Background

Under current North Dakota law, when an absentee ballot is submitted, local election officials must compare the signature the voter provided on their ballot envelope to the one on their absentee ballot application form. If the officials – who are untrained in signature analysis and provided with no meaningful guidance as to how to make these comparisons – determine the signatures do not “correspond,” the ballot is rejected and not counted. The voter who cast that ballot is not informed there is any issue with their signature or provided with a chance to verify their ballot and have their vote count.

Because signature evaluation is an unreliable, error-prone process for verifying ballots, North Dakota must provide voters with notice and an opportunity to fix ballot issues to ensure validly cast ballots are counted and mitigate the risk of disproportionately disenfranchising certain voters, including voters with disabilities and elderly voters. No two signatures – even from the same signer – are exactly alike. Factors such as age, disability, education, signing surface, and even type of pen can impact the consistency of a signature. With only two signature samples, it is very difficult to determine the identity of a signer, even for trained forensic handwriting experts. The unreliability of this process increases when the people evaluating voters’ signatures are not experts. In North Dakota, they are untrained and lack meaningful guidelines for how to conduct these assessments.

Under this system, certain populations of voters are at heightened risk of having their ballots rejected because of their signature variability, including voters with disabilities, elderly voters, very young voters, and voters for whom English is a second language. If the state fails to provide these voters with notice that there is an issue with their ballot and an opportunity to fix that issue, impacted voters who cast valid absentee ballots face certain disenfranchisement because of mistakes the state made.

Impact of COVID-19

North Dakotans have long relied on mail-in voting. In North Dakota’s 2014, 2016, and 2018 general elections, absentee ballots accounted for between a quarter and a third of all ballots cast.

In light of the COVID-19 pandemic, however, these numbers are certain to rise. On March 13, 2020, Governor Doug Burgum declared a state of emergency because of COVID-19. As part of a package of measures intended to mitigate the spread of the virus and keep North Dakotans safe, the Governor also issued an executive order waiving the requirement that counties maintain at least one in person polling place. As a result, many upcoming elections in North Dakota will be held exclusively by mail.

As more North Dakota voters rely on the state’s absentee ballot system to exercise their right to vote, more of them will be at risk of being disenfranchised because the state erroneously detects issues with their signatures.

Our Case

Campaign Legal Center (CLC) is representing Self-Advocacy Solutions (SAS), the League of Women Voters North Dakota (LWVND), and Maria Romo in a lawsuit seeking to ensure that North Dakota counts all validly cast absentee ballots.

Maria Fallon Romo is a para educator who works with special education students at a local elementary school. Although she usually votes in person, Ms. Romo attempted to cast her ballot by mail for the first time in 2018. Ms. Romo has multiple sclerosis, which makes standing and walking for long periods of time difficult. This makes voting by mail the most accessible option for her.

Unfortunately, after Ms. Romo cast her ballot, North Dakota determined that her signatures did not match and did not count her vote. She was never informed of this issue and had no opportunity to fix it before she was disenfranchised. Ms. Romo’s condition also impacts her fine motor skills and makes it difficult for her to write neatly or consistently. While she enjoyed the convenience of voting by mail, she is worried she will be disenfranchised again if she votes by mail in the future. In any event, in the upcoming mayoral election in her city, the election is being conducted entirely by mail in light of the coronavirus crisis.

About the Plaintiffs

SAS is a nonpartisan, nonprofit organization in Grand Forks, North Dakota that was created by and for people with disabilities. They work with their membership to ensure people with disabilities have their voices heard, including by exercising the right to vote.

LWVND is a nonpartisan, nonprofit organization with members across North Dakota. LWVND’s work is dedicated to protecting the right to vote for all eligible voters through advocacy, voter education, and providing direct assistance to voters.

The Center for Responsibility and Ethics in Washington (CREW) filed an administrative complaint with the Federal Election Commission (FEC) in 2014, alleging that a self-described 501(c)(4) “issues” group called New Models had violated important transparency provisions in federal campaign finance law by spending millions of dollars to influence the 2012 elections without registering as a political committee and making required disclosures about its activities and donors.

