A North Dakota election official has confirmed that improprieties uncovered through an open records request should have disqualified incumbent commissioner Pete Kuntz from being placed on the June 9 ballot.

Stark County Election Official and Auditor Kay Haag failed to properly vet candidate applications for office by not verifying that all candidates completed their forms properly, documents unearthed by The Dickinson Press show.

Records obtained via an open records request found that Kuntz’s affidavit for candidacy lacked a notarized signature and date before the deadline to file — in addition to lacking the required number of eligible voter signatures, which both would be disqualifying facts.

Affidavit of candidacy, open records concerns

According to Lee Ann Oliver, election specialist with the North Dakota Secretary of State's Office, the deadline for candidates to have their forms completed and filed with the county auditor for the 2020 primary election was April 6.

Oliver said that the county auditor “has to OK them once the deadline passes, make sure that they are signed, make sure that they do have enough signatures.”

However, Kuntz’ signature and the date he signed were both missing from the document at the election deadline, as were the stamp, date and signature of a notary public — which according to Oliver would make him ineligible to run for office except as a write-in.

“We wouldn’t let them on the ballot if their affidavit came in not signed or notarized,” Oliver said. “That’s part of the form itself. We would catch that. That would be our job as OKing the filing papers and number of signatures, and we would say, ‘Your form wasn’t filled out in its entirety, and therefore we can’t put you on the ballot.’”

When The Press obtained copies of the forms submitted by the Stark County Commission candidates, all candidates had notarized signatures affirming that they had met the deadline with the exception of Kuntz’s affidavit which showed a signature with the date 7-2-2020 — the day The Press requested records.

The Press was able to confirm with Linda Krebs, Stark County Deputy Auditor, that Kuntz’s affidavit did not include any notarized signature or date at the time the open records request was made and was only added to the document before the request was fulfilled.

Haag was out of the office when the records request was made and fulfilled, so Krebs provided the documents to The Press. According to Krebs, prior to providing the records, she spoke with Stark County State’s Attorney Tom Henning for legal advice.

“I guess I had asked him...if it was OK to make copies of all of the signatures that were ... attached to the petition,” Krebs said. “Then I also had informed him … that Pete’s affidavit was not signed.”

According to Krebs, Henning told her “that we should go ahead and sign it as of that date,” which Henning later confirmed was true.

Henning does not believe that the lack of Kuntz’s signature on the affidavit by the deadline makes him ineligible for office.

“He (Kuntz) submitted petitions covering all the statutorily required information, and I frankly haven’t found anywhere in the statutes yet that the affidavit is something that’s required by law,” Henning said. “I don’t know if this is some kind of procedure that’s been developed by the Secretary of State over the years or what.”

He continued, “The nominating period is over, and he’s on the ballot. The information that’s specifically required ... — his name, address, etc.— is contained on his petition, and so right now, I’m of the opinion that that gives the necessary disclosure required by law, and also the purpose of what he’s doing. Yeah, it’s an oversight. Is it a big oversight? I don’t think so.”

221 petition signatures

In addition to the potentially disqualifying issues related to the affidavit, Kuntz appears to have failed to collect the required number of signatures to be considered for office.

North Dakota Century Code 16.1-11-11 states that the number of signatures required be “not less than two percent of the total vote cast for the office at the most recent general election at which the office was voted upon.”

Oliver said the law would require anyone running in Stark County’s District 1 to have 221 signatures to be placed on the ballot. Although Haag told The Press that she counted the number of signatures to be sure that the candidates had the required numbers needed for eligibility, Kuntz’ paperwork only included 218 signatures — which should have resulted in his name being barred from the ballot.

“You have to have the required amount,” Oliver said. “If it falls below then basically your only choice is to run as a write-in, and hopefully you get enough votes to either win or continue on to November.”

The true number of eligible signatures Kuntz had may be even lower, as he had one signature from someone in New England, which is outside of Stark County, and thus shouldn’t have been counted.

