If a voter's ID shows they were once a non-citizen but they say they're now a U.S. citizen, can a North Dakota poll worker demand proof of citizenship before letting them vote?

Plain-English summary

The Cass County State's Attorney asked the AG whether poll workers could demand documentary proof of U.S. citizenship from voters whose North Dakota ID indicated they were once non-citizens (because ND driver's licenses and ID cards mark non-citizen status at time of issuance, and the state does not require people to replace those cards after naturalization).

The AG answered no. North Dakota's voter-identification statute (N.D.C.C. § 16.1-01-04.1) authorizes verification of three things only: legal name, current residential street address, and date of birth. The statute does not include citizenship status, and the AG cannot read a proof-of-citizenship requirement into a statute where the Legislature has not put one. The presumption is that the Legislature meant what it said and said all it intended to say. The set-aside ballot procedure in subsection (5) covers missing or inaccurate name/address/date-of-birth information; it does not extend to citizenship.

If a voter declares they are a U.S. citizen and otherwise qualifies, the poll worker must let them vote. If the official remains suspicious, the option is to note the voter's information and forward it to the State's Attorney for investigation. Voting while not qualified is a class C felony under N.D.C.C. § 12.1-32-01(4) (up to five years imprisonment and a $10,000 fine), so the deterrent is real even without front-end documentation.

The AG also explained federal-law context. The National Voter Registration Act (NVRA) framework that has supported some other states' proof-of-citizenship requirements does not apply to North Dakota (it is one of six exempt states). Equal Protection Clause challenges to such requirements are reviewed under the Anderson-Burdick balancing test; the Tenth Circuit's decision in Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020), struck down Kansas's documentary-proof-of-citizenship law under that test. Any future North Dakota legislation in this area would have to be drafted with Fish v. Schwab in mind.

What this means for you

If you are a North Dakota poll worker or election official

The opinion concludes that N.D.C.C. § 16.1-01-04.1 authorizes verification of only three items (legal name, current residential street address, and date of birth) and does not authorize requiring documentary proof of citizenship. The opinion notes that an official who has reason to suspect fraud may forward the voter's information to the State's Attorney for investigation, since voting while not qualified is a class C felony under § 12.1-32-01(4) and § 16.1-01-12(1)(g).

If you are a voter whose ID labels you as a non-citizen

The opinion holds that a voter who declares U.S. citizenship and otherwise qualifies under § 16.1-01-04 must be allowed to vote. The opinion does not address how a voter might update an existing ID card.

If you are a state legislator or election-law attorney

The opinion notes that the National Voter Registration Act does not apply to North Dakota (one of six exempt states). The opinion cites Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020), which applied the Anderson-Burdick balancing test to strike down Kansas's documentary proof-of-citizenship law. The opinion does not opine on the constitutionality of any hypothetical future legislation. Under N.D.C.C. § 54-12-01, the opinion governs the actions of public officials until the question is decided by the courts.

Common questions

Q: Why do North Dakota IDs note non-citizen status?
A: Federal REAL ID rules and state law require ID cards to identify the holder's legal status at the time of issuance. Non-citizens get cards marked "temporary resident" or "permanent resident" depending on legal status. There is no automatic update when a person naturalizes.

Q: What happens if a poll worker still wants proof?
A: They cannot require it. They can ask for the voter's contact information and forward concerns to the State's Attorney's office. They cannot refuse to let a qualified voter cast a ballot based on speculation about citizenship.

Q: Is voting while not a citizen a crime?
A: Yes. N.D.C.C. § 12.1-32-01(4) and § 16.1-01-12(1)(g) treat it as a class C felony, punishable by up to five years imprisonment and a $10,000 fine.

Q: Can the Legislature change this?
A: Yes, by amending the voter-identification statutes to include citizenship verification. The AG specifically flagged that this is a constitutional area where any change would need to comply with Fish v. Schwab and similar caselaw.

