, with the approval of the majority of the members of the applicable governing body, shall appoint the poll clerks for each polling place. (NDCC § 16.1-05-01) Clerks manage the pollbook, verify voters’ identification, update incorrect pollbook information, and other ministerial duties assigned by the inspector. (NDCC §§ 16.1-05-04 and 16.1-05-07)

County Auditor May Appoint Judges if Forty Day Notice Not Received: If the district political party chair fails to appoint the judges forty days before the election, the county auditor shall appoint the judges. If the county auditor has exhausted all practicable means to select judges from within the voting precinct and vacancies still remain, the county auditor may select election judges who reside outside of the voting precinct, but who reside within the precinct’s legislative district. If vacancies still remain, the county auditor may select election judges who reside outside of the legislative district but who reside within the county. (NDCC § 16.1-05-01)

County Auditor May Request an Additional Judge: In polling places in which over one thousand votes were cast in any election, the county auditor may request each district political party chairperson to appoint an additional election judge. (NDCC § 16.1-05-01)

Qualifications of Election Board and Poll Clerks: Inspectors, judges, and clerks must be qualified voters of the polling places in which they are assigned to work unless the county auditor has exhausted all means to appoint election judges from precincts within the polling place according to NDCC § 16.105-01. No individual may serve as a member of the election board or as a poll clerk who has anything of value bet or wagered on the result of an election. (NDCC § 16.1-05-02) Student Poll Clerks: A student sixteen years of age or older enrolled in a high school or college in this state is eligible to serve as a poll clerk if the student meets the following qualifications:
 Is a United States citizen or will be a citizen at the time of the election;  Is a state resident residing in the precinct at least thirty days before the election; and  Is a student in good standing.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 3

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 6 of 26
A student appointed as a clerk may be excused from school attendance during the hours that the student is serving as a clerk, including training sessions, if the student submits a written request to be absent from school signed by the student’s parent or guardian and by the school administrator and a certification from the county auditor stating the hours during which the student will serve as a poll clerk. A student excused from school attendance in this manner may not be recorded as being absent on any date for which the excuse is operative. No more than two students may serve as clerks in a single precinct.
An individual sixteen years of age or older having graduated from high school or obtained a general education degree from an accredited educational institution is eligible to be appointed as a poll clerk if the individual meets the qualifications stated above. (NDCC § 16.1-05-02)
Candidates and Relatives Not Allowed on Election Board: An individual may not serve as a member of the election board or as a poll clerk if the individual is a candidate in the election at which the person is serving, or who is the husband, wife, father, mother, father-in-law, mother-in-law, son, daughter, sonin-law, daughter-in-law, brother, or sister, whether by birth or marriage, of the whole or the half blood, of any candidate in the election at which the person is serving. (NDCC § 16.1-05-02)
Removal of Judges or Clerks: If at any time before or during an election, it appears to an election inspector, by the affidavit of two or more qualified voters of the precinct, that any election judge or clerk is not qualified, the inspector shall remove that judge or clerk at once and fill the vacancy by appointing a qualified individual of the same political party. If the disqualified judge or clerk had taken the oath of office, the inspector shall place the oath or affidavit before the state's attorney of the county. (NDCC § 16.1-05-01)
Training Sessions for Poll Workers: Attendance at an election training session conducted by the county auditor is mandatory for members of the election board and for poll clerks.
An election official, at the option of the county auditor, may be excused from attending a third training session on election laws within a twelve-month period. If an election official has attended a training session within six months preceding a special election, the election official must be compensated at the pay appropriate for those having attended a training session for that election as provided in NDCC § 16.1-05-05. (NDCC § 16.1-05-03)
Compensation of Poll Workers: The county shall pay at least the state minimum wage to the relevant election officials. Members of the election board and poll clerks who attend the training sessions must be paid at least the state minimum wage for the hours in attendance in the session in addition to necessary expenses and mileage. Members of election boards who attend the training sessions provided before primary and general elections must be paid at least 25% more than the state minimum wage during the time spent in the performance of their election duties. Members of the election board and poll clerks who attend a training session within the six months prior to a special election must be paid at least 25% more than the state minimum wage during the time spent in the performance of their election duties in addition to necessary mileage and expenses. (NDCC §§ 16.1-05-03 and 16.1-05-05)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 4

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 7 of 26

Section 2 – Election Worker Responsibilities Before Polls Open
Failure of Election Board Member to Appear: If a member of the election board fails to appear for the opening of the polls, the remainder of the board shall select an individual to serve in the absent individual’s place. If a judge fails to appear at the opening of the polls, the remainder of the board shall select an individual of the absent individual’s political party if such a person is reasonably available. Any qualified individual without regard to political affiliation may fill the office of inspector or clerk. (NDCC § 16.1-05-02(5))
Failure of Entire Election Board to Appear: If no members of the election board appear for the opening of the polls, the qualified voters present shall call the county auditor, city auditor, or school business manager, as appropriate, for instructions and then orally elect a board conforming as nearly as possible to the provisions for a regular board. (NDCC § 16.1-05-02(5))
Oath of Office: Before assuming the duties, each member of the election board and each poll clerk shall take and subscribe an oath in the following form:
I do solemnly swear (or affirm as the case may be), that I will perform the duties of inspector, judge, or clerk according to law and to the best of my ability, and that I will studiously endeavor to prevent fraud, deceit, and abuse in conducting the same.
The oath may be taken before any officer authorized by law to administer oaths (e.g. county auditor, deputy county auditor, county commissioner, notary public). If no such officer is present at the opening of the polls, the inspector or election judges shall administer the oath to each other and to the poll clerks. The individual administering the oath shall cause an entry thereof to be made, subscribed by that individual and prefix it to the pollbook. (NDCC § 16.1-05-02(3))
Inspector to Supervise Conduct of the Election: The election inspector shall supervise the conduct of the election to ensure all election officials are properly performing their duties at the polling place. The election inspector shall assign duties so as to equally and fairly include both parties represented on the election board. (NDCC § 16.1-05-04(1))
Inspector to Assign Ministerial Duties to Poll Clerks: The election inspector shall assign ministerial duties to poll clerks, who shall carry out the ministerial duties assigned by the election inspector. (NDCC § 16.1-05-04(2))
Inspector to Deliver Pollbooks to Clerks: The election inspector shall deliver the pollbooks to the clerks in the inspector’s precinct or polling location on Election Day prior to the opening of the polls. (NDCC § 16.1-06-21)
Voting Booths or Compartments – Number Required: The inspector of elections shall provide a sufficient number of voting booths or compartments in the polling place to enable the elector to mark his or her ballot screened from observation. The number of booths or compartments in precincts may not be less than one for each one hundred fifty electors or fraction thereof in the precinct. One electronic voting system device must be provided in each precinct. (NDCC § 16.1-13-29)
Voting Instructions to be Posted in Each Polling Place: Cards printed in large type containing full instructions to voters on obtaining and preparing ballots and a copy of NDCC § 16.1-01-12 (Election Offenses) shall be posted in each polling place. (NDCC § 16.1-06-19)
Complete Text of Measures to be Posted: At least five copies of the complete text of any constitutional amendment or initiated or referred measure must be delivered to the inspector by the county auditor at

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 5

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 8 of 26
the time of delivering the ballots. One copy must be posted conspicuously in the polling place on the morning of the election. (NDCC § 16.1-06-19)
Post Precinct Maps: Four copies of a map showing the election precinct's boundaries must be posted prior to the opening of the polls; one at the entry to the polling place and the remaining three in other conspicuous places around the polling place. (NDCC § 16.1-06-19)
Date and Time: The election inspector shall, before the opening of the polls, post information regarding the date of the election and the hours during which polling places will be open. (NDCC § 16.1-06-19)
Post Diagram of Electronic Voting System and Ballots: The election inspector shall post in a conspicuous manner at the voting place, one facsimile diagram of the electronic voting device and should post three copies of the official ballot used with electronic voting devices. The election inspector and judges shall provide adequate instruction on the use of the electronic voting device to each voter before the voter enters the voting booth. (NDCC §§ 16.1-06-17 and 16.1-06-20)
Ensure Ballot Box is Empty: Before declaring the polls open, the inspector and the election judges shall inspect the ballot box to make sure that it is empty. The ballot box must then be locked. While the polls are open, the ballot box must remain locked except as may be necessary to clear a ballot jam or to move voted ballots to a separate locked ballot box to make room for additional ballots. (NDCC § 16.113-20)
Opening Ballots on Election Day: Upon arrival at the poll of all election board members, or at the latest, upon the opening of the poll, the inspector of election shall produce the sealed package of official ballots and publicly open them. (NDCC § 16.1-13-21)
Flag Displayed in or Near Every Polling Location on Election Days: Federal law states that the United States flag should be displayed in or near every polling location on election days.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 6

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 9 of 26
Section 3 - Voter ID

Poll Clerks to Maintain the Pollbooks: A complete residential address for voting purposes may include a street, rural route address, city, and state. The use of a mailing address or Post Office Box number that is not the person’s residential address is not considered sufficient for voting purposes.

Voter Qualifications
A qualified voter of the state is a person who: (all must apply)
 Is a citizen of the United States;  Is 18 years of age or older on the day of the election;  Is a resident of this state and of the precinct at least thirty days next preceding any election;  Is able to meet the identification requirements specified in sections 16.1-01-04.1 and 16.1-07-
06; and Is not presently serving a term of actual incarceration as a convicted felon (NDCC § 16.1-01-04 and NDCC § 12.1-33-01).

The following rules for voting eligibility also apply:
 Every qualified elector of the state may only have one voting residence.  A person’s voting residence must be determined in accordance with the rules for determining
residency as provided in NDCC § 16.1-01-04.2. (See following subsection entitled Residency Determined.)  According to Section 2 of Article II of the ND Constitution, voting by persons convicted and incarcerated for a felony must be limited according to NDCC Chapter 12.1-33.  No person who has been declared mentally incompetent by order of a court (with specific findings on the right to vote) or other authority having jurisdiction, which order has not been rescinded, shall be qualified to vote. (Section 2 of Article II of the ND Constitution, and NDCC § 30.1-28-04(3))
Residency Determined: NDCC § 16.1-01-04.2
 Every qualified elector may have only one residence, shown by an actual fixed permanent dwelling, establishment, or any other abode to which the individual returns when not called elsewhere for labor or other special or temporary purposes.
 The street address verified by the individual as provided in section 16.1-01-04.1 when requesting a ballot to vote must be the address of residence for the individual.
 An individual retains a residence in this state until another has been gained.  The acts of residing at a new address for thirty days and updating the ID to be used for voting
with that address constitute a change in the individual's voting residence.
Voter Identification and Pollbooks (NDCC § 16.1-01-04.1)
Voters Obtaining Ballots (Quick Definition) Individuals may receive, vote, and cast an election ballot by showing an approved form of identification with a name, residential address, and date of birth to the poll clerks.
Voters Obtaining Ballots (Expanded Definitions) 1. Voter Identification: When a voter appears at the polling location, state law requires the poll clerk to ask the voter to provide identification to verify eligibility.

a. Residential Address: An acceptable form of identification must include the voter’s name, residential address (a PO Box number is not acceptable), and date of birth.

b. Acceptable forms of identification at the polls include a valid North Dakota:  Current driver’s license or non-driver’s identification card.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 7

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 10 of 26
 Tribal government issued form of identification.*  Long-term care certificate (provided by ND facility).
c. Supplemental documentation: If an individual's valid form of identification does not include all the information required 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, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address); 4. A paycheck; or 5. A document issued by a federal, state, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address).
d. Voters without valid ID: If the person’s identification does not verify his or her qualifications, or the individual is not able to show a valid form of identification, but he or she asserts qualifications as an elector in the precinct, the individual may mark a ballot that must be securely set aside in a sealed envelope. (See Page 10)
e. Intent of ID Requirement: The purpose for this requirement is not to deter people from voting, but to ensure that the voter is:
1. Old enough to vote, 2. A U.S. citizen, and 3. A resident of the precinct in which he or she desires to vote.
Qualified electors have the right to know that the votes are being cast by only those voters qualified to do so.
f. Directing Individuals to Correct Precincts: The county auditor shall provide each election board with a precinct map or precinct finder to assist in determining whether an address is located in that precinct and for determining which precinct and polling location to direct an individual who may be attempting to vote in the wrong precinct. (NDCC § 16.1-05-08) Poll clerks are authorized to direct an individual to his or her correct polling place if the individual’s current identification proves that he or she is in the wrong polling place.
*Tribal ID may be an official form of identification issued by a tribal government; the Bureau of Indian Affairs; 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

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 8

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 11 of 26
Section 4 – Election Worker Responsibilities After Polls Open
Voting Procedure
1. As an individual enters the polling location and approaches the poll clerks’ table, the required maps of the precinct, copies of the voter’s bill of rights, voting procedure diagrams and descriptions, copies of election offenses, copies of official ballots, copies of complete text of measures, and diagrams of electronic voting systems posted or displayed in the polling location must be readily available for review by the voter.
2. The poll clerk shall ask for the individual’s name and identification. (See pages 7-8 for acceptable forms of identification.)
3. If an individual’s valid form of identification does not include the North Dakota residential address or date of birth, or the North Dakota residential address is not current, the individual may supplement the identification with a current utility bill; a current bank statement; a check or a document issued by a federal, state, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address); or a paycheck. After the poll clerk verifies the individual’s qualifications and the pollbooks are checked or updated, an election judge shall give the voter an initialed ballot within a secrecy sleeve. (Make sure to update all incorrect information contained in the pollbook.) a. If the name does not agree with the preprinted pollbook due to a name change, the poll clerk shall correct the pollbook if the individual is still a resident of the precinct. b. If the individual has inadvertently come to the wrong precinct, the poll clerk is to direct the individual to the correct precinct using the precinct finder or map provided by the county auditor for just such purpose.
4. If the person’s identification does not verify his or her qualifications, or the individual is not able to show a valid form of identification, but he or she asserts qualifications as an elector in the precinct, the individual may mark a ballot that must be securely set aside in a sealed envelope. (See page 10)
5. Ballot in hand, the voter is to move to an open poll booth and mark his or her votes in secret. a. The poll worker should make the voter aware of the AutoMARK ballot-marking device since every voter is welcome to use it. b. It is important to allow any voter to use the AutoMARK due to the fact some voters may not want to divulge a hidden disability, such as illiteracy or dyslexia.
6. Voters shall ask for a new ballot if they fill an unwanted oval by accident. 7. After the ballot is marked, a voter shall insert his or her ballot into the secrecy sleeve, bring it to
the optical scan ballot tabulator, and insert the ballot into the machine for tabulation. 8. If the ballot has been marked incorrectly, the machine will identify the problem and give the voter
an opportunity for second chance voting. (NDCC § 16.1-13-23) a. The poll worker, standing at a discrete distance, may assist the voter (if requested) in either
returning the ballot to the voter for second chance voting or in casting the ballot as is – two ballots may be spoiled before the third must be cast as is. b. If the voter chooses to cast the ballot as is, the election judge must tell the voter that the portion of his or her ballot marked with a conflict will not be counted. c. If the voter still desires to cast the ballot as is, the voter is to press the “accept” button on the optical scan ballot counter. 9. The ballot is immediately counted by the machine before it is deposited by the machine directly into the locked ballot box below. 10. Ballots containing write-in votes will be automatically separated by the machine to the right side of the ballot box for easier counting of write-in votes after the polls close. 11. Throughout Election Day, members of the election board shall remain in the polling place to prevent fraud and to maintain order. Clerks, however, may work split shifts.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 9

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 12 of 26
Set Aside Ballot Process
If an individual’s identification does not verify his or her qualifications, or an individual is not able to show a valid form of identification but asserts qualifications as an elector in the precinct, he or she may mark a ballot that must be securely set aside in a sealed envelope.
1. Clerk’s Station: The clerk shall: a. Confirm that the address provided by the individual is located in a precinct assigned to the polling place. b. Give the individual the set aside outer and secrecy envelopes and instruct him or her to complete the applicable portions of the outer envelope. The individual may be asked to step aside until finished. c. Review the outer envelope for completeness and accuracy. d. Complete the “Issuing Election Official Use Only” portion of the envelope, but does not enter the individual into the pollbook. e. Return the envelopes to the individual and send them to the judge’s station.
2. Judge’s Station: The judges shall: a. Issue the individual an appropriate ballot without initialing the ballot. b. Issue the individual a notice containing information on how, when, and where the individual may verify his or her identification. c. Inform the individual that after marking the ballot he or she is to: i. Place the ballot into the secrecy envelope, ii. Return to the judge’s station where the judges verify that the ballot is in the secrecy envelope iii. Seal the secrecy envelope in the outer envelope, iv. Return the sealed envelope to the judges, and v. Be reminded that the ballot will be counted by the canvassing board upon timely verification of the individual’s identification, per the information on the notice. d. Securely store the envelopes containing set aside ballots in a manner that is accessible in case the voter returns to the polling place with identification verification.
3. Voter Returns While Polling Place is Still Open: If an individual who has marked a set aside ballot returns to the polling place with valid identification, a clerk or the inspector will usher the individual to the judge’s station and notify the judges that the individual has returned to verify their identification. The judges retrieve the set aside ballot and ensure that the information on the identification matches that which the individual provided on the outer envelope. If it does, the judge completes the “Verifying Election Official” portion of the outer envelope and instructs the voter to sign the “Voter Signature Upon Verification” portion. The voter is informed that the ballot will be counted by the canvassing board, and the judge returns the ballot the ballot to the secure storage.

Other Election Worker Duties While Polls are Open
Poll List Kept by Clerks of Election: The poll clerks shall keep one list of the names of all persons voting at each election. The list of names must contain the full name, including first and last name, the individual’s identification number, and the complete residential address of each person voting at the precinct. A complete residential address for voting purposes includes a street address, city, and state. The use of a mailing address or PO Box number is not considered sufficient for voting purposes. Each clerk shall return the pollbook, which must be a part of the records and filed with other election returns. (NDCC § 16.1-11-32, NDCC § 16.1-05-04 and NDCC § 16.1-02-13)

Pollbook Correction: If the voter’s residential or mailing address within the precinct has changed, the poll clerk shall record the appropriate changes, if the voter’s name is preprinted.

Voting by Qualified Voter Moving From One Precinct to Another: If a qualified elector moves from one precinct to another precinct within this state, the elector is entitled to vote in the precinct from which the elector moved until the elector has established a new residence pursuant to NDCC § 16.1-01-04. A

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 10

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 13 of 26
person must reside in the precinct thirty days immediately prior to any election in order to be eligible to vote within that precinct. (NDCC § 16.1-01-05)

Delivering Ballot to Elector – Initialing: An election board member shall deliver ballots to the qualified voters within a secrecy sleeve. The inspector or judge shall inform each voter that if an election official does not initial the ballot, it will be invalidated. To protect the voter's right to vote, the voter should verify that the ballot has been initialed. Ballots are still considered valid if the judge or inspector initials the ballot outside the space provided for such. (NDCC § 16.1-13-22)

Secrecy Sleeves Required: Ballots are to be given to the voters within a secrecy sleeve. (NDCC § 16.1-13-23)

Warning Voters Not to Split Votes in the Primary Election: At primary elections, the judge or inspector shall inform each elector before voting, that voting for candidates of more than one party will cause the voter’s party ballot to be rejected. (NDCC § 16.1-11-22)

One Person Allowed in Voting Booth – Time Limit in Booth: Only one person may occupy a voting booth at one time except when receiving lawful assistance. No person shall remain in the booth longer than necessary to vote. (NDCC § 16.1-13-30)

Assisting Voter in the Voting Booth: A voter may request and receive the assistance of any person of the voter's choice in marking the voter's ballot, except for the voter's employer, officer or agent of the voter's union, a candidate running in that election, or relative of the candidate. (NDCC § 16.1-13-27) Voter to Receive Assistance of Both Judges: If the voter requests the assistance of a member of the election board, the voter shall receive the assistance of both election judges in the marking of the voter's ballot. (NDCC § 16.1-13-27)

Person Assisting Voter May Not Request Voter to Vote in Certain Manner: Any person chosen to assist a voter may not request the voter to vote for or against any candidate or any issue. (NDCC § 16.1-13-28)

Voters May Not Divulge Voting Intentions: No voter, other than one who is unable to mark a ballot, may divulge to anyone within the polling place the name of any candidate for whom the elector intends to vote. (NDCC § 16.1-13-27)

No Write-in Stickers: Write-in stickers are not allowed on ballots in North Dakota elections.

Second Chance Voting:
1. Second-Chance Voting Prior to Casting Ballot: Since ballots are to be marked by the voter with a pen provided by the election board, unwanted choices or marks cannot be erased. Rather than crossing out unwanted choices or attempting to erase them, the voter should ask an election judge for a new ballot to mark his or her votes. A voter may obtain up to two new ballots for these reasons. Ballots returned to an election judge by an elector must be considered spoiled.

2. Second-Chance Voting as Voter Attempts to Cast Own Ballot: After marking the votes on the ballot, the elector shall place the ballot back in the provided secrecy sleeve so it is concealed and so the endorsement of the inspector or election judge may be seen. The elector then shall deposit the ballot in the optical scanning device and wait to determine if the ballot is deposited into the ballot box or if the optical scanning device has indicated a possibility for a second-chance voting condition. If a second-chance voting condition is indicated, a poll worker, standing at a discrete distance from the voter, shall ask the voter if he or she desires help in either having the ballot returned to the voter to mark his or her votes on a new ballot (the incorrect ballot is to be returned to the judge to be marked as spoiled) or the voter may choose to cast the ballot as the voter has marked it even though it is incorrect. If the voter chooses to cast the incorrectly marked ballot, the judge must first inform

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 11

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 14 of 26
the voter that the portion of the ballot that has been marked incorrectly will not be counted. Voters requiring assistance may ask a judge or inspector to cast the ballot provided the ballot is in the secrecy sleeve. (NDCC § 16.1-06-14(3) and NDCC §§ 16.1-13-23)

3. Securing New Ballot Upon Spoiling of Others: A voter spoiling a ballot may obtain others successively, one at a time, not exceeding three in total, upon returning each spoiled ballot. Each paper ballot returned must be spoiled immediately and, together with those not distributed to the voters, must be preserved and secured in sealed packages and returned to the county recorder. (NDCC § 16.1-13-32)

Removal of Ballot from Polling Place before Closing: No person may take a ballot from a polling place before the polls close. (NDCC § 16.1-13-31)

Voters in Line at Poll Closing: All voters standing in line to vote at the time the polls close must be allowed to vote. Election officials must establish procedures to determine who arrived in time to vote. (NDCC § 16.1-01-03)

Processing Absentee Ballots Delivered to Precincts
Absentee Ballots Delivered to Polls: The county auditor or his or her designee may deliver absentee ballots to the inspector of the precinct in which the absent voters reside. (NDCC § 16.1-07-11)

Opening the Absentee Ballots: At any time beginning on the day before Election Day and the closing of polls on Election Day, the election clerks and board members of the relevant polling place shall do the following:
1. Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.
2. If the applicant is a qualified elector of the precinct and has not voted in the election, the election worker shall open the absent voter’s envelope in such a manner as not to destroy the affidavit printed on the envelope. The election worker shall take out the secrecy envelope with the ballot(s) without unfolding or permitting the ballots to be opened or examined and indicate in the pollbook that the elector has voted.
3. Election workers not participating in the comparing of signatures and entering voters into the pollbook shall remove the ballot(s) from the secrecy envelope, unfold and initial the same, and deposit in the proper ballot box for tabulation.

If the affidavit on the outer envelope of a returned absentee ballot is found to be insufficient, the signatures on the application and affidavit do not match, or the applicant is not a qualified elector of the precinct, the vote may not be allowed. Without opening the absent voter's envelope, the election inspector or election judge shall mark across the face thereof "rejected as defective" or "rejected as not an elector", as the case may be.
The death of an absentee voter after having voted by absentee ballot does not constitute grounds for rejecting such ballot.
The votes from these cast ballots may not be tallied and the tabulation reports may not be generated until the polls have closed on Election Day. (NDCC § 16.1-07-12)

Rejected Absentee Ballots: Rejected absentee ballots are to be handed over to the county canvassing board for final determination of acceptance or rejection. (NDCC § 16.1-07-12)

Absentee Ballots Sent to Wrong Precinct or Sent Too Late to be Counted: Any absentee ballot

sent to the wrong precinct or any absentee ballot received by the inspector too late to be counted at the

precinct must be returned to the county auditor and must be tallied by the county canvassing board.

(NDCC § 16.1-07-11)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 12

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 15 of 26
Section 5 – Election Worker Responsibilities After Polls Close
Manner of Canvassing the Election: (NDCC § 16.1-15-02)  After the polls are closed, the inspector of elections and the judges shall immediately generate the canvass report from the optical scan voting system.  The ballots counted by the optical scan ballot tabulator must be equal in number with the names on the poll clerks' list. If the numbers are not equal, the pollbook is to be rechecked to find the discrepancy.  The canvass shall continue until completed and must be open to the public.  Except under crucial circumstances, the canvass shall occur at the polling place.  If good and substantial reasons exist for the removal of the ballots and election records to another location for canvass, the other location must be in the same precinct and the removal must be approved by the election board.  In no case may the ballots be moved to another location prior to generating the canvass report after the ballot boxes have been opened. Upon approval of a change of location by the election board as provided in NDCC § 16.1-15-02, the approximate time and location of the canvass must be prominently posted on the main entrance to the polling place, the ballots and records must be moved in the presence of the election board, and the canvass as provided in NDCC Chapter 16.1-15 must proceed immediately upon arrival at the alternate location.
Manner of Canvassing Write-in Votes: (NDCC § 16.1-12-02.2)  The optical scan ballot tabulator (M-100) used in every polling location automatically separates the ballots with write-in votes to the right side of the ballot box. It does this by finding any ovals darkened next to a write-in line on the ballot.  From the ballots on the right side of the ballot box, canvass the votes for the individual write-in candidates in all races the county auditor instructs the precincts to canvass. (These races are likely to be those for which there are no printed names on the ballot or in which write-in candidates are likely to be nominated or elected.)  In all other races, the county canvassing board will complete the canvass of the votes for the write-in candidates in those races for which the write-in votes constitute more than five percent of the votes cast by the voters for the candidate receiving the most votes for that office, except in the case of a primary election where enough votes were cast as write-in votes to qualify a name for the general election ballot. This percentage is to be calculated based on the total number of write-in votes tabulated by the voting equipment in the precincts of the county in which that office was on the ballot.  All ballots containing write-in votes must be wrapped and sealed prior to delivery to the county recorder so that these ballots can be delivered by the county recorder to the meeting of the county canvassing board if these votes were not canvassed by the polling place election board on election night. (NDCC § 16.1-15-08)
Primary Election Reports: The judges of a primary election in each precinct shall run a separate report for each political party or principle, containing the names of all persons voted for at the primary election, the number of votes cast for each candidate, and for which office. The report must be subscribed by the election judges and must be filed with the returns in the office of the county auditor. (NDCC § 16.111-33)

Canvass Report Prepared: The election board shall generate at least one canvass report from the electronic voting system. The ballots may not be sealed, nor may the canvass report be signed, by the election board or poll clerk until the counts in the poll clerks' book and in the canvass report show the same totals for ballots cast. Section 5 of this manual describes the procedures for closing of special precincts known as early voting, absentee, and vote by mail. (NDCC § 16.1-15-04)

Contents of Duplicate Reports: (NDCC § 16.1-15-09)  Election officers shall generate reports of votes counted on electronic counting machines for all candidates and for any measure in the same manner as provided for other ballots.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 13

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 16 of 26
 Optical scan counting systems must generate a printed record at the beginning of its operation, which verifies that the tabulating elements for each candidate position and each question and the public counter are all set at zero. The tabulating equipment must also generate a printed record of the total number of ballots tabulated and the total number of votes cast for each candidate and measure on the ballot. The election board must certify both printed records.
Oath Required Upon Completion of Canvass – Contents: At the conclusion of the canvass of the votes, each member of the election board shall sign an affidavit to the effect that the ballots have been counted, the votes were canvassed as provided in NDCC Chapter 16.1-15 and the returns as disclosed by the canvass reports agree with the number of ballots cast and are true and correct of the member's own knowledge. (NDCC § 16.1-15-05)
Wrapping and Returning Ballots – Void and Spoiled Ballots: (NDCC § 16.1-15-08)  The election board shall place each kind of ballot cast at the election in a suitable wrapper to form a complete wrapper for the ballots.  The ballots and wrappers must then be tightly secured at the outer end to completely envelop and hold the ballots together.  Set aside ballots must be secured in a separate wrapper and must be marked "set aside."  Void ballots must be secured in a separate wrapper and must be marked "void." Void ballots are ballots that are not endorsed with the initials of an election board member.  Ballots that are spoiled must be separately secured and marked "spoiled." Spoiled ballots are those returned by the voter in exchange for another because the voter has made a noncorrectable error on the returned ballot.  In sealing ballots, the various classes (cast, spoiled, void) must be kept separate.  Each wrapper must be endorsed with the names or numbers of the precincts and the date on which the election was held.  The wrappers must be sealed securely so the wrappers cannot be opened without an obvious and permanent breaking of the seal.  The ballots, together with those found void or spoiled, and the opened envelopes from voted absentee ballots and the unopened envelopes of absentee ballots rejected as defective, must be returned in person to the county recorder.  All ballots containing write-in votes must be wrapped and sealed prior to delivery to the county recorder so that these ballots can be delivered by the county recorder to the meeting of the county canvassing board.
Reports and Pollbooks Sent to County Auditor: Immediately following the canvass, except in cases of emergency or inclement weather, the inspector of elections, or one of the judges appointed by the inspector of elections, personally shall deliver the signed canvass report provided for in NDCC § 16.115-04 to the county auditor. The report, carefully sealed under cover, accompanied by the pollbook provided for in NDCC §§ 16.1-02-13 and 16.1-06-21 with the oaths of the inspector and poll clerks affixed thereto, must be delivered properly to the county auditor. (NDCC § 16.1-15-06)
Voters Casting Ballots After Regular Poll Closings – Provisional Ballots: An individual who votes after the regular poll closing time in an election in which a federal office appears as a result of a federal or state court order or any other order extending the time established for closing the polls under state law in effect ten days before the date of that election may only vote in that election by casting a provisional ballot. The ballot must be marked as a provisional ballot and must be separated and held apart from other ballots cast by those not affected by the order. The secretary of state shall approve the form of any provisional ballot and may prescribe any procedures the secretary of state determines to be necessary to facilitate the casting, secrecy, and counting of provisional ballots. (NDCC § 16.1-1334)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 14

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 17 of 26
Section 6 – Special Precincts (Early Voting, Absentee, Vote By Mail)
Absentee Ballot Precinct: (NDCC § 16.1-07-12.1) 1. For any primary, general, or special statewide, district, or county election, the board of county commissioners may create a special precinct, known as an absentee ballot precinct, for the purpose of counting all absentee ballots cast in an election in that county. The election board of the absentee ballot precinct must be known as the absentee ballot counting board. The county auditor shall supply the board with all necessary election supplies as provided in NDCC Chapter 16.1-06.

2. If the board of county commissioners chooses to establish an absentee ballot precinct according to paragraph #1 above, the following provisions apply:  The county auditor shall appoint the absentee ballot counting board that consists of one independent representative to act as the inspector and an equal number of representatives from each political party represented on an election board in the county, as set forth in NDCC § 16.1-05-01, to act as judges. Each official of the board shall take the oath required by NDCC § 16.1-05-02 and must be compensated as provided in NDCC § 16.1-05-05.  The county auditor shall have the absentee ballots delivered to the inspector of the absentee ballot counting board with the election supplies, or if received later, then prior to the closing of the polls.  The absentee ballot counting board shall occupy a location designated by the county auditor, which must be open to any individual for the purpose of observing the counting process.  Absentee ballots must be opened and handled as required in NDCC § 16.1-07-12. The county auditor shall designate a location for the closing, counting, and canvassing process under NDCC Chapter 16.1-15, which location must be open to any person for the purpose of observing. The board shall comply with the requirements of NDCC §§ 16.1-15-04 through 16.1-15-12, as applicable. See Processing Absentee Ballots on page 11 of this manual.  If the work of the election board is completed prior to the close of the polls on election day in an absentee ballot, early voting, or a mail ballot precinct, the election board shall create and sign a statement consisting of a reconciliation of the number of voters recorded in the pollbook and the number of ballots processed through the tabulators. The voting system shall then be secured in a manner prescribed by the county auditor that will protect the system and ballots from tampering. Prior to generating the canvass reports from one of these 3 types of precincts, an election judge representing each political party, or 2 election judges in the case of an election that does not include a political party contest, shall verify that the system and ballots remain secure and the statement created by the election board is still accurate. NDCC § 16.1-15-04

Early Voting Precinct: (NDCC § 16.1-07-15) 1. For any primary, general, or special statewide, district, or county election, the board of county commissioners may, before the sixty-fourth day before the day of the election, create a special precinct, known as an early voting precinct, to facilitate the conduct of early voting in that county according to NDCC Chapters 16.1-13 and 16.1-15. At the determination of the county auditor, more than one voting location may be utilized for the purposes of operating the early voting precinct. The election board of the early voting precinct must be known as the early voting precinct election board. The county auditor shall supply the board with all necessary election supplies as provided in NDCC Chapter 16.1-06.

2. If the board of county commissioners establishes an early voting precinct according to paragraph

#1 above, the following provisions apply:

 Early voting must be authorized during the fifteen days immediately before the day of the

election. The county auditor shall designate the business days and times during which the

early voting election precinct will be open and publish notice of the early voting center

locations, dates, and times in the official county newspaper once each week for three

consecutive weeks immediately before the day of the election.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 15

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 18 of 26
 The county auditor shall appoint the early voting precinct election board for each voting location that consists of one independent representative to act as the inspector and an equal number of representatives from each political party represented on an election board in the county, as set out in NDCC § 16.1-05-01, to act as judges. Each official of the board shall take the oath required by NDCC § 16.1-05-02 and must be compensated as provided in NDCC § 16.1-05-05.
 The county auditor, with the consent of the board of county commissioners shall designate each early voting location in a public facility, accessible to the elderly and the physically disabled as provided in NDCC § 16.1-04-02. With respect to polling places at early voting precincts, “election day” as used in NDCC §§ 16.1-10-03 and 16.1-10-06.2 includes any time an early voting precinct polling place is open.
 At the close of each day of early voting, the inspector and judges on the election board shall secure all election related materials, including: 1. The pollbook and access to any electronically maintained pollbook. 2. The ballot boxes containing voted ballots. 3. Any void, spoiled, and non-voted ballots.
 Ballot boxes containing ballots cast at an early voting location may not be opened until the day of the election except as may be necessary to clear a ballot jam or to move voted ballots to a separate locked ballot box in order to make room for additional ballots.
 Each early voting location may be closed, as provided in NDCC Chapter 16.1-15, at the end of the last business day designated for early voting in the county. Results from the early voting precinct may be counted, canvassed, or released under NDCC Chapter 16.1-15 as soon as any precinct within the county, city, or legislative district closes its polls on the day of the election. The county auditor shall designate a location for the closing, counting, and canvassing process under NDCC Chapter 16.1-15, which must be open to any person for the purpose of observing.
 The early voting precinct election board shall comply with the requirements of NDCC Chapters 16.1-05, 16.1-13, and 16.1-15, as applicable.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 16

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 19 of 26
Section 7 – Frequently Asked Questions and Answers
1. What do I do if a voter cannot or will not provide identification?
Answer: If the individual asserts qualifications as an elector in the precinct, they may be issued a set aside ballot. The set aside ballot will be tabulated by the canvassing board after the individual returns to the appropriate election official in a timely manner (see page 10).
2. What do I do if a voter asks for help with voting?
Answer: If the AutoMARK ballot marking device is not an option the voter chooses to use, then the two election judges from opposite political parties may assist the voter. Assistance is to be limited to reading the ballot to the voter, marking the voter’s choices for the contests, and depositing the voter’s ballot into the ballot scanner if the voter is unable to perform this function on his or her own or if the voter would rather not complete this part of the voting process. A voter may also choose to have a friend or relative assist the voter in reading, marking, and/or casting his or her ballot so long as this person is not a candidate on the ballot, a relative of a candidate, the voter’s employer, or the voter’s union representative.
3. What do I do if a voter asks me the names of write-in candidates for an office?
Answer: Inform the voter that he or she is free to write the name of anyone the voter so desires as a write-in candidate, but that some contests may require specific forms to be filed by the candidate in order for write-in votes be counted on the candidate’s behalf and the law does not permit election workers to divulge information about candidates to voters in the polling place. It would be wise to remind the voter to darken the oval next to a write-in candidate.
4. What do I do when I am running low on ballots?
Answer: Call the county auditor, city auditor, or school business manager (whichever is appropriate for the election) as soon as you believe you might run short of ballots.
5. What do I do if a person is disrupting the polling location?
Answer: If the person is causing a serious disruption (your judgment is needed here) and the person will not leave when requested do so, you may call the police and ask for assistance. You may also call the county auditor and ask for assistance.
6. What if we notice some posters hanging in the polling place on Election Day for a candidate?
Answer: Remove any candidate posters in the polling place prior to the opening of the polls.
7. What time will the auditor bring lunch?
Answer: Unless your auditor specifically tells you that lunch will be provided, you should be prepared to provide your own meals. Since the election board is not allowed to leave the polling place while the polls are open, this means that you need to bring your meals prior to the start of the day or have them delivered by a friend or local restaurant.
8. What do I do if someone brings an absentee ballot and turns it in at the precinct?
Answer: The law does not allow you to accept an absentee ballot from a voter on Election Day. However, you may tell the voter that you would be willing to spoil his or her absentee ballot and allow the voter to vote a new ballot at the precinct. You must remember to make a note of this for the county auditor’s records.
9. What do I do if I need to use the restroom?

