Poll workers can't legally ask voters to prove citizenship, North Dakota attorney general says

FARGO — A day after the Cass County state’s attorney gave his interpretation of a controversial voting law, the North Dakota attorney general stepped in with a matching opinion late Wednesday, Oct. 26.

Election workers cannot legally ask voters to prove their citizenship status, said North Dakota Attorney General Drew Wrigley in a statement, which agreed with the opinion of Cass County State's Attorney Birch Burdick.

Wrigley’s opinion came a day after Burdick gave his interpretation of the state law to a group of election workers and Cass County government officials during a training session on Tuesday in Fargo. Early in-person voting for the Nov. 8 general election starts Monday in Cass County.

Wrigley offered his interpretation more than three months after Burdick asked for an opinion from the attorney general, Burdick said. Wrigley told The Forum he regretted the delay.

“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,” Wrigley wrote in his statement.

“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 in order to vote,” Wrigley wrote.

Current state law requires that a voter show a North Dakota driver’s license, or a non-driver’s license ID, a tribal ID, or a long-term care certificate provided by a North Dakota facility.

If such documents do not provide name, age and residence, then a voter can show the identification they have along with alternate paperwork, such as a current utility bill, bank statement, a paycheck or a document showing residency from a federal, state or local government agency.

In June, people of color reported being turned away from the West Acres polling station in Fargo after they could not immediately prove their citizenship. The complaints prompted DeAnn Buckhouse, the Cass County election coordinator, to monitor voting at the site.

In his statement, Wrigley wrote: “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.”

In addition, Wrigley noted that driver’s licenses issued to citizens and non-citizens are different, but “North Dakota law does not require the individual to replace the card” once a non-citizen becomes a citizen.

After becoming a new citizen, it is possible that the person may not know to inform the North Dakota Department of Transportation of the changes in their citizenship status, Wrigley said.

“It is reasonable to conclude some individuals with non-citizen licenses or identification cards are citizens,” Wrigley wrote.

Individual states must also work within federal guidelines such as the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and the National Voting Rights Act, which balance voters' rights and state interests in safeguarding against voter fraud.

“States may regulate elections provided the regulations do not unduly burden the right to vote,” Wrigley wrote.

“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. After all, it is a crime for an individual to vote when he or she is not a qualified voter,” Wrigley wrote.

A non-citizen who votes in a North Dakota election can be charged with a Class C felony, with a maximum punishment of five years in prison and a $10,000 fine.

If any voting precinct decides not to follow an attorney general’s guidance, then they run the risk of being sued and going to court, Wrigley said.

“There would be legal consequences. It removes certain liabilities from them if they go with what the attorney general states. I can’t make them do it, but then they wouldn't have protections,” Wrigley told The Forum.

At the end of his statement, Wrigley reiterated that election officials cannot ask for proof of citizenship.

“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,” Wrigley said.