Self-Advocacy Solutions v. Jaeger

In 2020, under North Dakota law, an individual voter was required to fill out and sign an application to receive an absentee ballot. Included with the absentee ballot was an affidavit that the voter had to complete, sign, and return with their ballot. When local election officials received the absentee ballot and affidavit, they were required to compare the signatures that appeared on the application and the affidavit, despite having no expertise in signature verification and receiving no guidance as to how signatures were to be verified. If the local officials felt the signatures did not match, the ballots were sent to the county canvassing board to decide if the ballot should be rejected. Voters whose ballots were rejected were neither provided notice of the rejection nor were they allowed to fix the problem identified by the local officials or the county canvassing board.  

In typical election cycles, hundreds of ballots would be rejected under this process. This total was expected to be much higher in 2020 due to the widespread use of absentee ballots in response to the Covid-19 pandemic. In particular, this system would disproportionately burden individuals with disabilities, the elderly, and individuals who learned to write in a first language that is not English; individuals who already face barriers in exercising their right to vote.   

On May 1, 2020, the League of Women Voters of North Dakota (“LWV North Dakota”), Self-Advocacy Solutions, and an individual voter sued the North Dakota Secretary of State, Alvin Jaeger, and the County Auditor of Grand Forks County, Debbie Nelson in federal court to prevent the disenfranchisement of eligible voters based on benign signature issues without first providing notice and an opportunity to remedy the problems. The plaintiffs first argued that failing to give notice and an opportunity for voters to remedy disqualifying problems on absentee ballots violated their right to procedural due process under the Fourteenth Amendment. Plaintiffs also argued that the standardless signature verification system resulted in otherwise valid votes being rejected, depriving voters of the fundamental right to vote in violation of the First and Fourteenth Amendments.  

On June 3, 2020, the district court granted plaintiffs' motion for a preliminary injunction; forbidding the Secretary of State or other election officials from rejecting ballots without providing notice to the voter and giving the voter an opportunity to remedy the problem. The court first determined that the plaintiffs’ procedural due process claim was likely to succeed because the state’s signature verification process was likely unconstitutional for failing to provide notice or an opportunity to remedy the deficiency (the essential requirements of procedural due process). The court did not address the plaintiffs’ right to vote claim.  

The district court ordered the parties to jointly propose a procedure that would adequately protect voters’ procedural due process and could be implemented in time for the Primary Election on June 9, 2020.  

Following talks, the parties jointly proposed procedures county auditors would adopt to give voters whose signatures did not match notice of the deficiency and an opportunity to remedy it. The court approved the proposal, and on June 5, 2020, entered an order mandating the adoption of the procedures for the primary election. 

These procedures required county auditors who identified a signature mismatch to take reasonable action (such as calling the voter or mailing a notice to them) to inform the voter and detail the steps necessary to verify their ballot. Voters required to verify their signatures had to do so prior to the adjournment of the county canvassing board meeting which occurred six days after Election Day. Voters could verify their signature by written communication, phone call, or in-person appearance. Failure to verify would lead to the ballot being rejected and a notice detailing the reason being sent to the voter.   

LWV of North Dakota and co-plaintiffs were represented in this matter by Campaign Legal Center, Braaten Law Firm, and Sarah Vogel Law Firm.