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 17

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 20 of 26 Answer: Restroom breaks are allowed.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 18

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 21 of 26
Section 8 – Prohibitions, Crimes, and Election Offenses
Service of Civil Process on Election Day: During any primary, general, or special election held in this state, civil process may not be served on any person entitled to vote at the election within 100 feet from the outermost entrance leading into the building or facility in which a polling place is located and open for voting. (NDCC § 1-08-09)

Interference with Elections: No person may injure, intimidate, or interfere with another person who is or has been voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election. No person may injure, intimidate, or interfere with another person to prevent that person or any other person from voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election. (NDCC § 12.1-14-02)

Safeguarding Elections: No person may:  Make or induce any false voter registration;  Offer, give, or agree to give anything of pecuniary value, including alcoholic beverages, to another as consideration for the recipient’s voting or withholding his or her vote or voting for or against any candidate or issue or for such conduct by another;  Solicit, accept, or agree to accept anything of pecuniary value, including alcoholic beverages, as consideration for conduct prohibited by the two bullet points above; or  Otherwise obstruct or interfere with the lawful conduct of an election or registration. (NDCC § 12.1-14-03)

Election Offenses: The following election offenses are a crime and are subject to prosecution. It is unlawful for a person to:
 Fraudulently alter another person's ballot or substitute one ballot for another, or to otherwise defraud a voter of his or her vote.
 Obstruct a qualified voter on the way to a polling place.  Vote more than once in any election.  Knowingly vote in the wrong election precinct or district.  Disobey the lawful command of an election officer.  Knowingly exclude a qualified voter from voting or knowingly allow an unqualified person to vote.  Knowingly vote when not qualified to do so.  Willfully fail to perform any duty of an election officer after having accepted the responsibility of
being an election officer by taking the oath.  Willfully violate any rule adopted by the secretary of state pursuant to the election laws of North
Dakota.  Willfully make any false canvass of votes, or make, sign, publish, or deliver any false return of
an election, knowing the same to be false, or willfully deface, destroy, or conceal any statement or certificate entrusted to his or her care.  Destroy ballots, ballot boxes, election lists, or other election supplies except as provided by law. (NDCC § 16.1-01-12)

Electronic Voting Systems – Violations – Penalty: Any person who tampers with or injures any electronic voting system or device to be used or being used in any election, or who prevents the correct operation of any such system or device is guilty of a class A misdemeanor. (NDCC § 16.1-06-25) Political Badge, Button, or Insignia Prohibited at Election: No individual may buy, sell, give, or provide any political badge, button, or any insignia within a polling place or within 100 feet from the entrance to the room containing the polling place while it is open for voting. No such political badge, button, or insignia may be worn within that same area while a polling place is open for voting. (NDCC § 16.1-10-03)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 19

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 22 of 26
No Electioneering Within Boundary of an Open Polling Place: No person may in any manner try to induce or persuade any voter from voting for or against any candidate, candidates, or ticket of any political party or organization, or any measure within a polling place or within one hundred feet from the entrance to the room containing a polling place while it is open for voting. Bumper stickers or other moveable signs containing a political message that are not readily removable from vehicles are allowed within the restricted area only for as long as it takes the operator of the vehicle to complete the act of voting (NDCC § 16.1-10-06)
No person may pay another person for:  Any loss or damage due to attendance at the polls;  Registering;  The expense of transportation to or from the polls; or  Personal services to be performed on the day of a caucus, primary election, or any election which tend in any way, directly or indirectly, to affect the result of such caucus or election. (NDCC § 16.1-10-06.1)
No Sale or Distribution at Polling Place: Solicitation is not allowed in a polling place or within one hundred feet of any entrance leading into a polling place while it is open for voting. (NDCC § 16.1-1006.2)
Person Assisting Voter May Not Request Voter to Vote in Certain Manner: Any person chosen to assist a voter may not request the voter to vote for or against any candidate or any issue. (NDCC § 16.1-13-28)
Only One Person Allowed in Voting Booth – Time Limit in Booth: Only one person may occupy a voting booth at one time except when receiving lawful assistance. No person shall remain in the booth longer than necessary to vote. (NDCC § 16.1-13-30)
Removal of Ballot from Polling Place before Closing: No person may take a ballot from a polling place before the polls close. (NDCC § 16.1-13-31)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 20

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 23 of 26
Section 9 – Voters With Disabilities
(This is adapted from various sources. Special thanks to the Arlington, VA Election Board)
Common-Sense Guidelines That Apply to All Voters
1. Be courteous and respectful. If you want to address the voter by name, use “Mr.” or “Mrs./Ms.” and the voter’s last name. Do not address a voter by his or her first name unless you know the voter personally and know he or she prefers this address.
2. Do not underestimate people with disabilities. A disability DOES NOT equal lessened intellectual capability.
3. Be considerate of extra time it may take for a person who is disabled or elderly to accomplish tasks.
4. Give unhurried attention to a person who has difficulty speaking. 5. Always speak directly to the voter, and not to a companion, aide, or sign language interpreter.
Remember that any voter with a disability may be accompanied by, and receive assistance from, another person of his or her choice in the voting booth, unless the person is an employer, officer or agent of the elector’s union, a candidate running in that election, or a relative of a candidate. 6. Ask before you help. The person may not want assistance. Do not insist – take “no” for an answer if that is the voter’s wish. 7. Do not be shy about offering assistance. Your courtesy will be appreciated. 8. If your polling place is in a building with several routes through it, be sure that sufficient signs are in place to direct a person to the most accessible route to the polling location.
Voters with Mobility Impairment
1. Do not push or touch another person’s wheelchair or equipment without consent. People using adaptive equipment often consider the equipment their personal space. You might also break or damage a wheelchair or piece equipment if you are not familiar with it.
2. Ask before helping. Grabbing someone’s elbow may just throw a person off balance. Allow the person to take your elbow.
3. A person with mobility impairment might lean on a door while opening it. Quickly opening the door might cause the person to fall.
4. Either fasten mats and throw rugs down securely or move them out of the way. A person with mobility impairment could trip.
5. Keep floors dry as possible on rainy or snowy days. 6. Keep the ramps and wheelchair-accessible doors to the polling place unlocked and free of
clutter.
Voters with Speech or Hearing Impairments
1. A voter who cannot speak can give his or her name and address simply by providing identification to the pollbook officer. The officer will read the name and address aloud, and the voter can provide physical confirmation (such as nodding his or her head) that the information is correct.
2. Follow the voter’s cues to determine whether speaking, gestures, or writing are the most effective means of communication.
3. If speaking, speak calmly, slowly, and directly to the voter. Do not shout. Your facial expressions, gestures, and body movements help in understanding. Face the voter at all times and keep your face in full light (not backlit), if possible.
4. Rephrase, rather than repeat, sentences that the voter does not understand.
Voters with Visual Impairment
1. Identify yourself and state that you are an election official as soon as you come in contact with a voter who has a visual impairment. Greet the individual by letting the person know who and

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 21

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 24 of 26
where you are. When offering walking assistance, allow the person to take your arm and tell him or her when you are approaching inclines or steps, or turning right or left. 2. If guiding a voter, offer your arm to the voter, rather than taking the voter’s arm. 3. If a voter has a guide dog, walk on the opposite side of the voter from the dog. Do not pet or otherwise distract a guide dog without permission from the owner. Be aware that service animals that assist persons with disabilities should be allowed into all buildings. Such animals are highly trained and need no special care other than that provided by the owner. Do not interfere with the animal’s responsibilities by talking or playing with it. 4. When giving directions to navigate the polling place, be as specific as possible and point out obstacles in the path of travel. 5. Let the voter know when you leave his or her presence.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 22

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 25 of 26
Checklists for Election Day
Before the Polls Open
 Election board and clerks take and subscribe the oath.  Inspector assigns duties fairly and equally to both parties on election board.  Review ballots and materials to make sure they are correct for the polling location.  Post voting instructions and copy of NDCC § 16.1-01-12 (Election Offenses).  Post official ballots, copies of the complete text of the measures, map of the precinct boundaries,
and diagram of the voting system appropriately in the polls.  Post the date and hours the polling location will be open on the door.  Inspector and judges inspect ballot box to make sure it is empty and lock it.  Open the sealed package of official ballots.  Perform other duties as the county auditor may prescribe.  Display the United States Flag.  Open polls at the designated time.
After the Polls Open
 Clerks keep and correct a poll list as voters approach to vote.  Ask each voter to show valid identification.  Ask each voter if they are a United States citizen and whether they have resided in the precinct for
at least thirty days.  Direct voters to correct polling location if in wrong place.  Provide instruction and assistance to voters, including information about the AutoMARK.  Inspector or judge to distribute ballots to voter within a secrecy sleeve.  Warn voters to check for initials.  No write-in stickers allowed.  Warn voters not to split votes between parties in the primary election.  Provide additional ballots (up to two) if voter spoils a ballot.  Cancel spoiled ballots immediately.  Allow voters to place own ballots in optical scan ballot tabulator.  Process absentee ballots if delivered to polling location.  Do not allow ballots out of the polling place before polls close.  Allow voters standing in line at closing time to vote.
After the Polls Close
 Run canvass reports of the votes from the optical scan ballot tabulator.  Compare ballots counted by the optical scanner with pollbooks.  In optical scan precincts, judges and inspectors shall verify the initial print record is at zero.  Canvass the write-in votes for those races instructed to the board by the county auditor.  The election board or all of the poll workers as the case may be sign the generated reports.  In primary elections, copies of the reports must be given to each political party.  Election board shall take oath at conclusion of canvass.  Wrap and return ballots to county recorder as instructed.  Reports, pollbooks, oaths, and other required materials delivered to the county auditor.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 23

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 26 of 26 NOTES

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 24

Case 3:20-cv-00071-PDW-ARS Document 1-2 Filed 05/01/20 Page 1 of 2
Exhibit B

Case 3:20-cv-00071-CPoDmWp-AleRtSe, PDroicnut,mSeingtn1,-2anFdileMda0il5/01/20
ABSENTEE/MAIL BALLOT APPLICATION
SECRETARY OF STATE
SFN 51468 (08-2015)

Page 2 of 2
For Office Use Only Precinct Part

For reference, see North Dakota Century Code, Chapter 16.1-07. Application must be for at least one of the following elections:

June (Primary) Election

OR

November (General) Election

All Statewide Elections
(only check if ballot delivery address will be the same for all elections)

Applicant Information: (ALL FIELDS REQUIRED)
Voter's Name

Date of Birth

_________________
City Election School Election Special Election
Daytime Telephone Number

North Dakota ID Type Used: (check one)

Driver's License

Non-driver's ID

Long Term Care Certificate (include with application)

Passport or Military ID (only for voters outside the United States)

ID Number (required only if driver's license, non-driver's ID, tribal ID, passport or military ID is selected above)

Tribal ID Applicant Without ID*

Residential Address

City

Ballot Delivery Address (if different from residential address)

City

State State

ZIP Code ZIP Code

I do solemnly affirm that I have resided or will reside in the precinct, where my residential voting address is located, for at least thirty days next preceding the election and will be a qualified elector of the precinct.

Signature (required)

Date

Applicant Unable to Sign:
If the applicant is unable to sign the applicant's name, the applicant shall mark X or use the applicant's signature stamp on the application in the presence of a disinterested individual. The disinterested individual shall print the name of the individual marking the "X" or using the signature stamp below the "X" or signature and shall sign the disinterested individual's own name following the printed name together with the notation "witness to the mark."
Printed Name of Person Making Mark or Voter's Signature Stamp

Voter's Mark

Signature of "Witness to the Mark"

*Applicant Without ID:

If the applicant does not possess or cannot secure an approved form of identification due to a disability with which the individual lives and which prevents the individual from traveling to obtain, another qualified elector of the state may attest that the applicant is a qualified elector of that precinct by signing below and providing his or her approved North Dakota identification number. NOTE: A qualified elector may not attest the qualifications of more than four applicants in an election.

Printed Name of Attester

Driver's / Non-driver's / Tribal ID Number

Signature of Attester

Date

Daytime Telephone Number

Active Military and Overseas Voter: Check ONE (if applicable):
Citizen living outside of the United States

Uniformed service or family member living away from the voter's residence, yet within the United States

Uniformed service or family member living away from the voter's residence, yet outside the United States

If one of the check boxes above applies to you, please indicate your preferred ballot delivery method:

Mail

Email (provide email address):

Fax (provide fax number):

Mail or Submit to Burleigh County Auditor, PO Box 5518, Bismarck ND 58506

Case 3:20-cv-00071-PDW-ARS Document 1-3 Filed 05/01/20 Page 1 of 2
Exhibit C

Case 3:20-cv-00071-PDW-ARS Document 1-3 Filed 05/01/20 Page 2 of 2

Case 3:20-cv-00071-PDW-ARS Document 1-4 Filed 05/01/20 Page 1 of 2
Exhibit D

Case 3:20-cv-00071-PDW-ARS Document 1-4 Filed 05/01/20 Page 2 of 2

SECRETARY OF STATE Alvin A Jaeger
State of North Dakota 600 E Boulevard Ave Dept 108
Bismarck ND 58505-0500 ELECTIONS UNIT (701) 328-4146 soselect@nd.gov Vote.ND.Gov

;

North Dakota Residents Choosing to Vote Absentee or by Mail
In North Dakota, voting is made easy through absentee and mail ballots. Please use the following information to make your voice heard through voting.
Al Jaeger North Dakota Secretary of State The State’s Chief Election Official ___________________________________________________
; Voter Qualifications
North Dakota does not have voter registration. However, in order to vote in North Dakota, a voter must be:
x A citizen of the United States; x Eighteen years or older on the day of election; x A resident of North Dakota; and x A resident who has resided in the precinct at least thirty days
immediately preceding any election; and x Able to provide a valid form of identification such as a North
Dakota driver’s license, nondriver ID, or tribal ID that includes your current residential address and date of birth; or you complete a Voter’s Affidavit on which you attest to your qualifications as a voter. If an individual’s valid form of identification does not include all the information required in 16.1-01-04.1(2) of the North Dakota Century Code, or the information is not current, the identification must be supplemented by presenting any of the documents as outlined in section 16.1-01-04.1(3)(b) of the North Dakota Century Code ___________________________________________________
; Residence for voting – Rules for
determining
To determine residence for voting, the conditions from the North Dakota Century Code Section 16.1-01-04.2 must be met.
x Every qualified elector may have only one residence, shown by an actual fixed permanent dwelling, establishment, or any other abode to which the individual returns when not called elsewhere for labor or other special or temporary purposes.
x The street address verified by the individual as provided in section 16.1 - 01 - 04.1 when requesting a ballot to vote must be the address of residence for the individual.
x An individual retains a residence in this state until another has been gained.
x The acts of residing at a new address for thirty days and verifying that address as provided under section 16.1 - 01 - 04.1 constitute a change in the individual's voting residence.
___________________________________________________
; Voting Absentee or by Mail
All eligible North Dakotans have the option to request a ballot before the day of an election in a process known as absentee voting. You do not need to provide a reason for why you are requesting an absentee; however, you will be required to complete an application and sign an affidavit. You may submit an application anytime during the calendar year of an election; however, ballots are not available until the fortieth day before an election. Your application may be mailed, faxed, or personally delivered to your county auditor’s office. Revised July 2019

You may live in a county using mail ballot elections (at least one polling place must be open on Election Day). In such counties a mail ballot application is required to be sent to every active voter between the 50th and 40th day before the election. The application is also to be printed in the County Official Newspaper for two consecutive weeks. Furthermore, applications may be requested from the auditor’s office or accessed online.
Whether you vote absentee or by mail ballot your return envelope must be postmarked no later than the day before the election. If you are unable to meet this deadline then you will have to go to your appropriate polling place on Election Day to cast your ballot. _________________________________________________
; Application
Applications for absentee ballots may be submitted anytime within the calendar year of an election. The simplest method to apply is to electronically fill out and print the absentee application for submittal by clicking here Absentee Ballot Application Wizard Additionally, election officials of the county, city, or school district will furnish absentee ballot applications to qualified electors upon request.
The application will request the following information from each voter desiring to vote absentee:
x voter’s name; x voter’s current or most recent ND residential address; x voter’s mailing address; x voter’s current contact telephone number; x the election for which the ballot is being requested; x the date of the request; x the voter’s affirmation of residence in the precinct for at least
thirty days immediately prior to the election; x voter’s signature; x the voter’s status as a citizen living outside the United
States, a uniformed service member living away from the voter’s North Dakota residence, or a family member of the uniformed service member living away from the voter’s North Dakota residence; x voter’s birth date and year; x The identification number from one of the applicant's valid forms of identification, a copy of the applicant's long-term care certificate, and, if necessary, a copy of the applicant's supplemental identification under section 16.1-01-04.1. x voter’s fax number (if voting materials are to be sent using this manner of transmission) x voter’s email address (if voting materials are to be sent using this manner of transmission)
Absentee ballot applications are to be delivered to the appropriate election official by mail, in person, by fax or as a scanned attachment to an email. Uniformed service members stationed away from home and citizens living outside the United States may also receive and return voted ballots by fax or electronic means according to North Dakota law. For more information, please read the information for Military Voters and for Overseas Voters.
According to North Dakota law, absentee ballots are to be made available by the 40th day before the election. Returned absentee ballots must have an official postmark or date stamp on the envelope, email, or fax by the day before the election. _________________________________________________
; ND Absentee Ballot Application
Absentee Ballot Application Wizard
_________________________________________________
; ND County Auditors
North Dakota Local Election Officials

 
 Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,

v.

Case No. 3:20-cv-00071

ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

Defendants.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Mark Gaber (admitted pro hac vice) Danielle Lang (admitted pro hac vice) Dana Paikowsky (admitted pro hac vice)* Aseem Mulji (admitted pro hac vice)* CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200

Derrick Braaten (ND#06394) Carey Goetz (ND #05958) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521

Counsel for Plaintiffs

* Licensed in California only; supervision by Danielle Lang, a member of the D.C. Bar.

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 2 of 22
INTRODUCTION “[I]t is self-evident that a legal voter is injured unless he is not only permitted to vote, but to have his vote counted as cast.” Walker v. United States, 93 F.2d 383, 387 (8th Cir. 1937) (citing United States v. Mosley, 238 U.S. 383, 386 (1915)). And yet, every election, using an inherently unreliable signature verification process, North Dakota rejects and does not count eligible voters’ validly cast mail-in ballots because of benign issues with their penmanship. Under this system, untrained officials verify ballots by comparing the signature provided on a voter’s ballot application to the one on their ballot envelope to determine if the two “correspond.” If they do not, the ballot is rejected. Affected voters are never informed their ballots are impaired or given an opportunity to fix the issue and have their ballots counted. This system is unconstitutional. Not only does it arbitrarily disenfranchise voters based on the unreviewable, error-prone determinations of evaluators who lack meaningful training or guidance in signature examination, it disproportionately disenfranchises certain populations of voters who are both more likely to rely on absentee voting to access the ballot and less able to produce consistent signatures because of their age, disability, or underlying health conditions. Plaintiff Maria Romo—a lifelong voter who lives with multiple sclerosis that affects her fine motor skills—had her validly cast ballot thrown away in 2018 because officials erroneously believed the signatures did not match. Plaintiff Romo is one of hundreds of voters who have been silently disenfranchised by this system, and the problem only promises to grow. Because of COVID-19, North Dakotan voters must rely on absentee voting in order to exercise their fundamental right to vote in upcoming elections. Their ballots will be reviewed under this flawed system, and eligible voters will be disenfranchised. At a time when the pandemic threatens not only the health of our citizens, but the health of our democracy, ensuring voters can have confidence in elections is of paramount importance.
1

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 3 of 22
North Dakota has, at its fingertips, the tools it needs to end these erroneous rejections by giving voters notice and an opportunity to cure ballot issues before they are disenfranchised. Unless the Court intervenes to require the State provide these constitutionally necessary safeguards in time for the June 9, 2020 all-mail elections, Plaintiffs and all North Dakota voters who cast ballots will be at significant risk of being deprived of their right to vote and right to due process under the First and Fourteenth Amendments to the United States Constitution.
FACTUAL BACKGROUND I. North Dakota’s Absentee Voting Procedures and Signature Match Law
Absentee voting is a central part of North Dakota’s democratic process. In 2018, nearly thirty percent of all North Dakotans cast their ballots absentee. Ex. 1 (EAVS Data).
Any eligible North Dakota voter may request an absentee ballot. N.D.C.C. §§ 16.1-07-01, 05. Applicants provide their name, residential and mailing address, phone number, date of birth, and an ID number. Id. § 16.1-07-06. Applicants must then sign their applications, unless unable to do so, in which case they may place a mark on the application and have an attester sign and witness their application. Id. If their application is accepted, voters receive their absentee ballots, along with a return envelope, secrecy envelope, and instructions in the mail. Id. § 16.1-07-08.
To return their completed absentee ballots, voters must seal their marked ballots inside the secrecy envelope and then place both inside the return envelope. Id. Then, they must fill out a “voter affidavit” on the inner envelope with their name, precinct, residential address, and signature. Id. Absentee ballots must be postmarked by the day before Election Day and received before the county canvassing board meets on the sixth day after Election Day. Id. §§ 16.1-07-09, 16.1-15-17.
All absentee ballots undergo signature match verification before they can be counted. For ballots received before the close of polls on Election Day, the relevant precinct officials “compare the signature on the application for an absent voter’s ballot with the signature on the voter’s
2

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 4 of 22
affidavit . . . to ensure the signatures correspond.” Id. § 16.1-07-12. Ballots with allegedly mismatched signatures are marked as rejected and sent to the canvassing board for a “final determination.” Id. §§ 16.1-07-12, 16.1-15-19. Ballots timely received after the close of polls are sent directly to the county canvassing board to assess and determine whether “the signatures on the absentee ballot application and the voter’s affidavit were signed by the same person before allowing the ballot to be tallied.” Id. § 16.1-07-09.
Neither the precinct officials nor county canvassing board members are required to receive training in signature verification. See id. §§ 16.1-05-02, 03. Nor does state law provide any further guidance or standards to determine whether signatures “correspond” or “were signed by the same person.” Defendant Jaeger’s North Dakota Election Officials’ Manual provides this single sentence of instruction on this topic: “Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.” Ex. 2 at 12 (2020 Election Officials’ Manual). County training materials likewise provide the same unbounded instructions. See Ex. 3 (Compiled county training materials).
There is also significant variation in how canvassing boards that review ballots flagged for mismatched signatures by precinct officials ultimately determine whether those ballots are to be rejected. In 2018, for example, at least four counties rejected every one of the ballots that were deemed to have mismatched signatures at the polling place. Exs. 4-7 (McKenzie, McLean, Traill, and Kidder canvassing board minutes). In Dickey County in 2018, the canvassing board rejected two ballots flagged for signature mismatches outright but for another considered the voter’s “situation and history” during the evaluation, including the fact that the voter was “a long-term care resident that had signed the application in June.” Ex. 8 (Dickey canvassing board minutes). In Pembina County in 2018, the canvassing board rejected ballots signed by voters where the
3

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 5 of 22
application had been signed by an attester pursuant to N.D.C.C. § 16.1-07-06(2). Ex. 23 (Pembina County canvassing list).
If a county canvassing board concludes that there is any issue with a voter’s signatures, the ballot is rejected and the vote is not counted. N.D.C.C. § 16.1-07-12. Their determination is final.
Voters whose ballots are ultimately rejected due to a signature mismatch are never notified. See, e.g., Ex. 9 (Mar. 25, 2019 Email from Barnes County Auditor) (Q: “[A]re the voters whose signatures are questioned as not matching contacted about the issue before the board decides to reject their ballot?” A: “No. The canvassing board members make a determination by looking at the signatures. They do not contact the voter.”). Nor are they given an opportunity to confirm their signature and ensure their ballot is counted. Indeed, voters are never even notified about the possibility their ballot could be rejected because of a signature issue. Nothing in the text of voters’ absentee ballot applications, voter affidavits, or the Secretary of State’s instructions about absentee voting informs voters of the State’s signature matching policy. See Ex. 10 (Absentee ballot application); Ex. 11 (Voter affidavit); Ex. 12 (Secretary of State absentee voting instructions). II. The Error-Prone Nature of Signature Match Verification in North Dakota
Signature match verification is an inherently unreliable means of verifying absentee ballots. Countless factors can influence the appearance of any given signature, including age, physical and mental condition, disability, medication, accidents, and natural differences in a person’s stance. Ex. 13 (Mohammed Decl.) ¶ 35. A person’s signature may also vary based on writing conditions at the time of signing, e.g., whether the person is in a moving vehicle or a stationary table, type of writing instrument, and whether the document was signed on a paper or electronic screen. Id. Some people also use alternative signature styles. Id. ¶ 43. Moreover, signature variance is more extreme and commonplace in certain populations, including young and
4

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 6 of 22
elderly signers, signers with disabilities, and signers with less formal education or who learned a non-Latin-based script as their first language. Id. ¶¶ 24, 28, 36-38.
While handwriting comparison is difficult under the best of circumstances, even certified Forensic Document Examiners (“FDEs”), who have undergone between two and three years of training and testing in handwriting analysis, would be likely to make erroneous determinations under North Dakota’s signature verification process. Id. ¶¶ 23, 32, 38, 42, 46-49. FDEs usually require multiple signature samples—according to one recommendation, a minimum of ten—to make signature determinations. Id. ¶¶ 26, 26 n.4. If the signer is elderly or has an underlying health condition, more samples may be required. Id. ¶ 26. North Dakota also does not give examiners the time or equipment FDEs would need to do the comparison. Id.
But North Dakota’s policy does not rely on trained FDEs; instead, it relies on untrained evaluators who are equipped with no standards or training to guide their analyses. Individuals without training are “highly likely” to make mistakes when comparing signatures, and the mistakes they make are more likely to be determinations that authentic signatures are inauthentic than the reverse. Id. ¶ 28. One study showed that lay people made this mistake in 26.1% of cases, while FDEs did so in only 7.05% of cases—in other words, lay evaluators are 3.5 times more likely than FDEs to reject a ballot based on an erroneous signature comparison. Id. ¶ 30. III. The Disenfranchising Impact of North Dakota’s Signature Match Law
Hundreds of ballots are rejected for signature impairments every election. According to data from the Election Administration and Voting Survey (“EAVS”)—a biennial study conducted by the Election Assistance Commission—North Dakota rejected 334 ballots for alleged signature mismatches in 2018, accounting for over sixty percent of all rejected absentee ballots. Ex. 1 (EAVS Data). The rates of rejection also vary greatly from county to county. While many counties reported no or few signature-based ballot rejections in 2018, Morton County and Nelson County
5

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 7 of 22
respectively rejected 1.14% and 1.74% of absentee ballots for alleged signature mismatches. Id. These ballot rejections could impact the outcome of elections in North Dakota, where elections can often be decided by only a handful of votes.2
Plaintiff Maria Romo cast a valid absentee ballot in 2018 that was erroneously rejected under North Dakota’s signature verification regime. Ex. 14 (Romo Decl.) ¶ 6; Ex. 25 (Grand Forks District 25 rejected ballots). Ms. Romo has multiple sclerosis that impairs her handwriting and fine motor skills. Id. ¶ 5. Because of this chronic condition—which she has been living with for decades—Ms. Romo has strength issues in her fingers, must write with a special large width pen, and cannot produce a neat or consistent signature. Id. The same year, Defendants also rejected the validly cast ballot of Kourtney Culver, a former North Dakota resident who was attending school out of state at the time. Ex. 15 (Culver Decl.) ¶ 5; Ex. 25 (Grand Forks District 17 rejected ballots). Until this year, neither Ms. Romo nor Ms. Culver knew that their ballots would be subjected to a signature matching process or that their ballots had been rejected for signature issues. Ex. 14 ¶¶ 4, 6; Ex. 15 ¶ 5. After their ballots were rejected, neither were given an opportunity to cure the issue and have their votes counted. Ex. 14 ¶ 7; Ex. 15 ¶¶ 5-6.
Plaintiff Self Advocacy Solutions N.D. (SAS) is an organization by and for people with disabilities, whose members are at particular risk of disenfranchisement because of the signature match law. Ex. 16 (Marx Decl.) ¶ 7; Ex. 13 (Mohammed Decl.) ¶¶ 41-42. SAS members depend on absentee voting to participate in elections, but many members have difficulty signing their name and their signatures lack visual consistency across time. Ex. 16 ¶ 9. Plaintiff League of Women
2 For example, in 2018, four North Dakota elections were determined by fewer than 50 votes. See ND Voices, Official 2018 General Election Results, Legislative District Results (Dec. 11, 2019), https://results.sos.nd.gov/resultsSW.aspx?text=Race&type=LG&map=DIST (showing elections in Senate District 25 being decided by 21 votes and House District 43 by 35 votes and county commissioner races in Rolette and Grand Forks being decided by 31 and 49 votes respectively).
6

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 8 of 22
Voters of North Dakota (LWVND) also believes that its members, including elderly individuals and individuals with physical disabilities or medical conditions that make writing difficult, are at risk of being disenfranchised by allegedly mismatched signatures. Ex. 17 (Lynch Decl.) ¶ 6. IV. The Impact of COVID-19 on North Dakota’s Elections
Before COVID-19, absentee voting was a voting option that any North Dakotans could opt to use if they desired (and many did).3 Now, it is the only means by which most voters can participate. On March 26, 2020, in an effort to keep North Dakota voters safe during the pandemic, Governor Burgum issued an executive order authorizing counties to conduct their upcoming elections solely by mail, suspending the state’s ordinary requirement that counties maintain at least one in-person polling location. Ex. 18 (Exec. Order 2020-13 (“EO”)). He also ordered the Secretary of State to send every voter in the state’s Central Voter File a mail ballot. Id. All 53 counties have followed the Governor’s lead and authorized mail-only elections for the June 9, 2020 statewide elections. Ex. 19 (ND Health announcement); Ex. 24 (Grand Forks announcement).
The Governor’s executive order will be in effect “for the duration of the declared emergency,” but there is no indication when this emergency will be over. Ex. 18 (EO). Even as North Dakota transitions back to life post-emergency, it will do so incrementally. Ex. 20 (Article on incremental opening). And recent outbreaks in Grand Forks and elsewhere serve as a reminder that the pandemic is far from over. Ex. 21 (Article on Grand Forks outbreak). Social distancing precautions will continue to be important, especially for those who are most vulnerable to COVID19. Ex. 22 (CDC guidance). Vote by mail, then, will remain a central feature of North Dakota elections—if not the only means of voting—in 2020 and potentially beyond.
3 Even prior to COVID-19, North Dakota law authorized counties to conduct elections by mail with very limited in-person polling locations. N.D.C.C. § 16.1-11.1-01.
7

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 9 of 22
LEGAL STANDARD In determining whether to grant a preliminary injunction, the court considers four factors: “(1) the likelihood of success on the merits; (2) the presence or risk of irreparable harm; (3) the balancing of the harms of granting or denying an injunction; and (4) the public’s interest.” CDI Energy Servs. v. W. River Pumps, Inc., 567 F.3d 398, 401-02 (8th Cir. 2009).
ARGUMENT I. Plaintiffs are likely to succeed on the merits of their claims.
A. Plaintiffs are likely to succeed on their procedural due process claim. Plaintiffs are likely to succeed on the merits of their procedural due process claim. The Due Process Clause guarantees that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. In evaluating a procedural due process claim, courts “engage in a two-part analysis . . . asking, first, whether the plaintiffs have a protected interest at stake, and if so, what process is due.” Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997). To determine what process is due, courts balance three factors: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function involved and the fiscal and agency burdens that the additional or substitute procedural requirement would entail.” Id. at 147677 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). North Dakota’s signature verification process plainly fails this test. North Dakota uses an inherently unreliable signature match procedure to verify absentee ballots that disenfranchises eligible voters without providing any notice or opportunity to cure ballot impairments. Courts have uniformly struck down signature match laws—like North Dakota’s—that fail to provide voters these constitutionally necessary safeguards. See Martin v. Kemp, 341 F. Supp.
8

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 10 of 22
3d 1326 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec'y of State of Georgia, No. 1814503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018); Saucedo v. Gardner, 335 F. Supp. 3d 202, 206, 222 (D.N.H. 2018); Fla. Democratic Party v. Detzner, No. 4:16cv607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016); Zessar v. Helander, No. 05 C 1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006); see also La Follette v. Padilla, No. CPF-17-515931, 2018 WL 3953766, at *1 (Cal. Super. Ct. Mar. 5, 2018); League of United Latin Am. Citizens of Iowa v. Pate, No. CVCV056403, (Iowa Dist. Ct. July 24, 2018), aff’d in the relevant part by League of United Latin Am. Citizens of Iowa v. Pate, No. 18-1276, 2018 WL 3946147 (Iowa Aug. 10, 2018).
In Saucedo, for example, the court invalidated New Hampshire’s signature match law (functionally identical to the law at issue here) because it did not require officials to provide voters with any notice or opportunity to cure before rejecting mismatched-signature ballots. 335 F. Supp. 3d at 206, 222. The court found the “fundamentally flawed” signature match process created an unacceptable risk of erroneous deprivation of the right to vote. Id. at 206, 217. As is the case here, New Hampshire provided local officials no training in signature verification; the state’s laws and guidance offered no “functional standards” for signature comparison; and the law provided no means of reviewing election officials’ assessments, leaving the decisions “irremediable.” Id. at 206, 217-18. Finally, the court concluded that it “would not entail significant . . . burdens” for the state to provide voters with notice, by phone or otherwise, and an opportunity to cure. Id. at 221.
This Court should do the same. North Dakotans have a protected interest at stake, nothing less than the fundamental right to vote. And the Due Process Clause mandates that if the State uses “fundamentally flawed” signature match determinations to reject voters’ absentee ballots, then it must provide voters adequate notice and a meaningful opportunity to cure.
9

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 11 of 22
1. Plaintiffs have a constitutionally protected interest in the right to vote. There is no question that Plaintiffs have a protected interest in their fundamental right to vote. See Wesberry v. Sanders, 376. U.S. 1, 17 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”); see also Cook v. Randolph Cty., 573 F.3d 1143, 1152 (11th Cir. 2009) (noting that “[t]he Constitution guarantees procedural . . . due process when” the right to vote is at stake); Barefoot v. City of Wilmington, 306 F.3d 113, 124 n.5 (4th Cir. 2002). This protection extends to absentee voting, both as a statutorily created right, see Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and as a constitutional right, O’Brien v. Skinner, 414 U.S. 524, 530 (1974). This is especially true where vote by mail is effectively the only means of voting, as will be the case in the upcoming June 9 elections. Ex. 19. The State cannot deny voters this essential and often only available means of exercising their right to vote. See Bush v. Gore, 531 U.S. 98, 104 (2000); Martin, 341 F. Supp. 3d at 1338; Saucedo, 335 F. Supp. 3d at 217.
2. The Due Process Clause requires North Dakota to provide notice and an opportunity to cure questioned absentee ballot signatures.
Under the Due Process Clause, North Dakota must provide voters whose signatures are questioned notice and an opportunity to cure. At minimum, due process requires adequate notice and the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Coleman v. Watt, 40 F.3d 255, 260 (8th Cir. 1994) (quoting Mathews, 424 U.S. at 333). North Dakota’s signature verification policy— which provides no notice and no opportunity to cure—plainly fails this test.
In this context, because no procedure could possibly cure an erroneous deprivation after the election has concluded, the only meaningful time a voter could be given notice or an opportunity to cure is before their ballot is ultimately rejected. See Winegar v. Des Moines Indep.
10

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 12 of 22

Cmty. Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994) (“An assessment of the adequacy of predeprivation procedures depends on the availability of meaningful postdeprivation procedures.”) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)); United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (noting “exceptions to the general rule requiring predeprivation notice and hearing” cannot be “tolerate[d]” except in “extraordinary situations”).
“Adequate notice,” then, requires the state take affirmative steps to contact voters whose ballots are impaired by signature issues to inform them of the impairment before the election ends. See Saucedo, 335 F. Supp. 3d at 218 (publishing lists of affected voters online post hoc provides insufficient notice); see also Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990). Similarly, a “meaningful opportunity to be heard” requires the state provide voters with a means of contesting or “curing” signature mismatches in time to have their ballots count. See also Detzner, 2016 WL 6090943, at *2.
Far from meeting this constitutional minimum, Defendants fail to provide any process whatsoever. Nothing in state election law requires officials notify voters of ballot impairments, and nothing provides voters an opportunity to fix the issue before votes are finally canvassed. Voters never even receive pre-election warning that their ballots may be rejected for mismatched signatures.4 See supra Factual Background I. North Dakota’s standardless signature match process fails the notice and opportunity cure prerequisites of due process.
3. North Dakota’s signature verification policy also fails the Mathews test. Where a challenged policy provides no notice or opportunity to respond, a violation of Due Process is established and a court need not engage in the Mathews test, which is designed to

4 This is a significant departure from the Secretary’s “Voter Bill of Rights,” which prominently

states that “North Dakota residents have the right to . . . an explanation if your . . . identity is in

question.”

N.D.

Sec’y

of

State,

Voter

Bill

of

Rights,

https://vip.sos.nd.gov/pdfs/Portals/Voter%20Bill%20of%20Rights.pdf (last visited May 8, 2020).

11

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 13 of 22
ferret out whether particular challenged procedures are sufficiently robust. But an analysis of the Mathews factors only underscores the constitutional violation here.
i. The private interest in the fundamental right to vote, and in voting by absentee ballot to effectuate that right, is paramount.
The first Mathews factor weighs heavily in Plaintiffs’ favor. The court first considers the “nature and weight of the private interest affected by the challenged official action.” Coleman, 40 F.3d at 260. Plaintiffs’ interest—and that of all North Dakotans—in having their validly cast ballots counted is of the utmost importance. See supra Part I.A.1. While absentee ballots have long served as an important means for North Dakotans to exercise their fundamental right to vote, now, because of COVID-19, mail ballots will play an essential role in North Dakota elections. As discussed supra, in at least the June 9 elections, all voters will have to cast absentee ballots. And for Ms. Romo and other North Dakotan voters with disabilities, as well as elderly voters and those with chronic health conditions who face heightened risks from COVID-19, absentee ballots will be necessary to participate safely in democracy, even beyond the June 9 election. See supra Factual Background IV. North Dakotans’ interest in exercising their fundamental right to vote therefore depends on the proper counting of absentee ballots. This factor thus weighs heavily in favor of adequate notice and meaningful opportunity to cure. See Saucedo, 335 F. Supp. 3d at 217.
ii. The risk of erroneous deprivation based on inherently unreliable signature match determinations is significant, and notice and cure procedures would greatly ameliorate this risk.
The next factor—“the risk of an erroneous deprivation” and “the probable value” of additional procedures—also weighs in favor of a notice and cure process. Mathews, 424 U.S. at 335.
North Dakota’s signature match laws create a significant risk of erroneous deprivation because signature comparison is an inherently error-prone means of verifying absentee ballots,
12

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 14 of 22
especially when undertaken by evaluators who lack any relevant expertise, guidance, training, or standards. As discussed above, an array of factors may cause a single person’s signature to vary from one signing to the next, including benign changes in the signer’s writing implement, writing surface, stance, and level of concentration. Ex. 13 (Mohammed Dec.) ¶ 31, 35 (identifying twenty of the most common reasons why an individual might appear to show signature variations.). And— for reasons entirely outside of signers’ control—certain groups, including Plaintiffs and their members, are especially prone to inconsistency in their signatures. Id. ¶ 24, 28, 37, 38 (noting people can be susceptible to signature variance because of age, health, or disability); Ex. 14 (Romo Decl.); Ex. 16 (Marx Decl.); Ex. 17 (Lynch Decl.); Saucedo, 335 F. Supp. 3d at 206.
Deciding whether signatures exhibit one of these benign “variations” of a single signer or a true “difference” between multiple signers is “one of the most difficult determinations in signature examinations,” even for a trained and certified Forensic Document Examiner (FDE). Ex. 13 (Mohammed Decl.) ¶¶ 24, 30, 32, 34 (citing a study finding lay persons to be 3 1/2 times more likely than an FDE to claim that a perfectly authentic signature is inauthentic).
And yet, North Dakota leaves this work for untrained officials, who must make these determinations quickly, without proper equipment, and based only on two exemplars. Worse, the State provides no meaningful training or standards to aid them in this work beyond the unhelpful command to “[c]ompare the signatures . . . to ensure the signatures match.” Ex. 2 (2020 Election Officials’ Manual); N.D.C.C. §§ 16.1-05-02, 03. Far from adhering to any uniform guidance, some county canvassing boards make their “final determinations” based on the “situation and history” of the voter, which in practice leaves the fate of absentee voters’ ballots to the whims and personal knowledge of canvassing board officials. Id. § 16.1-07-12; Ex. 8 (Dickey County canvassing board
13

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 15 of 22
minutes). Meanwhile, in other counties the “final determination” appears to be little more than a rubber stamp. See Exs. 4-7 (McKenzie, McLean, Traill, and Kidder canvassing board minutes).
Hundreds of absentee ballots are rejected without voters’ knowledge under this inherently unreliable, standardless process. See supra Factual Background III. Thus, “the natural variations in a person’s handwriting−many of which are unintentional or uncontrollable, like mental or physical condition−when combined with the absence of functional standards, training, review, and oversight, create a tangible risk of erroneous deprivation.” Saucedo, 335 F. Supp. 3d at 219.
Meanwhile, the probable value of notice and cure procedures here is high. See Martin, 341 F. Supp. 3d at 1339. Pre-deprivation notice and opportunity to cure ensure election officials will not rely on solely their own unreliable signatures determinations, but instead can hear directly from the most authoritative sources on the question: voters themselves. Saucedo, 335 F. Supp. 3d at 219. Both Plaintiff Romo and Ms. Culver testified they would have taken any required steps to verify their signatures for election officials to ensure that their votes were counted. Ex. 14 (Romo Dec.) ¶ 7; Ex. 15 (Culver Dec.) ¶ 6. The value of these procedural safeguards is undoubtedly great and would “serve[] to protect the fundamental right to vote.” Zessar, 2006 WL 642646, at *9.
iii. Notice and cure procedures advance state interests and would require little administrative effort.
The final Mathews factor also weighs in favor of providing adequate notice and meaningful opportunity to cure before rejecting voters’ ballots. The State has a substantial interest in both counting valid ballots and excluding invalid ballots, but the current signature match system does not serve those twin interests; providing notice and an opportunity to cure would.
As the Eleventh Circuit explained in a recent case considering a signature matching requirement similar to the one at issue here, “protecting public confidence in elections is deeply important—indeed, critical—to democracy” and “public knowledge that legitimate votes were not
14

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 16 of 22
counted due to no fault of the voters—and with no reasonable notice to the voters that their votes would not be counted and no opportunity to correct that situation—would be harmful to the public’s perception of the election’s legitimacy.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019). Thus, North Dakota’s signature verification regime is, in fact, antithetical to its legitimate interest in “safeguarding voter confidence.” Brakebill v. Jaeger, 932 F.3d 671, 678 (8th Cir. 2019) (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 (2008)); see also Saucedo, 335 F. Supp. 3d at 220-21 (finding notice and opportunity to cure advances state’s interest in election integrity); Detzner, 2016 WL 6090943, at *7; Martin, 341 F. Supp. 3d at 1340.
And implementing a notice and cure procedure for absentee voters would not impose any significant fiscal or administrative burden on the state. North Dakota and local election officials already maintain records, including in the Central Voter File, on voters’ ballot applications, and elsewhere, that contain voters’ contact information. See, e.g., N.D.C.C. § 16.1-02-12; Ex. 10 (Absentee ballot application). Also, county canvassing boards do not meet until six days after the election, which provides sufficient time for election officials to give voters notice and an opportunity to cure. N.D.C.C. § 16.1-15-17.
Further, providing notice and opportunity to cure would not be entirely out of the ordinary. Id. § 16.1-07-17 (explaining notice procedures for military and overseas voters); id. § 16.1-15-08 (providing opportunity to cure for voters who vote “set-aside ballots” at the polls because they were unable to verify their identity with a state-required ID). Thus, North Dakota election officials have shown they can provide some voters an opportunity to fix issues with their ballots before the meeting of the canvassing board. Given the availability of existing systems as models, the fiscal
15

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 17 of 22
and administrative burden is slight, especially when stacked up against the harm done by the erroneous disenfranchisement of hundreds of North Dakotans.
In sum, insofar as Defendants require election officials to make unreliable signature match determinations, the Due Process Clause demands that they provide voters notice of a potential signature match issue and an opportunity to resolve it to avoid erroneous deprivation of their right to vote. Plaintiffs are thus likely to succeed on the merits of their procedural due process claim.
B. Plaintiffs are likely to succeed on their claim that North Dakota’s signature match law unduly burdens the fundamental right to vote.
Plaintiffs are likely to succeed on their undue burden claim as well. When determining whether a challenged election law unconstitutionally burdens the right to vote, courts apply the Anderson-Burdick standard, weighing “‘the character and magnitude of the asserted injury . . .’ against ‘the precise interests put forward by the State as justifications for the burden . . .’ taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983)). Under this standard, the rigorousness of a court’s review depends on the severity of the burden the challenged law imposes. When a law “imposes only ‘reasonable, nondiscriminatory restrictions’ . . . ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions,” but laws that impose severe burdens on voters’ First and Fourteenth Amendment rights are subject to strict scrutiny. Id.; see also Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001).
1. North Dakota’s use of an error-prone signature match system severely burdens Plaintiffs’ right to vote.
North Dakota’s signature matching procedures severely burden Plaintiffs’ right to vote. Every election, North Dakota’s error-prone signature match law summarily discounts eligible voters’ validly cast ballots and completely deprives these voters of their right to vote. This system
16

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 18 of 22
bears “[t]he hallmark of a severe burden”—“exclusion or virtual exclusion from the ballot.” Libertarian Party of Kentucky v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016).
Every voter is at risk of having their ballot arbitrarily rejected based on a benign signature issue under North Dakota’s unreliable system. United States v. State of S.D., 636 F.2d 241, 243 (8th Cir. 1980) (holding the “right to vote may not be burdened by arbitrary restrictions”). Worse, there is nothing voters can do to safeguard their ballot from such erroneous rejections. The magnitude of this already severe burden multiplies with respect to Plaintiffs and other voters like them whose age and underlying health conditions make it impossible for them to produce a consistent signature. Ex. 14 (Romo Decl.); Ex. 16 (Marx Decl.); Ex. 17 (Lynch Decl.). These voters not only are disproportionately likely to have their ballots rejected for signature issues, they are also more likely to require absentee voting to access the franchise. Ex. 16 (Marx Decl.) ¶ 8 (noting that in-person voting can often be inaccessible to voters whose disabilities make appearing at a polling place, waiting in line, and voting on a voting machine difficult). Indeed, Plaintiff Romo did not just have her right to vote in the 2018 election severely burdened, but rather outright denied.
To determine the burden on voters, the Court may also consider the availability of alternative means of accessing the ballot. See Republican Party of Arkansas v. Faulkner Cty., Ark., 49 F.3d 1289, 1294 (8th Cir. 1995) (“[A]n alternative means of [ballot] access must be provided absent a sufficiently strong state interest”). Elderly voters and voters with disabilities depend on absentee voting to access the franchise. Through the duration of the COVID-19 emergency, all North Dakota voters will as well.
Plaintiff Romo and the members of Plaintiffs SAS and LWVND are eligible voters who follow the rules. They overcome any obstacles posed by age, health conditions, or public heath emergencies to cast valid, signed ballots and exercise their fundamental rights to vote. The State’s
17

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 19 of 22
continued use of an unreliable signature match procedure—one that provides voters with no notice or opportunity to cure—risks that their votes will not be counted. Such a system is unconstitutional.
2. North Dakota’s interest in maintaining its signature match procedures does not outweigh the severe burden it places on Plaintiffs’ right to vote.
North Dakota’s flawed signature verification process does not serve any plausible state interest in election integrity, nor does it justify the burden placed on Plaintiffs and their members. Rather, by arbitrarily rejecting eligible voters’ validly cast ballots, it threatens to undermine the legitimacy of elections and public confidence in North Dakota’s democratic process. See Lee, 915 F.3d at 1327. As discussed previously, providing voters with notice and an opportunity to cure not only furthers the State’s interests in promoting public confidence and protecting the integrity of its elections, these procedural safeguards could be implemented at no significant cost to the State. See supra Part I.A.3.iii. To the extent the State has any legitimate interest in maintaining its errorprone signature verification process without any due process procedures, that interest is outweighed by the significant burden Plaintiffs face of being silently, arbitrarily, and without recourse deprived of their basic, fundamental right to vote. II. Absent a preliminary injunction, Plaintiffs are at imminent risk of irreparable harm.
North Dakota’s signature matching process has caused and will continue to cause irreparable harm absent a preliminary injunction. These claims concern nothing less than the fundamental right to vote. Once the election has passed, the right to vote is lost permanently and the harm cannot be fully redressed. Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016); see also Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).
If this Court does not grant preliminary injunctive relief, Plaintiffs will suffer imminent, irreparable harm. Plaintiff and Plaintiff members intend to vote in North Dakota’s June 9, 2020
18

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 20 of 22
statewide and local elections. Because of COVID-19, these voters have no choice but to cast their ballots by mail, meaning their ballots will be subjected to North Dakota’s unreliable signature verification process. There is no doubt, too, that validly cast ballots will be rejected by this system. Plaintiff Romo has already been erroneously deprived of her right to vote by this flawed process once, in 2018. She should not be forced to take the same risk yet again.
Plaintiff Romo and members of Plaintiffs SAS and LWVND are at particular risk of being further disenfranchised by North Dakota’s error-prone signature match procedure. Because Plaintiff Romo suffers from a chronic health condition that impairs her handwriting, she is in no better position to produce a “matching” signature today than she was in 2018. Plaintiffs SAS and LWVND similarly have members whose age and underlying health conditions make producing a consistent signature impossible. If the State erroneously finds these voters’ signatures do not “correspond” under current law they face certain disenfranchisement unless this Court intervenes.
In sum, the fact that Plaintiffs face immanent, irreparable harm weighs in favor of granting preliminary injunctive relief. Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995). III. The balance of harms and public interest weigh heavily in Plaintiffs’ favor.
The balance of harms and public interest weigh in favor of granting a preliminary injunction. While the usual inquiry on a motion for preliminary injunction “calls for assessing the harm to the opposing party and weighing the public interest,” “[t]hese factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
Issuing relief will ensure that when eligible North Dakota voters cast valid ballots on June 9 and beyond, either their ballots will be counted as cast or the State will notify them of a ballot impairment and give them an opportunity to fix the issue so their votes can count. This relief supports the public interest in protecting the fundamental right to vote. And, as this Circuit has affirmed, “it is always in the public interest to protect constitutional rights.” Phelps-Roper v.
19

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 21 of 22
Nixon, 509 F.3d 480, 485 (8th Cir. 2007), modified on reh’g, 545 F.3d 685 (8th Cir. 2008); see also Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999) (“[T]he public interest favors protecting core First Amendment freedoms.”). Indeed, Defendant Jaeger has stated publicly that voters have a right to be informed if their identity is questioned. See supra n.4. The public interest is served by Defendants following their own “Voter Bill of Rights.”
Defendants will suffer no harm if relief is granted here. As discussed above, the State has an affirmative interest in protecting voters’ confidence in the integrity of elections. Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). Further, any administrative harms incurred by Defendants pale in comparison to the injury suffered by Plaintiffs. Defendants have the information they need to provide voters with notice when there is a signature issue impairing a voter’s ballot. Implementing a system for notice and opportunity to cure would require few additional resources from the State, a cost well worth the value of protecting the integrity of North Dakota’s elections and safeguarding Plaintiffs’ most precious fundamental right.
CONCLUSION For these reasons, Plaintiffs’ Motion for a Preliminary Injunction should be granted.
20

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 22 of 22

Dated: May 11, 2020
Mark Gaber* Danielle Lang* Dana Paikowsky*# Aseem Mulji*# CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 mgaber@campaignlegal.org dlang@campaignlegal.org dpaikowsky@campaignlegal.org amulji@campaignlegal.org
* Admitted pro hac vice # Licensed in CA only; supervision by Danielle Lang, a member of the D.C. Bar

Respectfully submitted,
/s/ Derrick Braaten Derrick Braaten (ND#06394) Carey Goetz (ND #05958) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911 derrick@braatenlawfirm.com carey@braatenlawfirm.com
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521 sarahvogellaw@gmail.com
Counsel for Plaintiffs

21

 
 Case 3:20-cv-00071-PDW-ARS Document 31 Filed 06/05/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

Self Advocacy Solutions N.D., League of )

Women Voters of North Dakota, and

)

Maria Fallon Romo,

)

)

Plaintiffs,

)

ORDER

)

vs.

