Burgum asks court to block North Dakota Legislature from filling seat of dead candidate
BISMARCK — Gov. Doug Burgum on Thursday, Nov. 12, filed a petition with the North Dakota Supreme Court asking it to bar legislators from filling the soon-to-be vacant District 8 seat in the North Dakota House of Representatives.
Burgum asked the Supreme Court to "immediately intervene" and restrict Secretary of State Al Jaeger, the Legislative Assembly and the District 8 Republican committee from appointing someone to the seat.
The governor's petition comes after residents in District 8 elected Dave Andahl to represent them in the House. Andahl, however, died due to COVID-19 complications in early October, and there was not time to remove his name from the ballot.
Last week, citing his gubernatorial powers under the North Dakota Constitution, Burgum appointed coal executive Wade Boeshans to represent District 8, which is north of Bismarck and has about 14,000 constituents.
The State Canvassing Board is expected to certify the state's election results on Friday, Nov. 13. District 8 Republicans plan to meet sometime in the following 21 days to nominate their own representative to the seat.
Republicans have multiple names in consideration, including longtime House Appropriations Chairman Jeff Delzer, R-Underwood. Andahl beat Delzer in the June primary election after Burgum backed Andahl and spent heavily to unseat Delzer.
In the Supreme Court filing, Burgum asked the court to declare Andahl's election win null and void and rule that the seat is vacant for fulfillment. He also asked that the court rule the only way to fill the empty House seat is through his own gubernatorial powers.
"The Governor will suffer certain harm if the Respondents are not enjoined from taking official acts inconsistent with the Governor’s constitutional right to appoint an individual to fill the Vacancy. For the reasons articulated throughout this Petition, the Governor has established he is entitled to the relief demanded," the Supreme Court filing states.
Last month, Attorney General Wayne Stenehjem wrote an opinion stating District 8 Republican leaders had the power to appoint a new person to take Andahl's seat or petition for a special election. Jaeger publicly stated he will follow Stenehjem's opinion.
But Burgum said he has a duty to fill the seat under the North Dakota Constitution. He says the statutes the attorney general and Republican legislators cited in defense of the legislative branch filling the seat do not apply to this case because Andahl was not a qualified candidate upon election.
The Republican governor stated in Thursday's court filing that if Jaeger sticks to the attorney general's opinion and allows the legislative branch to fill the seat, it would be "undermining and infringing upon his constitutional authority."
As a result of the Nov. 3 election, Andahl and Republican Dave Nehring won seats with 36% and 41% of the vote, respectively.
The Democratic-NPL party said last week that their candidate, Kathrin Volochenko, should take the seat after coming in third place behind Andahl with 11% of the vote.
In Thursday's filing, Burgum argues that because Andahl received 36% of votes, this should prevent Volochenko from taking office as the votes cast for Andahl should be counted as votes "protesting" the candidate that comes in third place.
The Democratic-NPL party said Thursday it is consulting with its attorneys about the legality behind the appointment and its options.
Republican Party leaders said it is a gross abuse of executive power for Burgum to fill the seat.
"I have not changed my position. I still believe the governor overstepped his bounds of the executive authority," House Majority Leader Chet Pollert, R-Carrington, said earlier this week. "It's up to the Legislature."
Republican Party Chairman Rick Berg said he was surprised to learn Burgum appointed Boeshans to the District 8 seat the day after the election, and he believes the decision of appointing someone to the seat should be up to those living in the district.
Boeshans is the president and general manager of BNI Energy. He's also chairman of the Lignite Energy Council and president of the Bismarck State College Foundation.
In a statement to The Forum, Boeshans said he sends his condolences to Andahl's family and his respect to Delzer for serving District 8 for 26 years.
"Governor Burgum asked me to consider this appointment which I am honored to accept," Boeshans said in a statement. "I am fully committed and look forward to serving District 8 to the best of my ability."
There was no time or date listed for the Supreme Court to hold oral arguments as of Thursday afternoon.
An earlier version of this story incorrectly stated who certifies North Dakota's election results. The State Canvassing Board, which includes Secretary of State Al Jaeger, is expected to do so Friday, Nov. 13.
Readers can reach Forum reporter Michelle Griffith, a Report for America corps member, at email@example.com