Q: What's the set-aside ballot procedure?
A: When a voter cannot prove name, address, or date of birth at the polling place, they may cast a ballot that is sealed and held aside. The ballot is counted only if the voter later supplies the missing or corrected information before the canvassing board meets (13 days after the election under N.D.C.C. § 16.1-15-17). The procedure does not extend to citizenship questions.

Citations and references

Statutes and constitutional provisions:

• N.D.C.C. § 16.1-01-04.1
• N.D. Const. art. II, § 1

Cases:

• Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020), Kansas documentary-proof-of-citizenship struck down
• Burdick v. Takushi, 504 U.S. 428 (1992), Anderson-Burdick balancing test

Request and conclusion (from landing page)

October 26, 2022

Request: Must an election official take an individual voter at his or her word or may the election official require the voter to present proof of citizenship if the voter’s identification indicates the individual is not a U.S. citizen?

Conclusion: The statutory identification requirements only allow for verification of an elector’s name, age, and residence. They do not speak to citizenship or to a method of proving citizenship. Without a clear statutory requirement by the legislature to prove citizenship or a constitutionally permissible method by which to prove it, an election official has no authority to request proof of citizenship. If an individual states he or she is a United States citizen, the election official must take the individual at his or her word.

This opinion may be viewed at: 2022-L-05

Source

• Landing page: https://attorneygeneral.nd.gov/election-official-may-not-require-a-voter-to-provide-proof-of-citizenship/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-L-05_0.pdf

Original opinion text

STATE OF NORTH DAKOTA

OFFICE OF ATTORNEY GENERAL

www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

LETTER OPINION
2022-L-05

Mr. Birch Burdick

Cass County State’s Attorney
P. O. Box 2806

Fargo, ND 58108-2806
[email protected]

Dear Mr. Burdick:

Thank you for your letter requesting an opinion on whether North Dakota law allows proof of
citizenship as a condition for voting in North Dakota elections. Your inquiry arose in the context of
individuals seeking to vote and asserting their citizenship of the United States despite their
identification indicating they were not a citizen at some point in time. You asked whether, in such
instances, an election official must accept the individual’s word, or whether an official may require
the individual to present proof of citizenship.

North Dakota law has no statutory requirement or constitutionally permissible method by which to
require proof of citizenship, so it is my opinion that current law does not permit an election official
to require a voter to provide documentary proof of citizenship in order to vote. There are legislative
provisions that could alter this legal structure in North Dakota if enacted by a future legislative
assembly, but those are not yet before me.

ANALYSIS

Article II, § 1, N.D. Const., and N.D.C.C. § 16.1-01-04 set forth the qualifications necessary to be
an elector in the State of North Dakota. Under these two provisions, to qualify as an elector, an
individual must be: 1) a citizen of the United States, 2) eighteen years of age or older, and 3) a
resident of this State who has resided in the precinct at least thirty days immediately preceding any
election.! Before an individual receives a ballot for voting, the individual is required to present an
election official with a valid form of identification? that specifies the individual’s: 1) legal name, 2)
current residential street address, and 3) date of birth.? If the identification does not include one of
those three items or includes information that is not current, the individual can supplement the
identification by presenting any of the documents enumerated in statute and which

'N.D. Const. art. II, § 1; N.D.C.C. § 16.1-01-04(1).

? A valid form of identification consists of either: 1) a driver’s license or nondriver’s identification
card issued by the N.D. Dept. of Transp. or 2) an official form of identification issued by a tribal
govemment to a tribal member residing in this state. N.D.C.C. § 16.1-01-04.1(3).

3.N.D.C.C. § 16.1-01-04.1(1), (2).

LETTER OPINION 2022-L-05
October 26, 2022
Page 2

provide the missing or outdated information.* However, as your letter makes clear, North Dakota
law does not require an individual’s citizenship status to be established on the form of identification
presented to an election official.5 Absent such a proof requirement in statute, voting officials are
not permitted to create one.