)

Case No. 3:20-cv-00071

)

Alvin Jaeger, in his official capacity as )

Secretary of State, and Debbie Nelson, )

in her official capacity as County Auditor )

of Grand Forks County,

)

)

Defendants.

)

______________________________________________________________________________

On June 3, 2020, the Court issued an order enjoining the Defendants and all North Dakota

election officials acting in concert with them from rejecting any mail-in ballot on the basis of a

signature mismatch absent adequate notice and cure procedures for the June 9, 2020 primary

election. Doc. No. 29. On June 5, 2020, Defendant Alvin Jaeger (the “Secretary”) and the

Plaintiffs jointly submitted proposed procedures to be implemented by county auditors that provide

voters with notice and an opportunity to respond when a ballot is identified as containing a

signature mismatch. Doc. No. 30. Upon review, the Court concludes that the proposed procedures

sufficiently afford North Dakota voters the constitutional guarantee of due process.

Accordingly, the Court ORDERS as follows:

1. The Secretary shall instruct county auditors to follow the procedures outlined below.

2. If an absentee ballot received on or before election day is determined by an election board to be defective under N.D.C.C. § 16.1-07-12 because the signatures on the application and the affidavit on the outer envelope of a returned absentee ballot do not match, a county auditor, or county official

1

Case 3:20-cv-00071-PDW-ARS Document 31 Filed 06/05/20 Page 2 of 3
designated by the county auditor (hereinafter “the county auditor”), shall take reasonable steps as soon as practicable to inform the voter that his or her ballot has been identified as having a signature mismatch and will be rejected if not verified by the voter. Reasonable steps shall include but not be limited to calling the elector if the phone number is available. If the county auditor is unable to reach the voter by phone, whether because the voter did not answer, the county auditor was only able to leave a voicemail or message, or if a phone number is not available, the county auditor shall mail a notice informing the voter that the absentee ballot has been identified as having a signature mismatch and will be rejected if not verified, along with instructions to respond to the notice in the manner described in Paragraph 3.
3. The voter shall have until the meeting of the canvassing board, which occurs on the sixth day after the election, to confirm or deny the legitimacy of the signatures in question. The voter may confirm the legitimacy of the signatures by a response using any form of written communication, phone call or inperson visit with the county auditor. The response must be received from the voter before the adjournment of the county canvassing board. All such ballots in which the signatures have been confirmed by the voter will be included in the final vote tally as certified by the county canvassing board. A note or log of the county auditor memorializing the phone call or the written communication from the voter must be presented to the canvassing board and retained with all election materials for the twenty-two-month retention period required by federal and state law.
4. If the voter does not respond to the notice, and if the canvassing board determines that the signatures do not match, the ballot shall not be counted.
5. For absentee ballots received after election day with postmarks no later than the day prior to election day, the county auditor shall compare the signature on the application submitted by the voter with the affidavit on the outer envelope of the voter’s returned absentee ballot to identify whether the canvassing board is likely to determine that the signatures do not match. For such ballots, the county auditor shall immediately implement the notice process set forth in Paragraph 2. Paragraphs 3 and 4 shall apply to such ballots.
6. If the canvassing board determines that an absentee ballot has a mismatched signature, and if that voter was not previously provided notice pursuant to Paragraph 5, the county auditor will attempt to contact the voter by phone to confirm or deny the legitimacy of the signatures in question. The voter may do so in the manner set forth in Paragraph 3, and thereby have the vote included in the final vote tally as certified by the canvassing board. If the voter cannot be reached by phone or otherwise contacted, the ballot shall not be counted.
2

Case 3:20-cv-00071-PDW-ARS Document 31 Filed 06/05/20 Page 3 of 3 7. All voters whose absentee ballots were not counted will be sent a written
notice explaining that the ballot was rejected and the reason for the rejection. IT IS SO ORDERED. Dated this 5th day of June, 2020.
/s/ Peter D. Welte Peter D. Welte, Chief Judge United States District Court
3

 
 Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

Self Advocacy Solutions N.D., League of )

Women Voters of North Dakota, and

)

Maria Fallon Romo,

)

)

Plaintiffs,

)

ORDER GRANTING MOTION FOR

)

PRELIMINARY INJUNCTION

vs.

)

)

Case No. 3:20-cv-00071

Alvin Jaeger, in his official capacity as )

Secretary of State, and Debbie Nelson, )

in her official capacity as County Auditor )

of Grand Forks County,

)

)

Defendants.

)

______________________________________________________________________________

Due to the COVID-19 pandemic, all voters in North Dakota’s June 9, 2020 primary

election will be required to vote by mail. The Plaintiffs challenge two North Dakota statutes that

vest election officials with authority to reject mail-in ballots based on signature discrepancies,

insofar as the statutes fail to provide affected voters with notice and an opportunity to verify their

ballots before rejection. Now pending is the Plaintiffs’ motion for preliminary injunction filed on

May 11, 2020. Doc. No. 11. On May 22, 2020, the Defendants responded in opposition to the

motion. Doc. Nos. 18, 21. The Plaintiffs filed a reply brief on May 25, 2020. Doc. No. 22. On

June 1, 2020, the Court held a telephonic hearing on the motion. Doc. No. 27. For the reasons

below, the motion is granted.

I. BACKGROUND

The Plaintiffs assail the omission of notice and cure procedures from the signature-

matching requirement for absentee ballots found in North Dakota Century Code §§ 16.1-07-09

and 16.1-07-12. The facts present as straightforward. A summary of North Dakota’s absentee

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 2 of 22
ballot procedures and the challenged statutes is followed by an introduction of the parties and the procedural history.
A. Absentee Ballot Procedures and the Signature-Matching Requirement Any eligible North Dakota voter can request an absentee ballot. N.D. Cent. Code § 16.107-01. To do so, a voter submits an application to a county official (usually the county auditor). Id. § 16.1-07-04. The application requires, among other things, the voter’s name, date of birth, residential address, telephone number, and an ID number from a valid form of identification. Id. § 16.1-07-06(1). A voter must also affix a signature on the application. Id. If unable to sign, a voter marks an “X” and a disinterested person is required to sign the application as a “witness to the mark.” Id. § 16.1-07-06(2). After verifying an applicant’s eligibility as a qualified elector, the designated county official sends the voter a ballot. Id. § 16.1-07-08. The ballot arrives with a secrecy envelope, as well as a return envelope that includes a voter affidavit on the envelope’s exterior. Doc. No. 21-3. The affidavit does not state that a voter’s signature must correspond with the signature provided on the ballot application. See id. After filling out the ballot, a voter slips it first into the secrecy envelope and then into the return envelope. Doc. No. 21-1, p. 3. At that point, the voter signs and dates the affidavit. Id. Again, if a voter is unable to sign, the voter marks an “X” and the signature of a disinterested witness is required. N.D. Cent. Code § 16.1-07-08(2). Then the voter mails the ballot back to the designated county official. To be counted, the ballot must be postmarked by the day before the election and received before the county canvassing board meets on the sixth day after the election. Id. § 16.1-07-09. When the vote-counting process begins, there are two sets of relevant election officials. The first is the election board located at each polling place. See id. § 16.1-05-01. An election board consists of one election inspector hired by the county auditor, at least two election judges
2

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 3 of 22
appointed by the district chairs of the two political parties that received the highest number of
votes in the preceding gubernatorial election, and at least two poll clerks hired by the county
auditor. Id. The second is the county canvassing board, which certifies the results submitted by
the election boards. See id. § 16.1-15-15. The canvassing board is comprised of the county
auditor, the county recorder, the chair of the county commission, and one representative from each
of the two political parties that received the highest number of votes in the preceding gubernatorial
election. Id.
For absentee ballots received before the polls close on election day, North Dakota Century
Code § 16.1-07-12 comes into operation and provides in relevant part as follows:
At any time beginning on the day before election day and the closing of the polls on election day, the election clerks and board members of the relevant polling place first shall compare the signature on the application for an absent voter’s ballot with the signature on the voter’s affidavit provided for in section 16.1-07-08 to ensure the signatures correspond. . . . If the affidavit on the outer envelope of a returned absentee ballot is found to be insufficient, or that the signatures on the application and affidavit do not correspond, or that the applicant is not then a duly qualified elector of the precinct, the vote may not be allowed, but without opening the absent voter’s envelope, the election inspector or election judge shall mark across the face thereof “rejected as defective” or “rejected as not an elector”, as the case may be. These rejected ballots are then turned over to the county canvassing board for final determination of eligibility.
If the canvassing board finds that the signatures do not correspond, the ballot is rejected. Id. §
16.1-15-19.
Absentee ballots received after the polls close on election day are forwarded directly to the
county canvassing board. Id. § 16.1-07-09. The canvassing board is then tasked with determining
whether “the signatures on the absentee ballot application and the voter’s affidavit were signed by
the same person before allowing the ballot to be tallied.” Id. The voter is never notified in the
event a ballot is rejected for a mismatched signature. See Doc. No. 11-12.
3

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 4 of 22
The North Dakota Secretary of State prepares a manual on election procedures for election officials. Doc. No. 11-5. That manual states, “If . . . the signatures on the application and affidavit do not match . . . the vote may not be allowed.” Id. at 14. The sole guidance the manual provides on signature verification is that officials should “[c]ompare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.” Id. Election officials receive no training in handwriting comparison. Doc. No. 1, ¶ 41. County canvassing boards do not receive guidance on signature matching beyond the basic statutory requirements. See id.
A declaration from Dr. Linton A. Mohammed, a forensic document examiner, opines that without proper training, North Dakota election officials “are likely to make erroneous signaturecomparison determinations” resulting “in a significant number of erroneous rejections.” Doc. No. 11-16, pp. 7, 9. Dr. Mohammed explains that persons untrained in handwriting comparison techniques are more likely to incorrectly identify signatures originating from the same person as noncorresponding than they are to incorrectly identify signatures originating from different people as corresponding. Id. at 8. He also notes the risk of error is exacerbated where only two signatures are used for comparison. Id. at 9.
As another compounding factor, the processes canvassing boards use for verifying signatures vary from county to county. See Doc. No. 11-6. Some counties simply compare applications to affidavits and conduct no further inquiry. See Doc. No. 11-7. Others consider extrinsic factors, such as a voter’s situation and history. See Doc. No. 11-11. Using this approach, if a canvassing board member happens to know a particular voter’s circumstances, the canvassing board may accept the ballot. Id.
4

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 5 of 22
According to a survey conducted by the United States Election Assistance Commission, North Dakota county canvassing boards rejected 334 absentee ballots for mismatched signatures in the 2018 general election. Doc. No. 11-4, p. 3. That figure represented more than 60% of all absentee ballots rejected statewide. See id. Rejection rates for signature discrepancies ranged from 0% in 27 counties to as high as 1.14% in Morton County and 1.74% in Nelson County. Id. at 2-3.
Also pertinent for the impending primary election is the impact of the COVID-19 pandemic. Ordinarily, counties must offer at least one in-person polling place for every election. N.D. Cent. Code § 16.1-11.1-01(1). Governor Doug Burgum temporarily suspended this requirement in a March 26, 2020 order. Doc. No. 11-21. Since then, each of North Dakota’s 53 counties has chosen to conduct this year’s primary election entirely by mail. Doc. No. 11-22.
The absentee voting process for the primary election commenced in late April. See id. In addition to voters requesting absentee ballots as usual, the Secretary of State’s office mailed ballot applications to all voters listed in the state’s central voter file. Doc. No. 21-1, p. 2. The central voter file complies data on those who have voted in past North Dakota elections but does not encompass all individuals who are eligible to vote. Id. As of May 21, 2020, county officials had distributed 161,256 ballots, and 39,734 voters had already submitted their ballots. Id. at 11.
B. Introduction of Parties The Plaintiffs are one individual and two nonprofit, nonpartisan organizations. Plaintiff Maria Fallon Romo is a regular voter and a resident of Grand Forks, North Dakota. Doc. No. 1117, p. 2. She suffers from multiple sclerosis, which diminishes her ability to write neatly or consistently. Id. In the 2018 general election, Romo attempted to cast an absentee ballot. Id. She recently learned that election officials erroneously rejected her ballot after determining that the
5

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 6 of 22
signature on her application did not correspond with the signature on her voter affidavit. Id. at 3. Because of the COVID-19 pandemic, Romo will be required to vote by mail for the upcoming primary. Id.
Plaintiff Self Advocacy Solutions N.D. (“SAS”) is a Grand Forks, North Dakota, nonprofit organization “dedicated to protecting the civil and human rights of people with disabilities.” Doc. No. 11-19, p. 2. As part of this mission, SAS encourages people with disabilities to engage in the political process and exercise their right to vote. Id. at 3. Allen Lee Marx, Jr., President of SAS, states that the organization’s members often face difficulties when attempting to vote in person, and many prefer the more convenient alternative of casting absentee ballots. Id. at 4. He points out that SAS members’ disabilities can result in signature variation over time. Id. For that reason, Marx believes SAS members “are at particular risk of being deprived of their right to vote because of signatures that election [officials] deem to not ‘correspond.’” Id.
Plaintiff League of Women Voters of North Dakota (“LWVND”) is a Fargo, North Dakota, nonprofit organization “dedicated to encouraging informed and active participation in government, working to increase understanding of major public policy issues, and influencing public policy through education and advocacy.” Doc. No. 11-20, p. 3. This work includes providing education to LWVND members and the public on voting via absentee ballot. Id. The organization’s President, Jan Renae Lynch, notes that many LWVND members are elderly or have physical limitations that make writing difficult. Id. She believes those “members are at increased risk of being disenfranchised by a signature issue.” Id.
The Defendants are sued in their official capacities. Defendant Alvin Jaeger (the “Secretary”) is the North Dakota Secretary of State. The Century Code prescribes the Secretary’s duties for elections in chapter 16.1-01. Those duties include serving as the supervisor of elections,
6

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 7 of 22
implementing uniform training programs for election officials, and publishing a manual on election procedures. N.D. Cent. Code § 16.1-01-01. Upon his request or the request of any election official, the Secretary holds “the power to examine . . . any election ballot or other material . . . for the purpose of determining sufficient compliance with the law.” Id. § 16.1-01-01(1). Consistent with state election law, the Secretary is imbued with discretionary rulemaking authority to carry out his duties and to “assure uniform voting opportunities throughout the state.” Id. § 16.1-01-01(3).
Defendant Debbie Nelson (“Auditor Nelson”) is the County Auditor of Grand Forks County. The Century Code designates each county auditor as the “county administrator of elections.” Id. § 16.1-01-01(4). County auditors are “responsible to the secretary of state for the proper administration within the auditor’s county of state laws, rules, and regulations concerning election procedures.” Id. Prior to each election, county auditors must conduct training sessions on election laws and procedures for election board members. Id. § 16.1-01-01(5). As mentioned, county auditors serve as one of five members on the county canvassing board. Id. § 16.1-15-15.
C. Procedural History The Plaintiffs filed their complaint on May 1, 2020. Doc. No. 1. Invoking 42 U.S.C. § 1983, the complaint pleads a deprivation of procedural due process and the imposition of an undue burden on the right to vote, in contravention of the First and Fourteenth Amendments to the United States Constitution. Id. at 13-17. The complaint seeks three discrete forms of relief. First, the Plaintiffs request declaratory judgment finding the two challenged statutes unconstitutional, insofar as they fail to provide notice or an opportunity to cure a signature discrepancy before a ballot is rejected. Second, they ask for the Court to enjoin the Secretary, Auditor Nelson, and all election officials acting in concert with them from enforcing the signature-matching requirement absent adequate notice and cure procedures for the June 9, 2020 primary and future elections. And
7

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 8 of 22
third, they request the Court to affirmatively order the Secretary to instruct county election officials to afford voters notice and an opportunity to confirm the validity of their ballots prior to rejection based on a signature mismatch. Id. at 17-18. The Defendants filed an answer to the complaint on June 1, 2020. Doc. No. 26. The Plaintiffs filed their motion for preliminary injunction on May 11, 2020, and the parties submitted timely response and reply briefs thereafter. See Doc. No. 11. II. STANDING
Federal courts must possess jurisdiction before reaching the merits of a case. Va. House of Delegates v. Bethune-Hill, 587 U.S. ___, 139 S. Ct. 1945, 1950 (2019). “Article III limits federal jurisdiction to ‘Cases’ and ‘Controversies,’ and there is no case or controversy unless the party initiating the action has standing to sue.” Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 831 F.3d 961, 966 (8th Cir. 2016) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)).
Standing requires (1) an injury in fact, (2) causation, and (3) redressability. Hughes v. City of Cedar Rapids, 840 F.3d 987, 992 (8th Cir. 2016). An injury in fact is “the actual or imminent invasion of a concrete and particularized legal interest.” Kuehl v. Sellner, 887 F.3d 845, 850 (8th Cir. 2018) (citations omitted). Where plaintiffs seek declaratory and injunctive relief, “they must show they are experiencing an ongoing injury or an immediate threat of injury.” Webb ex rel. K.S. v. Smith, 936 F.3d 808, 815 (8th Cir. 2019) (citing Frost v. Sioux City, 920 F.3d 1158, 1161 (8th Cir. 2019)). Causation is satisfied when the injury is “fairly traceable to the action of the defendant, and not the result of the independent action of some third party not before the court.” Balogh v. Lombardi, 816 F.3d 536, 543 (8th Cir. 2016) (cleaned up). Redressability is “a likelihood that the injury will be redressed by a favorable decision.” Kuehl, 887 F.3d at 850 (citations omitted).
8

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 9 of 22
The party invoking federal jurisdiction bears the burden to establish standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Courts “assume that on the merits the plaintiffs would be successful in their claims” when undertaking a standing analysis. Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963, 968 (8th Cir. 2016) (quoting Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008)). The Plaintiffs “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (citations omitted). At the pleadings stage, general factual allegations suffice to support standing. See Jones v. Jegley, 947 F.3d 1100, 1104 (8th Cir. 2020). In addition to considering affidavits and other evidence in the record, the Court assumes the factual allegations in the complaint are true and construes them in the light most favorable to the Plaintiffs. See id. at 1103-04.
The Court initially addresses Romo’s standing to sue. The Defendants do not contest that she meets the injury-in-fact element. And for good reason. The Plaintiffs have sufficiently pled that she is experiencing the immediate threat of injury. As alleged, Romo’s multiple sclerosis, while not rendering her unable to sign her name, diminishes her ability to write neatly or consistently. Considering election officials incorrectly rejected Romo’s ballot in the 2018 general election for a signature discrepancy—coupled with the fact that she will again have to vote by mail in the upcoming primary because of the COVID-19 pandemic—there is a realistic threat of an impending deprivation of her right to vote. Romo satisfies the first standing requirement.
The Defendants vigorously contest causation and redressability, however. They attempt to divert any fault for Romo’s threatened injury toward local election boards and county canvassing boards as the entities that make the ultimate determinations on whether a ballot is rejected for a signature discrepancy. This tactic is unavailing.
9

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 10 of 22
“When a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.” Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015) (cleaned up). In tandem, suits for declaratory and injunctive relief against state officials raise the specter of Eleventh Amendment state sovereign immunity. See Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017). Under the Ex parte Young exception to Eleventh Amendment immunity, a sued official must have “some connection with the enforcement of the act” to be a proper defendant. 209 U.S. 123, 157 (1908). “[A] state official’s requisite connection with the enforcement of a statute may arise out of ‘the general law’ or be ‘specially created by the act itself.’” Calzone, 866 F.3d at 870 (quoting Ex parte Young, 209 U.S. at 157). The Ex parte Young inquiry is analogous to the causation requirement for Article III standing. See id. at 869; Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006), abrogated on other grounds, Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015).
Causation at the pleading stage is a “relatively modest” burden and is not a mandate that a defendant’s conduct be “the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 169, 171 (1997). That means the causation requirement “does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Id. at 169. To that effect, “an injury may be indirect and still be sufficient to confer standing so long as that injury is fairly traceable to the defendant’s acts or omissions.” Belles v. Schweiker, 720 F.2d 509, 514 (8th Cir. 1983) (citation and internal quotation marks omitted).
In this instance, the named Defendants possess at least some authority to enforce the signature-matching requirement directly. The Secretary, for example, holds “the power to examine . . . any election ballot or other material . . . for the purpose of determining sufficient compliance
10

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 11 of 22
with the law.” N.D. Cent. Code § 16.1-01-01(1). Auditor Nelson sits as one of five members on the canvassing board for Grand Forks County.
Moreover, both officials play central roles in enforcing the challenged statutes through subordinates. The Secretary serves as the state’s supervisor of elections and is statutorily required to implement uniform training programs for election officials. This includes the preparation of an election procedures manual, which instructs election board members that voters’ ballots “may not be allowed” based on mismatched signatures. Doc. No. 11-5, p. 14. The manual no doubt has a “determinative or coercive effect” on the actions of election officials. Bennett, 520 U.S. at 169. In a similar vein, Auditor Nelson is the election supervisor at the county level “responsible to the secretary of state for the proper administration within the auditor’s county of state laws, rules, and regulations concerning election procedures.” N.D. Cent. Code § 16.1-01-01(4). She is tasked by statute with hiring and overseeing the election officials that make the initial determination on whether to reject a ballot based on a signature mismatch. Auditor Nelson is also required to conduct training sessions with all election officials in Grand Forks County to ensure compliance with election protocols. These facts illustrate that the Defendants possess the requisite connection with the challenged statutes’ enforcement, rendering the risk of injury to Romo fairly traceable to their conduct.
The Plaintiffs further emphasize that the threat of injury to Romo results from more than the rote enforcement of the signature-matching requirement. In particular, they decry the failure to adopt notice and cure procedures. This allegation places the ball squarely in the Secretary’s court. North Dakota law authorizes the Secretary to engage in rulemaking consistent with state election law to “assure uniform voting opportunities throughout the state.” Id. § 16.1-01-01(3). And persuasively, the Century Code already mandates the Secretary to “establish a uniform
11

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 12 of 22
procedure for county auditors to follow when notifying a military or overseas voter that the voter’s absentee ballot was rejected.” Id. § 16.1-07-17. Assuming the Plaintiffs would prevail on the merits of their claim, sufficient facts assign the Secretary responsibility to establish, and county auditors to implement, notice and cure procedures. The assertion that Romo’s threatened injury stems from the failure to adopt adequate procedures is therefore traceable to the Defendants. See Belles, 720 F.2d at 514 (finding plaintiff’s indirect injury traceable to defendant government agency based on allegation of failure to provide procedures for notice and opportunity to respond). Romo clears the “relatively modest” burden to establish causation at the pleadings stage. Bennett, 520 U.S. at 171.
Moving to redressability, an order enjoining the Defendants (as well as election officials acting in concert with them) from rejecting mail-in ballots based on signature discrepancies in the absence of adequate notice and cure procedures is likely to redress the threatened injury to Romo. The same is true for an affirmative order requiring the Secretary to instruct county auditors to implement such procedures for the upcoming primary election. Redressability is present.
In opposition, the Secretary leans heavily on a recent decision from the Eleventh Circuit Court of Appeals. In Jacobson v. Florida Secretary of State, 957 F.3d 1193 (11th Cir. 2020), the court held that the plaintiffs lacked standing in a suit challenging a ballot-ordering statute. The appeal occurred following a bench trial. Id. at 1198. The statute at issue required the names of candidates from the political party that won Florida’s most recent gubernatorial election to appear first on the general election ballot, with candidates from the second-place party in the most recent gubernatorial election appearing second. Florida law tasked the state’s 67 county supervisors with determining ballot ordering. The Eleventh Circuit determined that the individual county supervisors were the proper defendants, not the Florida Secretary of State. Id. at 1209-10. The
12

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 13 of 22
court’s reasoning in denying standing rested on two primary grounds: (1) Florida’s county supervisors were independent elected officials not accountable to the Secretary of State, and (2) a directive from the Secretary of State instructing the supervisors to alter the ballot ordering would not have redressed the plaintiffs’ injuries because the supervisors were still bound to follow the letter of the statute. Id. at 1207-08.
Jacobson is distinguishable in several critical aspects. At the outset, the burden to establish standing increases successively with the burden of proof at each stage of litigation. Lujan, 504 U.S. at 561. Whereas the Jacobson plaintiffs had to prove standing commensurate with the burden of proof at trial, here the Plaintiffs need only support standing with general factual allegations—a significantly less exacting standard. Next, North Dakota’s county auditors lack the degree of independence granted to Florida’s county supervisors. County auditors are expressly “responsible to” the Secretary when carrying out election-related duties. N.D. Cent. Code § 16.1-01-01(4). This also alleviates the redressability problem in Jacobson. County auditors are subordinate to the Secretary in election matters, and nothing in North Dakota law overtly prohibits the implementation of notice and cure procedures for mismatched signatures in the mail-in ballot verification process. The Court concludes Jacobson is inapplicable.
In sum, Romo meets the necessary standing elements at this early juncture. This obviates the need to consider SAS or LWVND’s standing because “where one plaintiff establishes standing to sue, the standing of other plaintiffs is immaterial to jurisdiction.” Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006) (cleaned up). The Court will therefore proceed to the merits.1
1 Auditor Nelson raised a laches defense in her brief. At oral argument, her counsel indicated that the laches theory is intended to challenge the Plaintiffs’ diligence in pursuing injunctive relief and not as a bar to the action outright. As a result, the Court will address the laches argument under the balance of harms factor for the preliminary injunction analysis.
13

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 14 of 22
III. PRELIMINARY INJUNCTION Rule 65(a) of the Federal Rules of Civil Procedure authorizes district courts to grant
preliminary injunctions. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). When considering a motion for preliminary injunction, the Court weighs the four factors set forth in Dataphase Systems, Inc., v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (en banc). The Dataphase factors include: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Id. at 114. While no one factor is dispositive, the likelihood of success on the merits is most important. Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011). The balance of harms and public interest factors merge when the government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). The burden to demonstrate the necessity of a preliminary injunction rests with the movant. General Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 316 (8th Cir. 2009).
A. Likelihood of Success on the Merits The Plaintiffs proffer two distinct constitutional violations. First, they assert the signaturematching requirement, without adequate notice and cure procedures, contravenes their Fourteenth Amendment right to procedural due process. Second, they contend the same regime imposes an undue burden on their right to vote as protected by the First and Fourteenth Amendments. The Court addresses only the asserted procedural due process violation because the Plaintiffs are likely to succeed on that claim, affording complete relief as a result. See Saucedo v. Gardner, 335 F. Supp. 3d 202, 222 (D.N.H. 2018).
14

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 15 of 22
As an initial matter, the Secretary asserts that the Plaintiffs cannot mount a successful facial challenge.2 “A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.” Bucklew v. Precythe, 587 U.S. ___, 139 S. Ct. 1112, 1127 (2019). Relying on Crawford v. Marion County Election Board, 553 U.S. 181 (2008), the Secretary contends the signature-matching requirement in not amenable to facial attack because it burdens a limited number of North Dakota voters. While certainly applicable to constitutional claims predicated on an undue burden on the right to vote, Crawford is not a barrier to procedural due process claims. See Saucedo, 335 F. Supp. 3d at 222 (enjoining signature-matching statute for procedural due process violation without discussing Crawford); Martin v. Kemp, 341 F. Supp. 3d 1326, 1341 (N.D. Ga. 2018) (same). Further, when confronting a facial challenge, “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct. 2443, 2451 (2015). Here, the statutes are restrictions only on voters whom election officials identify as providing noncorresponding signatures. The Plaintiffs lodge a proper facial challenge.3
Turning to the merits, the Fourteenth Amendment familiarly forbids a state actor to “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Amendment includes both procedural and substantive components. Troxel v. Granville, 530 U.S. 57, 65 (2000). To prevail on a procedural due process claim, a plaintiff must
2 Notwithstanding the Plaintiffs’ argument to the contrary, the Court construes their claims as facial challenges. The complaint expressly seeks declaratory judgment finding North Dakota Century Code §§ 16.1-07-09 and 16.1-07-12 unconstitutional in the absence of notice and cure procedures, and the requested relief does not focus on the application of the statutes to individual Plaintiffs. 3 The Court does not address the Secretary’s arguments regarding a perceived as-applied challenge from Romo, because neither the complaint nor the Plaintiffs’ preliminary injunction motion requests individualized relief.
15

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 16 of 22
establish (1) a constitutionally protected interest, and (2) a deprivation of that interest without due process of law. See Zinermon v. Burch, 494 U.S. 113, 125 (1990).
Beyond debate, the right to vote is a constitutionally protected liberty interest. See Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation omitted) (declaring that “voting is of the most fundamental significance under our constitutional structure”). Although “the right to apply for and vote via absentee ballot is not constitutionally on par with the fundamental right to vote,” a state that creates a system for absentee voting “must administer it in accordance with the Constitution.” Martin, 341 F. Supp. 3d at 1338 (quoting Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006)). The importance of this principle is even more evident where, as here, an absentee ballot is the sole available voting method. Consequently, the Plaintiffs possess a constitutionally protected interest.
The question now becomes whether the challenged statutes facially effect a deprivation of the right to vote without due process. “The essential requirements of due process . . . are notice and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Because there is no possibility of meaningful postdeprivation process when a voter’s ballot is rejected (there is no way to vote after an election is over, after all), sufficient predeprivation process is the constitutional imperative. See Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994). On this front, North Dakota’s signature-matching requirement is wholly deficient. Voters are simply never notified or afforded any opportunity to respond if election officials reject their ballots for a signature discrepancy. This all but ends the inquiry.
Nonetheless, the Secretary contends that two predeprivation safeguards supply sufficient process—the ability to mark an “X” on the ballot application and voter affidavit in lieu of a signature, and the two-tier review system for signature mismatches. The contention that adequate
16

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 17 of 22
process is afforded necessitates consideration of the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). Under that test, courts weigh three factors: “(1) the private interest that will be affected by the state action; (2) the risk of erroneous deprivation of that interest through the procedures used, and the value of any additional or substitute procedures; and (3) the state’s interest.” Porter v. Knickrehm, 457 F.3d 794, 798 (8th Cir. 2006) (citation omitted).
The Court finds these factors tip decisively in the Plaintiffs’ favor. The private interest at stake is the fundamental right to vote, so this first factor is “entitled to substantial weight.” Martin, 341 F. Supp. 3d at 1338. North Dakota’s decision to allow voting via absentee ballot requires the state to administer the system constitutionally. See id.
For the second factor, the risk of error is significant when the only mechanism available to prospectively stave off deprivation is the ability to mark an “X” on the ballot application and voter affidavit. The Secretary asserts that voters should know the law requires signatures to correspond, and if they are aware of the possibility that their signatures may not match, then they should utilize the alternative accommodation. This argument is devoid of merit. Neither the application nor the affidavit inform voters that signatures must correspond for their ballot to count. See Doc. No. 213. The Secretary cannot seriously expect voters to comb through the Century Code in search of a requirement they have no reason to believe exists. Equally important, the alternative accommodation is intended for voters “unable” to sign their name. N.D. Cent. Code §§ 16.1-0706(2), 16.1-07-08(2). So following the Secretary’s logic, voters are charged with not only knowing whether they are able to produce consistent signatures, but also with knowing that such inconsistency renders them entirely “unable” to sign their name. In essence, the Secretary expects voters to read the minds of election officials before deciding to affix a signature on an absentee ballot. That cannot be the process due.
17

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 18 of 22
Furthermore, Dr. Mohammed’s declaration convincingly demonstrates that the two-tier review system by the election boards and canvassing boards is similarly inadequate to provide due process. He opines that without proper training in handwriting comparison, North Dakota election officials are more likely accept invalid absentee ballots than to erroneously reject valid absentee ballots. Dr. Mohammed also sets out a host of reasons that the same voter’s signature may vary over time and identifies a particularly high risk of error where only two samples are used for comparison. The result is the outright disenfranchisement of otherwise qualified electors. The value of additional procedures to safeguard against erroneous ballot rejections therefore becomes apparent. Attempting to contact voters and allowing an opportunity to verify ballots ensures compliance with the bare-minimum requirements of procedural due process. The second factor favors the Plaintiffs.
Addressing the third factor, the state’s interest does not outweigh the value of the additional notice and cure procedures that protect the fundamental right to vote. To be sure, the state holds important interests in preventing voter fraud and upholding the integrity of elections. See Crawford, 554 U.S. at 191-92. But allowing voters to verify the validity of their ballots demonstrably advances—rather than hinders—these goals. As the Secretary notes, the purpose of the signature-matching requirement is to ensure the same person that signed the ballot application is the person casting the ballot. Notice and cure procedures do exactly that by confirming the validity of legitimate voters’ ballots, preventing voter fraud and increasing confidence in our electoral system in the process.
And any fiscal or administrative burden is miniscule when compared to the palpable threat of disenfranchisement. In the 2018 general election, half of North Dakota’s 53 counties did not reject a single ballot for a signature discrepancy, meaning there would often be no increased burden
18

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 19 of 22
on county election officials. Doc. No. 11-4, pp. 2-3. The highest number of rejections for signature mismatches came from Burleigh County (the second-most populous county in the state) at 51, while Grand Forks County (Auditor Nelson’s county) rejected a mere 21. Id. Attempting to contact this limited number of voters in the time between the day before election day, when the signature comparison process begins, and six days after election day, when the county canvassing boards convenes, is far from an insurmountable endeavor. Additionally, county auditors are already familiar with contacting voters that submit absentee ballots with missing information, so corresponding with voters regarding ballot errors is not uncharted territory. N.D. Cent. Code § 16.1-07-10. The state’s interest is insufficient to overshadow the private interests at stake and the benefit of constitutionally necessary procedures.
The signature-matching requirement found in North Dakota Century Code §§ 16.1-07-09 and 16.1-07-12 is likely facially unconstitutional, insofar as the statutes fail—under all circumstances—to provide affected voters with notice and an opportunity to cure a signature discrepancy before a ballot is rejected. Accordingly, the Court finds the Plaintiffs have established a substantial likelihood of success on the merits of their procedural due process claim.
B. Remaining Preliminary Injunction Factors The Plaintiffs successfully carry the burden on the three remaining preliminary injunction factors as well. The second factor, irreparable harm, is clearly met. There is also no possibility of monetary relief. And if a ballot is wrongly rejected for a signature mismatch, the voter is irreversibly disenfranchised for that election. See Fla. Democratic Party v. Detzner, Case No. 4:16cv607-MW/CAS, 2016 WL 6090943, at *8 (N.D. Fla. Oct. 16, 2016) (citation omitted) (noting in the election context, “this isn’t golf: there are no mulligans”).
19

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 20 of 22
For the combined balance of harms and public interest factors, the Defendants begin by pointing out that “[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers) (cleaned up). Though true, the Court finds that the harm to the state is outweighed by the harm inherent in the deprivation of the Plaintiffs’ fundamental right to vote. See Martin, 341 F. Supp. 3d at 1340. Indeed, an injunction will not prevent the state from enforcing the signature-matching requirement, but rather will require enforcement to comply with the Constitution.
The Defendants offer two other theories in opposition to a preliminary injunction on public harm and interest grounds that warrant discussion. They contend that first, the Plaintiffs waited too long to file both this action and the present motion, and second, that the Court should not enjoin the enforcement of the challenged statutes this close to the June 9, 2020 primary election. Taking each argument in turn, the Court is unpersuaded.
“[A] party requesting a preliminary injunction must generally show reasonable diligence.” Benisek v. Lamone, 585 U.S. ___, 138 S. Ct. 1942, 1944 (2018). The Court acknowledges that the Plaintiffs’ decision to file this case and the accompanying preliminary injunction motion when they did increases the harm to the Defendants to some degree. The condensed timeline for formulating and implementing relatively new procedures for the impending primary election is less than ideal. Still, the Court does not find that a lack of diligence, if any exists, bars injunctive relief here. Auditor Nelson highlights a March 2019 email from the Barnes County Auditor to the Plaintiffs’ counsel that demonstrated an awareness of the omission of notice and cure procedures from the signature-matching requirement. See Doc. No. 11-12. While that email may show knowledge of the potential claim itself, it is not indicative of a failure to timely pursue injunctive
20

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 21 of 22
relief. At oral argument, the Plaintiffs’ counsel indicated that the decision to seek a preliminary injunction arose when the COVID-19 pandemic forced the June primary to transform into an exclusively vote-by-mail election, inflating the importance of the signature-matching requirement. Governor Burgum issued the order suspending the in-person polling place requirement on March 26, 2020, and the Plaintiffs’ filed their complaint 36 days later on May 1, 2020. See Doc. Nos. 1, 11-21. This motion followed ten days later. See Doc. No. 11. In these circumstances, the Court cannot say the Plaintiffs lacked diligence in pursuing injunctive relief.
Likewise, the Court is not convinced that the Plaintiffs’ requested injunctive relief runs afoul of the admonition “that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. ___, 140 S. Ct. 1205, 1207 (2020). That admonition derives from Purcell v. Gonzalez, 549 U.S. 1 (2006), a case addressing Arizona’s voter identification laws. There, the Supreme Court held that federal courts must weigh “considerations specific to election cases” when deciding whether to enjoin an election law in close temporal proximity to an election. Id. at 4. Immediately following that holding, the opinion explained, “Court orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. The concerns that troubled the Supreme Court in Purcell are not present in this instance. A voter filling out an absentee ballot will be entirely unaffected by an order enjoining the signature-matching requirement—a requirement that applies only after a ballot is submitted. In other words, there is no potential for voter confusion or dissuasion from voting because the process for submitting an absentee ballot will remain unchanged. To the extent the impact on election officials alone is relevant under Purcell, the Court has previously weighed that
21

Case 3:20-cv-00071-PDW-ARS Document 29 Filed 06/03/20 Page 22 of 22
impact and found the countervailing threat of the deprivation of the fundamental right to vote more significant.
The Plaintiffs have established that the balance of harms and public interest factors favor a preliminary injunction. As a final note, the Court deems statewide relief the appropriate course of action because the two challenged statutes are likely facially unconstitutional in the absence of adequate notice and cure procedures. Cf. Brakebill v. Jaeger, 932 F.3d 671, 678 (8th Cir. 2018). IV. CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority. The Plaintiffs have met the burden to demonstrate the necessity of a preliminary injunction. For the reasons above, the Plaintiffs’ motion for preliminary injunction (Doc. No. 11) is GRANTED. The Court ORDERS as follows:
(1) The Secretary, Auditor Nelson, and all North Dakota election officials acting in concert with them are hereby enjoined from rejecting any mail-in ballot on the basis of a signature mismatch absent adequate notice and cure procedures for the June 9, 2020 primary election. In the event this matter has not been finally resolved on the merits prior to the November 3, 2020 general election, the Plaintiffs may apply for additional injunctive relief. (2) The parties shall confer and submit to the Court no later than 12:00 P.M. on Friday, June 5, 2020 proposed procedures to be implemented by county auditors that afford affected voters notice when a ballot is identified as containing a signature mismatch, as well as an opportunity for affected voters to verify their ballots. IT IS SO ORDERED. Dated this 3rd day of June, 2020.
/s/ Peter D. Welte Peter D. Welte, Chief Judge United States District Court
22

 
 Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,
v.
ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Case No. ____________________

Defendants.

