Calls for vote by mail are nothing new in America. With the rash of “stay at home orders” though, not only are more people calling for additional remote voting options, but more states are starting to implement them. I was asked to comment on what is going on in North Dakota and thought it might be a good example to help everyone in the nation evaluate this move before it is forced down our throats.
There are several issues that can compromise a vote by mail system. In fact, a law suit is being prepared in North Dakota seeking a stop to the Governor’s attempt to implement ballot by mail for the state’s June 9th election. While my expertise focuses on the Constitution of the United States and not that of North Dakota, I was asked to review the situation with the plaintiffs, but I believe what I found with just an hour of researching the constitution and election laws of the State of North Dakota is worth sharing.
Background
The situation in North Dakota started with Governor Burgum’s Executive Order 2020-13. Based on the national and state declaration of an emergency, Governor Burgum is attempting to suspend state law by executive order:
WHEREAS, in the interest of public health and safety and in support of the COVID-19 public health crisis and the declared state of emergency in North Dakota, it is essential to suspend the operation of certain election laws, so the right to vote in North Dakota can be exercised by all eligible citizens;
Executive Order 2020-13
While claiming to protect the right to vote for the citizens of North Dakota (a subject I will cover a little later in this article), the governor is claiming the authority to suspend the operation of election laws under Article V, Section 1 of the North Dakota Constitution and North Dakota Century Code 37-17.1.
NOW THEREFORE, Doug Burgum, Governor of North Dakota, by virtue of the authority under Article V, Section 1 of the North Dakota Constitution and North Dakota Century Code 37‐ 17.1, hereby orders the following:
Executive Order 2020-13
Do these laws grant the governor the authority to suspend election laws?
Section 1. The executive power is vested in the governor, who shall reside in the state capital and shall hold the office for the term of four years beginning in the year 2000, and until a successor is elected and qualified.
Article V, Section 1, Constitution of the State of North Dakota
So the people of North Dakota have vested their executive power in the governor. Does that make him all powerful? No.
Section 7. The governor is the chief executive of the state. The governor shall have the responsibility to see that the state’s business is well administered and that its laws are faithfully executed.
Article V, Section 7, Constitution of the State of North Dakota
The governor is required to see that the laws of North Dakota are faithfully executed, including the state’s election laws. Now, some of you may be asking, doesn’t the state of emergency give the governor additional powers? Yes, but what are the limits of those powers?
In addition to any other powers conferred upon the governor by law, the governor may:
a. Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in managing adisaster or emergency.
37-17.1-05-6 – North Dakota Century Code
The governor can only legally suspend regulatory statues, not legislative ones. In other words, he can suspend regulations created by the executive branch, but the law does not give him the authority to suspend laws created by the legislative branch. Unfortunately, those are the laws he is claiming to suspend, created by the representatives of the good people of North Dakota. In fact, the Constitution of the State of North Dakota vests the power to create laws regarding the administration of elections in the hands of the Legislative Assembly.
The legislative assembly shall provide by law for secrecy in voting, for absentee voting, for administration of elections and for the nomination of candidates.
Article II, Section 1 – Constitution of the State of North Dakota
Executive order 2020-13 does encourage all counties in North Dakota the exercise their authority to authorize voting by mail. As this is only a suggestion, it could be seen as simply the exercise of his emergency power to coordinate the government’s response to the situation. The real problem comes from item two in the order.
2. The following provisions of this Executive Order apply to those counties that have approved and authorized voting by mail ballot under NDCC § 16.1‐11.1‐01:
Executive Order 2020-13
a. The requirement under NDCC § 16.1‐11.1-01(1), that each county identify one polling location to be open on election day is hereby suspended.
b. The requirement under NDCC § 16.1‐04‐02, that each county establish polling places no later than the 64th day before the election is hereby suspended.
c. The requirement under NDCC § 16.1-07‐12 that requires county election boards to open and process mail ballots on the day before and the day of the
election is hereby suspended, to allow county election boards to open and process mail ballots no earlier than the fifth business day before the election. Tabulation of processed ballots may not be done until 7 p m . on election day.
So, Governor Burgum is not ordering all the counties in the state to institute vote by mail, only encouraging them to do so, but I have found nowhere in the North Dakota Century Code on emergency services the power granted to the governor to suspend parts of that code. He does not have the authority to suspend the county’s requirement to have at least one polling place open per precinct and to have that place designated at least 64 days before the election. He does not have the authority to have the Secretary of State (a member of the executive branch) circumvent the law regarding the application for, distribution, and counting of mail ballots. And, if we are to believe Alexander Hamilton, that means his order is void.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.
Alexander Hamilton – Federalist #78
Problems with Vote By Mail in North Dakota
There are several problems with voting by mail. I will highlight some of them using the Constitution of the State of North Dakota.
Section 3. Only a qualified elector may vote in any general, special, or primary election for a federal, statewide, state legislative, district, county, township, city, or school district office, or for a statewide, district, or political subdivision ballot measure.
Article II, Section 2 – Constitution of the State of North Dakota
As previously noted, the Constitution of the State of North Dakota vests the power to create laws for the administration of elections in the legislative branch. There is also a requirement that only qualified electors be allowed to vote. But how can we be sure that only qualified electors are voting when it’s done by mail?
When someone shows up at a polling place and proves they are eligible to vote, they are supervised throughout the voting process. While their ballot is hidden, they are observed by election officers. However, when a ballot is mailed to someone, who then mails it back, there is no proof that the person who cast the vote is actually eligible to do so. In legal terms, the chain of custody has been broken. During our discussion, someone mentioned that the ballot could be notarized. So instead of people staying home they would have to travel to a notary public in order to vote? That rather defeats the purpose the governor is using to push this process. It also doesn’t redress another serious issue with vote by mail: Secrecy.
The legislative assembly shall provide by law for secrecy in voting, for absentee voting, for administration of elections and for the nomination of candidates.
Article II, Section 1 – Constitution of the State of North Dakota
Not only is the legislature to provide for the administration of elections and for absentee (mail in) voting, they are also required to provide for secrecy in voting. If the elector had to prove who they were to someone other than an election officer, there is no way prove that they are eligible unless their name was on the ballot. Then it would no longer be secret. I suppose the ballots could be serialized (given a unique code) that was tied to the elector it was sent to, but then again, it would no longer be secret. And without a paper trail to follow, there is no way to be sure any counts or recounts are only using ballots from eligible electors and that those ballots have not been tampered with.
Why the Push for Vote by Mail?
I will not attempt to read the minds of those pushing for such a dramatic change in our election process. I will note that the stated goal, that of maintaining social distancing recommendations, falls flat on its face. Which is easier, to revamp a state’s entire election process or put markers on the floor at polling places requesting people to maintain separation? If it’s good enough for Walmart, why isn’t it good enough for the exercise of our right to vote? Why should we open up one of our most important duties to the opportunities of fraud and abuse when we do not need to in order to meet the stated goal?
I’m sure there are those, especially lawyers and judges, that will claim that the government’s compelling interest in public safety trumps our right to a free and fair election. The Declaration of Independence says that the reason we have governments is to protect our rights, not to keep us healthy.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Declaration of Independence
Should the American people take reasonable precautions as they exercise any of their rights? Absolutely, but that does not give the governor the authority to trample on them because he thinks it will keep us safe. That is the position of tyrants and lords, not of public servants.
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
William Pitt (the Younger), Speech in the House of Commons, November 18, 1783
So to the people of North Dakota, and all of America, I ask you, are you free citizens of a constitutional republic or are you slaves to the tyrants in your state houses? The answer to that question should tell you what you must do next if you want to protect your freedoms and liberties.
