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Port: Is it illegal for Sen. John Hoeven to seek a third term?

Did everyone forget that North Dakota already has a term limits law on the books?

Sen. John Hoeven
Sen. John Hoeven, R-N.D. speaks at Davies High School in Fargo in April 2017.
Helmut Schmidt / The Forum

MINOT, N.D. — Sen. John Hoeven, first elected to his current office in 2010, has announced that he'll be seeking a third term in 2022.

Under section 16.1-01-13.1 of the North Dakota Century Code, that's illegal.

"A person is ineligible to have that person's name placed on the ballot at any election for the office of United States senator or representative in Congress if, by the start of the term for which the election is being held, that person will have served as a United States senator or a representative in Congress, or in any combination of those offices, for at least twelve years," that section of law states.

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An activist group is currently paying people to circulate petitions for an amendment to the state constitution imposing a term limit on the governor and state lawmakers, but overlooked in that debate so far is the fact that North Dakota already has term limits, though they're different from what's being proposed now.

(That North Dakota's initiated measure process has become a largely pay-to-play affair is a topic for a whole other column .)

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The term limits already on the books apply to the federal delegation, not state-level offices, and they're in statute, not the constitution. They were created during the 1992 election, where they received 55 percent of the vote, just as Democrats Kent Conrad, Byron Dorgan, and Earl Pomeroy were beginning their tenure in North Dakota's congressional seats.

This law was never enforced on them, despite each man far exceeding the 12-year limit.

A statement of intent included in the ballot measure when it passed in 1992 argues that "that the United States Supreme Court has never held that the people of a state do not have the constitutional power to establish term limits for federal legislators from their state."

Ironically, that would happen just a couple of years later.

In 1995, with the U.S. Term Limits vs. Thornton decision , the U.S. Supreme Court found state-level eligibility restrictions on members of Congress to be illegal.

"The Congress of the United States ... is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people," Justice John Paul Stevens wrote for the 5-4 court majority . He noted that state-level eligibility laws would create "a patchwork" not consistent with "the uniformity and national character that the framers sought to ensure."

Because of this ruling, sections 16.1-01-13 through 16.1-01-14 of the North Dakota Century Code sit idle. An anachronism of law that, though on the books, cannot be enforced.

What does this mean for the term limits question that will almost certainly be on the ballot this year?

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It's hard to say.

I suspect a majority of North Dakotans remain nominally in favor of term limits, though it will be hard to square that support with their long history of voting the same people over and over again.

Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com . To comment on this article, visit www.sayanythingblog.com.

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