Plaintiffs, by and through their undersigned attorneys, allege as follows: INTRODUCTION
1. As the COVID-19 crisis stretches into its second month, it is becoming increasingly clear that this pandemic represents not only a threat to our health, but to the health of our democracy. Recognizing the danger of in-person voting, on March 26, 2020, Governor Burgum authorized upcoming elections be held entirely by mail, suspending the requirement that North Dakota counties offer at least one in-person polling location. To date, every county in North Dakota has embraced this safety measure and plans to conduct their June 9, 2020 elections exclusively by mail.
2. As more North Dakotans rely on absentee ballots to exercise their fundamental right to vote, however, they face a growing risk of being disenfranchised by North Dakota’s error-prone signature matching verification process. Under this system, election officials must compare the

1

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 2 of 18
signature on a voter’s absentee ballot with the one on the voter’s absentee ballot application to determine whether the signatures “correspond.” If the official—who is provided no training in signature verification or document examination—believes that the signatures do not match, the ballot is rejected and the vote is not counted. The voter is never informed their ballot is impaired or given an opportunity to resolve the issue and have their vote counted.
3. The State rejects hundreds of ballots cast by eligible North Dakota voters every election because of this unreliable ballot verification process, disproportionately disenfranchising voters prone to signature variability, specifically people with disabilities, non-native English speakers, and both young and elderly voters.
4. North Dakota’s failure to inform these voters that their ballots are impaired or provide them any opportunity to cure the impairment deprives them of their fundamental right to vote in violation of the First and Fourteenth Amendments to the United States Constitution and of their right to due process of law in violation of the Fourteenth Amendment to the United States Constitution. Plaintiffs bring this action to prevent North Dakota from further disenfranchising eligible voters for benign signature issues before the upcoming June 9, 2020 state elections and future elections.
JURISDICTION AND VENUE 5. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. 6. This Court has personal jurisdiction over Defendants, who reside in this district, in their official capacities. 7. Venue lies in this district pursuant to 28 U.S.C. § 1391(b) and in the Eastern Division pursuant to Local Rule 1.1 because Plaintiff Romo resides in Grand Forks County,
2

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 3 of 18
Plaintiff Self Advocacy Solutions N.D. is based in Grand Forks County, and Plaintiff League of Women Voters of North Dakota is based in Cass County, all in this Division.
8. This Court has jurisdiction to grant both declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES Plaintiffs 9. Plaintiff Maria Fallon Romo is a Grand Forks, North Dakota resident and U.S. citizen. She has lived in Grand Forks for approximately thirty years. She has been an active voter for many years and votes regularly. Ms. Romo is a special education paraeducator. 10. Although Ms. Romo has typically voted in person, in 2018, Ms. Romo chose to vote by absentee ballot for the first time believing it would be easier and more convenient for her. She followed the instructions to submit the absentee ballot application, received her absentee ballot in the mail, and submitted her absentee ballot on October 16, 2018, well in advance of the deadline. 11. Since then, she has assumed that her vote was counted. It was not. Instead, because local election officials determined that her signatures did not “correspond,” her ballot was rejected without providing her any notice or opportunity to confirm her signature. 12. Ms. Romo was diagnosed with multiple sclerosis (“MS”) in 1997. As a result of her MS, it is difficult for her to write neatly or consistently. Difficulty with writing and changes in handwriting are common side effects of MS. 13. Ms. Romo did not know that a signature on her ballot application that did not “correspond” with the one provided on her ballot could invalidate her ballot, particularly without any notice to her beforehand. She only recently discovered that her 2018 ballot was not counted. She has reviewed her absentee ballot application and voter affidavit, and has confirmed that the
3

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 4 of 18
ballot reviewed by the Grand Forks election officials was her own. If she had received any notice of the alleged mismatched signature on her voter affidavit, she would have taken all steps necessary to confirm her signature and ensure her ballot was counted.
14. Ms. Romo wishes to vote in the June 9 election in North Dakota. In order to do so, she will have to vote by mail because Grand Forks, in light of the ongoing pandemic, has shifted to an exclusively vote-by-mail election. On June 9, in addition to the statewide primary contests, her city of Grand Forks is having an election for mayor. She also wishes to vote in future elections, and would likely do so by absentee ballot if she had some assurance her ballot would not be rejected without any notice or opportunity to cure.
15. Ms. Romo now fears that she will be disenfranchised yet again if she votes by mail and an election official determines that her signatures do not “correspond.”
16. Plaintiff Self Advocacy Solutions N.D. (“SAS”) is a nonprofit organization based in Grand Forks, North Dakota with members living across the state. SAS’s mission is to promote human and civil rights for people with disabilities. SAS empowers people with disabilities to advocate for their rights to ensure equal opportunities, access, and inclusion as full members of society. SAS encourages its members to exercise their right to vote in North Dakota elections, and has advocated for its members to vote by absentee ballot.
17. Many SAS members have disabilities that affect their ability to sign their name, and many SAS members’ signatures are not visually consistent across time as a result of their disability. As a result, SAS members are at particular risk of having their absentee ballot signatures deemed to not “correspond” with their absentee ballot applications.
18. Plaintiff League of Women Voters of North Dakota (“LWVND”) is a nonpartisan political organization based in Fargo, North Dakota with members living throughout the state.
4

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 5 of 18
LWVND’s mission is to encourage informed and active participation in government, work to increase understanding of major public policy issues, and influence public policy through education and advocacy. LWVND is an affiliate of the League of Women Voters of the United States which has over 700 state and local Leagues across all 50 states, the District of Columbia, Puerto Rico, Virgin Islands, and Hong Kong.
19. LWVND conducts its activities through two local chapters, one serving the greater Fargo region and another serving Bismarck-Mandan. LWVND encourages its members and the public to exercise their right to vote in North Dakota elections. LWVND also educates its members and the public about how to vote by absentee ballot, at public meetings, online, and during programming on community access channels.
20. LWVND has members whose signatures may not be visually consistent over time, including elderly voters and voters with disabilities, who are at risk of having their absentee ballot signatures deemed not to “correspond” with their absentee ballot application.
Defendants 21. Defendant Alvin Jaeger is the North Dakota Secretary of State and is sued in his official capacity. The North Dakota Secretary of State is the State’s supervisor of elections. The Office of the North Dakota Secretary of State is responsible for “supervis[ing] the conduct of elections,” “implement[ing] uniform training programs for all election officials,” “publish[ing] . . . a manual on election procedures,” and “assur[ing] uniform voting opportunities throughout the state.” N.D.C.C. §§ 16.1-01-01(1), (2)(a), (2)(c), (3). 22. Defendant Debbie Nelson is the County Auditor of Grand Forks County, North Dakota, and is sued in her official capacity. The County Auditor is the “county administrator of elections” and “is responsible to the secretary of state for the proper administration within the
5

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 6 of 18
auditor’s county of state laws, rules, and regulations concerning election procedures.” Id. § 16.101-01(4). Before each primary and general election, the County Auditor must conduct “training sessions on election laws and election procedures for election officials in the county,” including all election board members and poll clerks. Id. § 16.1-05-03(2). The County Auditor must also sit on the county canvassing board, which makes the final determination on ballots rejected due to a signature mismatch. Id. § 16.1-15-15.
FACTS Absentee and Mail Ballots are Crucial to Voter Access in North Dakota 23. The option to vote an absentee ballot has become a crucial means by which North Dakotans cast their ballots. All eligible voters in North Dakota may vote by absentee ballot. Id. § 16.1-07-01. In 2018, nearly thirty percent of all North Dakota voters cast their ballots via absentee ballot. Likewise, in 2016 and 2014, absentee ballots accounted for approximately onefourth of ballots cast. 24. North Dakota has authorized counties to conduct elections by mail ballot so long as counties maintain one polling place open for in person voting on Election Day. Id. §16.1-11.101. In such elections, the county auditor sends an application for a mail ballot to each voter listed in the Central Voter File. Id. § 16.1-11.1-02. Mail ballot elections largely follow the same rules and procedures as the ordinary absentee ballot process, including the form of application and ballot and the manner of verification of ballots. Id. §§ 16.1-11.1-01, et seq. Many North Dakota counties take advantage of this provision to conduct mail ballot elections with very limited in-person voting options. 25. During the national emergency due to the COVID-19 pandemic, voters’ access to and confidence in mail ballots is crucial. In light of social distancing guidelines, in-person voting
6

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 7 of 18
at the same levels as ordinary elections will not be safe in upcoming elections, particularly for those most vulnerable to the virus.
26. On March 26, 2020, in response to the COVID-19 crisis, Governor Burgum authorized counties to conduct upcoming elections solely by mail by suspending the ordinary requirement that counties conducting mail ballot elections maintain at least one in-person polling location.1 And to further encourage voting by mail, he ordered the Secretary of State to send mail ballot application forms, instructions, and a return envelope to all individuals listed in the state’s Central Voter File. In his executive order, Governor Burgum also noted that 33 of North Dakota’s 53 county commissions had authorized mail ballot elections, and strongly encouraged the remaining counties to follow suit.
27. As of April 23, all counties have authorized mail ballot elections for June 9.2 28. Grand Forks County, where Plaintiff Romo resides, will only offer absentee voting for the June 2020 primary, and will have no in-person voting option available.3 29. The Governor’s executive order will remain in place “for the duration of the declared emergency.” Even after the end of the “declared emergency,” social distancing guidelines and precautions for those most vulnerable will remain of the utmost importance. 30. As such, elections in 2020 will see a substantial increase in vote by mail in North Dakota.
1 The order requires counties to maintain at least one assistive ballot marking device in the county courthouse during normal hours of operation. Exec. Order 2020-13 (Mar. 26, 2020), https://www.governor.nd.gov/sites/www/files/documents/executiveorders/Executive%20Order%202020-13%20Elections.pdf. 2 North Dakota Health, North Dakotans to Receive Ballots by Mail for June Election (Apr. 23, 2020), https://www.health.nd.gov/news/north-dakotans-receive-ballots-mail-june-election. 3 Grand Forks County Auditor, June 9, 2020 Primary Election, http://gfcounty.nd.gov/sites/default/files/pdf/June%209%202020%20Primary%20Election.pdf (last visited Apr. 24, 2020).
7

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 8 of 18
Absentee Voting Process in North Dakota 31. At any time in an election year, any qualified elector may apply—in person or via facsimile or electronic mail—for an absentee ballot. N.D.C.C. § 16.1-07-05(1). The applicant can choose to apply for all statewide elections in the calendar year or only the next proximate election. Id. 32. There is no deadline to apply for an absentee ballot, but it must be submitted “in a timely manner so as to allow the applicant to receive, complete, and mail the absentee ballot before the day of the election.” Id. § 16.1-07-05(3). 33. The absentee ballot application collects, inter alia, the following information: the applicant’s name, current residential address, mailing address, telephone number (if applicable), date of birth, and identification number from one of the applicant’s valid forms of identification. Id. § 16.1-07-06. Except where the applicant is unable to do so,4 the application must be signed by the applicant. Id. 34. Upon receipt of a valid and complete absentee ballot application, the appropriate election official—ordinarily the county auditor—must send or personally deliver the voter an absentee ballot along with a return envelope, secrecy envelope, and set of instructions. Id. § 16.107-07. 35. The return envelope for an absentee ballot includes a voter affidavit that requires the voter’s precinct, name, residential address, and voter’s signature. Id. 36. Absentee ballots must be postmarked by the day before Election Day and received before the county canvassing board meets on the sixth day after Election Day. Id. §§ 16.1-07-09,
4 In this case, the voter can place a mark on the application and a disinterested individual must sign as a witness to the application. Id. § 16.1-07-06(2).
8

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 9 of 18
16.1-15-17. 37. For absentee ballots received by the close of polls on Election Day, the election
board members and poll clerks of the relevant precinct, or any designated absentee ballot precinct, must “compare the signature on the application for an absent voter’s ballot with the signature on the voter’s affidavit . . . to ensure the signatures correspond.” Id. § 16.1-07-12. The statute provides no instruction or guidance for how to determine if the signatures “correspond.”
38. If the signatures do not “correspond,” “the vote may not be allowed” and the election inspector or election judge is instructed to mark the ballot as rejected and forward to the county canvassing board for a final determination. Id. §§ 16.1-07-12, 16.1-15-19. If the canvassing board agrees that the signatures do not “correspond,” the ballot is rejected. As a practical matter, this additional “check” by the canvassing board often provides no winnowing effect. For example, in Kidder County, seven ballots cast in the 2018 election were sent to the canvassing board for mismatched signatures; all of them were rejected by the canvassing board. In that election, the canvassing boards in at least three more counties—McKenzie, McLean, and Traill—also rejected every mismatched signature ballot sent to the canvassing board for a final determination.
39. For absentee ballots received after the close of polls on Election Day but received before the canvassing board meets, the ballots are forwarded to the canvassing board and if they are timely (i.e. postmarked by the day before Election Day), the canvassing board determines whether “the signatures on the absentee ballot application and the voter’s affidavit were signed by the same person before allowing the ballot to be tallied.” N.D.C.C. § 16.1-07-09. The statute provides no instruction or guidance for how to determine if the signatures “were signed by the same person.” Id. In 2018, the McLean County canvassing board declared 6 of the 52 late-arriving ballots—over ten percent—void due to alleged signature mismatch.
9

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 10 of 18
40. Defendant Jaeger’s Election Officials’ Manual provides no further guidance on the signature matching process. Indeed, the sum total of its guidance on this process is as follows: “Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.” Ex. A (2018 Election Officials’ Manual).
41. Upon information and belief, election officials receive no training on signature matching, and the process is entirely unregulated from county to county. For example, training materials developed by McKenzie County simply instruct election officials to “compare signatures.”
42. Some county canvassing boards consider the voter’s “situation and history” in assessing signatures, leaving the voter’s ballot at the discretion and personal knowledge of the county canvassing board officials. For example, according to 2018 minutes of the Dickey County canvassing board, the board rejected two ballots outright for mismatched signatures, but for at least one other ballot, considered the “situation and history” of the voter, including the fact that the voter was “a long-term care resident that had signed on the application in June.” Because the board happened to know and recall extrinsic facts about that particular voter, the ballot was accepted.
43. When an absentee ballot is flagged due to any perceived signature “mismatch,” the election board and/or the canvassing board do not use the available contact information to notify the voter of the problem. Therefore, the voter is given no opportunity to confirm their signature and ensure their ballot is counted. Indeed, the voter is never notified of the rejection, even after the final canvassing.
44. Nothing on the absentee ballot application warns voters that the signature on the application must match the signature on their voter affidavit. See Ex. B (absentee ballot
10

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 11 of 18
application). Likewise, nothing on the voter affidavit warns the voter that their signature must “correspond” with their signature on the absentee ballot application in order for their ballot to count. See Ex. C (voter affidavit). Likewise, nothing in the Secretary of State’s instructions for absentee voting alerts voters to this disenfranchising danger. Ex. D (Secretary of State Absentee Voting Instructions).
North Dakota’s Flawed Signature Matching Procedure Deprives a Significant Number of Voters of Their Right to Vote and Procedural Due Process
45. Reliance on signature verification is an inherently flawed means of determining whether an absentee or mail ballot was fraudulently or inappropriately cast. No two signatures are identical, even if provided by the same signer. Indeed, courts and experts agree that a person’s signature will vary from one signing (i.e., the absentee ballot application) to another (i.e., the voter affidavit) for any number of intentional or unintentional reasons, including factors like age, change in physical or mental condition, disability, stress, and means of signing. Saucedo v. Gardner, 335 F. Supp. 3d 202, 205 (D.N.H. 2018). Digital signatures or those provided with a stylus, for example, will often appear different from a “wet-ink” signature done by hand. But such to-beexpected variations are difficult to discern from fraudulent variations even for a trained and certified Forensic Document Examiner (“FDE”), especially where the reviewer has only two exemplars to compare.
46. This is particularly so for untrained and lay evaluators like election officials with no expertise in forensic handwriting analysis. Laypersons—as compared to FDEs—have a significantly higher rate of error in determining whether signatures are genuine. Lay elections officials are more likely than trained examiners to make an incorrect signature-comparison determination and are especially likely to incorrectly decide that the signatures do not “correspond.” According to one study, laypeople are more than 3 ½ times more likely than FDEs
11

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 12 of 18
to deem authentic signatures to be non-genuine. 47. As a result of this flawed process, year after year, election after election, hundreds
of North Dakotans are disenfranchised without their knowledge. As described above, Plaintiff Romo is one such voter. Kourtney Culver is another such voter. Ms. Culver was born and raised in North Dakota and started voting in the state as soon as she turned 18. Although she has since moved out of state for work, in 2018, Ms. Culver was a North Dakota resident who attended school out-of-state. As such, she sought to vote by mail. She submitted an absentee ballot application, received her ballot, and returned it on time. But her vote was not counted. Ms. Culver did not discover that her vote did not count until this year. She has reviewed her absentee ballot application and voter affidavit and confirmed her signature on both.
48. In 2018, according to the Election Administration and Voting Survey (“EAC Survey”) conducted by the Election Assistance Commission,5 334 North Dakota ballots were rejected for an alleged signature mismatch.6 This accounted for over 60 percent of all rejected absentee ballots. And rejection rates varied significantly across counties; while many reported no signature match issues and others rejected less than .25% of ballots for signature issues, Morton County rejected 1.14% of its absentee ballots for alleged signature mismatches, and Nelson County rejected 1.74% of its absentee ballots for alleged signature mismatches. Id.
49. It is not uncommon for elections in North Dakota to be decided by far fewer votes
5 The Election Administration Commission is a federal agency created by the Help America Vote Act in 2002. It is charged with, among other things, studying election issues and providing resources to states for election administration. It also conducts a biennial survey of all 50 states to collect data on their elections. See About the U.S. EAC, http://eac.gov/about-the-useac. 6 The EAC Survey is based on self-reported survey data from each county. Based on a comparison of county-level canvassing minutes in some counties to the EAC survey data, it appears that some of the reported survey data may be underinclusive. Therefore, these figures may underreport the actual number of votes affected.
12

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 13 of 18

than those rejected for signature match in the November 2018 election. In the same November

2018 election, Senate District 25 was decided by 21 votes; House District 43 was decided by 35

votes; House District 27 was decided by 189 votes;7 a Rolette County Commissioner race was

decided by 31 votes;8 and a Grand Forks County Commissioner race was decided by 49 votes.9 In

June 2018, a West Fargo School Board race was decided by fewer than twenty votes.10 In 2016,

the Senate District 46 race was decided by fewer than forty votes.11 Likewise, in 2004 and 1996,

the statewide Commission of Agriculture election was decided by a mere 122 votes and 283 votes,

respectively.12

CAUSES OF ACTION

Count I:

Denial of Procedural Due Process in Violation of the Fourteenth Amendment, 42 U.S.C. § 1983

50. Plaintiffs reallege and incorporate by reference the allegations in the preceding

paragraphs.

7 ND Voices, Official 2018 General Election Results, Legislative District Results (Dec. 11, 2019),

https://results.sos.nd.gov/resultsSW.aspx?text=Race&type=LG&map=DIST.

8 ND Voices, Official 2018 General Election Results, Rolette County (Dec. 11, 2019),

https://results.sos.nd.gov/resultsSW.aspx?text=All&type=CTYSPEC&map=CTY&cty=40&nam

e=Rolette.

9 ND Voices, Official 2018 General Election Results, Grand Forks County (Dec. 11, 2019),

https://results.sos.nd.gov/resultsSW.aspx?text=All&type=CTYSPEC&map=CTY&cty=18&nam

e=Grand%20Forks.

10 Danielle Church, West Fargo School Board Could Be Doing An Election Recount, KVRR Local

News (June 13, 2018), https://www.kvrr.com/2018/06/13/west-fargo-school-board-could-be-

doing-an-election-recount.

11 ND Voices, Offiial 2016 General Election Results, Legislative District Results (Nov. 18, 2016),

https://results.sos.nd.gov/ResultsSW.aspx?text=Race&type=LG&map=DIST&eid=292.

12 State Canvassing Board, North Dakota’s Official Abstract of Votes Cast at the General Election

Held

on

November

2,

2004,

https://vip.sos.nd.gov/pdfs/Abstracts%20by%20Year/2000%20through%202008%20Statewide%

20Election%20Results/2004/General%20Election%2011-02-2004.pdf; State Canvassing Board,

Official Abstract of Votes Cast at the General Election Held November 5, 1996,

https://vip.sos.nd.gov/pdfs/Abstracts%20by%20Year/1990%20through%201998%20Statewide%

20Election%20Results/1996/General%20Election%2011-05-1996.pdf.

13

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 14 of 18
51. An individual has a liberty interest in the fundamental right to vote that is protected by the doctrine of procedural due process. See, e.g., Cook v. Randolph Cty., 573 F.3d 1143, 1152 (11th Cir. 2009) (noting that “[t]he Constitution guarantees procedural and substantive due process when a liberty interest is at stake,” including “the right to vote”); Barefoot v. City of Wilmington, 306 F.3d 113, 124 n.5 (4th Cir. 2002) (“The right to vote . . . is certainly a protected liberty interest.”).
52. And North Dakotans have a statutorily protected liberty interest in voting by mail. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“A liberty interest may arise from the Constitution itself . . . or it may arise from an expectation or interest created by state laws or policies.”).
53. At an absolute minimum, where a protected interest is at stake, due process requires notice and the opportunity to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (“[T]here can be no doubt that at a minimum [Due Process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing.”).
54. And notice and opportunity to be heard must be pre-deprivation. United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
55. That is particularly true when the deprivation will result in irreparably injury. See Winegar v. Des Moines Indep. Comm. Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994); League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
56. North Dakota’s use of an inherently flawed system of signature verification to determine the validity of mail-in ballots without any notice or any opportunity to cure fails the
14

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 15 of 18
most basic requirements of procedural due process. 57. In order to determine how much process is due in any given situation, a court must
consider and balance three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
58. Here, the “private interest” is nothing less than the fundamental right to vote, “preservative of all rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
59. The risk of erroneous deprivation because of benign signature discrepancies or technical errors is significant. Election officials are not trained handwriting experts; many intentional and unintentional factors lead to benign signature discrepancies; and the standardless process is designed to disenfranchise voters due to nothing more than poor penmanship.
60. Implementing procedures to provide absentee voters with notice and an opportunity to cure would not impose an undue burden on the State. Defendant and local boards of elections already maintain records during the ordinary course of business, including in the Central Voter File, that contain voter contact information, including addresses, phone numbers, and e-mail addresses. Indeed, all this information is included on the absentee ballot application that officials compare when assessing signatures. The additional burden to provide voters with timely notice that their absentee ballot may be rejected, and an opportunity to cure the error, is minimal.
61. North Dakota’s current signature verification procedure denies North Dakota voters procedural due process in violation of the Fourteenth Amendment.
15

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 16 of 18
Count II: Deprivation of the Fundamental Right to Vote in Violation of the First Amendment and Fourteenth Amendments, 42 U.S.C. § 1983.
62. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs.
63. “There is no right more basic in our democracy than the right to participate in electing our political leaders.” McCutcheon v. FEC, 134 S. Ct. 1434, 1440-41 (2014). The Supreme Court has recognized that “voting is of the most fundamental significance under our constitutional structure.” See Burdick v. Takushi, 504 U.S. 428, 433-44 (1992).
64. When analyzing the constitutionality of a restriction on voting, the Court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
65. Defendant’s flawed and standardless signature verification process rejects a significant number of validly cast ballots every election cycle as a result of benign discrepancies or technical errors. Defendant denies these individuals the right to vote without any pre-deprivation notice or opportunity to confirm their ballots. Such a system imposes a severe burden on voters’ fundamental right to vote.
66. The severity of this burden is exacerbated by voters’ increasing need to rely on mail ballots to effectively cast a ballot while safeguarding their health. Voters should not be required to risk their health or lives to cast a ballot they can be confident will count.
67. Defendant can proffer no justification for this standardless and procedurally deficient system that can outweigh the injury of the rejection of thousands of ballots each election
16

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 17 of 18
without any assurance those ballots were fraudulent or improper. 68. North Dakota’s signature verification system is not designed to carefully ferret out
fraud but rather is set up to sweep hundreds of eligible voters into its net. Each time a county board of elections—comprised of laypersons with no expertise in handwriting analysis—subjectively believes there is a mismatch between the signature accompanying the voter’s absentee ballot and the signature in the voter’s file, that ballot is not counted, notwithstanding the many benign factors that can cause signature variation. And those factors—which may include age, disability, national origin, or educational background—can place particularly vulnerable voters at heightened risk.
69. North Dakota’s current signature verification procedure unduly burdens the right to vote in violation of the First and Fourteenth Amendments.
REQUESTED RELIEF WHEREFORE, Plaintiffs request that this Court:
1. Enter a declaratory judgment that N.D.C.C. §§ 16.1-07-09, 16.1-07-12—insofar as they mandate a signature verification process for mail-in ballots without providing voters with notice and opportunity to cure—deprive voters of procedural due process in violation of the Fourteenth Amendment to the Constitution of the United States;
2. Enter a declaratory judgment that N.D.C.C. §§ 16.1-07-09, 16.1-07-12—insofar as they mandate a signature verification process for mail-in ballots without providing voters with notice and opportunity to cure—imposes an undue burden on the right to vote in violation of the First and Fourteenth Amendments to the Constitution of the United States;
3. Enter preliminary and permanent injunctions enjoining Defendants, their agents,
17

Case 3:20-cv-00071-PDW-ARS Document 1 Filed 05/01/20 Page 18 of 18

employees, and successors, and all those persons acting in concert or participation with them from rejecting voters’ ballots on the basis of signature verification failure without providing affected voters with adequate and meaningful notice and an opportunity to cure; and requiring Defendant Jaeger to issue guidance to North Dakota’s county election officials instructing them to provide all voters with adequate and meaningful notice and opportunity to cure before rejection on the basis of signature verification; 4. Award Plaintiffs their costs and reasonable attorneys’ fees incurred in this action; and 5. Grant such other relief the Court may deem just and proper.

Dated: May 1, 2020

Respectfully submitted,

Mark Gaber* Danielle Lang* Dana Paikowsky*
Licensed in C.A. only; supervision by Danielle Lang, a member of the D.C. Bar. Aseem Mulji* Licensed in C.A. only; supervision by Danielle Lang, a member of the D.C. Bar. CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 mgaber@campaignlegal.org dlang@campaignlegal.org dpaikowsky@campaignlegal.org amulji@campaignlegal.org
* Motions for admission pro hac vice forthcoming

/s/ Derrick Braaten Derrick Braaten (ND#06394) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911 derrick@braatenlawfirm.com
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521 sarahvogellaw@gmail.com
Counsel for Plaintiffs

18

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 1 of 26
Exhibit A

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 2 of 26
2018
_____________________
ELECTION OFFICIALS’ MANUAL
Revised October 2018
North Dakota
9otes
2018

SECRETARY OF STATE
Alvin A Jaeger State of North Dakota 600 E Boulevard Ave Dept 108 Bismarck ND 58505-0500
ELECTIONS UNIT (701) 328-4146 soselect@nd.gov Vote.ND.Gov

;

Alternate formats for persons with disabilities are available upon request.

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 3 of 26
Table of Contents
Section 1 – Polling Places and Poll Workers .............................................................. 3
Section 2 – Election Worker Responsibilities Before Polls Open ............................. 5
Section 3 – Voter ID ....................................................................................................... 7
Section 4 – Election Worker Responsibilities After Polls Open ................................ 9 Voting Procedure ........................................................................................................ 9 Set Aside Ballot Process ............................................................................................10 Other Election Worker Duties While Polls are Open...................................................10 Processing Absentee Ballots Delivered to Precincts ..................................................12
Section 5 – Election Worker Responsibilities After Polls Close ............................. 13
Section 6 – Special Precincts (Early Voting, Absentee, Vote By Mail) ................... 15
Section 7 – Frequently Asked Questions and Answers ........................................... 17
Section 8 – Prohibitions, Crimes, and Election Offenses ........................................ 19
Section 9 – Voters With Disabilities ........................................................................... 21 Common-Sense Guidelines That Apply to All Voters..................................................21 Voters with Mobility Impairment..................................................................................21 Voters with Speech or Hearing Impairments ..............................................................21 Voters with Visual Impairment ....................................................................................21
Checklists for Election Day ........................................................................................ 23 Before the Polls Open ................................................................................................23 After the Polls Open ...................................................................................................23 After the Polls Close...................................................................................................23

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 1

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 4 of 26
FOREWORD
According to North Dakota Century Code (NDCC) § 16.1-05-03, the Secretary of State is required to provide an instruction manual detailing the responsibilities of election officials. This 2018 Election Officials’ Manual is intended to fulfill the requirements of the law by providing comprehensive instructions and procedures for election officials to look to for guidance in conducting elections in North Dakota after September 24, 2018.
CONTACT
If you have questions regarding the 2018 Election Officials’ Manual, please contact:
Elections Unit North Dakota Secretary of State 600 East Boulevard Avenue Dept 108
Bismarck ND 58505-0500
(701) 328-4146 – Phone (800) 352-0867, ext. 328-4146 – Toll Free
(701) 328-3413 – Fax
soselect@nd.gov – Email Vote.ND.Gov – Website
This website contains election publications, connections to other helpful election websites, and state election forms, which can be completed online before printing and signing.
DISCLAIMER
The following excerpts and summaries of North Dakota law are taken or derived from the NDCC and pertain to elections, election procedures, and the duties and responsibilities assigned to election officials. Although every attempt has been made for accuracy, the reprint, summarizations, or paraphrasing of these laws does not carry the same authority as the actual NDCC and should not be equated with the official NDCC. This compilation is intended as a helpful resource and reference for consolidated election related laws. For official and legal purposes, the official NDCC should be used.
The following excerpts of North Dakota law do not contain the material found in the legal notes following the various sections contained in the NDCC. These notes found in the NDCC may contain temporary provisions and effective dates along with valuable summaries of applicable court rulings.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 2

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 5 of 26
Section 1 – Polling Places and Poll Workers
Polling Places: Upon a decision by the county commissioners, a county may utilize multiple precinct polling places. The county commissioners may also decide, if it is in the best interest of the county, to use one election board to supervise all or a portion of the precincts voting in the same polling place even if the precincts fall within different legislative districts so long as each district chairperson of each qualified political party is given the opportunity to have representation on the election board if desired. (NDCC §§ 16.1-04-02 and 16.1-05-01)

Inspectors: The county auditor, with county commissioners’ approval, shall appoint election inspectors, except in polling places containing city precincts only established by NDCC Chapter 16.1-04 where the city governing board appoints the inspectors. The inspector selection is to be made on the basis of the inspector’s knowledge of the election procedure. Appointments must be made forty days before the election. (NDCC § 16.1-05-01) Inspectors serve as the polling place supervisor. (NDCC § 16.1-05-04)

Judges: The election judges for each precinct or polling place are appointed in writing by the district chairs representing the two political parties that cast the most votes in the state’s last general election. For special elections involving only no-party offices, the election official responsible for the administration of the election, with the approval of the majority of the members of the applicable governing body, shall appoint the election judges for each polling location. (NDCC § 16.1-05-01) The inspector or judges initial and deliver ballots to the voters and the judges perform other responsibilities assigned by the inspector. (NDCC § 16.1-13-22)

Composition of the Election Board: The election board for each precinct or polling place must consist of an inspector and at least two election judges. (NDCC § 16.1-05-01)

Clerks: The election official responsible for the administration of the election, with the approval of the majority of the members of the applicable governing body, shall appoint the poll clerks for each polling place. (NDCC § 16.1-05-01) Clerks manage the pollbook, verify voters’ identification, update incorrect pollbook information, and other ministerial duties assigned by the inspector. (NDCC §§ 16.1-05-04 and 16.1-05-07)

County Auditor May Appoint Judges if Forty Day Notice Not Received: If the district political party chair fails to appoint the judges forty days before the election, the county auditor shall appoint the judges. If the county auditor has exhausted all practicable means to select judges from within the voting precinct and vacancies still remain, the county auditor may select election judges who reside outside of the voting precinct, but who reside within the precinct’s legislative district. If vacancies still remain, the county auditor may select election judges who reside outside of the legislative district but who reside within the county. (NDCC § 16.1-05-01)

County Auditor May Request an Additional Judge: In polling places in which over one thousand votes were cast in any election, the county auditor may request each district political party chairperson to appoint an additional election judge. (NDCC § 16.1-05-01)

Qualifications of Election Board and Poll Clerks: Inspectors, judges, and clerks must be qualified voters of the polling places in which they are assigned to work unless the county auditor has exhausted all means to appoint election judges from precincts within the polling place according to NDCC § 16.105-01. No individual may serve as a member of the election board or as a poll clerk who has anything of value bet or wagered on the result of an election. (NDCC § 16.1-05-02) Student Poll Clerks: A student sixteen years of age or older enrolled in a high school or college in this state is eligible to serve as a poll clerk if the student meets the following qualifications:
 Is a United States citizen or will be a citizen at the time of the election;  Is a state resident residing in the precinct at least thirty days before the election; and  Is a student in good standing.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 3

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 6 of 26
A student appointed as a clerk may be excused from school attendance during the hours that the student is serving as a clerk, including training sessions, if the student submits a written request to be absent from school signed by the student’s parent or guardian and by the school administrator and a certification from the county auditor stating the hours during which the student will serve as a poll clerk. A student excused from school attendance in this manner may not be recorded as being absent on any date for which the excuse is operative. No more than two students may serve as clerks in a single precinct.
An individual sixteen years of age or older having graduated from high school or obtained a general education degree from an accredited educational institution is eligible to be appointed as a poll clerk if the individual meets the qualifications stated above. (NDCC § 16.1-05-02)
Candidates and Relatives Not Allowed on Election Board: An individual may not serve as a member of the election board or as a poll clerk if the individual is a candidate in the election at which the person is serving, or who is the husband, wife, father, mother, father-in-law, mother-in-law, son, daughter, sonin-law, daughter-in-law, brother, or sister, whether by birth or marriage, of the whole or the half blood, of any candidate in the election at which the person is serving. (NDCC § 16.1-05-02)
Removal of Judges or Clerks: If at any time before or during an election, it appears to an election inspector, by the affidavit of two or more qualified voters of the precinct, that any election judge or clerk is not qualified, the inspector shall remove that judge or clerk at once and fill the vacancy by appointing a qualified individual of the same political party. If the disqualified judge or clerk had taken the oath of office, the inspector shall place the oath or affidavit before the state's attorney of the county. (NDCC § 16.1-05-01)
Training Sessions for Poll Workers: Attendance at an election training session conducted by the county auditor is mandatory for members of the election board and for poll clerks.
An election official, at the option of the county auditor, may be excused from attending a third training session on election laws within a twelve-month period. If an election official has attended a training session within six months preceding a special election, the election official must be compensated at the pay appropriate for those having attended a training session for that election as provided in NDCC § 16.1-05-05. (NDCC § 16.1-05-03)
Compensation of Poll Workers: The county shall pay at least the state minimum wage to the relevant election officials. Members of the election board and poll clerks who attend the training sessions must be paid at least the state minimum wage for the hours in attendance in the session in addition to necessary expenses and mileage. Members of election boards who attend the training sessions provided before primary and general elections must be paid at least 25% more than the state minimum wage during the time spent in the performance of their election duties. Members of the election board and poll clerks who attend a training session within the six months prior to a special election must be paid at least 25% more than the state minimum wage during the time spent in the performance of their election duties in addition to necessary mileage and expenses. (NDCC §§ 16.1-05-03 and 16.1-05-05)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 4

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 7 of 26

Section 2 – Election Worker Responsibilities Before Polls Open
Failure of Election Board Member to Appear: If a member of the election board fails to appear for the opening of the polls, the remainder of the board shall select an individual to serve in the absent individual’s place. If a judge fails to appear at the opening of the polls, the remainder of the board shall select an individual of the absent individual’s political party if such a person is reasonably available. Any qualified individual without regard to political affiliation may fill the office of inspector or clerk. (NDCC § 16.1-05-02(5))
Failure of Entire Election Board to Appear: If no members of the election board appear for the opening of the polls, the qualified voters present shall call the county auditor, city auditor, or school business manager, as appropriate, for instructions and then orally elect a board conforming as nearly as possible to the provisions for a regular board. (NDCC § 16.1-05-02(5))
Oath of Office: Before assuming the duties, each member of the election board and each poll clerk shall take and subscribe an oath in the following form:
I do solemnly swear (or affirm as the case may be), that I will perform the duties of inspector, judge, or clerk according to law and to the best of my ability, and that I will studiously endeavor to prevent fraud, deceit, and abuse in conducting the same.
The oath may be taken before any officer authorized by law to administer oaths (e.g. county auditor, deputy county auditor, county commissioner, notary public). If no such officer is present at the opening of the polls, the inspector or election judges shall administer the oath to each other and to the poll clerks. The individual administering the oath shall cause an entry thereof to be made, subscribed by that individual and prefix it to the pollbook. (NDCC § 16.1-05-02(3))
Inspector to Supervise Conduct of the Election: The election inspector shall supervise the conduct of the election to ensure all election officials are properly performing their duties at the polling place. The election inspector shall assign duties so as to equally and fairly include both parties represented on the election board. (NDCC § 16.1-05-04(1))
Inspector to Assign Ministerial Duties to Poll Clerks: The election inspector shall assign ministerial duties to poll clerks, who shall carry out the ministerial duties assigned by the election inspector. (NDCC § 16.1-05-04(2))
Inspector to Deliver Pollbooks to Clerks: The election inspector shall deliver the pollbooks to the clerks in the inspector’s precinct or polling location on Election Day prior to the opening of the polls. (NDCC § 16.1-06-21)
Voting Booths or Compartments – Number Required: The inspector of elections shall provide a sufficient number of voting booths or compartments in the polling place to enable the elector to mark his or her ballot screened from observation. The number of booths or compartments in precincts may not be less than one for each one hundred fifty electors or fraction thereof in the precinct. One electronic voting system device must be provided in each precinct. (NDCC § 16.1-13-29)
Voting Instructions to be Posted in Each Polling Place: Cards printed in large type containing full instructions to voters on obtaining and preparing ballots and a copy of NDCC § 16.1-01-12 (Election Offenses) shall be posted in each polling place. (NDCC § 16.1-06-19)
Complete Text of Measures to be Posted: At least five copies of the complete text of any constitutional amendment or initiated or referred measure must be delivered to the inspector by the county auditor at

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 5

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 8 of 26
the time of delivering the ballots. One copy must be posted conspicuously in the polling place on the morning of the election. (NDCC § 16.1-06-19)
Post Precinct Maps: Four copies of a map showing the election precinct's boundaries must be posted prior to the opening of the polls; one at the entry to the polling place and the remaining three in other conspicuous places around the polling place. (NDCC § 16.1-06-19)
Date and Time: The election inspector shall, before the opening of the polls, post information regarding the date of the election and the hours during which polling places will be open. (NDCC § 16.1-06-19)
Post Diagram of Electronic Voting System and Ballots: The election inspector shall post in a conspicuous manner at the voting place, one facsimile diagram of the electronic voting device and should post three copies of the official ballot used with electronic voting devices. The election inspector and judges shall provide adequate instruction on the use of the electronic voting device to each voter before the voter enters the voting booth. (NDCC §§ 16.1-06-17 and 16.1-06-20)
Ensure Ballot Box is Empty: Before declaring the polls open, the inspector and the election judges shall inspect the ballot box to make sure that it is empty. The ballot box must then be locked. While the polls are open, the ballot box must remain locked except as may be necessary to clear a ballot jam or to move voted ballots to a separate locked ballot box to make room for additional ballots. (NDCC § 16.113-20)
Opening Ballots on Election Day: Upon arrival at the poll of all election board members, or at the latest, upon the opening of the poll, the inspector of election shall produce the sealed package of official ballots and publicly open them. (NDCC § 16.1-13-21)
Flag Displayed in or Near Every Polling Location on Election Days: Federal law states that the United States flag should be displayed in or near every polling location on election days.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 6

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 9 of 26
Section 3 - Voter ID

Poll Clerks to Maintain the Pollbooks: A complete residential address for voting purposes may include a street, rural route address, city, and state. The use of a mailing address or Post Office Box number that is not the person’s residential address is not considered sufficient for voting purposes.

