ALVIN A JAEGER SECRETARY OF STATE PHONE (701) 328-2800 FAX (10%) 926-2862 HOME PAGE sind govlone EMAL soe@ndgov SECRETARY OF STATE ‘STATE OF NORTHOMKOTA (600 EAST BOULEVARD AVENUE DEPT 108 ‘BISMARCK ND 68505-0600 To: The Presidential Advisory Commission on Election Integrity From: Alvin A, Jaeger, North Dakota Seerstany of State fg; Attn Date: September 5, 2017 g Re: North Dakota — views and recommendations As requested in your letter dated June 28, 2017, | offer the following responses from North Dakota to the seven questions asked 1. What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections? North Dakota has successfully administered elections without any form of voter registration since 1951. At that time, the residents of our state and country were far less mobile, In 2003, the North Dakota Legislative Assembly addressed the matter of verifying the qualifications of electors in a highly mobile electorate by requiring voters to provide identification (ID) when appearing to vote. It was believed that the electorate would easily adapt since 98% of the voters listed in the state's Central Voter File (CVF) (a centralized pollbook of individuals who voted in past elections) had a driver's license or non-driver's ID issued by the North Dakota Department of Transportation (DOT). The license and ID card identifying numbers were provided by DOT when the CVF was launched in 2006 and nightly updates are received from DOT for address and name changes. The nightly update allows the CVF to remain current to associate each voter's residency to the correct precinct and precinct part in which he or she lives. Regular updates are also received from the Division of Vital Records to update the statuses in the CVF of individuals who have died. Pollbooks generated by the CVF are used by election boards to expedite the administration of elections and reduce lines when voters appear to vote. If a voter's name does not appear in the pollbook, due to an inactive voter status for example, the voter’s name is added when the voter provides his or her ID. ‘The 2005 North Dakota voter ID legisiation allowed for poll workers to vouch for the eligibility of any voter who did not have an ID, provided the poll worker personally knew the individual to be a qualified elector of that precinct. However, this method of ID was seldom used by poll workers since it was often the case that those without ID were not known by any of the poll workers. Another form of acceptable 1D allowed was the Voter's Affidavit by which an individual, without or unwilling to produce an ID, could sign an oath self-certifying his or her qualifications as an elector. According to law, the votes from the ballots cast by affiants were included in the tally and it was only after the election that the local election officials were to verify whether these voters were qualified electors. In subsequent elections, the number of voters using the Voter's Affidavit continued to rise as did the number of voters who local election officials were unable fo contact for verification purposes after the election. There could be many reasons as to why these voters could not be contacted; for example, a voter had moved to a new address and not left a forwarding address, the voter did not include a unit number on the address provided, or the voter did not reside at the address listed,The use of the Voter's Affidavit became an issue in close elections. For example, in the 2012 North Dakota General Election, 10,519 voters used the Voter's Affidavit to cast a ballot. In that election, the United States Senate race was decided by 2,936 votes and questions were raised whether some of the 10,519 affiants were indeed eligible to cast a ballot. Even ifithad been possible to identify ineligible voters, it would have been impossible to extract the votes cast by the ineligible voters from the final tally. Because of the unanswered questions raised about the qualifications of the voters, the 2013 North Dakota Legislative Assembly eliminated the Voter's Affidavit and the poll worker verification as 1D options. instead, to supplement the 98% of the voters who already had a driver's license that could be used for voter ID, a non-criver’s ID would be issued at no cost to any resident who did not already have a driver's license or non-driver's ID and who wanted an {D for voting While there ate always those who struggle with change, the clear majority of North Dakota voters did not notice the modification since showing their ID for voting is what they had done since the voter ID law was first passed in the state in 2003. Therefore, this office believes that the administration of elections would be vastly improved for the benefit of voters and election workers across the country by implementing a uniform ID requirement for all voters prior to the ballot being issued instead of the wide variety of ways that voters are registered. This ID would need to be one that provides the voter's name, residential address, date of birth, and citizenship status. The Real ID, which all states will soon be issuing under the Real ID Act, would work well as the uniform ID for determining the qualifications of electors for any election in any state. For voters without a driver's license, a non-driver's Real ID could be issued without charge. The office of each state's chief election official already receives data from the agency that provides driver's licenses and non-driver’s ID cards. An additional option must be provided to eligible voters who are not able to travel to obtain an ID because of a disability with which the individual lives, but a solution could be developed to provide a suitable remedy for the limited number Of individuals to whom this situation would apply. Although there has been significant debate about what occurred in the 2016 election cycle relating to cyber threats from bad actors, the threats were still quite concerning, Itis safe to believe that the country has not seen the last of the oyber threats by those who would like to, at the very least, erode public confidence in our elections. In this technological age, there will always be attempts to gain illegal access to digitally stored data and the efforts to stop those attempts will eventually fail. However, requiring electors to produce a Real ID to vote would provide vital security from any manipulation of voter data. The voter's plastic cannot be hacked. The voter database becomes only a tool to speed voters through the voting process. Using the Real ID for voting may provide an acceptable alternative to those with differing views on how the public should be granted access to voting. For those favoring the “automatic registration” concept, it would ensure that anyone obtaining a Real ID would be eligible to vote. For those who are in favor of an ID for voting, providing