BISMARCK — If a recently deceased candidate receives enough votes to win a legislative race north of Bismarck Nov. 3, a vacancy will occur and the local Republican Party chapter will get to appoint someone else to fill the empty seat, according an opinion released by Attorney General Wayne Stenehjem Tuesday afternoon, Oct. 13.
The sudden death of rancher and state house candidate David Andahl from COVID-19 last week sparked confusion and debate over what should happen if he draws enough votes to win one of the District 8's House seats in the upcoming election. On Monday, Oct. 12, Secretary of State Al Jaeger went to the attorney general's office for clarification.
With early voting already underway, Stenehjem's office moved quickly to address the questions in District 8.
In his opinion, Stenehjem held up the position that Jaeger's office laid out last week: That an Andahl win would create a vacancy, just as occurs when a sitting legislator steps down or retires, with the responsibility of filling the new seat falling to the district Republican Party.
Drawing on precedents in other states, Stenehjem leaned on what he referred to as the "American" rule, which he said dictates the protocol for a deceased candidate "in a majority of states."
The American rule holds, among other things, that "the purpose of an election is to carry out the will of the people," and dismissing the votes for a deceased candidate would "frustrate the popular will" and ignore the voice of qualified electors.
Last week, Jaeger's application of North Dakota's ambiguous law on the death of a candidate drew some skepticism, and he told Forum News Service that he requested an opinion from the attorney general to lend "the force of the law" to his office's management of the results in District 8.
"Votes for deceased and disqualified candidates should be counted like any other votes, and if the 'candidate' in question would have won the election, the result is a vacancy in the office," Stenehjem wrote, explaining the protocol laid out by the American rule.
Once a vacancy has been established, the North Dakota law is more straightforward on how to proceed, calling on the district chapter of the Republican Party to fill the seat within 21 days of the election. Jaeger said that North Dakota's vacancy law has come into play in 27 different cases since it was established in 2001.
Loren DeWitz, the Republican Party chairman in District 8, said that his district's bylaws outline specific procedures for filling a vacancy, leaving the decision up to the district's executive committee which cast secret ballots to determine the new representative.
The District 8 executive committee is made up of 18 Republicans — one fewer after Andahl's death.
Andahl's running-mate, Dave Nehring, and Democratic candidates Linda Babb and Kathrin Volochenko, also will appear on the ballot for the District 8 seat.
The vacancy has the potential to bring back to the surface some intra-party divisions in the state Republican Party. Andahl first came to prominence when he teamed up with Nehring in the primary to unseat longtime representative Jeff Delzer, R-Underwood, who chairs the powerful House Appropriations Committee. Their candidacies overtook the veteran conservative in part thanks to a financial assist from Gov. Doug Burgum's Dakota Leadership PAC, which targeted District 8 in an effort to unseat Delzer.
A vacancy in District 8 could give Delzer's allies a chance to keep his influential seat in the Legislature even after he lost his primary election. Last week, Republican Party Chairman Rick Berg said that Delzer "would be a likely candidate" if he is interested in filling a vacant seat.
Until then, DeWitz said that the district Republicans are continuing to encourage voters to cast their ballots for the two Republican House candidates on the ballot in District 8.
"We're still going to keep campaigning for Andahl and Nehring," DeWitz said, noting that the executive committee is "pretty optimistic" about the prospect of both candidates winning seats.
Readers can reach reporter Adam Willis, a Report for America corps member, at firstname.lastname@example.org.