Voter Qualifications
A qualified voter of the state is a person who: (all must apply)
 Is a citizen of the United States;  Is 18 years of age or older on the day of the election;  Is a resident of this state and of the precinct at least thirty days next preceding any election;  Is able to meet the identification requirements specified in sections 16.1-01-04.1 and 16.1-07-
06; and Is not presently serving a term of actual incarceration as a convicted felon (NDCC § 16.1-01-04 and NDCC § 12.1-33-01).

The following rules for voting eligibility also apply:
 Every qualified elector of the state may only have one voting residence.  A person’s voting residence must be determined in accordance with the rules for determining
residency as provided in NDCC § 16.1-01-04.2. (See following subsection entitled Residency Determined.)  According to Section 2 of Article II of the ND Constitution, voting by persons convicted and incarcerated for a felony must be limited according to NDCC Chapter 12.1-33.  No person who has been declared mentally incompetent by order of a court (with specific findings on the right to vote) or other authority having jurisdiction, which order has not been rescinded, shall be qualified to vote. (Section 2 of Article II of the ND Constitution, and NDCC § 30.1-28-04(3))
Residency Determined: NDCC § 16.1-01-04.2
 Every qualified elector may have only one residence, shown by an actual fixed permanent dwelling, establishment, or any other abode to which the individual returns when not called elsewhere for labor or other special or temporary purposes.
 The street address verified by the individual as provided in section 16.1-01-04.1 when requesting a ballot to vote must be the address of residence for the individual.
 An individual retains a residence in this state until another has been gained.  The acts of residing at a new address for thirty days and updating the ID to be used for voting
with that address constitute a change in the individual's voting residence.
Voter Identification and Pollbooks (NDCC § 16.1-01-04.1)
Voters Obtaining Ballots (Quick Definition) Individuals may receive, vote, and cast an election ballot by showing an approved form of identification with a name, residential address, and date of birth to the poll clerks.
Voters Obtaining Ballots (Expanded Definitions) 1. Voter Identification: When a voter appears at the polling location, state law requires the poll clerk to ask the voter to provide identification to verify eligibility.

a. Residential Address: An acceptable form of identification must include the voter’s name, residential address (a PO Box number is not acceptable), and date of birth.

b. Acceptable forms of identification at the polls include a valid North Dakota:  Current driver’s license or non-driver’s identification card.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 7

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 10 of 26
 Tribal government issued form of identification.*  Long-term care certificate (provided by ND facility).
c. Supplemental documentation: If an individual's valid form of identification does not include all the information required 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, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address); 4. A paycheck; or 5. A document issued by a federal, state, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address).
d. Voters without valid ID: If the person’s identification does not verify his or her qualifications, or the individual is not able to show a valid form of identification, but he or she asserts qualifications as an elector in the precinct, the individual may mark a ballot that must be securely set aside in a sealed envelope. (See Page 10)
e. Intent of ID Requirement: The purpose for this requirement is not to deter people from voting, but to ensure that the voter is:
1. Old enough to vote, 2. A U.S. citizen, and 3. A resident of the precinct in which he or she desires to vote.
Qualified electors have the right to know that the votes are being cast by only those voters qualified to do so.
f. Directing Individuals to Correct Precincts: The county auditor shall provide each election board with a precinct map or precinct finder to assist in determining whether an address is located in that precinct and for determining which precinct and polling location to direct an individual who may be attempting to vote in the wrong precinct. (NDCC § 16.1-05-08) Poll clerks are authorized to direct an individual to his or her correct polling place if the individual’s current identification proves that he or she is in the wrong polling place.
*Tribal ID may be an official form of identification issued by a tribal government; the Bureau of Indian Affairs; 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

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 8

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 11 of 26
Section 4 – Election Worker Responsibilities After Polls Open
Voting Procedure
1. As an individual enters the polling location and approaches the poll clerks’ table, the required maps of the precinct, copies of the voter’s bill of rights, voting procedure diagrams and descriptions, copies of election offenses, copies of official ballots, copies of complete text of measures, and diagrams of electronic voting systems posted or displayed in the polling location must be readily available for review by the voter.
2. The poll clerk shall ask for the individual’s name and identification. (See pages 7-8 for acceptable forms of identification.)
3. If an individual’s valid form of identification does not include the North Dakota residential address or date of birth, or the North Dakota residential address is not current, the individual may supplement the identification with a current utility bill; a current bank statement; a check or a document issued by a federal, state, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address); or a paycheck. After the poll clerk verifies the individual’s qualifications and the pollbooks are checked or updated, an election judge shall give the voter an initialed ballot within a secrecy sleeve. (Make sure to update all incorrect information contained in the pollbook.) a. If the name does not agree with the preprinted pollbook due to a name change, the poll clerk shall correct the pollbook if the individual is still a resident of the precinct. b. If the individual has inadvertently come to the wrong precinct, the poll clerk is to direct the individual to the correct precinct using the precinct finder or map provided by the county auditor for just such purpose.
4. If the person’s identification does not verify his or her qualifications, or the individual is not able to show a valid form of identification, but he or she asserts qualifications as an elector in the precinct, the individual may mark a ballot that must be securely set aside in a sealed envelope. (See page 10)
5. Ballot in hand, the voter is to move to an open poll booth and mark his or her votes in secret. a. The poll worker should make the voter aware of the AutoMARK ballot-marking device since every voter is welcome to use it. b. It is important to allow any voter to use the AutoMARK due to the fact some voters may not want to divulge a hidden disability, such as illiteracy or dyslexia.
6. Voters shall ask for a new ballot if they fill an unwanted oval by accident. 7. After the ballot is marked, a voter shall insert his or her ballot into the secrecy sleeve, bring it to
the optical scan ballot tabulator, and insert the ballot into the machine for tabulation. 8. If the ballot has been marked incorrectly, the machine will identify the problem and give the voter
an opportunity for second chance voting. (NDCC § 16.1-13-23) a. The poll worker, standing at a discrete distance, may assist the voter (if requested) in either
returning the ballot to the voter for second chance voting or in casting the ballot as is – two ballots may be spoiled before the third must be cast as is. b. If the voter chooses to cast the ballot as is, the election judge must tell the voter that the portion of his or her ballot marked with a conflict will not be counted. c. If the voter still desires to cast the ballot as is, the voter is to press the “accept” button on the optical scan ballot counter. 9. The ballot is immediately counted by the machine before it is deposited by the machine directly into the locked ballot box below. 10. Ballots containing write-in votes will be automatically separated by the machine to the right side of the ballot box for easier counting of write-in votes after the polls close. 11. Throughout Election Day, members of the election board shall remain in the polling place to prevent fraud and to maintain order. Clerks, however, may work split shifts.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 9

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 12 of 26
Set Aside Ballot Process
If an individual’s identification does not verify his or her qualifications, or an individual is not able to show a valid form of identification but asserts qualifications as an elector in the precinct, he or she may mark a ballot that must be securely set aside in a sealed envelope.
1. Clerk’s Station: The clerk shall: a. Confirm that the address provided by the individual is located in a precinct assigned to the polling place. b. Give the individual the set aside outer and secrecy envelopes and instruct him or her to complete the applicable portions of the outer envelope. The individual may be asked to step aside until finished. c. Review the outer envelope for completeness and accuracy. d. Complete the “Issuing Election Official Use Only” portion of the envelope, but does not enter the individual into the pollbook. e. Return the envelopes to the individual and send them to the judge’s station.
2. Judge’s Station: The judges shall: a. Issue the individual an appropriate ballot without initialing the ballot. b. Issue the individual a notice containing information on how, when, and where the individual may verify his or her identification. c. Inform the individual that after marking the ballot he or she is to: i. Place the ballot into the secrecy envelope, ii. Return to the judge’s station where the judges verify that the ballot is in the secrecy envelope iii. Seal the secrecy envelope in the outer envelope, iv. Return the sealed envelope to the judges, and v. Be reminded that the ballot will be counted by the canvassing board upon timely verification of the individual’s identification, per the information on the notice. d. Securely store the envelopes containing set aside ballots in a manner that is accessible in case the voter returns to the polling place with identification verification.
3. Voter Returns While Polling Place is Still Open: If an individual who has marked a set aside ballot returns to the polling place with valid identification, a clerk or the inspector will usher the individual to the judge’s station and notify the judges that the individual has returned to verify their identification. The judges retrieve the set aside ballot and ensure that the information on the identification matches that which the individual provided on the outer envelope. If it does, the judge completes the “Verifying Election Official” portion of the outer envelope and instructs the voter to sign the “Voter Signature Upon Verification” portion. The voter is informed that the ballot will be counted by the canvassing board, and the judge returns the ballot the ballot to the secure storage.

Other Election Worker Duties While Polls are Open
Poll List Kept by Clerks of Election: The poll clerks shall keep one list of the names of all persons voting at each election. The list of names must contain the full name, including first and last name, the individual’s identification number, and the complete residential address of each person voting at the precinct. A complete residential address for voting purposes includes a street address, city, and state. The use of a mailing address or PO Box number is not considered sufficient for voting purposes. Each clerk shall return the pollbook, which must be a part of the records and filed with other election returns. (NDCC § 16.1-11-32, NDCC § 16.1-05-04 and NDCC § 16.1-02-13)

Pollbook Correction: If the voter’s residential or mailing address within the precinct has changed, the poll clerk shall record the appropriate changes, if the voter’s name is preprinted.

Voting by Qualified Voter Moving From One Precinct to Another: If a qualified elector moves from one precinct to another precinct within this state, the elector is entitled to vote in the precinct from which the elector moved until the elector has established a new residence pursuant to NDCC § 16.1-01-04. A

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 10

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 13 of 26
person must reside in the precinct thirty days immediately prior to any election in order to be eligible to vote within that precinct. (NDCC § 16.1-01-05)

Delivering Ballot to Elector – Initialing: An election board member shall deliver ballots to the qualified voters within a secrecy sleeve. The inspector or judge shall inform each voter that if an election official does not initial the ballot, it will be invalidated. To protect the voter's right to vote, the voter should verify that the ballot has been initialed. Ballots are still considered valid if the judge or inspector initials the ballot outside the space provided for such. (NDCC § 16.1-13-22)

Secrecy Sleeves Required: Ballots are to be given to the voters within a secrecy sleeve. (NDCC § 16.1-13-23)

Warning Voters Not to Split Votes in the Primary Election: At primary elections, the judge or inspector shall inform each elector before voting, that voting for candidates of more than one party will cause the voter’s party ballot to be rejected. (NDCC § 16.1-11-22)

One Person Allowed in Voting Booth – Time Limit in Booth: Only one person may occupy a voting booth at one time except when receiving lawful assistance. No person shall remain in the booth longer than necessary to vote. (NDCC § 16.1-13-30)

Assisting Voter in the Voting Booth: A voter may request and receive the assistance of any person of the voter's choice in marking the voter's ballot, except for the voter's employer, officer or agent of the voter's union, a candidate running in that election, or relative of the candidate. (NDCC § 16.1-13-27) Voter to Receive Assistance of Both Judges: If the voter requests the assistance of a member of the election board, the voter shall receive the assistance of both election judges in the marking of the voter's ballot. (NDCC § 16.1-13-27)

Person Assisting Voter May Not Request Voter to Vote in Certain Manner: Any person chosen to assist a voter may not request the voter to vote for or against any candidate or any issue. (NDCC § 16.1-13-28)

Voters May Not Divulge Voting Intentions: No voter, other than one who is unable to mark a ballot, may divulge to anyone within the polling place the name of any candidate for whom the elector intends to vote. (NDCC § 16.1-13-27)

No Write-in Stickers: Write-in stickers are not allowed on ballots in North Dakota elections.

Second Chance Voting:
1. Second-Chance Voting Prior to Casting Ballot: Since ballots are to be marked by the voter with a pen provided by the election board, unwanted choices or marks cannot be erased. Rather than crossing out unwanted choices or attempting to erase them, the voter should ask an election judge for a new ballot to mark his or her votes. A voter may obtain up to two new ballots for these reasons. Ballots returned to an election judge by an elector must be considered spoiled.

2. Second-Chance Voting as Voter Attempts to Cast Own Ballot: After marking the votes on the ballot, the elector shall place the ballot back in the provided secrecy sleeve so it is concealed and so the endorsement of the inspector or election judge may be seen. The elector then shall deposit the ballot in the optical scanning device and wait to determine if the ballot is deposited into the ballot box or if the optical scanning device has indicated a possibility for a second-chance voting condition. If a second-chance voting condition is indicated, a poll worker, standing at a discrete distance from the voter, shall ask the voter if he or she desires help in either having the ballot returned to the voter to mark his or her votes on a new ballot (the incorrect ballot is to be returned to the judge to be marked as spoiled) or the voter may choose to cast the ballot as the voter has marked it even though it is incorrect. If the voter chooses to cast the incorrectly marked ballot, the judge must first inform

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 11

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 14 of 26
the voter that the portion of the ballot that has been marked incorrectly will not be counted. Voters requiring assistance may ask a judge or inspector to cast the ballot provided the ballot is in the secrecy sleeve. (NDCC § 16.1-06-14(3) and NDCC §§ 16.1-13-23)

3. Securing New Ballot Upon Spoiling of Others: A voter spoiling a ballot may obtain others successively, one at a time, not exceeding three in total, upon returning each spoiled ballot. Each paper ballot returned must be spoiled immediately and, together with those not distributed to the voters, must be preserved and secured in sealed packages and returned to the county recorder. (NDCC § 16.1-13-32)

Removal of Ballot from Polling Place before Closing: No person may take a ballot from a polling place before the polls close. (NDCC § 16.1-13-31)

Voters in Line at Poll Closing: All voters standing in line to vote at the time the polls close must be allowed to vote. Election officials must establish procedures to determine who arrived in time to vote. (NDCC § 16.1-01-03)

Processing Absentee Ballots Delivered to Precincts
Absentee Ballots Delivered to Polls: The county auditor or his or her designee may deliver absentee ballots to the inspector of the precinct in which the absent voters reside. (NDCC § 16.1-07-11)

Opening the Absentee Ballots: At any time beginning on the day before Election Day and the closing of polls on Election Day, the election clerks and board members of the relevant polling place shall do the following:
1. Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.
2. If the applicant is a qualified elector of the precinct and has not voted in the election, the election worker shall open the absent voter’s envelope in such a manner as not to destroy the affidavit printed on the envelope. The election worker shall take out the secrecy envelope with the ballot(s) without unfolding or permitting the ballots to be opened or examined and indicate in the pollbook that the elector has voted.
3. Election workers not participating in the comparing of signatures and entering voters into the pollbook shall remove the ballot(s) from the secrecy envelope, unfold and initial the same, and deposit in the proper ballot box for tabulation.

If the affidavit on the outer envelope of a returned absentee ballot is found to be insufficient, the signatures on the application and affidavit do not match, or the applicant is not a qualified elector of the precinct, the vote may not be allowed. Without opening the absent voter's envelope, the election inspector or election judge shall mark across the face thereof "rejected as defective" or "rejected as not an elector", as the case may be.
The death of an absentee voter after having voted by absentee ballot does not constitute grounds for rejecting such ballot.
The votes from these cast ballots may not be tallied and the tabulation reports may not be generated until the polls have closed on Election Day. (NDCC § 16.1-07-12)

Rejected Absentee Ballots: Rejected absentee ballots are to be handed over to the county canvassing board for final determination of acceptance or rejection. (NDCC § 16.1-07-12)

Absentee Ballots Sent to Wrong Precinct or Sent Too Late to be Counted: Any absentee ballot

sent to the wrong precinct or any absentee ballot received by the inspector too late to be counted at the

precinct must be returned to the county auditor and must be tallied by the county canvassing board.

(NDCC § 16.1-07-11)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 12

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 15 of 26
Section 5 – Election Worker Responsibilities After Polls Close
Manner of Canvassing the Election: (NDCC § 16.1-15-02)  After the polls are closed, the inspector of elections and the judges shall immediately generate the canvass report from the optical scan voting system.  The ballots counted by the optical scan ballot tabulator must be equal in number with the names on the poll clerks' list. If the numbers are not equal, the pollbook is to be rechecked to find the discrepancy.  The canvass shall continue until completed and must be open to the public.  Except under crucial circumstances, the canvass shall occur at the polling place.  If good and substantial reasons exist for the removal of the ballots and election records to another location for canvass, the other location must be in the same precinct and the removal must be approved by the election board.  In no case may the ballots be moved to another location prior to generating the canvass report after the ballot boxes have been opened. Upon approval of a change of location by the election board as provided in NDCC § 16.1-15-02, the approximate time and location of the canvass must be prominently posted on the main entrance to the polling place, the ballots and records must be moved in the presence of the election board, and the canvass as provided in NDCC Chapter 16.1-15 must proceed immediately upon arrival at the alternate location.
Manner of Canvassing Write-in Votes: (NDCC § 16.1-12-02.2)  The optical scan ballot tabulator (M-100) used in every polling location automatically separates the ballots with write-in votes to the right side of the ballot box. It does this by finding any ovals darkened next to a write-in line on the ballot.  From the ballots on the right side of the ballot box, canvass the votes for the individual write-in candidates in all races the county auditor instructs the precincts to canvass. (These races are likely to be those for which there are no printed names on the ballot or in which write-in candidates are likely to be nominated or elected.)  In all other races, the county canvassing board will complete the canvass of the votes for the write-in candidates in those races for which the write-in votes constitute more than five percent of the votes cast by the voters for the candidate receiving the most votes for that office, except in the case of a primary election where enough votes were cast as write-in votes to qualify a name for the general election ballot. This percentage is to be calculated based on the total number of write-in votes tabulated by the voting equipment in the precincts of the county in which that office was on the ballot.  All ballots containing write-in votes must be wrapped and sealed prior to delivery to the county recorder so that these ballots can be delivered by the county recorder to the meeting of the county canvassing board if these votes were not canvassed by the polling place election board on election night. (NDCC § 16.1-15-08)
Primary Election Reports: The judges of a primary election in each precinct shall run a separate report for each political party or principle, containing the names of all persons voted for at the primary election, the number of votes cast for each candidate, and for which office. The report must be subscribed by the election judges and must be filed with the returns in the office of the county auditor. (NDCC § 16.111-33)

Canvass Report Prepared: The election board shall generate at least one canvass report from the electronic voting system. The ballots may not be sealed, nor may the canvass report be signed, by the election board or poll clerk until the counts in the poll clerks' book and in the canvass report show the same totals for ballots cast. Section 5 of this manual describes the procedures for closing of special precincts known as early voting, absentee, and vote by mail. (NDCC § 16.1-15-04)

Contents of Duplicate Reports: (NDCC § 16.1-15-09)  Election officers shall generate reports of votes counted on electronic counting machines for all candidates and for any measure in the same manner as provided for other ballots.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 13

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 16 of 26
 Optical scan counting systems must generate a printed record at the beginning of its operation, which verifies that the tabulating elements for each candidate position and each question and the public counter are all set at zero. The tabulating equipment must also generate a printed record of the total number of ballots tabulated and the total number of votes cast for each candidate and measure on the ballot. The election board must certify both printed records.
Oath Required Upon Completion of Canvass – Contents: At the conclusion of the canvass of the votes, each member of the election board shall sign an affidavit to the effect that the ballots have been counted, the votes were canvassed as provided in NDCC Chapter 16.1-15 and the returns as disclosed by the canvass reports agree with the number of ballots cast and are true and correct of the member's own knowledge. (NDCC § 16.1-15-05)
Wrapping and Returning Ballots – Void and Spoiled Ballots: (NDCC § 16.1-15-08)  The election board shall place each kind of ballot cast at the election in a suitable wrapper to form a complete wrapper for the ballots.  The ballots and wrappers must then be tightly secured at the outer end to completely envelop and hold the ballots together.  Set aside ballots must be secured in a separate wrapper and must be marked "set aside."  Void ballots must be secured in a separate wrapper and must be marked "void." Void ballots are ballots that are not endorsed with the initials of an election board member.  Ballots that are spoiled must be separately secured and marked "spoiled." Spoiled ballots are those returned by the voter in exchange for another because the voter has made a noncorrectable error on the returned ballot.  In sealing ballots, the various classes (cast, spoiled, void) must be kept separate.  Each wrapper must be endorsed with the names or numbers of the precincts and the date on which the election was held.  The wrappers must be sealed securely so the wrappers cannot be opened without an obvious and permanent breaking of the seal.  The ballots, together with those found void or spoiled, and the opened envelopes from voted absentee ballots and the unopened envelopes of absentee ballots rejected as defective, must be returned in person to the county recorder.  All ballots containing write-in votes must be wrapped and sealed prior to delivery to the county recorder so that these ballots can be delivered by the county recorder to the meeting of the county canvassing board.
Reports and Pollbooks Sent to County Auditor: Immediately following the canvass, except in cases of emergency or inclement weather, the inspector of elections, or one of the judges appointed by the inspector of elections, personally shall deliver the signed canvass report provided for in NDCC § 16.115-04 to the county auditor. The report, carefully sealed under cover, accompanied by the pollbook provided for in NDCC §§ 16.1-02-13 and 16.1-06-21 with the oaths of the inspector and poll clerks affixed thereto, must be delivered properly to the county auditor. (NDCC § 16.1-15-06)
Voters Casting Ballots After Regular Poll Closings – Provisional Ballots: An individual who votes after the regular poll closing time in an election in which a federal office appears as a result of a federal or state court order or any other order extending the time established for closing the polls under state law in effect ten days before the date of that election may only vote in that election by casting a provisional ballot. The ballot must be marked as a provisional ballot and must be separated and held apart from other ballots cast by those not affected by the order. The secretary of state shall approve the form of any provisional ballot and may prescribe any procedures the secretary of state determines to be necessary to facilitate the casting, secrecy, and counting of provisional ballots. (NDCC § 16.1-1334)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 14

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 17 of 26
Section 6 – Special Precincts (Early Voting, Absentee, Vote By Mail)
Absentee Ballot Precinct: (NDCC § 16.1-07-12.1) 1. For any primary, general, or special statewide, district, or county election, the board of county commissioners may create a special precinct, known as an absentee ballot precinct, for the purpose of counting all absentee ballots cast in an election in that county. The election board of the absentee ballot precinct must be known as the absentee ballot counting board. The county auditor shall supply the board with all necessary election supplies as provided in NDCC Chapter 16.1-06.

2. If the board of county commissioners chooses to establish an absentee ballot precinct according to paragraph #1 above, the following provisions apply:  The county auditor shall appoint the absentee ballot counting board that consists of one independent representative to act as the inspector and an equal number of representatives from each political party represented on an election board in the county, as set forth in NDCC § 16.1-05-01, to act as judges. Each official of the board shall take the oath required by NDCC § 16.1-05-02 and must be compensated as provided in NDCC § 16.1-05-05.  The county auditor shall have the absentee ballots delivered to the inspector of the absentee ballot counting board with the election supplies, or if received later, then prior to the closing of the polls.  The absentee ballot counting board shall occupy a location designated by the county auditor, which must be open to any individual for the purpose of observing the counting process.  Absentee ballots must be opened and handled as required in NDCC § 16.1-07-12. The county auditor shall designate a location for the closing, counting, and canvassing process under NDCC Chapter 16.1-15, which location must be open to any person for the purpose of observing. The board shall comply with the requirements of NDCC §§ 16.1-15-04 through 16.1-15-12, as applicable. See Processing Absentee Ballots on page 11 of this manual.  If the work of the election board is completed prior to the close of the polls on election day in an absentee ballot, early voting, or a mail ballot precinct, the election board shall create and sign a statement consisting of a reconciliation of the number of voters recorded in the pollbook and the number of ballots processed through the tabulators. The voting system shall then be secured in a manner prescribed by the county auditor that will protect the system and ballots from tampering. Prior to generating the canvass reports from one of these 3 types of precincts, an election judge representing each political party, or 2 election judges in the case of an election that does not include a political party contest, shall verify that the system and ballots remain secure and the statement created by the election board is still accurate. NDCC § 16.1-15-04

Early Voting Precinct: (NDCC § 16.1-07-15) 1. For any primary, general, or special statewide, district, or county election, the board of county commissioners may, before the sixty-fourth day before the day of the election, create a special precinct, known as an early voting precinct, to facilitate the conduct of early voting in that county according to NDCC Chapters 16.1-13 and 16.1-15. At the determination of the county auditor, more than one voting location may be utilized for the purposes of operating the early voting precinct. The election board of the early voting precinct must be known as the early voting precinct election board. The county auditor shall supply the board with all necessary election supplies as provided in NDCC Chapter 16.1-06.

2. If the board of county commissioners establishes an early voting precinct according to paragraph

#1 above, the following provisions apply:

 Early voting must be authorized during the fifteen days immediately before the day of the

election. The county auditor shall designate the business days and times during which the

early voting election precinct will be open and publish notice of the early voting center

locations, dates, and times in the official county newspaper once each week for three

consecutive weeks immediately before the day of the election.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 15

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 18 of 26
 The county auditor shall appoint the early voting precinct election board for each voting location that consists of one independent representative to act as the inspector and an equal number of representatives from each political party represented on an election board in the county, as set out in NDCC § 16.1-05-01, to act as judges. Each official of the board shall take the oath required by NDCC § 16.1-05-02 and must be compensated as provided in NDCC § 16.1-05-05.
 The county auditor, with the consent of the board of county commissioners shall designate each early voting location in a public facility, accessible to the elderly and the physically disabled as provided in NDCC § 16.1-04-02. With respect to polling places at early voting precincts, “election day” as used in NDCC §§ 16.1-10-03 and 16.1-10-06.2 includes any time an early voting precinct polling place is open.
 At the close of each day of early voting, the inspector and judges on the election board shall secure all election related materials, including: 1. The pollbook and access to any electronically maintained pollbook. 2. The ballot boxes containing voted ballots. 3. Any void, spoiled, and non-voted ballots.
 Ballot boxes containing ballots cast at an early voting location may not be opened until the day of the election except as may be necessary to clear a ballot jam or to move voted ballots to a separate locked ballot box in order to make room for additional ballots.
 Each early voting location may be closed, as provided in NDCC Chapter 16.1-15, at the end of the last business day designated for early voting in the county. Results from the early voting precinct may be counted, canvassed, or released under NDCC Chapter 16.1-15 as soon as any precinct within the county, city, or legislative district closes its polls on the day of the election. The county auditor shall designate a location for the closing, counting, and canvassing process under NDCC Chapter 16.1-15, which must be open to any person for the purpose of observing.
 The early voting precinct election board shall comply with the requirements of NDCC Chapters 16.1-05, 16.1-13, and 16.1-15, as applicable.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 16

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 19 of 26
Section 7 – Frequently Asked Questions and Answers
1. What do I do if a voter cannot or will not provide identification?
Answer: If the individual asserts qualifications as an elector in the precinct, they may be issued a set aside ballot. The set aside ballot will be tabulated by the canvassing board after the individual returns to the appropriate election official in a timely manner (see page 10).
2. What do I do if a voter asks for help with voting?
Answer: If the AutoMARK ballot marking device is not an option the voter chooses to use, then the two election judges from opposite political parties may assist the voter. Assistance is to be limited to reading the ballot to the voter, marking the voter’s choices for the contests, and depositing the voter’s ballot into the ballot scanner if the voter is unable to perform this function on his or her own or if the voter would rather not complete this part of the voting process. A voter may also choose to have a friend or relative assist the voter in reading, marking, and/or casting his or her ballot so long as this person is not a candidate on the ballot, a relative of a candidate, the voter’s employer, or the voter’s union representative.
3. What do I do if a voter asks me the names of write-in candidates for an office?
Answer: Inform the voter that he or she is free to write the name of anyone the voter so desires as a write-in candidate, but that some contests may require specific forms to be filed by the candidate in order for write-in votes be counted on the candidate’s behalf and the law does not permit election workers to divulge information about candidates to voters in the polling place. It would be wise to remind the voter to darken the oval next to a write-in candidate.
4. What do I do when I am running low on ballots?
Answer: Call the county auditor, city auditor, or school business manager (whichever is appropriate for the election) as soon as you believe you might run short of ballots.
5. What do I do if a person is disrupting the polling location?
Answer: If the person is causing a serious disruption (your judgment is needed here) and the person will not leave when requested do so, you may call the police and ask for assistance. You may also call the county auditor and ask for assistance.
6. What if we notice some posters hanging in the polling place on Election Day for a candidate?
Answer: Remove any candidate posters in the polling place prior to the opening of the polls.
7. What time will the auditor bring lunch?
Answer: Unless your auditor specifically tells you that lunch will be provided, you should be prepared to provide your own meals. Since the election board is not allowed to leave the polling place while the polls are open, this means that you need to bring your meals prior to the start of the day or have them delivered by a friend or local restaurant.
8. What do I do if someone brings an absentee ballot and turns it in at the precinct?
Answer: The law does not allow you to accept an absentee ballot from a voter on Election Day. However, you may tell the voter that you would be willing to spoil his or her absentee ballot and allow the voter to vote a new ballot at the precinct. You must remember to make a note of this for the county auditor’s records.
9. What do I do if I need to use the restroom?

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 17

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 20 of 26 Answer: Restroom breaks are allowed.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 18

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 21 of 26
Section 8 – Prohibitions, Crimes, and Election Offenses
Service of Civil Process on Election Day: During any primary, general, or special election held in this state, civil process may not be served on any person entitled to vote at the election within 100 feet from the outermost entrance leading into the building or facility in which a polling place is located and open for voting. (NDCC § 1-08-09)

Interference with Elections: No person may injure, intimidate, or interfere with another person who is or has been voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election. No person may injure, intimidate, or interfere with another person to prevent that person or any other person from voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election. (NDCC § 12.1-14-02)

Safeguarding Elections: No person may:  Make or induce any false voter registration;  Offer, give, or agree to give anything of pecuniary value, including alcoholic beverages, to another as consideration for the recipient’s voting or withholding his or her vote or voting for or against any candidate or issue or for such conduct by another;  Solicit, accept, or agree to accept anything of pecuniary value, including alcoholic beverages, as consideration for conduct prohibited by the two bullet points above; or  Otherwise obstruct or interfere with the lawful conduct of an election or registration. (NDCC § 12.1-14-03)

Election Offenses: The following election offenses are a crime and are subject to prosecution. It is unlawful for a person to:
 Fraudulently alter another person's ballot or substitute one ballot for another, or to otherwise defraud a voter of his or her vote.
 Obstruct a qualified voter on the way to a polling place.  Vote more than once in any election.  Knowingly vote in the wrong election precinct or district.  Disobey the lawful command of an election officer.  Knowingly exclude a qualified voter from voting or knowingly allow an unqualified person to vote.  Knowingly vote when not qualified to do so.  Willfully fail to perform any duty of an election officer after having accepted the responsibility of
being an election officer by taking the oath.  Willfully violate any rule adopted by the secretary of state pursuant to the election laws of North
Dakota.  Willfully make any false canvass of votes, or make, sign, publish, or deliver any false return of
an election, knowing the same to be false, or willfully deface, destroy, or conceal any statement or certificate entrusted to his or her care.  Destroy ballots, ballot boxes, election lists, or other election supplies except as provided by law. (NDCC § 16.1-01-12)

Electronic Voting Systems – Violations – Penalty: Any person who tampers with or injures any electronic voting system or device to be used or being used in any election, or who prevents the correct operation of any such system or device is guilty of a class A misdemeanor. (NDCC § 16.1-06-25) Political Badge, Button, or Insignia Prohibited at Election: No individual may buy, sell, give, or provide any political badge, button, or any insignia within a polling place or within 100 feet from the entrance to the room containing the polling place while it is open for voting. No such political badge, button, or insignia may be worn within that same area while a polling place is open for voting. (NDCC § 16.1-10-03)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 19

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 22 of 26
No Electioneering Within Boundary of an Open Polling Place: No person may in any manner try to induce or persuade any voter from voting for or against any candidate, candidates, or ticket of any political party or organization, or any measure within a polling place or within one hundred feet from the entrance to the room containing a polling place while it is open for voting. Bumper stickers or other moveable signs containing a political message that are not readily removable from vehicles are allowed within the restricted area only for as long as it takes the operator of the vehicle to complete the act of voting (NDCC § 16.1-10-06)
No person may pay another person for:  Any loss or damage due to attendance at the polls;  Registering;  The expense of transportation to or from the polls; or  Personal services to be performed on the day of a caucus, primary election, or any election which tend in any way, directly or indirectly, to affect the result of such caucus or election. (NDCC § 16.1-10-06.1)
No Sale or Distribution at Polling Place: Solicitation is not allowed in a polling place or within one hundred feet of any entrance leading into a polling place while it is open for voting. (NDCC § 16.1-1006.2)
Person Assisting Voter May Not Request Voter to Vote in Certain Manner: Any person chosen to assist a voter may not request the voter to vote for or against any candidate or any issue. (NDCC § 16.1-13-28)
Only One Person Allowed in Voting Booth – Time Limit in Booth: Only one person may occupy a voting booth at one time except when receiving lawful assistance. No person shall remain in the booth longer than necessary to vote. (NDCC § 16.1-13-30)
Removal of Ballot from Polling Place before Closing: No person may take a ballot from a polling place before the polls close. (NDCC § 16.1-13-31)

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 20

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 23 of 26
Section 9 – Voters With Disabilities
(This is adapted from various sources. Special thanks to the Arlington, VA Election Board)
Common-Sense Guidelines That Apply to All Voters
1. Be courteous and respectful. If you want to address the voter by name, use “Mr.” or “Mrs./Ms.” and the voter’s last name. Do not address a voter by his or her first name unless you know the voter personally and know he or she prefers this address.
2. Do not underestimate people with disabilities. A disability DOES NOT equal lessened intellectual capability.
3. Be considerate of extra time it may take for a person who is disabled or elderly to accomplish tasks.
4. Give unhurried attention to a person who has difficulty speaking. 5. Always speak directly to the voter, and not to a companion, aide, or sign language interpreter.
Remember that any voter with a disability may be accompanied by, and receive assistance from, another person of his or her choice in the voting booth, unless the person is an employer, officer or agent of the elector’s union, a candidate running in that election, or a relative of a candidate. 6. Ask before you help. The person may not want assistance. Do not insist – take “no” for an answer if that is the voter’s wish. 7. Do not be shy about offering assistance. Your courtesy will be appreciated. 8. If your polling place is in a building with several routes through it, be sure that sufficient signs are in place to direct a person to the most accessible route to the polling location.
Voters with Mobility Impairment
1. Do not push or touch another person’s wheelchair or equipment without consent. People using adaptive equipment often consider the equipment their personal space. You might also break or damage a wheelchair or piece equipment if you are not familiar with it.
2. Ask before helping. Grabbing someone’s elbow may just throw a person off balance. Allow the person to take your elbow.
3. A person with mobility impairment might lean on a door while opening it. Quickly opening the door might cause the person to fall.
4. Either fasten mats and throw rugs down securely or move them out of the way. A person with mobility impairment could trip.
5. Keep floors dry as possible on rainy or snowy days. 6. Keep the ramps and wheelchair-accessible doors to the polling place unlocked and free of
clutter.
Voters with Speech or Hearing Impairments
1. A voter who cannot speak can give his or her name and address simply by providing identification to the pollbook officer. The officer will read the name and address aloud, and the voter can provide physical confirmation (such as nodding his or her head) that the information is correct.
2. Follow the voter’s cues to determine whether speaking, gestures, or writing are the most effective means of communication.
3. If speaking, speak calmly, slowly, and directly to the voter. Do not shout. Your facial expressions, gestures, and body movements help in understanding. Face the voter at all times and keep your face in full light (not backlit), if possible.
4. Rephrase, rather than repeat, sentences that the voter does not understand.
Voters with Visual Impairment
1. Identify yourself and state that you are an election official as soon as you come in contact with a voter who has a visual impairment. Greet the individual by letting the person know who and

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 21

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 24 of 26
where you are. When offering walking assistance, allow the person to take your arm and tell him or her when you are approaching inclines or steps, or turning right or left. 2. If guiding a voter, offer your arm to the voter, rather than taking the voter’s arm. 3. If a voter has a guide dog, walk on the opposite side of the voter from the dog. Do not pet or otherwise distract a guide dog without permission from the owner. Be aware that service animals that assist persons with disabilities should be allowed into all buildings. Such animals are highly trained and need no special care other than that provided by the owner. Do not interfere with the animal’s responsibilities by talking or playing with it. 4. When giving directions to navigate the polling place, be as specific as possible and point out obstacles in the path of travel. 5. Let the voter know when you leave his or her presence.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 22

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 25 of 26
Checklists for Election Day
Before the Polls Open
 Election board and clerks take and subscribe the oath.  Inspector assigns duties fairly and equally to both parties on election board.  Review ballots and materials to make sure they are correct for the polling location.  Post voting instructions and copy of NDCC § 16.1-01-12 (Election Offenses).  Post official ballots, copies of the complete text of the measures, map of the precinct boundaries,
and diagram of the voting system appropriately in the polls.  Post the date and hours the polling location will be open on the door.  Inspector and judges inspect ballot box to make sure it is empty and lock it.  Open the sealed package of official ballots.  Perform other duties as the county auditor may prescribe.  Display the United States Flag.  Open polls at the designated time.
After the Polls Open
 Clerks keep and correct a poll list as voters approach to vote.  Ask each voter to show valid identification.  Ask each voter if they are a United States citizen and whether they have resided in the precinct for
at least thirty days.  Direct voters to correct polling location if in wrong place.  Provide instruction and assistance to voters, including information about the AutoMARK.  Inspector or judge to distribute ballots to voter within a secrecy sleeve.  Warn voters to check for initials.  No write-in stickers allowed.  Warn voters not to split votes between parties in the primary election.  Provide additional ballots (up to two) if voter spoils a ballot.  Cancel spoiled ballots immediately.  Allow voters to place own ballots in optical scan ballot tabulator.  Process absentee ballots if delivered to polling location.  Do not allow ballots out of the polling place before polls close.  Allow voters standing in line at closing time to vote.
After the Polls Close
 Run canvass reports of the votes from the optical scan ballot tabulator.  Compare ballots counted by the optical scanner with pollbooks.  In optical scan precincts, judges and inspectors shall verify the initial print record is at zero.  Canvass the write-in votes for those races instructed to the board by the county auditor.  The election board or all of the poll workers as the case may be sign the generated reports.  In primary elections, copies of the reports must be given to each political party.  Election board shall take oath at conclusion of canvass.  Wrap and return ballots to county recorder as instructed.  Reports, pollbooks, oaths, and other required materials delivered to the county auditor.

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 23

Case 3:20-cv-00071-PDW-ARS Document 1-1 Filed 05/01/20 Page 26 of 26 NOTES

___________________________________________________________________________

Revised October 2018

2018 North Dakota Election Officials’ Manual page 24

Case 3:20-cv-00071-PDW-ARS Document 1-2 Filed 05/01/20 Page 1 of 2
Exhibit B

Case 3:20-cv-00071-CPoDmWp-AleRtSe, PDroicnut,mSeingtn1,-2anFdileMda0il5/01/20
ABSENTEE/MAIL BALLOT APPLICATION
SECRETARY OF STATE
SFN 51468 (08-2015)

Page 2 of 2
For Office Use Only Precinct Part

For reference, see North Dakota Century Code, Chapter 16.1-07. Application must be for at least one of the following elections:

June (Primary) Election

OR

November (General) Election

All Statewide Elections
(only check if ballot delivery address will be the same for all elections)

Applicant Information: (ALL FIELDS REQUIRED)
Voter's Name

Date of Birth

_________________
City Election School Election Special Election
Daytime Telephone Number

North Dakota ID Type Used: (check one)

Driver's License

Non-driver's ID

Long Term Care Certificate (include with application)

Passport or Military ID (only for voters outside the United States)

ID Number (required only if driver's license, non-driver's ID, tribal ID, passport or military ID is selected above)

Tribal ID Applicant Without ID*

Residential Address

City

Ballot Delivery Address (if different from residential address)

City

State State

ZIP Code ZIP Code

I do solemnly affirm that I have resided or will reside in the precinct, where my residential voting address is located, for at least thirty days next preceding the election and will be a qualified elector of the precinct.

Signature (required)

Date

Applicant Unable to Sign:
If the applicant is unable to sign the applicant's name, the applicant shall mark X or use the applicant's signature stamp on the application in the presence of a disinterested individual. The disinterested individual shall print the name of the individual marking the "X" or using the signature stamp below the "X" or signature and shall sign the disinterested individual's own name following the printed name together with the notation "witness to the mark."
Printed Name of Person Making Mark or Voter's Signature Stamp

Voter's Mark

Signature of "Witness to the Mark"

*Applicant Without ID:

If the applicant does not possess or cannot secure an approved form of identification due to a disability with which the individual lives and which prevents the individual from traveling to obtain, another qualified elector of the state may attest that the applicant is a qualified elector of that precinct by signing below and providing his or her approved North Dakota identification number. NOTE: A qualified elector may not attest the qualifications of more than four applicants in an election.