The administrative complaint detailed how New Models funneled millions of dollars—and a substantial majority of its annual budget—to super PACs in 2012, demonstrating that its “major purpose” was influencing elections for federal office. Although the FEC’s General Counsel recommended finding that there was reason to believe New Models had violated the law, the Commission deadlocked 2-2 and closed the case.

CREW’s lawsuit challenges the decision of the two FEC commissioners who voted to dismiss its complaint and asks the court to direct the FEC to take action to determine whether New Models failed to make required disclosures.

These two no-voting commissioners, whose decision is considered “controlling” for the purposes of court review, explained why they found that New Models was not required to register and report as a political committee in a lengthy written analysis of the statute and judicial precedent. CREW argues the commissioners’ analysis relied on incorrect interpretations of the campaign finance laws and should be set aside.

However, because the no-voting commissioners also included a perfunctory reference to the FEC’s “prosecutorial discretion” in the final sentence of their 31-page Statement of Reasons, the lower court concluded that it could not review the legal merits of their analysis. Instead, it found that a recent D.C. Circuit decision makes any FEC enforcement dismissal containing even a glancing reference to “prosecutorial discretion” automatically unreviewable in court—however much the dismissal was actually based on faulty legal analysis.

CREW appealed the district court’s ruling to the D.C. Circuit Court of Appeals.

CLC filed a friend-of-the-court brief in the D.C. Circuit in October 2019. The brief argues that the district court’s decision should be set aside because it rests on an unwarranted expansion of the FEC’s enforcement discretion that conflicts with Congress’s clear intent to provide for judicial review of the FEC’s refusal to take action on citizen complaints. The brief also argues that giving partisan minority blocs of commissioners the ability to shut down all judicial review of their decisions frustrates the careful partisan balance reflected in nearly every aspect of the agency’s design.

What’s at stake?

Transparency is a core purpose of the federal campaign finance laws, which mandate accurate reporting from individuals, groups, and entities that raise and spend money to influence federal elections. One key means of accomplishing this goal is by requiring registration and comprehensive reporting for “political committees,” groups that make $1,000 in contributions or expenditures in a calendar year and have a major purpose of influencing federal elections.

But the efficacy of these crucial transparency provisions depends on an FEC that enforces the law. Deadlocks at the six-member FEC—which requires four affirmative votes to take most actions—have persistently stymied enforcement action, especially in cases involving disclosure violations like those allegedly committed by New Models. When the FEC or a controlling bloc of commissioners refuses to take action on an enforcement complaint based on a legally unsustainable rationale, the courts must step in to correct the error. Preserving a robust judicial check on the Commission’s failure to enforce the law is a key means of securing a more accountable FEC.

Campaign Legal Center (CLC) is representing Arkansas Voters First, a nonpartisan grassroots organization that is fighting gerrymandering by seeking to let Arkansas voters have a say in the redrawing of district lines through an independent commission. Arkansas is the eighth worst gerrymander in the U.S., according to USC’s Schwarzenegger Institute.

The lead plaintiff is Bonnie Miller, President of The League of Women Voters – Washington County, Arkansas. Miller is one of the leaders of the signature campaign.

On April 22, 2020, CLC and Arkansas Voters First filed a lawsuit against Arkansas Secretary of State John Thurston to seek several protections for voters who wish to have their voice heard in the democratic process while also protecting their health. The suit asks the court to waive witness requirements for petition signatures, delay the submission deadline beyond July 3 and allow for the submission of electronic signatures.

State law requires us to get 89,151 signatures to appear on the ballot, an enormous burden given social distancing. Even more problematic is the witness requirement. Arkansas has one of the most onerous requirements in the country. Not only must the signatures be witnessed, the canvassers must swear an oath before a notary public that they witnessed the signatures.

Under ordinary circumstances this would be difficult work, but during a global pandemic, this requirement is nearly impossible. Many potential signees, including plaintiff Adella Gray, live in places like retirement communities and are unable to leave their homes or have visitors to sign petitions. Gray is also immunocompromised and at a higher risk for contracting coronavirus.

There is strong bipartisan support for the Arkansas Citizen’s Redistricting Commission Amendment. According to a nonpartisan poll commissioned by Arkansas Voters First, 58% of all voters support the creation of independent redistricting commissions.