a Real ID when voting would satisfy this requirement. The benefits provided using Real ID for voting include: a. It would eliminate unnecessary costs and difficulties for a variety of government agencies having to register voters. b. Political parties, candidates, and others interested in the electoral process could focus on meaningful issues other than seeking to register voters since all those qualified would be eligible to vote. Page 2 of 6¢. Election officials would no longer need to spend valuable time and financial resources. on list maintenance for voter registration databases, as required by the National Voter Registration Act, since this work would occur automatically each time an individual ‘obtained or updated his or her Real ID. d. For voters who are moving more frequently than ever before: It would establish a uniform access to voting regardless of the state in which a voter lives; Individuals attempting to vote in the precinct of their residence would never be denied the right to vote: and Voting in an election would continue if the voter database was compromised because the Real ID presented by the voter would allow them to vote even if the individual's name was not found in the pollbook. 2. How can the Commission support state and local election administrators with regard to information technology security and vulnerabilities? That is yet to be determined. 3. What laws, pol elections you adi s, or other issues hinder your ability to ensure the integrity of ister? While some individuals argue that there is no evidence of wide-spread voter fraud, there are others who argue the exact opposite. Regardless, the truth is that under the current forms of election administration, itis not possible to establish whether wide-spread voter fraud does or does not exist because it is dificult to determine either way when proof is not required of voters when registering or prior to voting. States are given the authority to establish, within ‘the limits of federal iaw, the laws and rules under which elections are administered. Therefore, since states administer elections in different ways, it may be most productive to answer this question by asking a few other questions that must be pondered by ail states to seek the heart of the issue and then develop proper solutions. a. {f every qualified individual should have the opportunity to vote in elections held within the individual's precinct of residence, what determines the fact that the residence has been established? It is commonly understood from previous federal court decisions that a state cannot impose a residency requirement that exceeds thirty days. However, whether a state determines that an individual must reside in a location for three or thirty days before an election to be qualified, it certainly must be recognized that physical presence in a location does not always mean that the individual intends to reside in that location. Individuals attending a college or university in another location or workers following a job to a new site may intend to reside in that new location or they may only intend to be in that location temporarily. b. Regardless of whether voter registration is a requirement or individuals are allowed to vote by other means, what tools are given to the election official to determine if a new registrantvoter is an existing or new registrant/voter with the same name and date of birth as other voters maintained within the system? Even in a smaller population state such as North Dakota, there are individuals who have the same name and date of birth. Beyond name and date of birth, a unique identifier provided by the registrant/voter is enormously valuable to achieve the concept of one person, one vote. If the unique identifier was that from the individual's Real ID, this would provide consistency between the states and would eliminate the possibility of an individual voting in more than one state. Page 3 of 6. What can be done to eliminate the major causes for human ertor in election administration? Technology, such as barcodes and scanners, could greatly reduce issues caused by human error, such as creating a duplicate voter record, assigning voting credit to the wrong voter's record, and data entry mistakes. Unfortunately, the money needed for election technology is in short supply for most election officials. 4, What evidence or information do you have regarding instances of voter fraud or registration fraud in your state? The state knows of at least two probable cases of double voting that occurred in the 2016 General Election. One case involved an individual who cast ballots in two separate counties in North Dakota. The State’s Attorney in one of the counties is prosecuting the case, and the trial is scheduled to occur in August. The other instance involved an individual who cast an absentee ballot in North Dakota and voted in person in Idaho. Since this case crossed state lines, the information was provided to the local United States Attorney through an Immigration and Customs Enforcement (ICE) Agent who also works with the Federal Bureau of Investigation (FBI) in the area. After several weeks, the state was notified that since this was a single instance of double voting and there was no evidence of conspiracy, this individual would not be prosecuted. ‘These are the cases that this office has been able to identify to date. The 2016 North Dakota General Election was also impacted by a federal judge's decision to grant a preliminary injunction at the request of the plaintiffs in Brakebill vs, Jaeger. The judge stated that North Dakota was not able to enforce its non-photo voter ID laws without a “fail safe” option for those without ID until the court makes a final ruling on the case. The “fail safe" option that the judge approved for use was the Voter's Affidavit, which previously existed in state law before the 2013 Legisiative Assembly passed a non-photo voter ID requirement, During the 2016 North Dakota General Election, 16,232 ballots were cast by individuals whose only form of ID was a self-cettification using the Voter's Affidavit. The votes from these ballots were included in the tally prior to any attempts to verify the qualifications of the voters who cast them. More than eight months after the certification of the election results, efforts are still ongoing to confirm the qualifications of these affiants. Although no contests of elections were filed in court, the inability to verify the qualifications of voters before the votes were counted raises questions that cannot be answered regarding the election results. One question pertains to the fact that several contests were decided by fewer votes than the number of individuals who were allowed to vote in those contests by means of the Voter's Affidavit, Were all the affiants truly eligible to vote