BISMARCK — The ongoing battle to fill a deceased candidate's seat in the North Dakota House of Representatives got lively on Friday, Nov. 20, as the state Supreme Court heard arguments from three rival parties.
Gov. Doug Burgum, the North Dakota Legislative Assembly and the Democratic-NPL Party are all vying to fill the District 8 seat, and each presented their case to the Supreme Court in a virtual hearing.
Earlier this month, residents in District 8, a rural district north of Bismarck, elected Dave Andahl to represent them in the House. Andahl, however, died due to COVID-19 complications in early October, and there was not enough time to remove his name from the ballot.
Burgum, who says it's his constitutional duty to fill the seat, filed a petition with the Supreme Court last week that asked the court to bar the Legislature from placing their own appointee in the seat and instead allow Burgum to appoint someone.
The Democratic-NPL Party says its candidate, Kathrin Volochenko, should take the seat after coming in third place behind Andahl.
Attorney General Wayne Stenehjem represented the state Legislature in Friday's hearing. He said the governor's request to fill the seat is an "extraordinary remedy."
Stenehjem also said the Democratic-NPL's argument for Volochenko to fill the seat is frail and the governor's argument for filling the seat is even more deficient.
"I think, quite frankly, that the argument of the District 8 Democratic Party is a better argument than the governor has, and her argument is weak at best," Stenehjem said.
Stenehjem argued that, as of now, there's no vacancy for Burgum to fill, as those currently in the District 8 House seats hold their term until Nov. 30. He said Burgum's attempt to fill the seat is "an encroachment of the legislative branch."
Stenehjem told the court that it would be overthrowing precedent if it ruled in favor of Burgum's petition, and that the North Dakota Century Code clearly states that members of the Legislature fill the seat in situations like this one.
However, Burgum's side argued that there's no precedent for filling the seat, because a situation like this has never occurred before.
Attorney Robert Pathroff, who represented Burgum in Friday's hearing, said the state's Century Code procedures do not apply here, as Andahl was not officially a member of the Legislature and was not in office. Article 5 of the North Dakota Constitution allows the governor to fill a seat when already existing laws to fill it do not exist, and that is what is happening in this case, Pathroff said.
"This situation is unique and unprecedented," Pathroff said. "So much so that the Legislature hasn't enacted a law to legislate a method to fill this vacancy, and that's exactly the reason Article 5 ... exists — it's to fill unanticipated gaps in the law related to filling vacant offices. It's consistent with the governor's statutory duties to ensure that no offices go unfilled."
The morning after the election, Burgum released a statement saying he was appointing coal executive Wade Boeshans to represent District 8, which has about 14,000 constituents.
On Wednesday, Nov. 18, District 8 Republicans nominated longtime House Appropriations Chairman Jeff Delzer, R-Underwood, to continue representing the district into the next session. Delzer originally lost in the June primary to Andahl after Burgum backed Andahl and spent heavily to unseat Delzer.
The Democratic-NPL Party also made a case for the District 8 seat at Friday's hearing, stating that Volochenko should get the seat because she received the second-most votes out of qualified candidates. The party says Andahl was not a qualified candidate because he died before the election.
The justices are expected to issue a ruling at a later date.
That ruling could come after Dec. 1. When asked what happens if multiple people show up to claim the vacant District 8 seat on Dec. 1, Pathroff said the governor would have to file the same lawsuit for the seat again in order to have the Supreme Court decide who would take it.
Readers can reach reporter Michelle Griffith, a Report for America corps member, at email@example.com.