Although an individual does not have to be a citizen of the United States in order to obtain a driver’s
license or nondriver’s identification card in this state, both a driver’s license and nondriver’s
identification card issued by the North Dakota Department of Transportation include the citizenship
status of the holder at the time the license or card is issued. When a license or card is issued to a
noncitizen, it must be clearly distinguishable from a similar license or card issued to a United States
citizen.6 A North Dakota driver’s license or a nondriver’s identification card for a noncitizen is
marked with either a “temporary” or “permanent” resident label, based on the individual’s legal
status in this country. Notably, if an individual becomes a citizen after receiving a noncitizen license
or identification, North Dakota law does not require the individual to replace the card. Persons who
opt to replace these cards must pay a replacement fee.’? Based on these circumstances, it is
reasonable to conclude some individuals with noncitizen licenses or identification cards are citizens.

The North Dakota Department of Transportation serves as one of the information sources for the
North Dakota Secretary of State’s electronic database of potential voters which is used for
generating pollbooks. When a noncitizen becomes a citizen and shows up at a polling place to
vote, it is quite possible the new citizen did not know to inform the North Dakota Department of
Transportation of the change in his or her citizenship status, or did not have time to do so before
they voted. In that case, both the individual’s identification and the pollbook would erroneously

4 N.D.C.C. § 16.1-01-04.1(3)(b). The list of acceptable supplemental documentation consists of a
current utility bill; a current bank statement; a check issued by a federal, state, or local government;
a paycheck; a document issued by a federal, state, or local government; or a printed document
issued by an institution of higher education for an enrolled student. N.D.C.C. § 16.1-01-04.1(3)(b).

Past legislative assemblies could have added citizenship status to the list of items that must be
documented, however no such enactment has been made. Future legislative assemblies are similarly
capable of such a course, subject to constitutional considerations.

6 N.D.C.C. §§ 39-06-03.1(2), 39-06-07.1(1), 39-06-14(5).

7 See N.D.C.C. § 39-06-03.1(2). Nothing prevents a potential voter from voluntarily presenting
some other documentation as proof of citizenship.

5 N.D.C.C. § 16.1-02-01(central voter file), N.D.C.C. § 16.1-02-09 (Dept. of Transp. to report
updates to the Sec’y of State). See also, N.D.C.C. § 16.1-02-06 (State Health Officer reports deaths,
name changes by marriage); N.D.C.C. § 16.1-02-07(State Court Adm’r reports name changes by
divorce or order of the court); N.D.C.C. § 16.1-02-08.1 (Dept. of Corr. report people convicted of a
felony).

LETTER OPINION 2022-L-05
October 26, 2022
Page 3

designate the individual as a noncitizen.9 North Dakota law does not provide a process for dealing
with this scenario and none can legally be assumed.

Section 16.1-01-04.1, N.D.C.C., does provide an orderly and constitutionally sound process to
follow when an individual cannot prove their legal name, current residential street address, or date
of birth at the polling place.!° The law provides that the individual may mark a ballot that is then
set aside in a sealed envelope. That set-aside ballot will be counted only if the individual later
shows valid documentation of the missing or inaccurate information before the canvassing board
meets to canvass the results of the election.'' Perhaps a future legislature will craft similar
provisions to constitutionally craft a process for providing proof of citizenship, but they have not
done so yet, and that establishes the bounds for this Attorney General opinion.

The plain language of N.D.C.C. § 16.1-01-04.1 does not extend the set-aside ballot process to
situations when an individual’s citizenship status may differ from that indicated on the individual’s
identification. When interpreting statutes, North Dakota courts have consistently recognized the
presumption that the legislature meant what it said and said all it intended to say.!* Thus, I cannot
lawfully read a proof of citizenship requirement into a statute where it does not appear.

In assessing these matters, courts are also required to consider federal law. Courts have evaluated
proof of citizenship requirements under both the National Voting Rights Act (NVRA) and the Equal
Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Documentary proof of
citizenship requirements are usually evaluated under the statutory framework of the NVRA, which
does not apply to North Dakota.!% Recently, though, the U.S. Court of Appeals for the Tenth
Circuit reviewed an Equal Protection Clause challenge to a Kansas state law requiring individuals to
provide certain documents to prove citizenship when applying to register to vote. In Fish vy.
Schwab, the court evaluated the asserted injury to individuals’ right to vote against the state’s
interests and justification for burdening that right by demanding documentary proof of citizenship.14
Although the right to vote is “fundamental” and a “preservative of all rights,” it is not absolute.!5

° In addition to those citizens who do not update their citizenship status with the Department of
Transportation, there is also the possibility that an individual’s status might be mislabeled. In the
June 2022 primary election there was an error that caused some United States citizens to be mis-
labeled as noncitizens in the pollbooks.