“Basically, you can’t sign a petition if you aren’t able to vote for that position on the ballot,” Oliver said.

Kuntz’ petition also includes his own signature as well as Haag’s. The Press was not able to confirm whether or not those signatures should be counted in accordance with law.

All other candidates were in compliance with the signature requirements, including Kuntz’s sole opponent, Bernie Marsh, who had 301 signatures.

Marsh said he was surprised to hear about the allegations but had no further comment at this time.

The Press also reached out to District 5 candidate Leslie Ross for comment.

“We have a voting officer who takes an oath from the secretary of state to perform the functions of verifying the candidacy requirements of the candidates, including getting the number of required signatures,” she said. “Now, knowing that they signed that form after the fact, that’s fraud. That is fraud. That is (a) cover-up. Someone is trying to get away with something, and we can’t have that … The whole voting mechanism ... becomes a farce.”

None of the signatures on any of the county commission candidates’ petitions appears to have been disqualified by Haag or her office — as was the case with the Dickinson City Commission candidates.

In the candidates’ packets for the Dickinson City Commission, obtained on the same day as those for county commission, various signatures were marked out as ineligible based on the location of the voter or the address being incomplete.

The Press was unable to confirm whether or not Haag or someone in her office followed a similar process, as the absence of marks on the paperwork alone do not prove that the process was not followed. Haag told The Press that she verified that the addresses listed on the candidate’s petitions were complete and accurate.

Neither Kuntz nor Henning could not be reached for further comments by the time of publication.

Election results

In that election, Kuntz received 56.30% of the votes cast for District 1 while his opponent Bernie Marsh received 43.59% of the votes cast. (The other 0.11% were write-in votes.) Considering the information provided by the Secretary of State’s office and the information confirmed by The Press for this article, Marsh was the only eligible candidate on the ballot for District 1.

In the 2018 general election (the latest one in which their positions were up for a vote), Haag ran unopposed and received 98.68% of the vote (the other 1.32% being write-ins) and Henning received 98.42% of the vote (the other 1.58% being write-ins).

Haag declined to disclose whether or not she would be seeking reelection amid the recent civil complaint filed against her office outlined in a previous Press article.

Investigation

According to Aaron Birst, legal counsel and assistant director of policy for the North Dakota Association of Counties, county sheriffs have the authority to investigate any potential law violations in their county. He added that the North Dakota Bureau of Criminal Investigation could also investigate if asked to do so by the sheriff.

“Ultimately the state’s attorney for that county will have to determine whether a law has been violated, and if they cannot, the attorney general’s office could be asked to review the case or, in theory, the district court could be asked to appoint,” he said.

When asked whether or not the Stark County Sheriff’s Office was investigating the matter, Lt. Eldon Mehrer issued the following statement:

“The Stark County Sheriff’s office can confirm that we are looking into allegations surrounding issues with an open records request and the required documents filed for certain candidate’s petitions related to the Stark County primary election held in June. The Sheriff’s Office cannot not comment, release the details of an open investigative case it’s conducting nor comment on cases being investigated by another agency assisting our office or another office, so as not to jeopardize the case’s integrity.”

Lee said that any investigation into the matter would be turned over to the BCI.

“If someone had a complaint on that, they would come to us with the initial complaint, then obviously … we work with these people quite regularly,” he said. “I would feel there’s a conflict of interest there, so we would forward that to the Bureau of Criminal Investigation.”

The Stark County Commission will hold its regularly scheduled meeting Tuesday, July 7, at 8 a.m. in the commission room of the Stark County Courthouse.

Should an investigation conclude that Kuntz was ineligible to be on the primary ballot, a 1978 attorney general opinion, which Birst said was based on an older statutory law, indicated that the office wouldn’t automatically be given to Marsh.

“The office basically becomes vacant and the vacancy rules apply,” Birst said. “‘A vacancy in the no-party ballot shall be deemed to exist when a candidate nominated at the primary election shall die, resign, or otherwise become disqualified to have his name printed on the ballot at the general election.’”