Printed Name of Attester

Driver's / Non-driver's / Tribal ID Number

Signature of Attester

Date

Daytime Telephone Number

Active Military and Overseas Voter: Check ONE (if applicable):
Citizen living outside of the United States

Uniformed service or family member living away from the voter's residence, yet within the United States

Uniformed service or family member living away from the voter's residence, yet outside the United States

If one of the check boxes above applies to you, please indicate your preferred ballot delivery method:

Mail

Email (provide email address):

Fax (provide fax number):

Mail or Submit to Burleigh County Auditor, PO Box 5518, Bismarck ND 58506

Case 3:20-cv-00071-PDW-ARS Document 1-3 Filed 05/01/20 Page 1 of 2
Exhibit C

Case 3:20-cv-00071-PDW-ARS Document 1-3 Filed 05/01/20 Page 2 of 2

Case 3:20-cv-00071-PDW-ARS Document 1-4 Filed 05/01/20 Page 1 of 2
Exhibit D

Case 3:20-cv-00071-PDW-ARS Document 1-4 Filed 05/01/20 Page 2 of 2

SECRETARY OF STATE Alvin A Jaeger
State of North Dakota 600 E Boulevard Ave Dept 108
Bismarck ND 58505-0500 ELECTIONS UNIT (701) 328-4146 soselect@nd.gov Vote.ND.Gov

;

North Dakota Residents Choosing to Vote Absentee or by Mail
In North Dakota, voting is made easy through absentee and mail ballots. Please use the following information to make your voice heard through voting.
Al Jaeger North Dakota Secretary of State The State’s Chief Election Official ___________________________________________________
; Voter Qualifications
North Dakota does not have voter registration. However, in order to vote in North Dakota, a voter must be:
x A citizen of the United States; x Eighteen years or older on the day of election; x A resident of North Dakota; and x A resident who has resided in the precinct at least thirty days
immediately preceding any election; and x Able to provide a valid form of identification such as a North
Dakota driver’s license, nondriver ID, or tribal ID that includes your current residential address and date of birth; or you complete a Voter’s Affidavit on which you attest to your qualifications as a voter. If an individual’s valid form of identification does not include all the information required in 16.1-01-04.1(2) of the North Dakota Century Code, or the information is not current, the identification must be supplemented by presenting any of the documents as outlined in section 16.1-01-04.1(3)(b) of the North Dakota Century Code ___________________________________________________
; Residence for voting – Rules for
determining
To determine residence for voting, the conditions from the North Dakota Century Code Section 16.1-01-04.2 must be met.
x Every qualified elector may have only one residence, shown by an actual fixed permanent dwelling, establishment, or any other abode to which the individual returns when not called elsewhere for labor or other special or temporary purposes.
x The street address verified by the individual as provided in section 16.1 - 01 - 04.1 when requesting a ballot to vote must be the address of residence for the individual.
x An individual retains a residence in this state until another has been gained.
x The acts of residing at a new address for thirty days and verifying that address as provided under section 16.1 - 01 - 04.1 constitute a change in the individual's voting residence.
___________________________________________________
; Voting Absentee or by Mail
All eligible North Dakotans have the option to request a ballot before the day of an election in a process known as absentee voting. You do not need to provide a reason for why you are requesting an absentee; however, you will be required to complete an application and sign an affidavit. You may submit an application anytime during the calendar year of an election; however, ballots are not available until the fortieth day before an election. Your application may be mailed, faxed, or personally delivered to your county auditor’s office. Revised July 2019

You may live in a county using mail ballot elections (at least one polling place must be open on Election Day). In such counties a mail ballot application is required to be sent to every active voter between the 50th and 40th day before the election. The application is also to be printed in the County Official Newspaper for two consecutive weeks. Furthermore, applications may be requested from the auditor’s office or accessed online.
Whether you vote absentee or by mail ballot your return envelope must be postmarked no later than the day before the election. If you are unable to meet this deadline then you will have to go to your appropriate polling place on Election Day to cast your ballot. _________________________________________________
; Application
Applications for absentee ballots may be submitted anytime within the calendar year of an election. The simplest method to apply is to electronically fill out and print the absentee application for submittal by clicking here Absentee Ballot Application Wizard Additionally, election officials of the county, city, or school district will furnish absentee ballot applications to qualified electors upon request.
The application will request the following information from each voter desiring to vote absentee:
x voter’s name; x voter’s current or most recent ND residential address; x voter’s mailing address; x voter’s current contact telephone number; x the election for which the ballot is being requested; x the date of the request; x the voter’s affirmation of residence in the precinct for at least
thirty days immediately prior to the election; x voter’s signature; x the voter’s status as a citizen living outside the United
States, a uniformed service member living away from the voter’s North Dakota residence, or a family member of the uniformed service member living away from the voter’s North Dakota residence; x voter’s birth date and year; x The identification number from one of the applicant's valid forms of identification, a copy of the applicant's long-term care certificate, and, if necessary, a copy of the applicant's supplemental identification under section 16.1-01-04.1. x voter’s fax number (if voting materials are to be sent using this manner of transmission) x voter’s email address (if voting materials are to be sent using this manner of transmission)
Absentee ballot applications are to be delivered to the appropriate election official by mail, in person, by fax or as a scanned attachment to an email. Uniformed service members stationed away from home and citizens living outside the United States may also receive and return voted ballots by fax or electronic means according to North Dakota law. For more information, please read the information for Military Voters and for Overseas Voters.
According to North Dakota law, absentee ballots are to be made available by the 40th day before the election. Returned absentee ballots must have an official postmark or date stamp on the envelope, email, or fax by the day before the election. _________________________________________________
; ND Absentee Ballot Application
Absentee Ballot Application Wizard
_________________________________________________
; ND County Auditors
North Dakota Local Election Officials

JS 44 (Rev 06/17) Case 3:20-cv-00071-PDCWIV-AIRLSCODoVcEumReSnHt 1E-5ETFiled 05/01/20 Page 1 of 1

pTpurhorepvioIdSsee4do4bfcyinivliotilicaactoilnvrugelrethssheoecef1_tcv1oalunddno.tchkTeehtiinssfhofoementina. ,tia(o,\~nlp:Icn:owInNct,\a~1in1.b/1eydI(t)h17ee/0r.eNlui~,n\1n<cIe1NaitlhNCeI:_ro.\~r,7ef~IprAlca(nc,eIc:_cn0oo1·rf

suppl ement the fii.in _Ihc United States 111 IHI,\ l·OI/M.)

g.and serv ice of September 19 74

pleadings or . 1s required

other papers as required by law, fo r lhc use of the Clerk ofCoun

ex fo r

cep the

t

as

I. (a) PLAINTIFFS

DEFENDANTS

Self Advocacy Solutions N.D. , League of Women Voters of North Dakota, Maria Fallon Romo
(b) County ofResidence of First Listed Plaintiff -G="-'r-=a:.;n_'-d-''----F'----o-=-.r:..k:_:_s::___ _ _ __
(l:'.\Cl:'l'T IN ll.S. l'I.A INTll·F CASl:S)

Alvin Jaeger, in his official capacity as Secretary of State ; Debbie Nelson, in her official capacity as Auditor of Grand Forks County

County of Residence of First Listed Defendant --=8-=u:.:r...l:..e::..:i..,g-h'---_______ _

(IN ll.S l'I.AINTll-"I .- CAS/iS ONI.Y)

NOTE

IN LAND CONDEMNATI ON CASES, TH E TRACT OF LAND INVOL YEO.

USE

THE

LOCAT ION

OF

B~~t~11:_11IW¥{r'fi'!' Name. Address. a11d Telepho11e N11111he1)

AHomeys (If K11ow11)

109 North 4th Street, Suite 100, Bismarck, ND 58501 (701) 221 -291 1

II. BASIS OF JURISDICTION (1'/acea11 "X" i11011e lfox011ly)

0 I U. S. Government Plaintiff

~ 3 Federal Question (U.S. Govemme11t Not a Party)

0 2 U.S. Government Defendant

0 4 Diversity (l11dicate Citize11sh ip of Parties i11 Item Ill)

Ill.

CITIZENSHIP OF PRINCIPAL
(For Diversity Cases 0 11ly)

PARTIES (!'lace an "X" 111 One Box for l'lwnt,ff
and One Box for Defendant)

PTF DEF

PTF DEF

Ci tizen of This State

OI O

Incorporated or Principal Place

D 4 D4

of Business In Thi s State

Citizen of Another State

0 2 0 2 Incorporated and Principal Place of Business In Another State

0 5 05

IV NATURE OF SUIT (Place an "X" in One Box Onlv)

Citizen or Subject of a Forci n Count

0 3 0 3 Foreign Nation

0 6 06

Click here for: Nature of Suit Code Descn ot tons.

0 I l0 Insurance 0 120 Marine CJ 130 Miller Act 0 140 Negotiable Instrument 0 I50 Recovery of Overpayment
& Enforcement of Judgment D 151 Medicare Act 0 152 Recovery of Defaulted
Student Loans (Excludes Veterans) 0 I53 Recovery of Overpayment of Veteran's Benefits 0 I60 Stockholders' Suits 0 190 Other Contract O 195 Contract Product Liability Cl 196 Franchise
0 210 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment O 240 Tons to Land 0 245 Tort Product Liability 0 290 All Other Real Property

PERSONAL INJURY 0 3 IO Airplane 0 3 I 5 Airplane Product
Liabi li ty 0 320 Assault, Libel &
Slander 0 330 Federal Employers'
Liability 0 340 Marine □ 34 5 Marine Product
Liabili ty 0 350 Motor Vehicle 0 355 Motor Vehicle
Product Liability 0 360 Other Personal
Injury 0 362 Personal Injury -
Medical Malpractice
0 440 Other Civi l Rights ~441 Voting 0 442 Employment 0 443 Housing/
Accommodations 0 445 Amer. w/Disabilities -
Employment 0 446 Amer. w/Disabilities -

PERSONAL INJURY 0 365 Personal Injury -
Product Liability 0 36 7 Health Care/
Pharmaceutical Personal Injury Product Liability 0 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 0 370 Other Fraud 0 37 1 Truth in Lending □ 380 Other Personal Property Damage □ 385 Property Damage Product Liability
Habeas Corpus: □ 463 Alien Detainee 0 510 Motions to Vacate
Sentence 0 530 General 0 535 Death Penalty
Other: 0 540 Mandamus & Other

0 625 Dmg Related Seizure

0

of Property 21 USC 881 0

0 690 Other

0 0 0

0

0 710 Fair Labor Standards

0

Act

0

0 720 Labor/Management

0

Relations

0

0 740 Railway Labor Act

0

0 751 Fami ly and Medical

Leave Act

0 790 Other Labor Litigation

0 791 Employee Retirement 0 Income Security Act

0

;i/c, •• lMMJGwAl'JQN c..:
0 462 Naturalization Application 0 465 Other Immi gration

422 Appeal 28 USC 158 423 Withdrawal
28 USC 157
rt
820 Copyri ghts 830 Patent 835 Patent - Abbreviated
New Drug Application 840 Trademark
·_.,. ,, 86 1 HIA (1395ft) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
870 Taxes (U.S . Plaintiff or Defendant)
871 IRS- Thi rd Party 26 USC 7609

0 375 False Claims Act 0 376 Qui Tarn (3I USC
3729(a)) 0 400 State Reapportionment O 4 IO Antitrust □ 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and
Con11pt Organizations 0 480 Consumer Credit
0 490 Cable/Sat TV 0 850 Securities/Commodities/
Exchange 0 890 Other Statutory Actions □ 891 Agricultural Acts 0 893 Environmental Maners 0 895 Freedom of Information
Act
0 896 Arbitration
□ 899 Administrative Procedure Act/Review or Appeal of Agency Decision
0 950 Constitutionality of State Statutes

Other

0 550 Civil Rights

Actions

□ 448 Education

□ 555 Prison Conditi on

0 560 Civi l Detainee -

Conditions of

Confinement

V. ORIGIN (Place an "X" m 0ne8ox0nly)

J:11: I Original Proceeding

D 2 Removed from State Court

D 3 Remanded from Appellate Court

D 4 Reinstated or D 5 Transferred from

Reopened

Another Distri ct

O 6 Multidistrict Litigation -

D 8 Multidistrict Litigation -

VI.

CAUSE

OF

ACTION

(.1-pecify)

Transfer

bCBF-:iritrie:e:-sftth-d:eae_sUn-c:.-rSdip-.:FtCi_ooin_vuio-l::rfSt_cteaaetu_unst_eet:hu_An_dme_rew_nhd_icmh_ey_on_ut..a..:rse,_4fi_li2n_gU___.(_.DCso_.1_1.§0:1...c1.i.t..e:.9j.u...r:.8is-=d-3ic-_ tion_ al sta_tute_ s un_ less_ dive_ rsity_ ): __ _

_

_

_

Direct File _ _ _ __

VII. REQUESTED IN COMPLAINT:

The signature verification procedure
0 CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F. R.Cv .P.

unduly burdens DEMAND$

citizens'

right

to

vote and deprives citizens of due process.

CHECK YES only if demanded in compl aint:

JURY DEMAND:

O Yes )Q No

VIII. RELATED CASE(S)

IF ANY

(See instn1ctions): JUDGE

DOCKET NUMBER

DATE
05/01/2020

SIGNATURE OF ATTORNEY OF RECORD
Isl Derrick Braaten

FOR OFFICE USE ONLY

RECEIPT #

AMOUN T

APPLYING IFP- - - - - - -

JUDGE

MAG . JUDGE - - -- - - - -

 
 Case 3:20-cv-00071-PDW-ARS Document 11 Filed 05/11/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,

v.

Case No. 3:20-cv-00071

ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

Defendants.

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs Self Advocacy Solutions N.D., League of Women Voters of North Dakota, and Maria Fallon Romo (“Plaintiffs”) respectfully move this Court for a preliminary injunction as set out in the accompanying Brief in Support of Plaintiffs’ Motion for Preliminary Injunction. Fed. R. Civ. P. 65(a); Local Rule 7.1(B). Plaintiffs seek relief from North Dakota’s signature match verification process, which requires election officials to reject an absentee or mail ballot upon determining that the signature on the voter’s ballot and the signature on the voter’s ballot application do not correspond. Under this procedure, voters whose ballots are questioned for an alleged signature match issue are not provided any notice or any opportunity to fix the issue before votes are finally canvassed. Hundreds of North Dakotans, including Plaintiff Romo in 2018, have been silently disenfranchised by this error-prone signature match process. Without this Court’s intervention, many more voters, including Plaintiffs and their members, will be at heightened risk of
1

Case 3:20-cv-00071-PDW-ARS Document 11 Filed 05/11/20 Page 2 of 4 disenfranchisement in the upcoming all-mail election on June 9, 2020, in violation of their right to vote and right to due process under the First and Fourteenth Amendments to the U.S. Constitution.
WHEREFORE, Plaintiffs respectfully request that the Court grant their Motion and issue a preliminary injunction enjoining Defendants from implementing any signature match requirement that does not include a constitutionally adequate notice and cure requirement, including N.D.C.C. §§ 16.1-07-09, 12; 16.1-15-19, as applied to any absentee or mail ballots in the June 9, 2020 election and all subsequent elections that take place during the pendency of this suit; and ordering Defendant Jaeger to issue instructions to all local election officials responsible for processing absentee and mail ballots requiring them to take affirmative steps to contact voters whose ballots are impaired by signature issues to inform them of the impairment and provide those voters a meaningful opportunity to contest and cure signature issues in time to have their ballots counted in the election.
2

Case 3:20-cv-00071-PDW-ARS Document 11 Filed 05/11/20 Page 3 of 4

Dated: May 11, 2020
Mark Gaber* Danielle Lang* Dana Paikowsky*
Licensed in C.A. only; supervision by Danielle Lang, a member of the D.C. Bar. Aseem Mulji* Licensed in C.A. only; supervision by Danielle Lang, a member of the D.C. Bar. CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 mgaber@campaignlegal.org dlang@campaignlegal.org dpaikowsky@campaignlegal.org amulji@campaignlegal.org
* Admitted pro hac vice

Respectfully submitted,
/s/ Derrick Braaten Derrick Braaten (ND#06394) Carey Goetz (ND#05958) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911 derrick@braatenlawfirm.com carey@braatenlawfirm.com
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521 sarahvogellaw@gmail.com
Counsel for Plaintiffs

3

Case 3:20-cv-00071-PDW-ARS Document 11 Filed 05/11/20 Page 4 of 4 CERTIFICATE OF SERVICE
I certify that on May 11, 2020, I caused a copy of the foregoing Motion and the accompanying Memorandum and Exhibits, to be served upon counsel for Defendants by email at the following addresses: Counsel for Defendant Jaeger David R. Phillips – drphillips@nd.gov Matthew A. Sagsveen – masagsve@nd.gov Counsel for Defendant Nelson Howard Swanson – hswanson@swlawltd.com
/s/ Derrick Braaten Derrick Braaten Counsel for Plaintiffs
4

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,

v.

Case No. 3:20-cv-00071

ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

Defendants.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Mark Gaber (admitted pro hac vice) Danielle Lang (admitted pro hac vice) Dana Paikowsky (admitted pro hac vice)* Aseem Mulji (admitted pro hac vice)* CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200

Derrick Braaten (ND#06394) Carey Goetz (ND #05958) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521

Counsel for Plaintiffs

* Licensed in California only; supervision by Danielle Lang, a member of the D.C. Bar.

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 2 of 22
INTRODUCTION “[I]t is self-evident that a legal voter is injured unless he is not only permitted to vote, but to have his vote counted as cast.” Walker v. United States, 93 F.2d 383, 387 (8th Cir. 1937) (citing United States v. Mosley, 238 U.S. 383, 386 (1915)). And yet, every election, using an inherently unreliable signature verification process, North Dakota rejects and does not count eligible voters’ validly cast mail-in ballots because of benign issues with their penmanship. Under this system, untrained officials verify ballots by comparing the signature provided on a voter’s ballot application to the one on their ballot envelope to determine if the two “correspond.” If they do not, the ballot is rejected. Affected voters are never informed their ballots are impaired or given an opportunity to fix the issue and have their ballots counted. This system is unconstitutional. Not only does it arbitrarily disenfranchise voters based on the unreviewable, error-prone determinations of evaluators who lack meaningful training or guidance in signature examination, it disproportionately disenfranchises certain populations of voters who are both more likely to rely on absentee voting to access the ballot and less able to produce consistent signatures because of their age, disability, or underlying health conditions. Plaintiff Maria Romo—a lifelong voter who lives with multiple sclerosis that affects her fine motor skills—had her validly cast ballot thrown away in 2018 because officials erroneously believed the signatures did not match. Plaintiff Romo is one of hundreds of voters who have been silently disenfranchised by this system, and the problem only promises to grow. Because of COVID-19, North Dakotan voters must rely on absentee voting in order to exercise their fundamental right to vote in upcoming elections. Their ballots will be reviewed under this flawed system, and eligible voters will be disenfranchised. At a time when the pandemic threatens not only the health of our citizens, but the health of our democracy, ensuring voters can have confidence in elections is of paramount importance.
1

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 3 of 22
North Dakota has, at its fingertips, the tools it needs to end these erroneous rejections by giving voters notice and an opportunity to cure ballot issues before they are disenfranchised. Unless the Court intervenes to require the State provide these constitutionally necessary safeguards in time for the June 9, 2020 all-mail elections, Plaintiffs and all North Dakota voters who cast ballots will be at significant risk of being deprived of their right to vote and right to due process under the First and Fourteenth Amendments to the United States Constitution.
FACTUAL BACKGROUND I. North Dakota’s Absentee Voting Procedures and Signature Match Law
Absentee voting is a central part of North Dakota’s democratic process. In 2018, nearly thirty percent of all North Dakotans cast their ballots absentee. Ex. 1 (EAVS Data).
Any eligible North Dakota voter may request an absentee ballot. N.D.C.C. §§ 16.1-07-01, 05. Applicants provide their name, residential and mailing address, phone number, date of birth, and an ID number. Id. § 16.1-07-06. Applicants must then sign their applications, unless unable to do so, in which case they may place a mark on the application and have an attester sign and witness their application. Id. If their application is accepted, voters receive their absentee ballots, along with a return envelope, secrecy envelope, and instructions in the mail. Id. § 16.1-07-08.
To return their completed absentee ballots, voters must seal their marked ballots inside the secrecy envelope and then place both inside the return envelope. Id. Then, they must fill out a “voter affidavit” on the inner envelope with their name, precinct, residential address, and signature. Id. Absentee ballots must be postmarked by the day before Election Day and received before the county canvassing board meets on the sixth day after Election Day. Id. §§ 16.1-07-09, 16.1-15-17.
All absentee ballots undergo signature match verification before they can be counted. For ballots received before the close of polls on Election Day, the relevant precinct officials “compare the signature on the application for an absent voter’s ballot with the signature on the voter’s
2

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 4 of 22
affidavit . . . to ensure the signatures correspond.” Id. § 16.1-07-12. Ballots with allegedly mismatched signatures are marked as rejected and sent to the canvassing board for a “final determination.” Id. §§ 16.1-07-12, 16.1-15-19. Ballots timely received after the close of polls are sent directly to the county canvassing board to assess and determine whether “the signatures on the absentee ballot application and the voter’s affidavit were signed by the same person before allowing the ballot to be tallied.” Id. § 16.1-07-09.
Neither the precinct officials nor county canvassing board members are required to receive training in signature verification. See id. §§ 16.1-05-02, 03. Nor does state law provide any further guidance or standards to determine whether signatures “correspond” or “were signed by the same person.” Defendant Jaeger’s North Dakota Election Officials’ Manual provides this single sentence of instruction on this topic: “Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.” Ex. 2 at 12 (2020 Election Officials’ Manual). County training materials likewise provide the same unbounded instructions. See Ex. 3 (Compiled county training materials).
There is also significant variation in how canvassing boards that review ballots flagged for mismatched signatures by precinct officials ultimately determine whether those ballots are to be rejected. In 2018, for example, at least four counties rejected every one of the ballots that were deemed to have mismatched signatures at the polling place. Exs. 4-7 (McKenzie, McLean, Traill, and Kidder canvassing board minutes). In Dickey County in 2018, the canvassing board rejected two ballots flagged for signature mismatches outright but for another considered the voter’s “situation and history” during the evaluation, including the fact that the voter was “a long-term care resident that had signed the application in June.” Ex. 8 (Dickey canvassing board minutes). In Pembina County in 2018, the canvassing board rejected ballots signed by voters where the
3

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 5 of 22
application had been signed by an attester pursuant to N.D.C.C. § 16.1-07-06(2). Ex. 23 (Pembina County canvassing list).
If a county canvassing board concludes that there is any issue with a voter’s signatures, the ballot is rejected and the vote is not counted. N.D.C.C. § 16.1-07-12. Their determination is final.
Voters whose ballots are ultimately rejected due to a signature mismatch are never notified. See, e.g., Ex. 9 (Mar. 25, 2019 Email from Barnes County Auditor) (Q: “[A]re the voters whose signatures are questioned as not matching contacted about the issue before the board decides to reject their ballot?” A: “No. The canvassing board members make a determination by looking at the signatures. They do not contact the voter.”). Nor are they given an opportunity to confirm their signature and ensure their ballot is counted. Indeed, voters are never even notified about the possibility their ballot could be rejected because of a signature issue. Nothing in the text of voters’ absentee ballot applications, voter affidavits, or the Secretary of State’s instructions about absentee voting informs voters of the State’s signature matching policy. See Ex. 10 (Absentee ballot application); Ex. 11 (Voter affidavit); Ex. 12 (Secretary of State absentee voting instructions). II. The Error-Prone Nature of Signature Match Verification in North Dakota
Signature match verification is an inherently unreliable means of verifying absentee ballots. Countless factors can influence the appearance of any given signature, including age, physical and mental condition, disability, medication, accidents, and natural differences in a person’s stance. Ex. 13 (Mohammed Decl.) ¶ 35. A person’s signature may also vary based on writing conditions at the time of signing, e.g., whether the person is in a moving vehicle or a stationary table, type of writing instrument, and whether the document was signed on a paper or electronic screen. Id. Some people also use alternative signature styles. Id. ¶ 43. Moreover, signature variance is more extreme and commonplace in certain populations, including young and
4

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 6 of 22
elderly signers, signers with disabilities, and signers with less formal education or who learned a non-Latin-based script as their first language. Id. ¶¶ 24, 28, 36-38.
While handwriting comparison is difficult under the best of circumstances, even certified Forensic Document Examiners (“FDEs”), who have undergone between two and three years of training and testing in handwriting analysis, would be likely to make erroneous determinations under North Dakota’s signature verification process. Id. ¶¶ 23, 32, 38, 42, 46-49. FDEs usually require multiple signature samples—according to one recommendation, a minimum of ten—to make signature determinations. Id. ¶¶ 26, 26 n.4. If the signer is elderly or has an underlying health condition, more samples may be required. Id. ¶ 26. North Dakota also does not give examiners the time or equipment FDEs would need to do the comparison. Id.
But North Dakota’s policy does not rely on trained FDEs; instead, it relies on untrained evaluators who are equipped with no standards or training to guide their analyses. Individuals without training are “highly likely” to make mistakes when comparing signatures, and the mistakes they make are more likely to be determinations that authentic signatures are inauthentic than the reverse. Id. ¶ 28. One study showed that lay people made this mistake in 26.1% of cases, while FDEs did so in only 7.05% of cases—in other words, lay evaluators are 3.5 times more likely than FDEs to reject a ballot based on an erroneous signature comparison. Id. ¶ 30. III. The Disenfranchising Impact of North Dakota’s Signature Match Law
Hundreds of ballots are rejected for signature impairments every election. According to data from the Election Administration and Voting Survey (“EAVS”)—a biennial study conducted by the Election Assistance Commission—North Dakota rejected 334 ballots for alleged signature mismatches in 2018, accounting for over sixty percent of all rejected absentee ballots. Ex. 1 (EAVS Data). The rates of rejection also vary greatly from county to county. While many counties reported no or few signature-based ballot rejections in 2018, Morton County and Nelson County
5

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 7 of 22
respectively rejected 1.14% and 1.74% of absentee ballots for alleged signature mismatches. Id. These ballot rejections could impact the outcome of elections in North Dakota, where elections can often be decided by only a handful of votes.2
Plaintiff Maria Romo cast a valid absentee ballot in 2018 that was erroneously rejected under North Dakota’s signature verification regime. Ex. 14 (Romo Decl.) ¶ 6; Ex. 25 (Grand Forks District 25 rejected ballots). Ms. Romo has multiple sclerosis that impairs her handwriting and fine motor skills. Id. ¶ 5. Because of this chronic condition—which she has been living with for decades—Ms. Romo has strength issues in her fingers, must write with a special large width pen, and cannot produce a neat or consistent signature. Id. The same year, Defendants also rejected the validly cast ballot of Kourtney Culver, a former North Dakota resident who was attending school out of state at the time. Ex. 15 (Culver Decl.) ¶ 5; Ex. 25 (Grand Forks District 17 rejected ballots). Until this year, neither Ms. Romo nor Ms. Culver knew that their ballots would be subjected to a signature matching process or that their ballots had been rejected for signature issues. Ex. 14 ¶¶ 4, 6; Ex. 15 ¶ 5. After their ballots were rejected, neither were given an opportunity to cure the issue and have their votes counted. Ex. 14 ¶ 7; Ex. 15 ¶¶ 5-6.
Plaintiff Self Advocacy Solutions N.D. (SAS) is an organization by and for people with disabilities, whose members are at particular risk of disenfranchisement because of the signature match law. Ex. 16 (Marx Decl.) ¶ 7; Ex. 13 (Mohammed Decl.) ¶¶ 41-42. SAS members depend on absentee voting to participate in elections, but many members have difficulty signing their name and their signatures lack visual consistency across time. Ex. 16 ¶ 9. Plaintiff League of Women
2 For example, in 2018, four North Dakota elections were determined by fewer than 50 votes. See ND Voices, Official 2018 General Election Results, Legislative District Results (Dec. 11, 2019), https://results.sos.nd.gov/resultsSW.aspx?text= Race&type= LG&map= DIST (showing elections in Senate District 25 being decided by 21 votes and House District 43 by 35 votes and county commissioner races in Rolette and Grand Forks being decided by 31 and 49 votes respectively).
6

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 8 of 22
Voters of North Dakota (LWVND) also believes that its members, including elderly individuals and individuals with physical disabilities or medical conditions that make writing difficult, are at risk of being disenfranchised by allegedly mismatched signatures. Ex. 17 (Lynch Decl.) ¶ 6. IV. The Impact of COVID-19 on North Dakota’s Elections
Before COVID-19, absentee voting was a voting option that any North Dakotans could opt to use if they desired (and many did).3 Now, it is the only means by which most voters can participate. On March 26, 2020, in an effort to keep North Dakota voters safe during the pandemic, Governor Burgum issued an executive order authorizing counties to conduct their upcoming elections solely by mail, suspending the state’s ordinary requirement that counties maintain at least one in-person polling location. Ex. 18 (Exec. Order 2020-13 (“EO”)). He also ordered the Secretary of State to send every voter in the state’s Central Voter File a mail ballot. Id. All 53 counties have followed the Governor’s lead and authorized mail-only elections for the June 9, 2020 statewide elections. Ex. 19 (ND Health announcement); Ex. 24 (Grand Forks announcement).
The Governor’s executive order will be in effect “for the duration of the declared emergency,” but there is no indication when this emergency will be over. Ex. 18 (EO). Even as North Dakota transitions back to life post-emergency, it will do so incrementally. Ex. 20 (Article on incremental opening). And recent outbreaks in Grand Forks and elsewhere serve as a reminder that the pandemic is far from over. Ex. 21 (Article on Grand Forks outbreak). Social distancing precautions will continue to be important, especially for those who are most vulnerable to COVID19. Ex. 22 (CDC guidance). Vote by mail, then, will remain a central feature of North Dakota elections—if not the only means of voting—in 2020 and potentially beyond.
3 Even prior to COVID-19, North Dakota law authorized counties to conduct elections by mail with very limited in-person polling locations. N.D.C.C. § 16.1-11.1-01.
7

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 9 of 22
LEGAL STANDARD In determining whether to grant a preliminary injunction, the court considers four factors: “(1) the likelihood of success on the merits; (2) the presence or risk of irreparable harm; (3) the balancing of the harms of granting or denying an injunction; and (4) the public’s interest.” CDI Energy Servs. v. W. River Pumps, Inc., 567 F.3d 398, 401-02 (8th Cir. 2009).
ARGUMENT I. Plaintiffs are likely to succeed on the merits of their claims.
A. Plaintiffs are likely to succeed on their procedural due process claim. Plaintiffs are likely to succeed on the merits of their procedural due process claim. The Due Process Clause guarantees that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. In evaluating a procedural due process claim, courts “engage in a two-part analysis . . . asking, first, whether the plaintiffs have a protected interest at stake, and if so, what process is due.” Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997). To determine what process is due, courts balance three factors: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function involved and the fiscal and agency burdens that the additional or substitute procedural requirement would entail.” Id. at 147677 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). North Dakota’s signature verification process plainly fails this test. North Dakota uses an inherently unreliable signature match procedure to verify absentee ballots that disenfranchises eligible voters without providing any notice or opportunity to cure ballot impairments. Courts have uniformly struck down signature match laws—like North Dakota’s—that fail to provide voters these constitutionally necessary safeguards. See Martin v. Kemp, 341 F. Supp.
8

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 10 of 22
3d 1326 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec'y of State of Georgia, No. 1814503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018); Saucedo v. Gardner, 335 F. Supp. 3d 202, 206, 222 (D.N.H. 2018); Fla. Democratic Party v. Detzner, No. 4:16cv607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016); Zessar v. Helander, No. 05 C 1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006); see also La Follette v. Padilla, No. CPF-17-515931, 2018 WL 3953766, at *1 (Cal. Super. Ct. Mar. 5, 2018); League of United Latin Am. Citizens of Iowa v. Pate, No. CVCV056403, (Iowa Dist. Ct. July 24, 2018), aff’d in the relevant part by League of United Latin Am. Citizens of Iowa v. Pate, No. 18-1276, 2018 WL 3946147 (Iowa Aug. 10, 2018).
In Saucedo, for example, the court invalidated New Hampshire’s signature match law (functionally identical to the law at issue here) because it did not require officials to provide voters with any notice or opportunity to cure before rejecting mismatched-signature ballots. 335 F. Supp. 3d at 206, 222. The court found the “fundamentally flawed” signature match process created an unacceptable risk of erroneous deprivation of the right to vote. Id. at 206, 217. As is the case here, New Hampshire provided local officials no training in signature verification; the state’s laws and guidance offered no “functional standards” for signature comparison; and the law provided no means of reviewing election officials’ assessments, leaving the decisions “irremediable.” Id. at 206, 217-18. Finally, the court concluded that it “would not entail significant . . . burdens” for the state to provide voters with notice, by phone or otherwise, and an opportunity to cure. Id. at 221.
This Court should do the same. North Dakotans have a protected interest at stake, nothing less than the fundamental right to vote. And the Due Process Clause mandates that if the State uses “fundamentally flawed” signature match determinations to reject voters’ absentee ballots, then it must provide voters adequate notice and a meaningful opportunity to cure.
9

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 11 of 22
1. Plaintiffs have a constitutionally protected interest in the right to vote. There is no question that Plaintiffs have a protected interest in their fundamental right to vote. See Wesberry v. Sanders, 376. U.S. 1, 17 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”); see also Cook v. Randolph Cty., 573 F.3d 1143, 1152 (11th Cir. 2009) (noting that “[t]he Constitution guarantees procedural . . . due process when” the right to vote is at stake); Barefoot v. City of Wilmington, 306 F.3d 113, 124 n.5 (4th Cir. 2002). This protection extends to absentee voting, both as a statutorily created right, see Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and as a constitutional right, O’Brien v. Skinner, 414 U.S. 524, 530 (1974). This is especially true where vote by mail is effectively the only means of voting, as will be the case in the upcoming June 9 elections. Ex. 19. The State cannot deny voters this essential and often only available means of exercising their right to vote. See Bush v. Gore, 531 U.S. 98, 104 (2000); Martin, 341 F. Supp. 3d at 1338; Saucedo, 335 F. Supp. 3d at 217.
2. The Due Process Clause requires North Dakota to provide notice and an opportunity to cure questioned absentee ballot signatures.
Under the Due Process Clause, North Dakota must provide voters whose signatures are questioned notice and an opportunity to cure. At minimum, due process requires adequate notice and the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Coleman v. Watt, 40 F.3d 255, 260 (8th Cir. 1994) (quoting Mathews, 424 U.S. at 333). North Dakota’s signature verification policy— which provides no notice and no opportunity to cure—plainly fails this test.
In this context, because no procedure could possibly cure an erroneous deprivation after the election has concluded, the only meaningful time a voter could be given notice or an opportunity to cure is before their ballot is ultimately rejected. See Winegar v. Des Moines Indep.
10

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 12 of 22
Cmty. Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994) (“An assessment of the adequacy of predeprivation procedures depends on the availability of meaningful postdeprivation procedures.”) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)); United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (noting “exceptions to the general rule requiring predeprivation notice and hearing” cannot be “tolerate[d]” except in “extraordinary situations”).
“Adequate notice,” then, requires the state take affirmative steps to contact voters whose ballots are impaired by signature issues to inform them of the impairment before the election ends. See Saucedo, 335 F. Supp. 3d at 218 (publishing lists of affected voters online post hoc provides insufficient notice); see also Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990). Similarly, a “meaningful opportunity to be heard” requires the state provide voters with a means of contesting or “curing” signature mismatches in time to have their ballots count. See also Detzner, 2016 WL 6090943, at *2.
Far from meeting this constitutional minimum, Defendants fail to provide any process whatsoever. Nothing in state election law requires officials notify voters of ballot impairments, and nothing provides voters an opportunity to fix the issue before votes are finally canvassed. Voters never even receive pre-election warning that their ballots may be rejected for mismatched signatures.4 See supra Factual Background I. North Dakota’s standardless signature match process fails the notice and opportunity cure prerequisites of due process.
3. North Dakota’s signature verification policy also fails the Mathews test. Where a challenged policy provides no notice or opportunity to respond, a violation of Due Process is established and a court need not engage in the Mathews test, which is designed to
4 This is a significant departure from the Secretary’s “Voter Bill of Rights,” which prominently states that “North Dakota residents have the right to . . . an explanation if your . . . identity is in question.” N.D. Sec’y of State, Voter Bill of Rights, https://vip.sos.nd.gov/pdfs/Portals/Voter%20Bill%20of%20Rights.pdf (last visited May 8, 2020).
11

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 13 of 22
ferret out whether particular challenged procedures are sufficiently robust. But an analysis of the Mathews factors only underscores the constitutional violation here.
i. The private interest in the fundamental right to vote, and in voting by absentee ballot to effectuate that right, is paramount.
The first Mathews factor weighs heavily in Plaintiffs’ favor. The court first considers the “nature and weight of the private interest affected by the challenged official action.” Coleman, 40 F.3d at 260. Plaintiffs’ interest—and that of all North Dakotans—in having their validly cast ballots counted is of the utmost importance. See supra Part I.A.1. While absentee ballots have long served as an important means for North Dakotans to exercise their fundamental right to vote, now, because of COVID-19, mail ballots will play an essential role in North Dakota elections. As discussed supra, in at least the June 9 elections, all voters will have to cast absentee ballots. And for Ms. Romo and other North Dakotan voters with disabilities, as well as elderly voters and those with chronic health conditions who face heightened risks from COVID-19, absentee ballots will be necessary to participate safely in democracy, even beyond the June 9 election. See supra Factual Background IV. North Dakotans’ interest in exercising their fundamental right to vote therefore depends on the proper counting of absentee ballots. This factor thus weighs heavily in favor of adequate notice and meaningful opportunity to cure. See Saucedo, 335 F. Supp. 3d at 217.
ii. The risk of erroneous deprivation based on inherently unreliable signature match determinations is significant, and notice and cure procedures would greatly ameliorate this risk.
The next factor—“the risk of an erroneous deprivation” and “the probable value” of additional procedures—also weighs in favor of a notice and cure process. Mathews, 424 U.S. at 335.
North Dakota’s signature match laws create a significant risk of erroneous deprivation because signature comparison is an inherently error-prone means of verifying absentee ballots,
12

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 14 of 22
especially when undertaken by evaluators who lack any relevant expertise, guidance, training, or standards. As discussed above, an array of factors may cause a single person’s signature to vary from one signing to the next, including benign changes in the signer’s writing implement, writing surface, stance, and level of concentration. Ex. 13 (Mohammed Dec.) ¶ 31, 35 (identifying twenty of the most common reasons why an individual might appear to show signature variations.). And— for reasons entirely outside of signers’ control—certain groups, including Plaintiffs and their members, are especially prone to inconsistency in their signatures. Id. ¶ 24, 28, 37, 38 (noting people can be susceptible to signature variance because of age, health, or disability); Ex. 14 (Romo Decl.); Ex. 16 (Marx Decl.); Ex. 17 (Lynch Decl.); Saucedo, 335 F. Supp. 3d at 206.
Deciding whether signatures exhibit one of these benign “variations” of a single signer or a true “difference” between multiple signers is “one of the most difficult determinations in signature examinations,” even for a trained and certified Forensic Document Examiner (FDE). Ex. 13 (Mohammed Decl.) ¶¶ 24, 30, 32, 34 (citing a study finding lay persons to be 3 1/2 times more likely than an FDE to claim that a perfectly authentic signature is inauthentic).
And yet, North Dakota leaves this work for untrained officials, who must make these determinations quickly, without proper equipment, and based only on two exemplars. Worse, the State provides no meaningful training or standards to aid them in this work beyond the unhelpful command to “[c]ompare the signatures . . . to ensure the signatures match.” Ex. 2 (2020 Election Officials’ Manual); N.D.C.C. §§ 16.1-05-02, 03. Far from adhering to any uniform guidance, some county canvassing boards make their “final determinations” based on the “situation and history” of the voter, which in practice leaves the fate of absentee voters’ ballots to the whims and personal knowledge of canvassing board officials. Id. § 16.1-07-12; Ex. 8 (Dickey County canvassing board
13

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 15 of 22
minutes). Meanwhile, in other counties the “final determination” appears to be little more than a rubber stamp. See Exs. 4-7 (McKenzie, McLean, Traill, and Kidder canvassing board minutes).
Hundreds of absentee ballots are rejected without voters’ knowledge under this inherently unreliable, standardless process. See supra Factual Background III. Thus, “the natural variations in a person’s handwriting−many of which are unintentional or uncontrollable, like mental or physical condition−when combined with the absence of functional standards, training, review, and oversight, create a tangible risk of erroneous deprivation.” Saucedo, 335 F. Supp. 3d at 219.
Meanwhile, the probable value of notice and cure procedures here is high. See Martin, 341 F. Supp. 3d at 1339. Pre-deprivation notice and opportunity to cure ensure election officials will not rely on solely their own unreliable signatures determinations, but instead can hear directly from the most authoritative sources on the question: voters themselves. Saucedo, 335 F. Supp. 3d at 219. Both Plaintiff Romo and Ms. Culver testified they would have taken any required steps to verify their signatures for election officials to ensure that their votes were counted. Ex. 14 (Romo Dec.) ¶ 7; Ex. 15 (Culver Dec.) ¶ 6. The value of these procedural safeguards is undoubtedly great and would “serve[] to protect the fundamental right to vote.” Zessar, 2006 WL 642646, at *9.
iii. Notice and cure procedures advance state interests and would require little administrative effort.
The final Mathews factor also weighs in favor of providing adequate notice and meaningful opportunity to cure before rejecting voters’ ballots. The State has a substantial interest in both counting valid ballots and excluding invalid ballots, but the current signature match system does not serve those twin interests; providing notice and an opportunity to cure would.
As the Eleventh Circuit explained in a recent case considering a signature matching requirement similar to the one at issue here, “protecting public confidence in elections is deeply important—indeed, critical—to democracy” and “public knowledge that legitimate votes were not
14

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 16 of 22
counted due to no fault of the voters—and with no reasonable notice to the voters that their votes would not be counted and no opportunity to correct that situation—would be harmful to the public’s perception of the election’s legitimacy.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019). Thus, North Dakota’s signature verification regime is, in fact, antithetical to its legitimate interest in “safeguarding voter confidence.” Brakebill v. Jaeger, 932 F.3d 671, 678 (8th Cir. 2019) (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 (2008)); see also Saucedo, 335 F. Supp. 3d at 220-21 (finding notice and opportunity to cure advances state’s interest in election integrity); Detzner, 2016 WL 6090943, at *7; Martin, 341 F. Supp. 3d at 1340.
And implementing a notice and cure procedure for absentee voters would not impose any significant fiscal or administrative burden on the state. North Dakota and local election officials already maintain records, including in the Central Voter File, on voters’ ballot applications, and elsewhere, that contain voters’ contact information. See, e.g., N.D.C.C. § 16.1-02-12; Ex. 10 (Absentee ballot application). Also, county canvassing boards do not meet until six days after the election, which provides sufficient time for election officials to give voters notice and an opportunity to cure. N.D.C.C. § 16.1-15-17.
Further, providing notice and opportunity to cure would not be entirely out of the ordinary. Id. § 16.1-07-17 (explaining notice procedures for military and overseas voters); id. § 16.1-15-08 (providing opportunity to cure for voters who vote “set-aside ballots” at the polls because they were unable to verify their identity with a state-required ID). Thus, North Dakota election officials have shown they can provide some voters an opportunity to fix issues with their ballots before the meeting of the canvassing board. Given the availability of existing systems as models, the fiscal
15