in these contests? That question was neither answered prior to the certification of resuits nor by the time allowed for a contest of the election, and it remains unanswered today. This is not a partisan question since, of the eight state legislative contests fitting this scenario, five of the candidates elected are from the Republican Party and three are from the Democratic-NPL Party. Another question without answer deals with whether an affiant who last lived in another state also voted in his or her home state. Of the total number of affiants, 4,820 listed a previous address and driver's license number from another state. All forty-nine other states and the District of Columbia were listed as former states of residence by these affiants. Each state and the District were provided with the list of affiants who claimed a prior address in that state. This office is awaiting responses as to whether any of the affiants listed also voted in that state. If double voting occurred, the proper authorities will be notified and hopefully prosecutions will be sought. However. even if prosecutions occur, the results will stand since the votes from those who were unqualified cannot be determined for removal Page 4 of 6These questions and others like them will continue to go unanswered while the Voter's Affidavit continues to be an option for voters in this state. While providing the information about the probable multistate voter to the ICE Agent, additional information (based on review of the Voter's Affidavits) was shared regarding seven Voters suspected to be non-US citizens. Subsequently, six were identified as naturalized US citizens and therefore voted legally. The seventh individual did not exist in any immigration database. While that raises suspicions as to whether this person is residing in the country illegally, federal law enforcement has not indicated whether they would pursue the issue further, During the 2014 election cycle and the 2016 Primary Election, only one suspected case of voter fraud was identified inthe state. In that case, it was determined that a father fraudulently cast an absentee ballot for his daughter who was in another city attending college, where she voted in person for that same election. To our knowledge, this case was not prosecuted. The low number of suspected cases of voter fraud during 2014 and part of 2016 was partly due to the strict non-photo voter ID law that was in place. In the 2012 General Election, there were nine suspected instances of double voting that occurred, which prompted the 2013 Legislative Assembly to amend the voter ID requirements. The change in law was also Partially prompted since none of the respective State's Attorneys in those counties chose to prosecute even though the evidence presented from this office was clear. The only action taken in any of the nine cases was when a Sherrif's Deputy interviewed an 18-year-old college student suspected of voting using both her parent's address as well as her address at the university she was attending. It was reported to this office that the State's Attorney felt that this “scared straight” approach was sufficient in dealing with this case. This office does not have any information regarding voter fraud in the state prior to the 2012 General Election. Nevertheless, it is important to remember that each vote is important and that even a single fraudulent vote can impact the results of an election. This is especially true when considering how many contests are decided by small differences in votes between those who were elected and those who were not. The integrity of elections is improved when the qualifications of electors is verified prior to voting. This could be uniformly and easily achieved across the country using Real ID when voting What convictions for election-related crimes have occurred in your state since the November 2000 federal election? This office does not have prosecutorial authority. As such, when a suspected case of voter fraud is identified, the County Auditors and State's Attorneys in the respective jurisdictions are informed of the details and further investigation is to be conducted. If convictions exist, this office is not aware of them. Upon follow up on referred cases, this office has often been informed that State's Attomeys have cases of “greater consequence” on which to focus. Unfortunately, there can be no convictions when there is no will to prosecute. Given the fact that these cases tend not to be prosecuted in North Dakota, we are pleased that at least one State's Attorney is pursuing a suspected case of double voting that occurred within that jurisdiction for the 2016 General Election. This is first case that this office is aware of to be prosecuted within the timeframe requested, Page 5 of 6What recommendations do you have for preventing voter intimidation or disenfranchisement? Voter intimidation and disenfranchisement are often self-imposed. Many in our country have significant misconceptions regarding elections and voting that must continue to be addressed through education by all involved in the electoral process. For example, some of the individuals who contacted this office regarding the voter data request from the Presidential Advisory Commission on Election Integrity were under the impression that election officials, know who each person voted for in an election. ‘They were surprised when informed that election officials cannot track @ vote marked on a ballot to a specific voter. It is important to eliminate these misconceptions. Too many qualified individuals intimidate and disenfranchise themselves from the voting process because of a belief that their vote will not matter or because they do not want to select the wrong candidate through their own lack of knowledge. Even active voters often express frustration that too little time is spent by candidates focusing on what they stand for and what, they will work to do if elected. Negative campaigning is too common and does little to inform the electorate. A candidate's goal should be to convey what they will do when elected and convince the voters that the qualifications they would bring to the office are deserving of their vote. What other issues do you believe the Commission should consider? The Commission (and perhaps the Election Assistance Commission) could facilitate a nationwide dialogue with the goal of encouraging the states to voluntarily develop common election terminology. Establishing shared terminology would increase understanding between jurisdictions and lead to more shared practices, which may improve the voting experience for a mobile electorate, provide benefit to the administrators of elections, assist those working on national campaign efforts, and help those in the press who report on elections in more than one state, Page 6 of 6