Port: Whatever happens in court, District 8 cannot appoint someone the voters rejected
This whole thing could have been handled with a great deal more comity from all sides involved.
MINOT, N.D. — The battle over District 8 is going to get its day in court .
Thursday, Gov. Doug Burgum asked the state Supreme Court to step in and rule on the legality of his appointment to a state House seat won by Dave Andahl, who died in early October.
If you haven't been paying attention to this, three interests are competing to fill that seat.
Burgum believes Andahl's death and subsequent election is an unprecedented situation not addressed by current law. Article V, Section 8 of the state constitution allows the governor to "fill a vacancy in any office by appointment if no other method is provided by this constitution or by law."
State lawmakers say that it's inappropriate for Burgum, the head of the state's executive branch, to appoint members of the legislative branch. One could argue that our present legislative leadership has a selective appreciation for the separation of powers.
They've been happy to sit on their laurels during the COVID-19 outbreak, refusing to convene a special session and leaving Burgum to wield his executive powers with no legislative scrutiny, but I digress.
In this situation, lawmakers, with the backing of an opinion from Attorney General Wayne Stenehjem, a long-time legislator himself, are touting section 16.1-13-10 of the North Dakota Century Code . That bit of law lays out the process for filling a vacancy in the Legislature: Basically, the political party the departing lawmaker belongs to gets to appoint a replacement until the next election, though it was clearly written to address a vacancy which occurs with someone already in office. Not someone who was elected to an office they cannot fill.
Finally, we have the North Dakota Democratic-NPL, who argue that their top vote-getter in District 8's House race should be seated despite losing to Andahl by a very wide margin .
(House races in North Dakota are for two seats in each district, and the top two vote-getters win.)
How will the courts rule on this matter?
I believe Burgum has the best case, but the courts could buy into Stenehjem and the Legislature's argument that there is a statute already addressing this situation.
If that happens, the NDGOP's District 8 leadership will appoint.
According to reporting by Michelle Griffith , that could appoint the person who is currently sitting in that House seat. Namely, Rep. Jeff Delzer, a longtime lawmaker, a powerful appropriator, and Burgum nemesis.
That can't happen.
Or, at least, it shouldn't happen.
Andahl and his running mate, Dave Nehring, defeated Delzer and another Republican, Bob Wheeler, in the June primary. It wasn't particularly close .
The voters in District 8 rejected both Delzer and Wheeler.
I'm not sure any of the three interests in this matter have handled this issue particularly well.
Burgum announced his appointment to this seat earlier this month; he blindsided his own party's leadership at both state and local levels. Someone in his office couldn't have made a courtesy call?
Meanwhile, Burgum and Stenehjem have been exchanging testy letters with one another, making it clear that neither is interested in getting in a room and discussing their differences. If you've ever been to the capitol building in Bismarck, you know that these two men work across the hall from one another. They could be working a little harder to work together.
Democrats would like District 8 to be saddled with a lawmaker who lost to a dead man in a landslide. So much for the will of the people?
Finally, the lawmakers use a separation-of-powers argument as a thin veneer painted over a more debauched motivation, which is to bring back the famously abrasive Delzer as a burr under Burgum's saddle.
This matter was probably always going to end up before the courts, and it probably should. This is an unprecedented situation; it's not clear that current law addresses it, and it's the judicial branch's role to bring clarity. Hopefully, the Legislature will write new law to address this specific situation starting in their regular session next year.
Still, this whole thing could have been handled with a great deal more comity from all sides involved.
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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 .