JIM FUGLIE: View From The Prairie — Term Limits? We’ve Already Got ‘Em

Everybody’s talking about term limits this week, in the leadup to Tuesday’s election. Well, not everybody, but it certainly is the topic of discussion at coffee klatches and business lunches. Even one of my lawyer buddies walked up beside me on the track at the Y this morning and asked “What do you think is going to happen with the term limits?”

So Tuesday, we’re going to vote on whether to impose term limits on some of our elected officials. What nobody’s talking about is that we already have a term limits law in North Dakota. It’s 16.1-01-13 of the North Dakota Century Code, which reads:

“Term limits for United States senators and representatives in Congress.(Contingent effective date – See note) 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. However, if that person is still otherwise eligible to hold the office, the disqualification imposed by this section ceases after two years have elapsed since the disqualification last affected that person’s eligibility for placement on the ballot.”

That law was added to the Century Code by an initiated measure in 1992, with 162,000 voters supporting it and 130,000 voters opposing it.

So there. Sorry, John Hoeven. You’re toast.

Well, not really. Because just three years later, in 1995, the U.S. Supreme Court, in a case involving a similar law in Arkansas, ruled that states cannot enact term limits on federal offices, specifically, states cannot impose qualifications for prospective members of Congress stricter than those the Constitution specifies. And the Constitution is silent on term limits for Congress and the Senate. The Supreme Court vote was 5-4, with four conservative justices — Clarence Thomas, William Rehnquist, Sandra Day O’Connor and Antonin Scalia — opposing it. Hmmm.

With that decision, laws in 23 states imposing term limits on congressmen and senators were invalidated, including North Dakota’s. At the time, it changed North Dakota history.

Sen. Kent Conrad was first elected in 1986, but announced in early 1992 he would not seek re-election because he had pledged to reduce the U.S. government deficit in his first campaign in 1986, and that had not happened. (There was also a messy little miniscandal involving a real estate deal he didn’t feel like defending all through a campaign.)

But Sen. Quentin Burdick died in office that summer, and a special election was held to fill the remaining two years of his term, and North Dakota Democrats persuaded Conrad to run for it. He did, and was elected, and then ran again in 1994 for a complete term. He won that, too, but if North Dakota’s law had gone into effect as it was enacted in 1992, he would have been ineligible to run in 2000. He eventually served until 2012.

Then there’s Sen. Byron Dorgan. He was elected to the Senate in 1992, after 12 years in the U.S. House of Representatives. He’d have had to quit in 1998 but instead served until 2010.

So the law imposed by the vote of the people was never tested in North Dakota, thanks to the Supreme Court decision. But even though it was struck down by the court, it remains on the books today because the writers of the law added a second chapter to their initiated measure, which read:

“In enacting this measure, the people of North Dakota … Believe this measure is constitutional and intend it to be so. Therefore, even if a court holds any portion of this measure unconstitutional, thereby substituting its own judgment for that we have expressed in enacting this measure, the legislative council shall require the publisher of the North Dakota Century Code to include the text of this measure, in the manner as if not so held but with appropriate annotation, to stand as a testament to our expressed will, and as a memorial to the defiance of that will by whatever court holds this measure unconstitutional. Furthermore, if any part of this measure is held unconstitutional, we intend that the rest of it be deemed effective, to the maximum extent permitted under section 1-02-20.”

So, screw you, Clarence Thomas and Bill Rehnquist. Don’t tell us what we can and can’t put in our laws in North Dakota. OK, OK, we won’t enforce them, but we’re not getting rid of them. So there. That may be the only place in all of North Dakota’s lawbooks where the word “defiance” is found.

So, 30 years ago today, Nov. 3, 1992, 162,000 defiant North Dakotans went to the polls and voted for term limits, and 130,000 less defiant North Dakotans voted against them. Hmmmm. Next week we’re going to vote on putting term limits right into our state constitution. I wonder how defiant we’ll be.

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