MINOT, N.D. — Last night the voters of District 8 elected David Andahl to the state House of Representatives.
Problem is, Andahl died from health complications related to the COVID-19 virus last month.
Attorney General Wayne Stenehjem issued an opinion weeks ago stating that Andahl should remain on the ballot and, if he won, should be replaced by the local NDGOP district.
That's the process used to fill intra-election vacancies in the Legislature, but as I wrote at the time, Andahl's death didn't create a vacancy. He wasn't elected yet. In fact, per the state constitution, Andahl wasn't qualified to be elected.
Article IV, Section 5 of the constitution says that a candidate is only eligible to serve in the state Legislature if they are a qualified elector on Election Day.
Someone who has passed away cannot be a qualified elector.
Stenehjem's opinion, which was followed by the Secretary of State's office, did not even reference that portion of the constitution.
Now Gov. Doug Burgum is set to challenge the outcome. He is announcing that he will appoint someone to fill the seat Andahl was elected to. He's citing Article V, Section 8 of the constitution which reads,"The governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by law.”
Wade Boeshans, who is currently the chairman of the Lignite Energy Council, is named as the appointee.
Burgum was a supporter of Andahl's, and it's not hard to see some political motivations in his move. He backed Andahl, in part, to replace his nemesis, incumbent Republican Rep. Jeff Delzer, who, as a powerful appropriator in the House, has clashed with Burgum repeatedly.
I'm told that the local NDGOP committee is loyal to Delzer and, if given the opportunity, would likely vote to appoint him to another term (Andahl and his close friend, Dave Nehring, defeated Delzer in the June primary).
Whatever Burgum's motivations, he is right on the law. Again, our state constitution says that to be qualified to be elected to the Legislature, a candidate must be a qualified elector on election day.
"He was not a qualified elector," Burgum spokesman Mike Nowatzki told me this morning when he called to tell me about the impending announcement.
Why, then, should Burgum get to appoint a replacement?
"The constitution says when there's not a process to replace a legislator, the governor appoints," Nowatzki told me.
This matter will almost certainly end up in the courts, but Burgum appointing a replacement seems to me to be not only the legally appropriate outcome, but also the most just one.
The voters of District 8 rejected Delzer in June, and in last night's election voted overwhelmingly for the two Republicans on the ballot, and not the two Democrats, even though one of the Republicans is no longer alive.
Burgum should appoint because that's what the law says should happen.
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at email@example.com.