1ON.D.C.C. § 16.1-01-04.1(5).

'l Td. The county canvassing board meets to canvass the election returns on the 13
each election. N.D.C.C. § 16.1-15-17.

2 Estate of + v. Gilstad, 829 N.W.2d 453, 457 (N.D. 2013).

'3 Six states are exempt from the NVRA (including North Dakota) because, on and after August 1,
1994, the states either had no voter-registration requirements or had election-day voter registration
at polling places with respect to elections for federal office.

\4 Fish y. Schwab, 957 F.3d 1105 (10" Cir. 2020).

'5 Tq, at 1121 (internal citations omitted).

th

day following

LETTER OPINION 2022-L-05
October 26, 2022
Page 4

States may regulate elections provided the regulations do not unduly burden the right to vote.!® To
determine whether a statutory burden on the right to vote is constitutionally permissible, the U.S.
Supreme Court developed the Anderson-Burdick balancing test.17 In Fish v. Schwab, the test
balanced the state’s interests in protecting the integrity of the electoral process, ensuring the
accuracy of voter rolls, safeguarding voter confidence, and preventing voter fraud, against the
burden on voters.18 After a lengthy, fact-specific analysis, the court there deemed the state’s
interests legitimate and important but ultimately insufficient to justify the burden of the statute on
individuals’ right to vote.19 As a result, the court found the Kansas law violated the Equal
Protection Clause and upheld the lower court’s injunction against enforcement of the law. I caution
that any legislative action to require voters to provide documentary proof of citizenship here in
North Dakota will need to be guided by an analysis of the Fish v. Schwab opinion and related
constitutional caselaw as they may apply to the relevant facts in North Dakota.

While North Dakota law provides no basis upon which to demand proof of citizenship as a
precondition to voting, there is, nonetheless, a process available to any election official who believes
a person is voting illegally, including where it is suspected the person is not a citizen of the United
States. If an election official has a nondiscriminatory reason to believe an individual who casts a
ballot is not a citizen of the United States, the official may make a note and forward that individual’s
name to the appropriate state’s attorney for review. Afterall, it is a crime for an individual to vote
when he or she is not a qualified voter.” If an individual who is not a citizen votes in a North
Dakota election, the individual has committed a class C felony, which is punishable by up to five
years imprisonment and a fine of up to ten thousand dollars.?1

The right to vote is a fundamental political right, and any abridgement of this right must be closely
scrutinized.22 Without a clear statutory requirement to prove citizenship and a constitutionally
permissible method by which to prove it, the law prohibits an election official from requiring a voter
to provide documentary proof of citizenship in order to vote. If an individual states he or she is a
United States citizen and otherwise qualifies as an elector in that polling place, the election official
must allow that individual to vote. If the election official remains unconvinced, the election official

16 Tq, at 1122 (internal citations omitted).

'7 Burdick v. Takushi, 504 U.S. 428, 434 (1992) (“A court considering a challenge to a state election
law 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 plaintiffs
rights.””’)

'8 Fish vy. Schwab., at 1132.

'9 Td., at 1132, 1134.

0 See e.g., N.D.C.C. § 16.1-01-12(1)(g).

21 N.D.C.C. § 12.1-32-01(4).

22 Fish vy. Schwab, 957 F.3d 1105 (10" Cir. 2020).

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is free to note the individual’s contact information and may provide that information to the State’s
Attorney for appropriate review and investigation.

Drew H. Wrigley
North Dakota Attorney General

This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials
until such time as the question presented is decided by the courts."

3 See State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946).