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 17 of 22
and administrative burden is slight, especially when stacked up against the harm done by the erroneous disenfranchisement of hundreds of North Dakotans.
In sum, insofar as Defendants require election officials to make unreliable signature match determinations, the Due Process Clause demands that they provide voters notice of a potential signature match issue and an opportunity to resolve it to avoid erroneous deprivation of their right to vote. Plaintiffs are thus likely to succeed on the merits of their procedural due process claim.
B. Plaintiffs are likely to succeed on their claim that North Dakota’s signature match law unduly burdens the fundamental right to vote.
Plaintiffs are likely to succeed on their undue burden claim as well. When determining whether a challenged election law unconstitutionally burdens the right to vote, courts apply the Anderson-Burdick standard, weighing “‘the character and magnitude of the asserted injury . . .’ against ‘the precise interests put forward by the State as justifications for the burden . . .’ taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983)). Under this standard, the rigorousness of a court’s review depends on the severity of the burden the challenged law imposes. When a law “imposes only ‘reasonable, nondiscriminatory restrictions’ . . . ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions,” but laws that impose severe burdens on voters’ First and Fourteenth Amendment rights are subject to strict scrutiny. Id.; see also Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001).
1. North Dakota’s use of an error-prone signature match system severely burdens Plaintiffs’ right to vote.
North Dakota’s signature matching procedures severely burden Plaintiffs’ right to vote. Every election, North Dakota’s error-prone signature match law summarily discounts eligible voters’ validly cast ballots and completely deprives these voters of their right to vote. This system
16

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 18 of 22
bears “[t]he hallmark of a severe burden”—“exclusion or virtual exclusion from the ballot.” Libertarian Party of Kentucky v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016).
Every voter is at risk of having their ballot arbitrarily rejected based on a benign signature issue under North Dakota’s unreliable system. United States v. State of S.D., 636 F.2d 241, 243 (8th Cir. 1980) (holding the “right to vote may not be burdened by arbitrary restrictions”). Worse, there is nothing voters can do to safeguard their ballot from such erroneous rejections. The magnitude of this already severe burden multiplies with respect to Plaintiffs and other voters like them whose age and underlying health conditions make it impossible for them to produce a consistent signature. Ex. 14 (Romo Decl.); Ex. 16 (Marx Decl.); Ex. 17 (Lynch Decl.). These voters not only are disproportionately likely to have their ballots rejected for signature issues, they are also more likely to require absentee voting to access the franchise. Ex. 16 (Marx Decl.) ¶ 8 (noting that in-person voting can often be inaccessible to voters whose disabilities make appearing at a polling place, waiting in line, and voting on a voting machine difficult). Indeed, Plaintiff Romo did not just have her right to vote in the 2018 election severely burdened, but rather outright denied.
To determine the burden on voters, the Court may also consider the availability of alternative means of accessing the ballot. See Republican Party of Arkansas v. Faulkner Cty., Ark., 49 F.3d 1289, 1294 (8th Cir. 1995) (“[A]n alternative means of [ballot] access must be provided absent a sufficiently strong state interest”). Elderly voters and voters with disabilities depend on absentee voting to access the franchise. Through the duration of the COVID-19 emergency, all North Dakota voters will as well.
Plaintiff Romo and the members of Plaintiffs SAS and LWVND are eligible voters who follow the rules. They overcome any obstacles posed by age, health conditions, or public heath emergencies to cast valid, signed ballots and exercise their fundamental rights to vote. The State’s
17

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 19 of 22
continued use of an unreliable signature match procedure—one that provides voters with no notice or opportunity to cure—risks that their votes will not be counted. Such a system is unconstitutional.
2. North Dakota’s interest in maintaining its signature match procedures does not outweigh the severe burden it places on Plaintiffs’ right to vote.
North Dakota’s flawed signature verification process does not serve any plausible state interest in election integrity, nor does it justify the burden placed on Plaintiffs and their members. Rather, by arbitrarily rejecting eligible voters’ validly cast ballots, it threatens to undermine the legitimacy of elections and public confidence in North Dakota’s democratic process. See Lee, 915 F.3d at 1327. As discussed previously, providing voters with notice and an opportunity to cure not only furthers the State’s interests in promoting public confidence and protecting the integrity of its elections, these procedural safeguards could be implemented at no significant cost to the State. See supra Part I.A.3.iii. To the extent the State has any legitimate interest in maintaining its errorprone signature verification process without any due process procedures, that interest is outweighed by the significant burden Plaintiffs face of being silently, arbitrarily, and without recourse deprived of their basic, fundamental right to vote. II. Absent a preliminary injunction, Plaintiffs are at imminent risk of irreparable harm.
North Dakota’s signature matching process has caused and will continue to cause irreparable harm absent a preliminary injunction. These claims concern nothing less than the fundamental right to vote. Once the election has passed, the right to vote is lost permanently and the harm cannot be fully redressed. Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016); see also Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).
If this Court does not grant preliminary injunctive relief, Plaintiffs will suffer imminent, irreparable harm. Plaintiff and Plaintiff members intend to vote in North Dakota’s June 9, 2020
18

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 20 of 22
statewide and local elections. Because of COVID-19, these voters have no choice but to cast their ballots by mail, meaning their ballots will be subjected to North Dakota’s unreliable signature verification process. There is no doubt, too, that validly cast ballots will be rejected by this system. Plaintiff Romo has already been erroneously deprived of her right to vote by this flawed process once, in 2018. She should not be forced to take the same risk yet again.
Plaintiff Romo and members of Plaintiffs SAS and LWVND are at particular risk of being further disenfranchised by North Dakota’s error-prone signature match procedure. Because Plaintiff Romo suffers from a chronic health condition that impairs her handwriting, she is in no better position to produce a “matching” signature today than she was in 2018. Plaintiffs SAS and LWVND similarly have members whose age and underlying health conditions make producing a consistent signature impossible. If the State erroneously finds these voters’ signatures do not “correspond” under current law they face certain disenfranchisement unless this Court intervenes.
In sum, the fact that Plaintiffs face immanent, irreparable harm weighs in favor of granting preliminary injunctive relief. Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995). III. The balance of harms and public interest weigh heavily in Plaintiffs’ favor.
The balance of harms and public interest weigh in favor of granting a preliminary injunction. While the usual inquiry on a motion for preliminary injunction “calls for assessing the harm to the opposing party and weighing the public interest,” “[t]hese factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
Issuing relief will ensure that when eligible North Dakota voters cast valid ballots on June 9 and beyond, either their ballots will be counted as cast or the State will notify them of a ballot impairment and give them an opportunity to fix the issue so their votes can count. This relief supports the public interest in protecting the fundamental right to vote. And, as this Circuit has affirmed, “it is always in the public interest to protect constitutional rights.” Phelps-Roper v.
19

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 21 of 22
Nixon, 509 F.3d 480, 485 (8th Cir. 2007), modified on reh’g, 545 F.3d 685 (8th Cir. 2008); see also Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999) (“[T]he public interest favors protecting core First Amendment freedoms.”). Indeed, Defendant Jaeger has stated publicly that voters have a right to be informed if their identity is questioned. See supra n.4. The public interest is served by Defendants following their own “Voter Bill of Rights.”
Defendants will suffer no harm if relief is granted here. As discussed above, the State has an affirmative interest in protecting voters’ confidence in the integrity of elections. Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). Further, any administrative harms incurred by Defendants pale in comparison to the injury suffered by Plaintiffs. Defendants have the information they need to provide voters with notice when there is a signature issue impairing a voter’s ballot. Implementing a system for notice and opportunity to cure would require few additional resources from the State, a cost well worth the value of protecting the integrity of North Dakota’s elections and safeguarding Plaintiffs’ most precious fundamental right.
CONCLUSION For these reasons, Plaintiffs’ Motion for a Preliminary Injunction should be granted.
20

Case 3:20-cv-00071-PDW-ARS Document 11-1 Filed 05/11/20 Page 22 of 22

Dated: May 11, 2020
Mark Gaber* Danielle Lang* Dana Paikowsky*# Aseem Mulji*# CAMPAIGN LEGAL CENTER 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200 mgaber@campaignlegal.org dlang@campaignlegal.org dpaikowsky@campaignlegal.org amulji@campaignlegal.org
* Admitted pro hac vice # Licensed in CA only; supervision by Danielle Lang, a member of the D.C. Bar

Respectfully submitted,
/s/ Derrick Braaten Derrick Braaten (ND#06394) Carey Goetz (ND #05958) BRAATEN LAW FIRM 109 North 4th Street, Suite 100 Bismark, ND 58501 Telephone: (701) 221-2911 derrick@braatenlawfirm.com carey@braatenlawfirm.com
Sarah M. Vogel (ND#03964) SARAH VOGEL LAW FIRM P.O. Box 385 Bismarck, ND 58502-0385 Telephone: (701) 355-6521 sarahvogellaw@gmail.com
Counsel for Plaintiffs

21

Case 3:20-cv-00071-PDW-ARS Document 11-2 Filed 05/11/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,

v.

Case No. 3:20-cv-00071

ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

Defendants.

DECLARATION OF MARK P. GABER I, Mark P. Gaber, pursuant to 28 U.S.C. § 1746, declare as follows: 1. I am Director of Trial Litigation at the Campaign Legal Center (“CLC”) and counsel for plaintiffs in this case. I am over 18 years of age, and the testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open court if called upon to do so. This Declaration is submitted in support of Plaintiffs’ Motion for a Preliminary Injunction. 2. On February 7, 2019, CLC submitted public records requests to, inter alia, North Dakota’s county auditors seeking documents related to the November 2018 election, including documents related to rejected absentee ballots. 3. Attached as Exhibits 3, 4, 5, 6, 7, 8, 11, 23, and 25 to Plaintiffs’ Motion for a Preliminary Injunction are documents I received from various North Dakota auditors in response to CLC’s public records request. Exhibit 25 was produced by the Grand Forks County Auditor.
1

Case 3:20-cv-00071-PDW-ARS Document 11-2 Filed 05/11/20 Page 2 of 2

4. Didier.

Attached as Exhibit 9 is an e-mail exchange I had with Barnes County Auditor Beth

Executed on May 11, 2019 at Washington, District of Columbia.
I declare under penalty of perjury that the foregoing is true and correct.
/s/ Mark P. Gaber Mark P. Gaber

2

Case 3:20-cv-00071-PDW-ARS Document 11-3 Filed 05/11/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION

SELF ADVOCACY SOLUTIONS N.D., LEAGUE OF WOMEN VOTERS OF NORTH DAKOTA, MARIA FALLON ROMO,

Plaintiffs,

v.

Case No. 3:20-cv-00071

ALVIN JAEGER, in his official capacity as Secretary of State, DEBBIE NELSON, in her official capacity as County Auditor of Grand Forks County,

Defendants.

DECLARATION OF ASEEM B. MULJI I, Aseem Mulji, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am a Legal Fellow at the Campaign Legal Center (CLC), counsel to Plaintiffs in this action. I have been employed at CLC since September 2019. I am over 18 years of age, and the testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open court if called upon to do so. This Declaration is submitted in support of Plaintiffs’ Motion for a Preliminary Injunction 2. As part of the Election Administration and Voting Survey (EAVS), the Election Assistance Commission (EAC) collects and publishes data on North Dakota elections, including statewide and county-by-county estimates of vote totals, mail ballots returned, and mail ballots rejected for various reasons, including signature match issues, among other data. My colleague, Dana Paikowsky, who is employed as a Legal Fellow at CLC, retrieved the publicly accessible EAVS data for North Dakota’s 2018 election from https://www.eac.gov/research-and-

Case 3:20-cv-00071-PDW-ARS Document 11-3 Filed 05/11/20 Page 2 of 4
data/datasets-codebooks-and-surveys, and compiled this data in Table 1 attached as Exhibit 1 to Plaintiffs’ Motion for Preliminary Injunction.
3. North Dakota Secretary of State Alvin Jaeger (“Defendant Jaeger”) published a 2020 Election Officials’ Manual (Manual) providing instructions to election officials in conducting elections in North Dakota after July 31, 2019. On May 11, 2020, I retrieved the Manual from https://vip.sos.nd.gov/pdfs/Portals/2020%20Election%20Officials%20Manual.pdf. A true and correct copy of the 2020 Election Officials’ Manual is attached as Exhibit 2 to Plaintiffs’ Motion for Preliminary Injunction.
4. On May 11, 2020, I retrieved the North Dakota Absentee/Mail Ballot Application from https://www.nd.gov/eforms/Doc/sfn51468.pdf, of which a true and correct copy is attached as Exhibit 10 to Plaintiffs’ Motion for Preliminary Injunction.
5. On May 11, 2020, I retrieved Defendant Jaeger’s instructions to North Dakota residents choosing to vote absentee or by mail from https://vip.sos.nd.gov/pdfs/Portals/VotingMailBallotAbsentee.pdf, of which a true and correct copy is attached as Exhibit 12 to Plaintiffs’ Motion for Preliminary Injunction.
6. On March 26, 2020, North Dakota Governor Doug Burgum issued Executive Order 2020-13 (the “EO”) authorizing all counties to conduct upcoming elections solely by mail suspending the ordinary requirement that counties conducting mail ballot elections provide at least one in-person polling location. On May 11, 2020, I retrieved the EO from https://www.governor.nd.gov/sites/www/files/documents/executiveorders/Executive%20Order%202020-13%20Elections.pdf. A true and correct copy of the EO is attached as Exhibit 18 to Plaintiffs’ Motion for Preliminary Injunction.

Case 3:20-cv-00071-PDW-ARS Document 11-3 Filed 05/11/20 Page 3 of 4
7. On April 23, 2020, the North Dakota Department of Health released a notice that County Commissions in all 53 of North Dakota’s counties had authorized mail-ballot elections pursuant to the EO. On May 11, 2020, I retrieved that notice from https://www.health.nd.gov/news/north-dakotans-receive-ballots-mail-june-election. A true and correct copy of that notice is attached as Exhibit 19 to Plaintiffs’ Motion for Preliminary Injunction.
8. Grand Forks County Auditor announced that the county will hold a mail-ballot election on June 9, 2020 pursuant to the EO. I retrieved the announcement from http://gfcounty.nd.gov/sites/default/files/pdf/June%209%202020%20Primary%20Election.pdf. A true and correct copy of the announcement is attached as Exhibit 24 to Plaintiffs’ Motion for Preliminary Injunction.
9. On April 30, 2020, the Bismarck Tribune published an article describing Governor Doug Burgum’s actions to incrementally open North Dakota businesses after weeks of closure due to COVID-19, maintaining strict protocols for operation. On May 11, 2020, I retrieved this article from https://www.health.nd.gov/news/north-dakotans-receive-ballots-mail-june-election. A true and correct copy of the article is attached as Exhibit 20 to Plaintiffs’ Motion for Preliminary Injunction.
10. In a May 3, 2020 article, the Twin Cities Pioneer Press reported a widespread outbreak in a wind turbine plant in Grand Forks, North Dakota. I retrieved this article from https://www.twincities.com/2020/05/03/grand-forks-outbreak-has-other-north-dakota-plants-onalert/. A true and correct copy of the article is attached as Exhibit 21 to Plaintiffs’ Motion for Preliminary Injunction.

Case 3:20-cv-00071-PDW-ARS Document 11-3 Filed 05/11/20 Page 4 of 4
11. The Center for Disease Control (CDC) publishes guidance for the public regarding COVID-19 on its website at cdc.gov/coronavirus, including a fact sheet for people who are at higher risk for severe illness, which I retrieved on May 11, 2020 from https://www.cdc.gov/coronavirus/2019-ncov/downloads/COVID19-What-You-Can-Do-HighRisk.pdf. A true and correct copy of this fact sheet is attached as Exhibit 22 to Plaintiffs’ Motion for Preliminary Injunction.
Executed on May 11, 2019 at Washington, District of Columbia. I declare under penalty of perjury that the foregoing is true and correct. /s/ Aseem B. Mulji Aseem B. Mulji

Case 3:20-cv-00071-PDW-ARS Document 11-4 Filed 05/11/20 Page 1 of 3
EXHIBIT 1

Case 3:20-cv-00071-PDW-ARS Document 11-4 Filed 05/11/20 Page 2 of 3

TABLE 11

County
ADAMS BARNES BENSON BILLINGS BOTTINEAU BOWMAN BURKE BURLEIGH CASS CAVALIER DICKEY DIVIDE DUNN EDDY EMMONS FOSTER GOLDEN VALLEY GRAND FORKS GRANT GRIGGS HETTINGER KIDDER LAMOURE LOGAN MCHENRY MCINTOSH

2018 Election Administration and Voting Survey (EAVS) Data

Vote Total Across State

By-mail Ballots Returned

By-mail Ballots Rejected

By-mail Rejected: Signature Mismatch

Percent Voted By-
mail Ballots

Rate of Rejection: By-mail
Ballots

Rate of Rejection: Signature Mismatch

1185

646

5

3

54.5% 0.8%

0.5%

5117

3053

23

12

59.7% 0.8%

0.4%

2294

1182

2

0

51.5% 0.2%

0.0%

569

300

0

0

52.7% 0.0%

0.0%

3316

1811

0

0

54.6% 0.0%

0.0%

1677

295

0

0

17.6% 0.0%

0.0%

985

662

0

0

67.2% 0.0%

0.0%

46824 9953

82

51

21.3% 0.8%

0.5%

78196 9858

20

18

12.6% 0.2%

0.2%

2005

1244

0

0

62.0% 0.0%

0.0%

2197

520

7

3

23.7% 1.3%

0.6%

1223

334

0

0

27.3% 0.0%

0.0%

2057

1383

0

0

67.2% 0.0%

0.0%

1261

723

0

0

57.3% 0.0%

0.0%

1859

766

0

0

41.2% 0.0%

0.0%

1684

721

0

0

42.8% 0.0%

0.0%

Percent of Rejections
for Signature Mismatch 60.0% 52.2% 0.0% 0.0% 0.0% 0.0% 0.0% 62.2% 90.0% 0.0% 42.9% 0.0% 0.0% 0.0% 0.0% 0.0%

899

258

0

0

28.7% 0.0%

0.0%

0.0%

28231 5236

23

21

18.5% 0.4%

0.4%

91.3%

1293

937

4

1

72.5% 0.4%

0.1%

25.0%

1281

713

0

0

55.7% 0.0%

0.0%

0.0%

1287

605

4

3

47.0% 0.7%

0.5%

75.0%

1305

805

8

7

61.7% 1.0%

0.9%

87.5%

2082

1187

6

1

57.0% 0.5%

0.1%

16.7%

1012

653

0

0

64.5% 0.0%

0.0%

0.0%

2603

2171

16

10

83.4% 0.7%

0.5%

62.5%

1505

916

3

3

60.9% 0.3%

0.3%

100.0%

1 The following table compiles data on North Dakota’s elections collected by the Election Assistance Commission for the 2018 Election Administration and Voting Survey (EAVS). This data is publicly available and accessible here: https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys

Case 3:20-cv-00071-PDW-ARS Document 11-4 Filed 05/11/20 Page 3 of 3

2018 Election Administration and Voting Survey (EAVS) Data - continued

County

Vote Total Across State

By-mail Ballots Returned

By-mail Ballots Rejected

By-mail Rejected: Signature Mismatch

Percent Voted By-
mail Ballots

Rate of Rejection: By-mail
Ballots

Rate of Rejection: Signature Mismatch

Percent of Rejections
for Signature Mismatch

MCKENZIE 4246

1670

27

10

39.3% 1.6%

0.6%

37.0%

MCLEAN

5106

3016

24

19

59.1% 0.8%

0.6%

79.2%

MERCER

3096

2894

4

0

93.5% 0.1%

0.0%

0.0%

MORTON

15105 2973

57

34

19.7% 1.9%

1.1%

59.6%

MOUNTRAIL 3852

669

0

0

17.4% 0.0%

0.0%

0.0%

NELSON

1666

1261

25

22

75.7% 2.0%

1.7%

88.0%

OLIVER

985

318

0

0

32.3% 0.0%

0.0%

0.0%

PEMBINA

2988

2184

20

16

73.1% 0.9%

0.7%

80.0%

PIERCE

1934

1272

2

2

65.8% 0.2%

0.2%

100.0%

RAMSEY

5135

2824

0

0

55.0% 0.0%

0.0%

0.0%

RANSOM

2346

1284

0

0

54.7% 0.0%

0.0%

0.0%

RENVILLE

1221

798

0

0

65.4% 0.0%

0.0%

0.0%

RICHLAND 7380

1591

0

0

21.6% 0.0%

0.0%

0.0%

ROLETTE

5114

620

6

0

12.1% 1.0%

0.0%

0.0%

SARGENT

2031

1359

10

10

66.9% 0.7%

0.7%

100.0%

SHERIDAN

816

495

0

0

60.7% 0.0%

0.0%

0.0%

SIOUX

1456

378

0

0

26.0% 0.0%

0.0%

0.0%

SLOPE

386

98

0

0

25.4% 0.0%

0.0%

0.0%

STARK

12350 3165

41

20

25.6% 1.3%

0.6%

48.8%

STEELE

972

628

2

1

64.6% 0.3%

0.2%

50.0%

STUTSMAN 9820

1347

9

4

13.7% 0.7%

0.3%

44.4%

TOWNER

1142

513

0

0

44.9% 0.0%

0.0%

0.0%

TRAILL

3782

2032

15

11

53.7% 0.7%

0.5%

73.3%

WALSH

4610

3392

0

0

73.6% 0.0%

0.0%

0.0%

WARD

24408 6026

77

24

24.7% 1.3%

0.4%

31.2%

WELLS

2523

1637

0

0

64.9% 0.0%

0.0%

0.0%

WILLIAMS

11533 4749

32

28

41.2% 0.7%

0.6%

87.5%

STATE

TOTALS

329950 96125 554

334

29.1% 0.6%

0.3%

60.3%

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 1 of 25
EXHIBIT 2

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 2 of 25
2020
ELECTION OFFICIALS’ MANUAL
Revised April 2020
North Dakota
otes
2020

SECRETARY OF STATE
Alvin A Jaeger State of North Dakota 600 E Boulevard Ave Dept 108 Bismarck ND 58505-0500
ELECTIONS UNIT (701) 328-4146 soselect@nd.gov Vote.ND.Gov



Alternate formats for persons with disabilities are available upon request.

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 3 of 25
Table of Contents
Section 1 – Polling Places and Poll Workers ..............................................................3
Section 2 – Election Worker Responsibilities Before Polls Open .............................5
Section 3 – Voter ID.......................................................................................................7
Section 4 – Election Worker Responsibilities After Polls Open ................................9 Voting Procedure ........................................................................................................ 9 Set Aside Ballot Process ........................................................................................... 10 Other Election Worker Duties While Polls are Open ...................................................10 Processing Absentee Ballots......................................................................................12
Section 5 – Election Worker Responsibilities After Polls Close..............................13
Section 6 – Special Precincts (Early Voting, Absentee, Vote By Mail) .................... 15 Early Voting................................................................................................................15 Absentee....................................................................................................................15 Vote By Mail...............................................................................................................15
Section 7 – Frequently Asked Questions and Answers ........................................... 17
Section 8 – Prohibitions, Crimes, and Election Offenses ........................................ 18
Section 9 – Voters With Disabilities ........................................................................... 20 Common-Sense Guidelines That Apply to All Voters ..................................................20 Voters with Mobility Impairment..................................................................................20 Voters with Speech or Hearing Impairments...............................................................20 Voters with Visual Impairment ....................................................................................20
Checklists for Election Day ........................................................................................ 22 Before the Polls Open ................................................................................................22 After the Polls Open ...................................................................................................22 After the Polls Close...................................................................................................22

Revised April 2020

2020 North Dakota Election Officials’ Manual page 1

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 4 of 25
FOREWORD
According to North Dakota Century Code (NDCC) § 16.1-05-03, the Secretary of State is required to provide an instruction manual detailing the responsibilities of election officials. This 2020 Election Officials’ Manual is intended to fulfill the requirements of the law by providing comprehensive instructions and procedures for election officials to look to for guidance in conducting elections in North Dakota after July 31, 2019.
CONTACT
If you have questions regarding the 2020 Election Officials’ Manual, please contact:
Elections Unit North Dakota Secretary of State 600 East Boulevard Avenue Dept 108
Bismarck ND 58505-0500
(701) 328-4146 – Phone (800) 352-0867, ext. 328-4146 – Toll Free
(701) 328-3413 – Fax
soselect@nd.gov – Email Vote.ND.Gov – Website
This website contains election publications, connections to other helpful election websites, and state election forms, which can be completed online before printing and signing.
DISCLAIMER
The following excerpts and summaries of North Dakota law are taken or derived from the NDCC and pertain to elections, election procedures, and the duties and responsibilities assigned to election officials. Although every attempt has been made for accuracy, the reprint, summarizations, or paraphrasing of these laws does not carry the same authority as the actual NDCC and should not be equated with the official NDCC. This compilation is intended as a helpful resource and reference for consolidated election related laws. For official and legal purposes, the official NDCC should be used.
The following excerpts of North Dakota law do not contain the material found in the legal notes following the various sections contained in the NDCC. These notes found in the NDCC may contain temporary provisions and effective dates along with valuable summaries of applicable court rulings.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 2

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 5 of 25

Section 1 – Polling Places and Poll Workers
Polling Places: Upon a decision by the county commissioners, a county may utilize multiple precinct polling places. The county commissioners may also decide, if it is in the best interest of the county, to use one election board to supervise all or a portion of the precincts voting in the same polling place even if the precincts fall within different legislative districts so long as each district chairperson of each qualified political party is given the opportunity to have representation on the election board if desired. (NDCC §§ 16.1-04-02 and 16.1-05-01)

Inspectors: The county auditor, with county commissioners’ approval, shall appoint election inspectors, except in polling places containing city precincts only established by NDCC Chapter 16.1-04 where the city governing board appoints the inspectors. The inspector selection is to be made on the basis of the inspector’s knowledge of the election procedure. Appointments must be made forty days before the election. (NDCC § 16.1-05-01) Inspectors serve as the polling place supervisor. (NDCC § 16.1-05-04)

Judges: The election judges for each precinct or polling place are appointed in writing by the district chairs representing the two political parties that cast the most votes in the state’s last general election. For special elections involving only no-party offices, the election official responsible for the administration of the election, with the approval of the majority of the members of the applicable governing body, shall appoint the election judges for each polling location. (NDCC § 16.1-05-01) The inspector or judges initial and deliver ballots to the voters and the judges perform other responsibilities assigned by the inspector. (NDCC § 16.1-13-22)

Composition of the Election Board: The election board for each precinct or polling place must consist of an inspector and at least two election judges. (NDCC § 16.1-05-01)

Clerks: The election official responsible for the administration of the election, with the approval of the majority of the members of the applicable governing body, shall appoint the poll clerks for each polling place. (NDCC § 16.1-05-01) Clerks manage the pollbook, verify voters’ identification, update incorrect pollbook information, and other ministerial duties assigned by the inspector. (NDCC §§ 16.1-05-04 and 16.1-05-07)

County Auditor May Appoint Judges if Forty Day Notice Not Received: If the district political party chair fails to appoint the judges forty days before the election, the county auditor shall appoint the judges. If the county auditor has exhausted all practicable means to select judges from within the voting precinct and vacancies still remain, the county auditor may select election judges who reside outside of the voting precinct, but who reside within the precinct’s legislative district. If vacancies still remain, the county auditor may select election judges who reside outside of the legislative district but who reside within the county. (NDCC § 16.1-05-01)

County Auditor May Request an Additional Judge: In polling places in which over one thousand votes were cast in any election, the county auditor may request each district political party chairperson to appoint an additional election judge. (NDCC § 16.1-05-01)

Part-Time Inspectors, Judges, and Clerks: The county auditor may appoint part-time inspectors, judges, and clerks to allow for sufficient coverage at each polling place to satisfy the requirements of those positions. At least one inspector and two judges from the election board must be present on the premises of the polling place during the time the polls are open to prevent the occurrence of fraud, deceit, or other irregularity in the conduct of the election. (NDCC § 16.1-05-01 and 16.1-05-04)

Qualifications of Election Board and Poll Clerks: Inspectors, judges, and clerks must be qualified voters of the polling places in which they are assigned to work unless the county auditor has exhausted all means to appoint election judges from precincts within the polling place according to NDCC § 16.105-01. No individual may serve as a member of the election board or as a poll clerk who has anything of value bet or wagered on the result of an election. (NDCC § 16.1-05-02)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 3

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 6 of 25
Student Poll Clerks: A student sixteen years of age or older enrolled in a high school or college in this state is eligible to serve as a poll clerk if the student meets the following qualifications:
 Is a United States citizen or will be a citizen at the time of the election;  Is a state resident residing in the precinct at least thirty days before the election; and  Is a student in good standing.
A student appointed as a clerk may be excused from school attendance during the hours that the student is serving as a clerk, including training sessions, if the student submits a written request to be absent from school signed by the student’s parent or guardian and by the school administrator and a certification from the county auditor stating the hours during which the student will serve as a poll clerk. A student excused from school attendance in this manner may not be recorded as being absent on any date for which the excuse is operative. No more than two students may serve as clerks in a single precinct.
An individual sixteen years of age or older having graduated from high school or obtained a general education degree from an accredited educational institution is eligible to be appointed as a poll clerk if the individual meets the qualifications stated above. (NDCC § 16.1-05-02)
Candidates and Relatives Not Allowed on Election Board: An individual may not serve as a member of the election board or as a poll clerk if the individual is a candidate in the election at which the person is serving, or who is the husband, wife, father, mother, father-in-law, mother-in-law, son, daughter, sonin-law, daughter-in-law, brother, or sister, whether by birth or marriage, of the whole or the half blood, of any candidate in the election at which the person is serving. (NDCC § 16.1-05-02)
Removal of Judges or Clerks: If at any time before or during an election, it appears to an election inspector, by the affidavit of two or more qualified voters of the precinct, that any election judge or clerk is not qualified, the inspector shall remove that judge or clerk at once and fill the vacancy by appointing a qualified individual of the same political party. If the disqualified judge or clerk had taken the oath of office, the inspector shall place the oath or affidavit before the state's attorney of the county. (NDCC § 16.1-05-01)
Training Sessions for Poll Workers: Attendance at an election training session conducted by the county auditor is mandatory for members of the election board and for poll clerks.
An election official, at the option of the county auditor, may be excused from attending a third training session on election laws within a twelve-month period. If an election official has attended a training session within six months preceding a special election, the election official must be compensated at the pay appropriate for those having attended a training session for that election as provided in NDCC § 16.1-05-05. (NDCC § 16.1-05-03)
Compensation of Poll Workers: The county shall pay at least the state minimum wage to the relevant election officials. Members of the election board and poll clerks who attend the training sessions must be paid at least the state minimum wage for the hours in attendance in the session in addition to necessary expenses and mileage. Members of election boards who attend the training sessions provided before primary and general elections must be paid at least 25% more than the state minimum wage during the time spent in the performance of their election duties. Members of the election board and poll clerks who attend a training session within the six months prior to a special election must be paid at least 25% more than the state minimum wage during the time spent in the performance of their election duties in addition to necessary mileage and expenses. (NDCC §§ 16.1-05-03 and 16.1-05-05)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 4

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 7 of 25
Section 2 – Election Worker Responsibilities Before Polls Open
Failure of Election Board Member to Appear: If a member of the election board fails to appear for the opening of the polls, the remainder of the board shall select an individual to serve in the absent individual’s place. If a judge fails to appear at the opening of the polls, the remainder of the board shall select an individual of the absent individual’s political party if such a person is reasonably available. Any qualified individual without regard to political affiliation may fill the office of inspector or clerk. (NDCC § 16.1-05-02(5))
Failure of Entire Election Board to Appear: If no members of the election board appear for the opening of the polls, the qualified voters present shall call the county auditor, city auditor, or school business manager, as appropriate, for instructions and then orally elect a board conforming as nearly as possible to the provisions for a regular board. (NDCC § 16.1-05-02(5))
Oath of Office: Before assuming the duties, each member of the election board and each poll clerk shall take and subscribe an oath in the following form:
I do solemnly swear (or affirm as the case may be), that I will perform the duties of inspector, judge, or clerk according to law and to the best of my ability, and that I will studiously endeavor to prevent fraud, deceit, and abuse in conducting the same.
The oath may be taken before any officer authorized by law to administer oaths (e.g. county auditor, deputy county auditor, county commissioner, notary public). If no such officer is present at the opening of the polls, the inspector or election judges shall administer the oath to each other and to the poll clerks. The individual administering the oath shall cause an entry thereof to be made, subscribed by that individual and prefix it to the pollbook. (NDCC § 16.1-05-02(3))
Inspector to Supervise Conduct of the Election: The election inspector shall supervise the conduct of the election to ensure all election officials are properly performing their duties at the polling place. The election inspector shall assign duties so as to equally and fairly include both parties represented on the election board. (NDCC § 16.1-05-04(1))
Inspector to Assign Ministerial Duties to Poll Clerks: The election inspector shall assign ministerial duties to poll clerks, who shall carry out the ministerial duties assigned by the election inspector. (NDCC § 16.1-05-04(2))
Inspector to Deliver Pollbooks to Clerks: The election inspector shall deliver the pollbooks to the clerks in the inspector’s precinct or polling location on Election Day prior to the opening of the polls. (NDCC § 16.1-06-21)
Voting Booths or Compartments – Number Required: The inspector of elections shall provide a sufficient number of voting booths or compartments in the polling place to enable the elector to mark his or her ballot screened from observation. The number of booths or compartments in precincts may not be less than one for each one hundred fifty electors or fraction thereof in the precinct. One electronic voting system device must be provided in each precinct. (NDCC § 16.1-13-29)
Voting Instructions to be Posted in Each Polling Place: Cards printed in large type containing full instructions to voters on obtaining and preparing ballots and a copy of NDCC § 16.1-01-12 (Election Offenses) shall be posted in each polling place. (NDCC § 16.1-06-19)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 5

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 8 of 25
Complete Text of Measures to be Posted: At least five copies of the complete text of any constitutional amendment or initiated or referred measure must be delivered to the inspector by the county auditor at the time of delivering the ballots. One copy must be posted conspicuously in the polling place on the morning of the election. (NDCC § 16.1-06-19)
Post Precinct Maps: Four copies of a map showing the election precinct boundaries must be posted prior to the opening of the polls; one at the entry to the polling place and the remaining three in other conspicuous places around the polling place. (NDCC § 16.1-06-19)
Date and Time: The election inspector shall, before the opening of the polls, post information regarding the date of the election and the hours during which polling places will be open. (NDCC § 16.1-06-19)
Post Diagram of Electronic Voting System and Ballots: The election inspector shall post in a conspicuous manner at the voting place, one facsimile diagram of the electronic voting device and should post three copies of the official ballot used with electronic voting devices. The election inspector and judges shall provide adequate instruction on the use of the electronic voting device to each voter before the voter enters the voting booth. (NDCC §§ 16.1-06-17 and 16.1-06-20)
Ensure Ballot Box is Empty: Before declaring the polls open, the inspector and the election judges shall inspect the ballot box to make sure that it is empty. The ballot box must then be locked. While the polls are open, the ballot box must remain locked except as may be necessary to clear a ballot jam or to move voted ballots to a separate locked ballot box to make room for additional ballots. (NDCC § 16.113-20)
Opening Ballots on Election Day: Upon arrival at the poll of all election board members, or at the latest, upon the opening of the poll, the inspector of election shall produce the sealed package of official ballots and publicly open them. (NDCC § 16.1-13-21)
Flag Displayed in or Near Every Polling Location on Election Days: Federal law states that the United States flag should be displayed in or near every polling location on election days.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 6

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 9 of 25
Section 3 - Voter ID
Poll Clerks to Maintain the Pollbooks: A complete residential address for voting purposes may include a street, rural route address, city, and state. The use of a mailing address or Post Office Box number that is not the person’s residential address is not considered sufficient for voting purposes.
Voter Qualifications
A qualified voter of the state is a person who: (all must apply)
 Is a citizen of the United States;  Is 18 years of age or older on the day of the election;  Is a resident of this state and of the precinct at least thirty days next preceding any election;  Is able to meet the identification requirements specified in sections 16.1-01-04.1 and 16.1-07-
06; and  Is not presently serving a term of actual incarceration as a convicted felon (NDCC § 16.1-01-04
and NDCC § 12.1-33-01).
The following rules for voting eligibility also apply:
 Every qualified elector of the state may only have one voting residence.  A person’s voting residence must be determined in accordance with the rules for determining
residency as provided in NDCC § 16.1-01-04.2. (See following subsection entitled Residency Determined.)  According to Section 2 of Article II of the ND Constitution, voting by persons convicted and incarcerated for a felony must be limited according to NDCC Chapter 12.1-33.  No person who has been declared mentally incompetent by order of a court (with specific findings on the right to vote) or other authority having jurisdiction, which order has not been rescinded, shall be qualified to vote. (Section 2 of Article II of the ND Constitution, and NDCC § 30.1-28-04(3))
Residency Determined: NDCC § 16.1-01-04.2
 Every qualified elector may have only one residence, shown by an actual fixed permanent dwelling, establishment, or any other abode to which the individual returns when not called elsewhere for labor or other special or temporary purposes.
 The street address verified by the individual as provided in section 16.1-01-04.1 when requesting a ballot to vote must be the address of residence for the individual.
 An individual retains a residence in this state until another has been gained.  The acts of residing at a new address for thirty days and updating the ID to be used for voting
with that address constitute a change in the individual's voting residence.
Voter Identification and Pollbooks (NDCC § 16.1-01-04.1)
Voters Obtaining Ballots (Quick Definition) Individuals may receive, vote, and cast an election ballot by showing an approved form of identification with name, residential address, and date of birth to the poll clerks.
Voters Obtaining Ballots (Expanded Definitions) 1. Voter Identification: When a voter appears at the polling location, state law requires the poll clerk to ask the voter to provide identification to verify eligibility.
a. Residential Address: An acceptable form of identification must include the individual’s name, residential address (a PO Box number is not acceptable), and date of birth.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 7

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 10 of 25
b. Acceptable forms of identification at the polls include a valid North Dakota:  Current driver’s license or non-driver’s identification card.
 Tribal government issued form of identification. *  Long-term care certificate (provided by ND facility).
c. Supplemental documentation: If an individual's valid form of identification does not include all the information required 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, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address); 4. A paycheck; or 5. A document issued by a federal, state, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address).
d. Voters without valid ID: If the person’s identification does not verify his or her qualifications, or the individual is not able to show a valid form of identification, but he or she asserts qualifications as an elector in the precinct, the individual may mark a ballot that must be securely set aside in a sealed envelope. (See Page 10)
e. Intent of ID Requirement: The purpose for this requirement is not to deter people from voting, but to ensure that the voter is:
1. Old enough to vote, 2. A U.S. citizen, and 3. A resident of the precinct in which he or she desires to vote.
Qualified electors have the right to know that the votes are being cast by only those voters qualified to do so.
f. Directing Individuals to Correct Precincts: The county auditor shall provide each election board with a precinct map or precinct finder to assist in determining whether an address is located in that precinct and for determining which precinct and polling location to direct an individual who may be attempting to vote in the wrong precinct. (NDCC § 16.1-05-08) Poll clerks are authorized to direct an individual to his or her correct polling place if the individual’s current identification proves that he or she is in the wrong polling place.
*Tribal ID may be an official form of identification issued by a tribal government; the Bureau of Indian Affairs; 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

Revised April 2020

2020 North Dakota Election Officials’ Manual page 8

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 11 of 25
Section 4 – Election Worker Responsibilities After Polls Open
Voting Procedure
1. As an individual enters the polling location and approaches the poll clerks’ table, the required maps of the precinct, copies of the voter’s bill of rights, voting procedure diagrams and descriptions, copies of election offenses, copies of official ballots, copies of complete text of measures, and diagrams of electronic voting systems posted or displayed in the polling location must be readily available for review by the voter.
2. The poll clerk shall ask for the individual’s name and identification. (See pages 7-8 for acceptable forms of identification.)
3. If an individual’s valid form of identification does not include the North Dakota residential address or date of birth, or the North Dakota residential address is not current, the individual may supplement the identification with a current utility bill; a current bank statement; a check or a document issued by a federal, state, local, or tribal government (including those issued by BIA for a tribe located in North Dakota, any other tribal agency or entity, or any other document that sets forth the tribal member’s name, date of birth, and current North Dakota residential address); or a paycheck. After the poll clerk verifies the individual’s qualifications and the pollbooks are checked or updated, an election judge shall give the voter an initialed ballot within a secrecy sleeve. (Make sure to update all incorrect information contained in the pollbook.) a. If the name does not agree with the preprinted pollbook due to a name change, the poll clerk shall correct the pollbook if the individual is still a resident of the precinct. b. If the individual has inadvertently come to the wrong precinct, the poll clerk is to direct the individual to the correct precinct using the precinct finder or map provided by the county auditor for just such purpose.
4. If the identification provided does not verify his or her qualifications, or the individual is not able to show a valid form of identification, but he or she asserts qualifications as an elector in the precinct, the individual may mark a ballot that must be securely set aside in a sealed envelope. (See page 10)
5. Ballot in hand, the voter is to move to an open poll booth and mark his or her votes in secret. a. The poll worker should make the voter aware of the ExpressVote ballot-marking device since every voter is welcome to use it. b. It is important to allow any voter to use the ExpressVote due to the fact some voters may not want to divulge a hidden disability, such as illiteracy or dyslexia.
6. Voters shall ask for a new ballot if they fill an unwanted oval by accident. 7. After the ballot is marked, a voter shall insert his or her ballot into the secrecy sleeve, bring it to
the optical scan ballot tabulator, and insert the ballot into the machine for tabulation. 8. If the ballot has been marked incorrectly, the machine will identify the problem and give the voter
an opportunity for second chance voting. (NDCC § 16.1-13-23) a. The poll worker, standing at a discrete distance, may assist the voter (if requested) in either
returning the ballot to the voter for second chance voting or in casting the ballot as is – two ballots may be spoiled before the third must be cast as is. b. If the voter chooses to cast the ballot as is, the election judge must tell the voter that the portion of his or her ballot marked with a conflict will not be counted. c. If the voter still desires to cast the ballot as is, the voter is to press the “accept” button on the optical scan ballot counter. 9. The ballot is immediately counted by the machine before it is deposited by the machine directly into the locked ballot box below. 10. Throughout Election Day, there must be at least one election inspector and two election judges from the election board in the polling place to prevent fraud and to maintain order; however, split shifts for election board members and poll clerks are allowed.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 9

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 12 of 25
Set Aside Ballot Process
If an individual’s identification does not verify his or her qualifications, or an individual is not able to show a valid form of identification but asserts qualifications as an elector in the precinct, he or she may mark a ballot that must be securely set aside in a sealed envelope.
1. Clerk’s Station: The clerk shall: a. Confirm that the address provided by the individual is located in a precinct assigned to the polling place. b. Give the individual the set aside outer and secrecy envelopes and instruct him or her to complete the applicable portions of the outer envelope. The individual may be asked to step aside until finished. c. Review the outer envelope for completeness and accuracy. d. Complete the “Issuing Election Official Use Only” portion of the envelope, but do not enter the individual into the pollbook. e. Return the envelopes to the individual and send them to the judge’s station.
2. Judge’s Station: The judges shall: a. Issue the individual an appropriate ballot without initialing the ballot. b. Issue the individual a notice containing information on how, when, and where the individual may verify his or her identification. c. Inform the individual that after marking the ballot he or she is to: i. Place the ballot into the secrecy envelope, ii. Return to the judge’s station where the judges verify that the ballot is in the secrecy envelope iii. Seal the secrecy envelope in the outer envelope, iv. Return the sealed envelope to the judges, and v. Be reminded that the ballot will be counted by the canvassing board upon timely verification of the individual’s identification, per the information on the notice. d. Securely store the envelopes containing set aside ballots in a manner that is accessible in case the voter returns to the polling place with identification verification.
3. Voter Returns While Polling Place is Still Open: If an individual who has marked a set aside ballot returns to the polling place with valid identification, a clerk or the inspector will usher the individual to the judge’s station and notify the judges that the individual has returned to verify their identification. The judges retrieve the set aside ballot and ensure that the information on the identification matches that which the individual provided on the outer envelope. If it does, the judge completes the “Verifying Election Official” portion of the outer envelope and instructs the voter to sign the “Voter Signature Upon Verification” portion. The voter is informed that the ballot will be counted by the canvassing board, and the judge returns the ballot to the secure storage.
Other Election Worker Duties While Polls are Open
Poll List Kept by Clerks of Election: The poll clerks shall keep one list of the names of all persons voting at each election. The list of names must contain the full name, including first and last name, the individual’s identification number, and the complete residential address of each person voting at the precinct. A complete residential address for voting purposes includes a street address, city, and state. The use of a mailing address or PO Box number is not considered sufficient for voting purposes. Each clerk shall return the pollbook, which must be a part of the records and filed with other election returns. (NDCC § 16.1-11-32, NDCC § 16.1-05-04 and NDCC § 16.1-02-13)
Pollbook Correction: If the voter’s residential or mailing address within the precinct has changed, the poll clerk shall record the appropriate changes, if the voter’s name is found in the voter database.
Voting by Qualified Voter Moving From One Precinct to Another: If a qualified elector moves from one precinct to another precinct within this state, the elector is entitled to vote in the precinct from which the elector moved until the elector has established a new residence pursuant to NDCC § 16.1-01-04. A

Revised April 2020

2020 North Dakota Election Officials’ Manual page 10

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 13 of 25

person must reside in the precinct thirty days immediately prior to any election in order to be eligible to vote within that precinct. (NDCC § 16.1-01-05)

Delivering Ballot to Elector – Initialing: An election board member shall deliver ballots to the qualified voters within a secrecy sleeve. The inspector or judge shall inform each voter that if an election official does not initial the ballot, it will be invalidated. To protect the voter's right to vote, the voter should verify that the ballot has been initialed. Ballots are still considered valid if the judge or inspector initials the ballot outside the space provided for such. (NDCC § 16.1-13-22)

Secrecy Sleeves Required: Ballots are to be given to the voters within a secrecy sleeve. (NDCC § 16.1-13-23)

Warning Voters Not to Split Votes in the Primary Election: At primary elections, the judge or inspector shall inform each elector before voting, that voting for candidates of more than one party will cause the voter’s party ballot to be rejected. (NDCC § 16.1-11-22)

One Person Allowed in Voting Booth – Time Limit in Booth: Only one person may occupy a voting booth at one time except when receiving lawful assistance. No person shall remain in the booth longer than necessary to vote. (NDCC § 16.1-13-30)

Assisting Voter in the Voting Booth: A voter may request and receive the assistance of any person of the voter's choice in marking the voter's ballot, except for the voter's employer, officer or agent of the voter's union, a candidate running in that election, or relative of the candidate. (NDCC § 16.1-13-27)

Voter to Receive Assistance of Both Judges: If the voter requests the assistance of a member of the election board, the voter shall receive the assistance of both election judges in the marking of the voter's ballot. (NDCC § 16.1-13-27)

Person Assisting Voter May Not Request Voter to Vote in Certain Manner: Any person chosen to assist a voter may not request the voter to vote for or against any candidate or any issue. (NDCC § 16.1-13-28)

Voters May Not Divulge Voting Intentions: No voter, other than one who is unable to mark a ballot, may divulge to anyone within the polling place the name of any candidate for whom the elector intends to vote. (NDCC § 16.1-13-27)

No Write-in Stickers: Write-in stickers are not allowed on ballots in North Dakota elections.

