MINOT, N.D. — In the battle over who gets to decide who will fill one of North Dakota House District 8's two seats in the Legislature, I thought Gov. Doug Burgum had the strong legal case.
Today, Nov. 24, the state Supreme Court disagreed, finding in a unanimous decision that the vacancy can be filled using the statutory process created by the Legislature. That means the local NDGOP district committee's appointment will take the seat.
The district committee has already chosen incumbent Rep. Jeff Dezler, and that's a real disservice to the men and women of District 8 who voted to reject Delzer back in June when he was defeated in the primary by Republicans Dave Andahl, whose death in early October created this situation, and Dave Nehring.
Burgum's argument was that the Legislature's existing statutes for filling a legislative vacancy don't apply because those laws were clearly written for a vacancy that would occur with a sitting lawmaker. That wasn't the case with Andahl. He died before he could be elected.
When there is no other method in the law for filling a vacancy in elected office, the state constitution requires that the governor make an appointment, which was the authority Burgum was seeking to exercise.
Unfortunately, the court decided to go ahead and fill in that gap for the Legislature, which is the sort of thing the judiciary shouldn't do but, frankly, does all the time anyway.
You can read the full opinion below. Here's the pertinent excerpt:
This was a three-way fight. It was Burgum versus the Legislature (represented by Attorney General Wayne Stenehjem) versus the Democratic-NPL, who wanted their candidate, who lost to Andahl by thousands of votes, to be granted the seat.
The court rejected that argument as well.
The unfortunate side effect of this is that there is a real gap in the current statute. Our existing laws don't address the sort of situation created by Andahl. The Legislature should write some new law to address that.
The courts went ahead and did that for them, by creating some precedent, but that's not the appropriate process.
The Legislature should write the law. The judicial branch should apply them as written.
They didn't, in this situation.
Here's the full opinion:
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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 firstname.lastname@example.org.