Fargo leaders square off with legislators over approval voting, home rule authority

FARGO — The merits of approval voting were at the center of a discussion before a North Dakota House committee Thursday, Feb. 9, with some disagreement as to who has the authority to regulate how a city conducts local elections.

The House Political Subdivisions Committee met Thursday to discuss House Bill 1273 , which would prohibit statewide the use of ranked-choice voting and approval voting. Fargo is the only city in the state that uses approval voting and has used that method for local elections since 2020 .

Approval voting allows voters to cast votes for all candidates they approve of in municipal races , such as the mayoral and city commission elections. The person with the most votes wins the seat.

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Rep. Ben Koppelman , R-West Fargo, introduced HB 1273 and presented it to the committee.

“House Bill 1273 was introduced with the intent of honoring the time-tested method of voting in our state,” Koppelman said. He wants to ban ranked-choice and approval voting and use only plurality voting, which Fargo used prior to approval voting.

Plurality voting means the person with the most votes wins the election, regardless of what percentage they get. Unlike ranked-choice voting, in both plurality voting and approval voting, a candidate does not need a simple majority of more than 50% of the vote to win.

“I believe that the plurality system that we have now best encourages open debate on issues and creates the best forum for the voter to learn about the candidates,” Koppelman said.

Fargo Mayor Tim Mahoney appeared virtually to speak in opposition to the bill.

“As proposed, bill 1273 would completely void the wishes of the citizens of Fargo by prohibiting approval voting in future elections,” he said.

The measure to enact approval voting was created by Fargo citizens and voted into law in 2018 with over 30,000 voters, or 63.5%, in favor, according to BallotPedia.

“I think (this bill) is insulting to the citizens of Fargo who voted in those numbers,” Commissioner Denise Kolpack said at the Fargo City Commission meeting on Jan. 23.

The city of Fargo stood in opposition to the bill, with four out of five commissioners sending a letter urging the committee to provide a "do not pass" recommendation. Commissioner Dave Piepkorn did not sign the letter; he could not be reached for comment.

At the heart of the issue, Mahoney said, is who should have the authority to regulate local elections. Fargo’s Home Rule Charter, granted by the state, is designed to let local communities manage their own affairs, Mahoney told the Forum in January .

“Whether you agree or disagree with approval voting, this is (Fargo’s) right as a Home Rule Charter,” he said.

Koppleman disagreed, saying the issue is under state control.

Recent Fargo City Commission candidate Jodi Plecity, who lost her bid for one of two seats under the approval voting system, said she is in favor of the bill.

She asserted that approval voting creates “confusion and frustration” during elections.

Submitted photo / Andrea Denault

Proponents for approval voting in Fargo said it prevents the vote from splitting and prevents candidates from getting elected with low percentages of the vote. In the past, Fargo candidates for local office won with as little as one-fifth of the vote.

“This whole issue came about in 2016,” Mahoney told the committee. “At the end of that election, we had two commissioners that were elected with 16% of the vote and 14% of the vote.”

Under approval voting in 2020, the two candidates who won the commission race had 55% of the vote and 53% of the vote, Mahoney said.

Stephanie Engebretson, a representative for the North Dakota League of Cities, spoke in opposition to the bill, along with seven Fargo residents and one West Fargo resident who spoke or submitted testimony.

The city’s main focus is telling legislators the bill isn’t something that Fargo supports, Assistant City Attorney Ian McLean said. If necessary, the city will request a veto from Gov. Doug Burgum.

Should the bill become law, it will be up to the Fargo City Commission to decide if they want to either repeal approval voting or file a lawsuit against the state, according to McLean.

“If this ever went to a lawsuit,” he said, “(the city) would try to figure this out as fast as possible.”

A quick judicial resolution would help clarify the issue prior to the next municipal election in 2024.

Mark Johnson, a professor of political science and history at Minnesota State Community and Technical College in Moorhead, said it would be difficult for Fargo to win if the issue goes to court. Because home rule authority powers are granted to cities by the state, he said, the limits of that power are strictly outlined.

“Even with a home rule charter, the Legislature can tell you that you can't do something," Johnson said.

North Dakota’s home rule authority allows home rule cities power over “all matters pertaining to city elections, except as to qualifications of electors,” according to the state.

That power is only granted to home rule cities if they have included it in their charter and implemented it through ordinances, according to the state.

A similar issue came to head in the North Dakota Supreme Court case Litten v. City of Fargo in 1980. At that time, Fargo sought to change the city’s form of local government from a commission to a council.

North Dakota Supreme Court Justice Paul M. Sand ruled Fargo couldn’t do that because the city did not have a clear outline of the process laid out in their charter or ordinances and because the state did not clearly say it was allowed.

The committee did not take action on the bill Thursday.