Second Chance Voting:
1. Second-Chance Voting Prior to Casting Ballot: Since ballots are to be marked by the voter with a pen provided by the election board, unwanted choices or marks cannot be erased. Rather than crossing out unwanted choices or attempting to erase them, the voter should ask an election judge for a new ballot to mark his or her votes. A voter may obtain up to two new ballots for these reasons. Ballots returned to an election judge by an elector must be considered spoiled.

2. Second-Chance Voting as Voter Attempts to Cast Own Ballot: After marking the votes on the ballot, the elector shall place the ballot back in the provided secrecy sleeve so it is concealed and so the endorsement of the inspector or election judge may be seen. The elector then shall deposit the ballot in the optical scanning device and wait to determine if the ballot is deposited into the ballot box or if the optical scanning device has indicated a possibility for a second-chance voting condition. If a second-chance voting condition is indicated, a poll worker, standing at a discrete distance from the voter, shall ask the voter if he or she desires help in either having the ballot returned to the voter to mark his or her votes on a new ballot (the incorrect ballot is to be returned to the judge to be marked as spoiled) or the voter may choose to cast the ballot as the voter has marked it even though it is incorrect. If the voter chooses to cast the incorrectly marked ballot, the judge must first inform

Revised April 2020

2020 North Dakota Election Officials’ Manual page 11

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 14 of 25
the voter that the portion of the ballot that has been marked incorrectly will not be counted. Voters requiring assistance may ask a judge or inspector to cast the ballot provided the ballot is in the secrecy sleeve. (NDCC § 16.1-06-14(3) and NDCC §§ 16.1-13-23)
3. Securing New Ballot Upon Spoiling of Others: A voter spoiling a ballot may obtain others successively, one at a time, not exceeding three in total, upon returning each spoiled ballot. Each paper ballot returned must be spoiled immediately and, together with those not distributed to the voters, must be preserved and secured in sealed packages and returned to the county recorder. (NDCC § 16.1-13-32)
Removal of Ballot from Polling Place before Closing: No person may take a ballot from a polling place before the polls close. (NDCC § 16.1-13-31)
Voters in Line at Poll Closing: All voters standing in line to vote at the time the polls close must be allowed to vote. Election officials must establish procedures to determine who arrived in time to vote. (NDCC § 16.1-01-03)
Processing Absentee Ballots
Opening the Absentee Ballots: At any time beginning on the day before Election Day and the closing of polls on Election Day, the election clerks and board members of the relevant polling place shall do the following:
1. Compare the signature on the application for the absentee ballot with the signature on the back of the absentee ballot envelope (the voter’s affidavit) to ensure the signatures match.
2. If the applicant is a qualified elector of the precinct and has not voted in the election, the election worker shall open the absent voter’s envelope in such a manner as not to destroy the affidavit printed on the envelope. The election worker shall take out the secrecy envelope with the ballot(s) without unfolding or permitting the ballots to be opened or examined and indicate in the pollbook that the elector has voted.
3. Election workers not participating in the comparing of signatures and entering voters into the pollbook shall remove the ballot(s) from the secrecy envelope, unfold and initial the same, and deposit for tabulation.
If the affidavit on the outer envelope of a returned absentee ballot is found to be insufficient, the signatures on the application and affidavit do not match, or the applicant is not a qualified elector of the precinct, the vote may not be allowed. Without opening the absent voter's envelope, the election inspector or election judge shall mark across the face thereof "rejected as defective" or "rejected as not an elector", as the case may be.
The death of an absentee voter after having voted by absentee ballot does not constitute grounds for rejecting such ballot.
The votes from these cast ballots may not be tallied and the tabulation reports may not be generated until the polls have closed on Election Day. (NDCC § 16.1-07-12)
Rejected Absentee Ballots: Rejected absentee ballots are to be handed over to the county canvassing board for final determination of acceptance or rejection. (NDCC § 16.1-07-12)
Absentee Ballots Sent Too Late to be Counted: Any absentee ballot received by the inspector too late to be counted at the precinct must be returned to the county auditor and must be tallied by the county canvassing board. (NDCC § 16.1-07-11)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 12

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 15 of 25

Section 5 – Election Worker Responsibilities After Polls Close
Manner of Canvassing the Election: (NDCC § 16.1-15-02)  After the polls are closed, the inspector of elections and the judges shall immediately generate the canvass report from the optical scan voting system.  The ballots counted by the optical scan ballot tabulator must be equal in number with the names on the poll clerks' list. If the numbers are not equal, the pollpad is to be rechecked to find the discrepancy.  The canvass shall continue until completed and must be open to the public.  Except under crucial circumstances, the canvass shall occur at the polling place.  If good and substantial reasons exist for the removal of the ballots and election records to another location for canvass, the other location must be in the same precinct and the removal must be approved by the election board.  In no case may the ballots be moved to another location prior to generating the canvass report after the ballot boxes have been opened. Upon approval of a change of location by the election board as provided in NDCC § 16.1-15-02, the approximate time and location of the canvass must be prominently posted on the main entrance to the polling place, the ballots and records must be moved in the presence of the election board, and the canvass as provided in NDCC Chapter 16.1-15 must proceed immediately upon arrival at the alternate location.
Manner of Canvassing Write-in Votes: ( NDCC § 16.1-15-01.1)  After the polls have closed, the ballot tabulator (DS200) used in every polling location will generate a printout containing images of the contests for which the oval next to the write-in line is darkened.  The DS200 will also capture a PDF image of each ballot cast. These images will be saved onto the encrypted USB election media flash drive along with the votes cast in each contest. This flash drive must be delivered to the county auditor who will upload the contents saved on it into the election results aggregating software resident on the hardened and non-networked computer only used for that purpose. All write-in votes will be given to each legitimate write-in candidate via the adjudication process within the software by a staff member of the county auditor for all contests meeting the criteria established in NDCC § 16.1-15-01.1.  The county canvassing board will complete the review and approve canvass of the votes for the write-in candidates in those races for which the write-in votes constitute more than ten percent of the votes cast by the voters for the candidate receiving the most votes for that office, except in the case of a primary election where enough votes were cast as write-in votes to qualify a name for the general election ballot.  All ballots containing write-in votes must be wrapped and sealed prior to delivery to the county recorder so that these ballots can be delivered by the county recorder to the meeting of the county canvassing board if these votes were not canvassed by the polling place election board on election night. (NDCC § 16.1-15-08)
Primary Election Reports: The judges of a primary election in each precinct shall run a separate report for each political party or principle, containing the names of all persons voted for at the primary election, the number of votes cast for each candidate, and for which office. The report must be subscribed by the election judges and must be filed with the returns in the office of the county auditor. (NDCC § 16.1- 1133)

Canvass Report Prepared: The election board shall generate at least one canvass report from the electronic voting system. The ballots may not be sealed, nor may the canvass report be signed, by the election board or poll clerk until the counts in the poll clerks' book and in the canvass report show the same totals for ballots cast. Section 5 of this manual describes the procedures for closing of special precincts known as early voting, absentee, and vote by mail. (NDCC § 16.1-15-04)

Contents of Duplicate Reports: (NDCC § 16.1-15-09)  Election officers shall generate reports of votes counted on electronic counting machines for all candidates and for any measure in the same manner as provided for other ballots.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 13

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 16 of 25
 Optical scan counting systems must generate a printed record at the beginning of its operation, which verifies that the tabulating elements for each candidate position and each question and the public counter are all set at zero. The tabulating equipment must also generate a printed record of the total number of ballots tabulated and the total number of votes cast for each candidate and measure on the ballot. The election board must certify both printed records.
Oath Required Upon Completion of Canvass – Contents: At the conclusion of the canvass of the votes, each member of the election board shall sign an affidavit to the effect that the ballots have been counted, the votes were canvassed as provided in NDCC Chapter 16.1-15 and the returns as disclosed by the canvass reports agree with the number of ballots cast and are true and correct of the member's own knowledge. (NDCC § 16.1-15-05)
Wrapping and Returning Ballots – Void and Spoiled Ballots: (NDCC § 16.1-15-08)  The election board shall place each kind of ballot cast at the election in a suitable wrapper to form a complete wrapper for the ballots.  The ballots and wrappers must then be tightly secured at the outer end to completely envelop and hold the ballots together.  Set aside ballots must be secured in a separate wrapper and must be marked "set aside."  Void ballots must be secured in a separate wrapper and must be marked "void." Void ballots are sample ballots that are not endorsed with the initials of an election board member.  Ballots that are spoiled must be separately secured and marked "spoiled." Spoiled ballots are those returned by the voter in exchange for another because the voter has made a noncorrectable error on the returned ballot.  In sealing ballots, the various classes (cast, set aside, spoiled, void) must be kept separate.  Each wrapper must be endorsed with the names or numbers of the precincts and the date on which the election was held.  The wrappers must be sealed securely so the wrappers cannot be opened without an obvious and permanent breaking of the seal.  The ballots, together with those found void or spoiled, and the opened envelopes from voted absentee ballots and the unopened envelopes of absentee ballots rejected as defective, must be returned in person to the county recorder.  All ballots containing write-in votes must be wrapped and sealed prior to delivery to the county recorder so that these ballots can be delivered by the county recorder to the meeting of the county canvassing board.
Reports and Pollbooks Sent to County Auditor: Immediately following the canvass, except in cases of emergency or inclement weather, the inspector of elections, or one of the judges appointed by the inspector of elections, personally shall deliver the signed canvass report provided for in NDCC § 16.115-04 to the county auditor. The report, carefully sealed under cover, accompanied by the pollbook provided for in NDCC §§ 16.1-02-13 and 16.1-06-21 with the oaths of the inspector and poll clerks affixed thereto, must be delivered properly to the county auditor. (NDCC § 16.1-15-06)
Voters Casting Ballots After Regular Poll Closings – Provisional Ballots: An individual who votes after the regular poll closing time in an election in which a federal office appears as a result of a federal or state court order or any other order extending the time established for closing the polls under state law in effect ten days before the date of that election may only vote in that election by casting a provisional ballot. The ballot must be marked as a provisional ballot and must be separated and held apart from other ballots cast by those not affected by the order. The secretary of state shall approve the form of any provisional ballot and may prescribe any procedures the secretary of state determines to be necessary to facilitate the casting, secrecy, and counting of provisional ballots. (NDCC § 16.1-1334)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 14

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 17 of 25
Section 6 – Special Precincts (Early Voting, Absentee, Vote By Mail)
Early Voting Precinct: (NDCC § 16.1-07-15) 1. For any primary, general, or special statewide, district, or county election, the board of county commissioners may, before the sixty-fourth day before the day of the election, create a special precinct, known as an early voting precinct, to facilitate the conduct of early voting in that county according to NDCC Chapters 16.1-13 and 16.1-15. At the determination of the county auditor, more than one voting location may be utilized for the purposes of operating the early voting precinct. The election board of the early voting precinct must be known as the early voting precinct election board. The county auditor shall supply the board with all necessary election supplies as provided in NDCC Chapter 16.1-06.
2. If the board of county commissioners establishes an early voting precinct according to paragraph #1 above, the following provisions apply:  Early voting must be authorized during the fifteen days immediately before the day of the election. The county auditor shall designate the business days and times during which the early voting election precinct will be open and publish notice of the early voting center locations, dates, and times in the official county newspaper once each week for three consecutive weeks immediately before the day of the election.  The county auditor shall appoint the early voting precinct election board for each voting location that consists of one independent representative to act as the inspector and an equal number of representatives from each political party represented on an election board in the county, as set out in NDCC § 16.1-05-01, to act as judges. Each official of the board shall take the oath required by NDCC § 16.1-05-02 and must be compensated as provided in NDCC § 16.1-05-05.  The county auditor, with the consent of the board of county commissioners shall designate each early voting location in a public facility, accessible to the elderly and the physically disabled as provided in NDCC § 16.1-04-02. With respect to polling places at early voting precincts, “election day” as used in NDCC §§ 16.1-10-03 and 16.1-10-06.2 includes any time an early voting precinct polling place is open.  At the close of each day of early voting, the inspector and judges on the election board shall secure all election related materials, including: 1. The pollbook and access to any electronically maintained pollbook. 2. The ballot boxes containing voted ballots. 3. Any void, spoiled, and non-voted ballots.  Ballot boxes containing ballots cast at an early voting location may not be opened until the day of the election except as may be necessary to clear a ballot jam or to move voted ballots to a separate locked ballot box in order to make room for additional ballots.  Each early voting location may be closed, as provided in NDCC Chapter 16.1-15, at the end of the last business day designated for early voting in the county. Results from the early voting precinct may be counted, canvassed, or released under NDCC Chapter 16.1-15 as soon as any precinct within the county, city, or legislative district closes its polls on the day of the election. The county auditor shall designate a location for the closing, counting, and canvassing process under NDCC Chapter 16.1-15, which must be open to any person for the purpose of observing.  The early voting precinct election board shall comply with the requirements of NDCC Chapters 16.1-05, 16.1-13, and 16.1-15, as applicable.
Absentee Ballot Precinct: (NDCC § 16.1-07-12.1) 1. For any primary, general, or special statewide, district, or county election, the board of county commissioners may create a special precinct, known as an absentee ballot precinct, for the purpose of counting all absentee ballots cast in an election in that county. The election board of the absentee ballot precinct must be known as the absentee ballot counting board. The county auditor shall supply the board with all necessary election supplies as provided in NDCC Chapter 16.1-06.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 15

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 18 of 25
2. If the board of county commissioners chooses to establish an absentee ballot precinct according to paragraph #1 above, the following provisions apply:  The county auditor shall appoint the absentee ballot counting board that consists of one independent representative to act as the inspector and an equal number of representatives from each political party represented on an election board in the county, as set forth in NDCC § 16.1-05-01, to act as judges. Each official of the board shall take the oath required by NDCC § 16.1-05-02 and must be compensated as provided in NDCC § 16.1-05-05.  The county auditor shall have the absentee ballots delivered to the inspector of the absentee ballot counting board with the election supplies, or if received later, then prior to the closing of the polls.  The absentee ballot counting board shall occupy a location designated by the county auditor, which must be open to any individual for the purpose of observing the counting process.  Absentee ballots must be opened and handled as required in NDCC § 16.1-07-12. The county auditor shall designate a location for the closing, counting, and canvassing process under NDCC Chapter 16.1-15, which location must be open to any person for the purpose of observing. The board shall comply with the requirements of the applicable sections of NDCC Chapter 16.1-15. See Processing Absentee Ballots on page 12 of this manual.  If the work of the election board is completed prior to the close of the polls on election day in an absentee ballot, early voting, or a mail ballot precinct, the election board shall create and sign a statement consisting of a reconciliation of the number of voters recorded in the pollbook and the number of ballots processed through the tabulators. The voting system shall then be secured in a manner prescribed by the county auditor that will protect the system and ballots from tampering. Prior to generating the canvass reports from one of these 3 types of precincts, an election judge representing each political party, or 2 election judges in the case of an election that does not include a political party contest, shall verify that the system and ballots remain secure and the statement created by the election board is still accurate. NDCC § 16.1-15-04

Revised April 2020

2020 North Dakota Election Officials’ Manual page 16

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 19 of 25
Section 7 – Frequently Asked Questions and Answers
1. What do I do if a voter cannot or will not provide identification?
Answer: If the individual asserts qualifications as an elector in the precinct, they may be issued a set aside ballot. The set aside ballot will be tabulated by the canvassing board after the individual returns to the appropriate election official in a timely manner (see page 10).
2. What do I do if a voter asks for help with voting?
Answer: If the ExpressVote ballot marking device is not an option the voter chooses to use, then the two election judges from opposite political parties may assist the voter. Assistance is to be limited to reading the ballot to the voter, marking the voter’s choices for the contests, and depositing the voter’s ballot into the ballot scanner if the voter is unable to perform this function on his or her own or if the voter would rather not complete this part of the voting process. A voter may also choose to have a friend or relative assist the voter in reading, marking, and/or casting his or her ballot so long as this person is not a candidate on the ballot, a relative of a candidate, the voter’s employer, or the voter’s union representative.
3. What do I do if a voter asks me the names of write-in candidates for an office?
Answer: Inform the voter that he or she is free to write the name of anyone the voter so desires as a write-in candidate, but that some contests may require specific forms to be filed by the candidate in order for write-in votes be counted on the candidate’s behalf and the law does not permit election workers to divulge information about candidates to voters in the polling place. It would be wise to remind the voter to darken the oval next to a writein candidate.
4. What do I do when I am running low on ballots?
Answer: Call the county auditor, city auditor, or school business manager (whichever is appropriate for the election) as soon as you believe you might run short of ballots.
5. What do I do if a person is disrupting the polling location?
Answer: If the person is causing a serious disruption (your judgment is needed here) and the person will not leave when requested do so, you may call the police and ask for assistance. You may also call the county auditor and ask for assistance.
6. What if we notice some posters hanging in the polling place on Election Day for a candidate?
Answer: Remove any candidate posters in the polling place prior to the opening of the polls.
7. What time will the auditor bring lunch?
Answer: The county auditor will set the policy for lunch.
8. What do I do if someone brings an absentee ballot and turns it in at the precinct?
Answer: The law does not allow you to accept an absentee ballot from a voter on Election Day. However, you may tell the voter that you would be willing to spoil his or her absentee ballot and allow the voter to vote a new ballot at the precinct. You must remember to make a note of this for the county auditor’s records.
9. What do I do if I need to use the restroom?
Answer: Restroom breaks are allowed.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 17

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 20 of 25

Section 8 – Prohibitions, Crimes, and Election Offenses
Service of Civil Process on Election Day: During any primary, general, or special election held in this state, civil process may not be served on any person entitled to vote at the election within 100 feet from the outermost entrance leading into the building or facility in which a polling place is located and open for voting. (NDCC § 1-08-09)

Interference with Elections: No person may injure, intimidate, or interfere with another person who is or has been voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election. No person may injure, intimidate, or interfere with another person to prevent that person or any other person from voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election. (NDCC § 12.1-14-02)

Safeguarding Elections: No person may:  Make or induce any false voter registration;  Offer, give, or agree to give anything of pecuniary value, including alcoholic beverages, to another as consideration for the recipient’s voting or withholding his or her vote or voting for or against any candidate or issue or for such conduct by another;  Solicit, accept, or agree to accept anything of pecuniary value, including alcoholic beverages, as consideration for conduct prohibited by the two bullet points above; or  Otherwise obstruct or interfere with the lawful conduct of an election or registration. (NDCC § 12.1-14-03)

Election Offenses: The following election offenses are a crime and are subject to prosecution. It is unlawful for a person to:
 Fraudulently alter another person's ballot or substitute one ballot for another, or to otherwise defraud a voter of his or her vote.
 Obstruct a qualified voter on the way to a polling place.  Vote more than once in any election.  Knowingly vote in the wrong election precinct or district.  Disobey the lawful command of an election officer.  Knowingly exclude a qualified voter from voting or knowingly allow an unqualified person to vote.  Knowingly vote when not qualified to do so.
 Willfully fail to perform any duty of an election officer after having accepted the responsibility of being an election officer by taking the oath.
 Willfully violate any rule adopted by the secretary of state pursuant to the election laws of North Dakota.
 Willfully make any false canvass of votes, or make, sign, publish, or deliver any false return of an election, knowing the same to be false, or willfully deface, destroy, or conceal any statement or certificate entrusted to his or her care.
 Destroy ballots, ballot boxes, election lists, or other election supplies except as provided by law. (NDCC § 16.1-01-12)

Electronic Voting Systems – Violations – Penalty: Any person who tampers with or injures any electronic voting system or device to be used or being used in any election, or who prevents the correct operation of any such system or device is guilty of a class A misdemeanor. (NDCC § 16.1-06-25)

Political Badge, Button, or Insignia Prohibited at Election: No individual may buy, sell, give, or provide any political badge, button, or any insignia within a polling place or within 100 feet from the entrance to the room containing the polling place while it is open for voting. No such political badge, button, or insignia may be worn within that same area while a polling place is open for voting. (NDCC § 16.1-10-03)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 18

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 21 of 25
No Electioneering Within Boundary of an Open Polling Place: No person may in any manner try to induce or persuade any voter from voting for or against any candidate, candidates, or ticket of any political party or organization, or any measure within a polling place or within one hundred feet from the entrance to the room containing a polling place while it is open for voting. Bumper stickers or other moveable signs containing a political message that are not readily removable from vehicles are allowed within the restricted area only for as long as it takes the operator of the vehicle to complete the act of voting (NDCC § 16.1-10-06)
No person may pay another person for:  Any loss or damage due to attendance at the polls;  Registering;  The expense of transportation to or from the polls; or  Personal services to be performed on the day of a caucus, primary election, or any election which tend in any way, directly or indirectly, to affect the result of such caucus or election. (NDCC § 16.1-10-06.1)
No Sale or Distribution at Polling Place: Solicitation is not allowed in a polling place or within one hundred feet of any entrance leading into a polling place while it is open for voting. (NDCC § 16.1-1006.2)
Person Assisting Voter May Not Request Voter to Vote in Certain Manner: Any person chosen to assist a voter may not request the voter to vote for or against any candidate or any issue. (NDCC § 16.1-13-28)
Only One Person Allowed in Voting Booth – Time Limit in Booth: Only one person may occupy a voting booth at one time except when receiving lawful assistance. No person shall remain in the booth longer than necessary to vote. (NDCC § 16.1-13-30)
Removal of Ballot from Polling Place before Closing: No person may take a ballot from a polling place before the polls close. (NDCC § 16.1-13-31)

Revised April 2020

2020 North Dakota Election Officials’ Manual page 19

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 22 of 25
Section 9 – Voters With Disabilities
(This is adapted from various sources. Special thanks to the Arlington, VA Election Board)
Common-Sense Guidelines That Apply to All Voters
1. Be courteous and respectful. If you want to address the voter by name, use “Mr.” or “Mrs./Ms.” and the voter’s last name. Do not address a voter by his or her first name unless you know the voter personally and know he or she prefers this address.
2. Do not underestimate people with disabilities. A disability DOES NOT equal lessened intellectual capability.
3. Be considerate of extra time it may take for a person who is disabled or elderly to accomplish tasks.
4. Give unhurried attention to a person who has difficulty speaking. 5. Always speak directly to the voter, and not to a companion, aide, or sign language interpreter.
Remember that any voter with a disability may be accompanied by, and receive assistance from, another person of his or her choice in the voting booth, unless the person is an employer, officer or agent of the elector’s union, a candidate running in that election, or a relative of a candidate. 6. Ask before you help. The person may not want assistance. Do not insist – take “no” for an answer if that is the voter’s wish. 7. Do not be shy about offering assistance. Your courtesy will be appreciated. 8. If your polling place is in a building with several routes through it, be sure that sufficient signs are in place to direct a person to the most accessible route to the polling location.
Voters with Mobility Impairment
1. Do not push or touch another person’s wheelchair or equipment without consent. People using adaptive equipment often consider the equipment their personal space. You might also break or damage a wheelchair or piece equipment if you are not familiar with it.
2. Ask before helping. Grabbing someone’s elbow may just throw a person off balance. Allow the person to take your elbow.
3. A person with mobility impairment might lean on a door while opening it. Quickly opening the door might cause the person to fall.
4. Either fasten mats and throw rugs down securely or move them out of the way. A person with mobility impairment could trip.
5. Keep floors dry as possible on rainy or snowy days. 6. Keep the ramps and wheelchair-accessible doors to the polling place unlocked and free of
clutter.
Voters with Speech or Hearing Impairments
1. A voter who cannot speak can give his or her name and address simply by providing identification to the pollbook officer. The officer will read the name and address aloud, and the voter can provide physical confirmation (such as nodding his or her head) that the information is correct.
2. Follow the voter’s cues to determine whether speaking, gestures, or writing are the most effective means of communication.
3. If speaking, speak calmly, slowly, and directly to the voter. Do not shout. Your facial expressions, gestures, and body movements help in understanding. Face the voter at all times and keep your face in full light (not backlit), if possible.
4. Rephrase, rather than repeat, sentences that the voter does not understand.
Voters with Visual Impairment
1. Identify yourself and state that you are an election official as soon as you come in contact with a voter who has a visual impairment. Greet the individual by letting the person know who and

Revised April 2020

2020 North Dakota Election Officials’ Manual page 20

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 23 of 25
where you are. When offering walking assistance, allow the person to take your arm and tell him or her when you are approaching inclines or steps, or turning right or left. 2. If guiding a voter, offer your arm to the voter, rather than taking the voter’s arm. 3. If a voter has a guide dog, walk on the opposite side of the voter from the dog. Do not pet or otherwise distract a guide dog without permission from the owner. Be aware that service animals that assist persons with disabilities should be allowed into all buildings. Such animals are highly trained and need no special care other than that provided by the owner. Do not interfere with the animal’s responsibilities by talking or playing with it. 4. When giving directions to navigate the polling place, be as specific as possible and point out obstacles in the path of travel. 5. Let the voter know when you leave his or her presence.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 21

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 24 of 25
Checklists for Election Day
Before the Polls Open
 Election board and clerks take and subscribe the oath.  Inspector assigns duties fairly and equally to both parties on election board.  Review ballots and materials to make sure they are correct for the polling location.  Post voting instructions and copy of NDCC § 16.1-01-12 (Election Offenses).  Post official ballots, copies of the complete text of the measures, map of the precinct boundaries,
and diagram of the voting system appropriately in the polls.  Post the date and hours the polling location will be open on the door.  Inspector and judges inspect ballot box to make sure it is empty and lock it.  Open the sealed package of official ballots.  Perform other duties as the county auditor may prescribe.  Display the United States Flag.  Open polls at the designated time.
After the Polls Open
 Clerks keep and correct a poll list as voters approach to vote.  Ask each voter to show valid identification.  Ask each voter if they are a United States citizen and whether they have resided in the precinct for
at least thirty days.  Direct voters to correct polling location if in wrong place.  Provide instruction and assistance to voters, including information about the ExpressVote.  Inspector or judge to distribute ballots to voter within a secrecy sleeve.  Warn voters to check for initials.  No write-in stickers allowed.  Warn voters not to split votes between parties in the primary election.  Provide additional ballots (up to two) if voter spoils a ballot.  Cancel spoiled ballots immediately.  Allow voters to place own ballots in optical scan ballot tabulator.  Do not allow ballots out of the polling place before polls close.  Allow voters standing in line at closing time to vote.
After the Polls Close
 Run canvass reports of the votes from the ballot tabulator.  Compare ballots counted by the optical scanner with pollpads.  In optical scan precincts, judges and inspectors shall verify the initial print record is at zero.  Canvass the write-in votes for those races instructed to the board by the county auditor.  The election board or all of the poll workers as the case may be sign the generated reports.  In primary elections, copies of the reports must be given to each political party.  Election board shall take oath at conclusion of canvass.  Wrap and return ballots to county recorder as instructed.  Reports, pollbooks, oaths, and other required materials delivered to the county auditor.

Revised April 2020

2020 North Dakota Election Officials’ Manual page 22

Case 3:20-cv-00071-PDW-ARS Document 11-5 Filed 05/11/20 Page 25 of 25 NOTES

Revised April 2020

2020 North Dakota Election Officials’ Manual page 23

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 1 of 37
EXHIBIT 

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 2 of 37
McKenzie County Training Presentation

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 3 of 37

ELECTION DAY DUTIES
ND General Election Absentee Precinct November 6, 2018
1

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 4 of 37

AUDITOR’S OFFICE 444-3616 Ext. 3
Erica Johnsrud McKenzie County Auditor/Treasurer
Cell: 701-580-2753
Team Members: Michelle Thomsen, Dawn Tschetter
Debbie Johnston, & Cindy Glover
2

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 5 of 37

ELECTION BOARD
• Qualifications:
– Qualified elector
• U.S. Citizen • 18 years old • ND Resident; AND • Has resided in the precinct at least 30 days
prior to the election at which he/she is voting.
– Not a candidate – Not a relative of a candidate
• Spouse, child, brother or sister, by blood or marriage
3

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 6 of 37

Duties Prior to Election Day
• Read the Election Officials Manual • Attend Election Training • Contact Erica with any questions or concerns you
may have

Duties on Election Day

• Arrive at polls at least an hour early

• Open supplies and check against inventory sheet in the supply envelope
• Take Oaths at front of Poll Book

• Open & count ballots (2 people count each stack & verify with each other)

• Record number of ballots on Statement of

Ballots sheet in Poll Book

4

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 7 of 37

Oaths

STATE OF NORTH DAKOTA COUNTY OF MCKENZIE
At the ____________________ Election held on ______________________ in ______________________ Precinct, McKenzie County, the polls of said election being opened at ____________, the following oath was taken by the Inspector, Judges and Clerks of election:
I, ______________________________, do solemnly swear (or affirm) that I will perform the duties of Inspector of Election according to law and to the best of my ability; that I will studiously endeavor to prevent fraud, deceit and abuse in conducting the same.
_______________________________________________
I, ______________________________, do solemnly swear (or affirm) that I will perform the duties of Judge of Election according to law and to the best of my ability; that I will studiously endeavor to prevent fraud, deceit and abuse in conducting the same.
_______________________________________________
I, ______________________________, do solemnly swear (or affirm) that I will perform the duties of Judge of Election according to law and to the best of my ability; that I will studiously endeavor to prevent fraud, deceit and abuse in conducting the same.
_______________________________________________
I, ______________________________, do solemnly swear (or affirm) that I will perform the duties of Clerk of Election according to law and to the best of my ability; that I will studiously endeavor to prevent fraud, deceit and abuse in conducting the same.
_______________________________________________
I, ______________________________, do solemnly swear (or affirm) that I will perform the duties of Clerk of Election according to law and to the best of my ability; that I will studiously endeavor to prevent fraud, deceit and abuse in conducting the same.
_______________________________________________
I hereby certify that the above oath was administered by me to ____________________________________ ________________________________________________________________________________________ ___________________________________________________________________________, Judges and Clerks of Election, and subscribed by them in my presence previous to opening the polls.

_______________________________________________ I hereby certify that the above oath was administered by me to ______________________________ Inspector of Election, and subscribed by him/her in my presence previous to opening the polls.

_______________________________________________

NOTE - In case there shall be no officer authorized to administer an oath present at opening of polls, the

Inspector and Judges of Election are empowered to administer the oaths to each other and to the Clerks of

Election.

5

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 8 of 37

Statement of Ballots Received and Returned

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 9 of 37

Prepare M100 Ballot Scanner
• Refer to handout – Model M100 Election Day Checklist (extra in supply box)
• Check that ballot boxes are empty
• Place stickers over both left & right side ballot boxes
• DO NOT TEAR OFF THE TAPE THAT PRINTS (verify info for accuracy & zeros)
7

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 10 of 37

ABSENTEE BALLOTS
Judges/Inspector
• Compare signatures on application & return envelope. • Verify that voter is a qualified elector • Open absent voter’s white envelope. • Remove manila secrecy envelope & set aside. • Place application inside of the absent voter’s envelope. • Keep ballots separate by precinct so that you have an accurate
count for the ballot statement. • Once all absent voter ballots have been opened – initial the
ballot • Count the Number of Ballots by Precinct and record the number
of ballots on Statement of Ballots in Poll Book by precinct.
Do not include unopened absentee ballot in your ballot count.
8

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 11 of 37

Absentee Application & Envelope Voter Affidavit
9

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 12 of 37

ABSENTEE BALLOTS (cont.)
• Reject Ballots if:
• Not a qualified elector • Signatures don’t match
• Write reason for rejecting on envelope • DO NOT OPEN • Do not include in ballot count
10

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 13 of 37

ABSENTEE BALLOTS (cont.)
• Clerks: Verify name and address in poll book
• Write “AB” (Absentee Ballot) if not already printed on report • Clerk initials voter record in Poll Book.
• Judges/Inspector: Initial ballot(s) and Scan each ballot.
• Scanner Error = Cross Over or Over Vote Press “COUNT AS MARKED” button
• Scanner Error = Blank Ballot Press “RETURN BALLOT” button Examine ballot and either fill in ovals if marked with “X” or with the another judge create a “Duplicate 1” ballot, labeling original ballot as “Original 1” at the top of the ballot. Scan the duplicate ballot pages and place the original ballot pages in the “Spoiled” ballot envelope.
• UOCAVA ballots need to be duplicated at each precinct
• UOCAVA = Uniformed and Overseas Citizens Absentee Voting Affidavit
• Keep voter’s vote confidential 11

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 14 of 37

Election Day Additional Tracking
• Election Equipment Issues
12

Front

Back

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 15 of 37

INSPECTOR OR JUDGES - Initial the ballot(s) at bottom right corn1e3r

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 16 of 37

DUTIES AFTER THE POLLS CLOSE
• Polls close at 7:00 pm – cannot process any results until 7:00 pm
– All ballots can be fed into the scanner at any time before 7:00 pm
– Results tapes cannot be run until 7:00 pm
• Check for any absentee ballots left to process
14

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 17 of 37

BALLOT COUNTS - VOTED
• VOTED BALLOTS – Left Side of Ballot Box • Remove ballots from left side of ballot box • Sort by precinct • Count ALL ballots & note how many pages of each precinct you counted
15

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 18 of 37

BALLOT COUNTS (continued)
• VOTED BALLOTS – Right Side of Ballot Box Contains Ballots With WRITE-INS
• Remove ballots with Write-ins from right side of ballot box
• Sort by precinct & count • Add the number pages from right bin (write-
ins) to the number from the left side of the ballot box noted on a note pad • Set aside Write-in ballots for Tabulation
16

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 19 of 37

BALLOT COUNTS (VOTED)
• VOTED BALLOTS
• Total number of pages from both Left & Right Sides of Ballot Box added together should match the number of voters on the M100 display and in the Poll Book
• You MUST resolve any differences before proceeding to the next step.
17

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 20 of 37

Sample Ballot Statement & Poll Book Certificate 18

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 21 of 37

WRITE-IN VOTES
• WRITE IN VOTES Required to be Tallied • Count all eligible candidates for county races • Do not count for any state or judicial races except certified write in candidates:
• Representative in Congress: DuWayne Hendrickson • Ag Commissioner: Roland Riemers
• Tally Write-in Votes only for VALID CANDIDATES • Qualified voters • Not fictional characters • Qualified for the office, if required
19

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 22 of 37

WRITE-IN VOTES (continued)
20

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 23 of 37

WRITE-IN VOTES (continued)
• Certify the write ins on the Official Canvass
– Be sure to sign the certificate
• If no write ins, please so state and sign the certificate
21

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 24 of 37

END OF DAY / WRAP UP
• Wrap voted and counted ballots
– Include those with write ins
• Complete the ballot statement
– Be sure that the numbers all balance – Sign as indicated
• Finish wrapping and sealing the various types of ballots
• Time to double check forms
• Oaths of Office • Statement of Ballots Received and Returned • Poll Book Certificate • Official Canvass of Write ins • Double check all yellow forms for complete
signatures
22

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 25 of 37

ELECTION WAGES
• Temporary Employees • Complete W4 and I-9 form • Checks ready Friday, November 16

Pay for this Election:

• Polling places less than 50 miles from Watford City

• Inspector $275

Clerks & Judges $225

(Watford City & Absentee Polling Locations)

• Polling places more than 50 miles from Watford City

• Inspector $350

Clerks & Judges $275

• (Mandaree & Cartwright Polling Locations)

**This includes $50 for attending election training which will be deducted if worker does not attend.

23

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 26 of 37

IMPORTANT REMINDERS
• Ballot must be initialed by inspector or one of the judges
• Sign Oaths of Office
• Inspect ballot box and seal it before processing ballots
24

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 27 of 37

ELECTION WORKER DO’S
• Compare ballot totals to poll book numbers
• Return all materials to the County Auditor
• Report suspected violations to the Auditor or the State’s Attorney
• Ask if you have questions or concerns
25

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 28 of 37

ELECTION WORKER DON’TS
• Don’t wear campaign buttons or badges or clothing
• Don’t leave the polling place while working as an election official
• Don’t allow anyone to interfere with the voting process
• Don’t accept absentee ballots from anyone except the County Auditor or her agent
26

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 29 of 37

THANK YOU!
for participating in the election process.
We can’t do it without all of you!
27

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 30 of 37
Mercer County Guidance

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 31 of 37

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 32 of 37

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 33 of 37

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 34 of 37

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 35 of 37
Cavalier County Guidance

Case 3:20-cv-00071-PDW-ARS Document 11-6 Filed 05/11/20 Page 36 of 37
Vote By Mail Process
DAY 1
1. ALL Sign Oath of Office and review processes 2. JUDGES - Compare signatures between the absentee ballot and the application submitted.