BISMARCK -- The state of North Dakota asked a federal judge this week to lift a 2016 order preventing it from implementing its voter identification law without a "fail-safe" option previously available to voters.

The Republican-controlled Legislature in 2013 eliminated the affidavit option that allowed voters who didn't provide an ID to swear their eligibility. That change, along with others made in 2015, were challenged in court by seven members of the Turtle Mountain Band of Chippewa who argued the laws were unconstitutional and discriminatory.

A federal judge granted a preliminary injunction in August 2016, just a few months before the election, and later ordered North Dakota to offer the affidavits.

In a memo filed Tuesday, Jan. 16, in U.S. District Court in North Dakota, the state argued voter affidavits are "incompatible" with North Dakota's status as the only state without voter registration.

"Thousands of unverifiable votes will likely be cast in future elections as long as North Dakota is forced to use voter's affidavits in conjunction with its choice to remove registration as an impediment to voting," the state argued.

WDAY logo
listen live
watch live

The memo also pointed to changes the state Legislature made last year in response to the lawsuit that allow voters without an ID to cast a ballot that's set aside until they can produce one.

Under the new law, an ID that's out of date could be supplemented with a current utility bill, bank statement, paycheck or a government-issued check or document. IDs issued by the state Department of Transportation or a tribal government are valid under the new law, which includes options for those in "special circumstances," such as living in a long-term care facility.

Deputy Secretary of State Jim Silrum previously said North Dakota will continue to offer voter affidavits until the judge rules otherwise.

An amended complaint filed late last year argued that the new law "maintains North Dakota's restrictive voter ID requirements with no fail-safe mechanism" and disproportionately burdens and disenfranchises Native Americans.

"Because a voter must still show a valid ID, and because the canvassing board may have discretion to deny inclusion of the vote, the provisional or set-aside ballot process is not a fail-safe mechanism for those that simply do not have an ID," the complaint states.