JIM FUGLIE: View From The Prairie — Sweet Revenge

I promise, I’m not making this up because even someone with a mind as twisted as mine could not come up with a story this absurd. It’s the story of the race for the Legislature in North Dakota’s Legislative District 8.

Yes, North Dakota’s attorney general says to the voters of District 8, you just go right ahead and vote for a dead candidate. If he wins, we’ll just appoint someone else to take his place.

That’s what Wayne Stenehjem said in an official North Dakota Attorney General’s Opinion this week, an opinion that carries the force of law unless someone challenges it in court and a judge rules against him. You can read it here. It’s short, takes about a minute. And since the election is less than three weeks away, that’s not going to happen, at least not until after the election. I guess that’s OK, since then we’ll know whether or not the dead candidate won. And if he did, we’ll see if anyone wants to challenge the attorney general, who seems to be ignoring the North Dakota Constitution.

Since this is a column about legal issues, let’s go back and review the “facts.”

District 8 is the home of one of the state’s most powerful legislators, Rep. Jeff Delzer, a Republican, who has served more than 20 years, most of them as chairman of the important House Appropriations Committee.

A couple of years ago Rep. Delzer really pissed off North Dakota’s Gov. Doug Burgum by announcing at the beginning of the Legislature that he was throwing Burgum’s biennial budget in the garbage and writing one of his own.

We all know there’s no love lost between the Legislature and the governor, going back to 2016, when Burgum used his wealth to buy a primary election victory over Wayne Stenehjem. Stenehjem enjoyed broad support from Legislators and the rank-and-file activists in the Republican Party and appeared to be moving across the hall to the governor’s office. So when Burgum challenged him in the 2016 primary and spent a million dollars or so to beat him, Burgum entered the governor’s office out of favor with a lot of prominent Republicans, especially legislators.

Delzer’s move was a little bit of revenge. But Burgum got revenge of his own this year, when he dumped another million dollars into a bank account for a committee called the Dakota Leadership PAC, which bankrolled a campaign to dump Delzer from the District 8 ticket in this year’s June primary. The two challengers, with Burgum’s money, won. Delzer lost, and became a lame duck for the rest of the year.

Then the unthinkable happened. One of the two candidates Burgum backed died from COVID-19 just a month before the election. Hmmm, we’ve now got a dead candidate on the ballot, and it’s too late to replace him because the ballots are already printed and early voting has already started. What do we do about that?

Secretary of State Al Jaeger quickly jumped in (well, as quickly as Old Al can jump) to clear up any confusion and said if the dead candidate gets enough votes to be elected, then he’s elected, and Republicans can just name someone to replace him.

But there’s this provision in the North Dakota Constitution that says:

“Each individual elected or appointed to the legislative assembly must be, on the day of the election or appointment, a qualified elector in the district from which the member was selected and must have been a resident of the state for one year immediately prior to that election. An individual may not serve in the legislative assembly unless the individual lives in the district from which selected.”

That seems pretty clear. Since the candidate in question is dead on the day of the election, he can’t possibly be a “qualified elector.”

That apparently made Al just a little nervous, so he asked Attorney General Stenehjem to sort it out. And Stenehjem ruled this week that he agreed with Jaeger. If the dead candidate gets the most votes, he wins. Never mind what the North Dakota Constitution says.

WTF? Well, I’ll tell you what.

First, no one was surprised that Stenehjem ignored the Constitution and whored himself out for the Republican Party, citing something called the “American Rule,” which none of us had ever heard of until this week. It’s not a law. It’s not in anyone’s constitution. It’s something Stenehjem pulled out of his ass. Other states do it that way, so we will, too, he said. Never mind the North Dakota Constitution.

I asked some lawyers what they thought of that. The consensus is that Stenehjem ignored the Constitution because  thought he could get away with that, that no one would challenge him, at least before the election, because there was no way to get the dead candidate’s name off the ballot. Any challenge would have to come after the election.

But this opinion will reassure the good Republican voters (and there are lots of them) in District 8 that it is OK to go ahead and vote for the dead candidate and replace him after the election, thus keeping the seat in Republicans hands.

If Stenehjem had followed the Constitution and said the dead candidate was not eligible to be elected, that would have meant that at least one of the Democratic-NPL candidates would have been elected.

In essence, Stenehjem, in his official capacity, didn’t issue a legal opinion. He issued a political opinion. And that political opinion carries the force of law. That seems to me to be a blatant abuse of power.

If it comes to pass that the dead candidate finishes first or second in the Nov. 3 election, he’ll be the apparent winner. Within a couple of weeks after the election, the State Canvassing Board will meet to certify the election results. Jaeger will present the election results to them. There’ll be one Democrat on that board, the Party’s State Chair, Kylie Oversen, and when Jaeger presents the results for them to certify, she’ll likely vote “No.”

Then she’ll have to decide if her party has the resources to hire a lawyer to take Jaeger to court. Again.

Don’t think Stenehjem hasn’t thought this through. He knows there won’t be much money in the Democratic-NPL Party’s coffers after the election. Like I said, he thought he could get away with this. He just might.

If the number of Republicans and Democrats in the Legislature was close, and this seat might be important to passing or defeating Legislation, Democrats would be inclined to challenge. But Republicans hold a 5-1 majority in the House, so one more or less seat doesn’t really mean much.

So the Democrats might just let Stenehjem get away with this. Who could blame them? They need to move on with rebuilding their party instead of chasing lawsuits through the Republican North Dakota Supreme Court, where they’ve lost three times already this fall.  

The bottom line: When one party dominates politics and government as overwhelmingly as Republicans do in North Dakota, you can run dead candidates and still win. Like I said at the beginning, even I couldn’t make up a story like this. With this ending:

Election held. Dead candidate wins. Al Jaeger has to figure out who to send the Certificate of Election to. Maybe he’ll just send it to the Republican District 8 chair, with the name left blank. Then the district chair can just write in Jeff Delzer’s name after he and his executive committee vote to send Delzer back to the Legislature. Easiest election Jeff ever had. And all that money Doug Burgum spent last June to keep him out of the Legislature was wasted.

Take that, Doug Burgum.

And Wayne Stenehjem just smiles. He remembers how he felt on primary election night 2016. And he probably won’t have any problem with HIS budget in the next Legislative Session.

One thought on “JIM FUGLIE: View From The Prairie — Sweet Revenge”

  • John Burke October 19, 2020 at 10:28 am

    This situation occurred in a series of episodes of “The West Wing,” where the dead candidate won the election, which led to the need for a special election to resolve the problem.

    There must be case-law from other states that might shed some light on the proper procedure. Just handing the election to the Dem-NPL candidate seems to me to unfairly disenfranchise the Republican voters in the district (although my heart, of course, is with the Dem-NPL). It’s a difficult conundrum.

    North Dakota Century Code Sec. 16.1-13-10 provides that if there is a vacancy in the North Dakota State Legislature, any legislative vacancy is filled by the district committee of the political party that holds the seat. A replacement must be named within 21 days of the vacancy. If more than 828 days are left in the term, the appointed person shall serve until the next general election or special election called by the governor. Qualified electors in a district where a vacancy exists can petition for a special election to be called by the governor to fill the remaining term.

    Sorry to disagree with you Jim, but if that’s what would happen if the candidate died the day after the election, I feel it’s most equitable to apply the same procedure in this case, rather than disenfranchise the Republican voters in the district and claim a windfall seat in the legislature on a technicality.


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