951 N.W.2d 380
N.D.2020Background
- Four non-incumbent candidates ran for two District 8 State Representative seats in the 2020 general election: Nehring (R), Andahl (R), Volochenko (D-NPL), and Babb (D-NPL).
- Andahl died 29 days before the election after ballots were printed and early voting had begun; the Republican Party informed voters and urged votes for Andahl to remain.
- The Attorney General advised the Secretary of State that North Dakota follows the “American rule,” so votes cast for an ineligible (deceased) candidate are counted; election results were certified showing Nehring first and deceased Andahl second.
- The Governor sought a declaratory ruling and writ of mandamus asserting he may appoint to the vacancy he contends will exist, while the Legislative Assembly and District 8 Republican Committee asserted other statutory procedures govern; Volochenko intervened arguing votes for Andahl are void and she was elected.
- Central legal question: whether a vacancy will exist on December 1, 2020, and if so whether the Governor may fill it under N.D. Const. art. V, § 8 or whether N.D.C.C. § 16.1-13-10 provides the exclusive method.
Issues
| Issue | Plaintiff's Argument (Burgum) | Defendant's Argument (Secretary/Legislature/Committee/Volochenko) | Held |
|---|---|---|---|
| Are votes for the deceased candidate counted or treated as void, affecting who was elected? | Andahl was ineligible; votes for him should not count so Volochenko (third place) wins. | North Dakota follows the “American rule”: votes for an ineligible candidate are counted and can prevent another from being elected. | Votes for Andahl are counted under precedent; Volochenko did not win. |
| Will a vacancy exist on Dec. 1, 2020 for the District 8 seat? | Governor: a vacancy will exist once incumbents’ terms expire and one elected seat will be unfilled. | Agree a vacancy will exist. | Vacancy will exist on Dec. 1, 2020. |
| Does the Governor have authority under Art. V, § 8 to appoint to that vacancy? | Governor: Art. V, § 8 permits appointment if no other method is provided; he argues no other method applies because the deceased was never a member. | Legislature/Secretary: statute scheme provides a method; legislative vacancies are excluded from general vacancy statute and are governed by N.D.C.C. § 16.1-13-10. | Governor’s appointment power does not apply because a statutory method (N.D.C.C. § 16.1-13-10) exists. |
| Does N.D.C.C. § 16.1-13-10 apply when the candidate who received requisite votes is deceased and never took office? | Governor: the statute is inapplicable because the vacancy is not of a former member of the 67th Assembly; Andahl was never a member. | Legislature/Secretary: the statute governs vacancies in the office itself, not the term or a specific assembly; it applies here. | § 16.1-13-10 applies to the office vacancy; Governor cannot rely on Art. V, § 8. |
Key Cases Cited
- Berg v. Jaeger, 2020 ND 178 (discretionary original writ jurisdiction principles)
- Onstad v. Jaeger, 2020 ND 203 (publici juris requirement for original actions)
- Riemers v. Jaeger, 2018 ND 192 (state interest and original jurisdiction standards)
- Woll v. Jensen, 162 N.W. 403 (N.D. 1917) (American rule: votes for ineligible candidates are counted)
- Casselton Reporter v. The Fargo Forum, 261 N.W. 549 (N.D. 1935) (plurality of legal votes required to elect; votes for ineligible candidate can prevent election)
- State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D. 1961) (distinguishing vacancy in office from vacancy in a term)
- N.D. Legislative Assembly v. Burgum, 2018 ND 189 (separation-of-powers and interbranch dispute context)
- RECALLND v. Jaeger, 2010 ND 250 (election process as public interest)