MINOT, N.D. — The squabbling over the legislative results in District 8 is going to be settled by complicated legal arguments, but the motivations at play are deeply political.
I'm here to help you understand.
One faction of older and deeply entrenched lawmakers, who we may as well call the Friends of Rep. Jeff Delzer, want their friend, who is still technically in office until the end of the month, sent back to Bismarck.
Delzer was ousted in the June primary by Republicans Dave Nehring and Dave Andahl. While they had the high-profile backing of Gov. Doug Burgum's political spending, their victory had less to do with that than Delzer's preoccupation with his cultivated reputation as a budget curmudgeon at the expense of attention to the needs of his district.
Remember, District 8 is coal country. Home to many workers at Coal Creek Station, North Dakota's largest coal-fired power plant, which is scheduled to be shut down. That's a big deal to voters in District 8, and Delzer has been nearly invisible on the issue.
On Election Day, both Nehring and Andahl won, though the latter also died in early October.
The Friends of Delzer want the local district committee to appoint Andahl's replacement, which everyone seems to agree would almost certainly be Delzer. There is state law laying out that process.
Burgum sees it differently.
Andahl's death didn't create a vacancy in the Legislature because Andahl is not yet a lawmaker -- again, Delzer is still in office -- and cannot be a lawmaker because he does not meet the criteria set out in Article IV, Section 5 of the state constitution, which requires that someone elected to the Legislature be a qualified elector on Election Day.
Thus, because a vacancy has occurred in a fashion not addressed by current law, Burgum is invoking 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.”
The Democrats, meanwhile, pulled out their thesaurus and accused Burgum of being "macabre" for his interpretation of his duties under the law. They'd like their own candidate, Kathrin Volochenko, who lost to a dead person by 4,000, seated in the House.
More District 8 drama.— Rob Port (@robport) November 4, 2020
The @nddemnpl has just sent out a press release claiming that their candidate should be seated in the Legislature.
That would be the candidate who lost by thousands of vote to a dead person. #NDPol pic.twitter.com/cO9ZurF7ZO
This is where Attorney General Wayne Stenehjem enters.
He is with the Friends of Delzer.
Before the election, he issued a legal opinion (see below) to the Secretary of State's office concluding that the district party should appoint Andahl's replacement.
Somehow, that opinion didn't mention Article IV, Section 5.
Instead, Stenehjem is hanging his hat on section 16.1-13-10 of the North Dakota Century Code, which lays out the process for filling vacancies occurring in the Legislature.
That this statute was intended to address the departure of someone already in the Legislature is clear.
Here's how that section of the code begins: "If a vacancy in the office of a member of the legislative assembly occurs..."
That hasn't happened.
Andahl is not, and, tragically, can never be, a member of the legislative assembly.
A vacancy of the sort addressed by this section of the law has not occurred. Instead, the voters of District 8 have elected someone to the Legislature who cannot be seated in the Legislature.
There is no law addressing this situation, and because there is no law, Article V, Section 8 of the constitution gives the governor the authority to appoint.
The Friends of Delzer are bellyaching about the "separation of powers." They say it's not appropriate to have the head of the executive branch appointing members of the legislative branch.
And, hey, I agree, but the law says what it says.
If you don't like it, change the law. Modify the statutes to address Andahl's specific situation. Don't rely on tortured interpretations of the law, such as what Stenehjem has rendered, to get around what it says.
The Democrats have a better case for making Volochenko, a person thoroughly rejected by the voters, a member of the Legislature than Stenehjem and the Friends of Delzer.
The most important question before us is this: Did Andahl's death create a vacancy in the Legislature?
If it didn't, because Andahl was not a valid candidate and thus votes for him were not valid either, then the Democrats are right and Volochenko should be seated. That's not a just outcome -- the voters shouldn't have to be saddled with someone they decisively rejected -- but it's a legally defensible one.
If there was a vacancy, then Burgum is right, because it's a sort of vacancy the law doesn't currently address.
There are other possibilities, too.
The House could refuse to seat Burgum's appointment.
Also, the voters of District 8 could possibly petition for a special election. This is from 16.1-13-10: "The qualified electors of a legislative district in which a vacancy in the legislative assembly occurs may petition for a special election to be called by the governor to fill the vacancy."
Problem is, that gets back to the question of whether a vacancy has occurred and which sort it is.
Perhaps a good compromise would be for Burgum's appointment to serve until we have a special election.
Appointments typically only serve until the next election anyway. The section of the code mentioned above states, "the individual appointed to fill the vacancy shall serve until a successor is elected at and qualified following the next general election or special election called by the governor."
Burgum's appointment could serve the people of District 8 until they get a chance to vote again, and that appointee could certainly run in that election, though per the law a special election couldn't happen until after the next legislative session.
It sure doesn't seem like anyone is in the mood for compromising, though, so all of this may be moot.
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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.