Three factions disagree on how the state House seat won by a deceased Bismarck-area legislative candidate should be filled, with a top North Dakota lawmaker saying Gov. Doug Burgum has crossed a line in making an appointment.
House Majority Leader Chet Pollert, R-Carrington, said Burgum has "overstepped between the executive and the legislative branch -- and way overstepped."
Burgum spokesman Mike Nowatzki on Thursday told the Tribune that "the governor stands by his appointment."
Political observers say the matter appears destined for court.
"It seems likely that you will end up with two people claiming the same seat, and if the Democrat is smart, whoever got the most votes there, you'd have three people claiming a legitimate claim to that seat," said Bo Wood, professor of political science and public administration at the University of North Dakota.
The post-election dispute continues a political fight involving a powerful state lawmaker at odds with the fellow Republican governor.
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The State Canvassing Board meets next week to certify the results of races including the District 8 House contest. Republicans Dave Nehring and David Andahl won 41% and 36% of the vote, respectively, for the two seats of the legislative district sprawling north and east of Bismarck. Andahl, 55, of Baldwin, died Oct. 5 from COVID-19.
His death came so close to Election Day with early voting already underway that the ballot could not be changed. He and Nehring had won District 8 Republicans' endorsements and voters' nominations for the seats, and in the June primary defeated longtime Rep. Jeff Delzer, R-Underwood, who chairs the House Appropriations Committee and has sparred with Burgum over budget issues.
Burgum gave more than $1.8 million to a political group run by former advisers that successfully targeted Delzer's seat.
It's unclear who will fill Andahl's seat. The four-year term begins Dec. 1.
Burgum on Wednesday morning announced his appointment of Washburn coal executive Wade Boeshans, citing a state constitutional provision that “The governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by law.”
Republican Attorney General Wayne Stenehjem hours later called Burgum's announcement "inaccurate and untimely," as the election results have not yet been certified. He also cited his Oct. 13 opinion that Andahl's death, if he were to be elected, would create a vacancy that the District 8 Republicans Executive Committee could fill by appointment.
District 8 Republican Chairman Loren DeWitz said the committee will proceed with an appointment after the election results are certified. He said the governor did not consult the district party about Boeshans' appointment. Secretary of State Al Jaeger has said he also will follow Stenehjem's opinion.
Pollert, the House majority leader, on Thursday said he agrees with Stenehjem. The House has final say on the seating of its members.
"It is the Legislature's responsibility, but first it's District 8's responsibility to fill in that appointment, and then it's up to the House to approve the seating," he said.
Pollert said he thinks a lawsuit is avoidable, and that "nothing can happen" until election results are certified. He said he has spoken with Boeshans -- whom he called "a good guy ... caught in the middle of a struggle here" -- and also the governor.
"I told (Burgum) he had overstepped his powers and that he is stepping on the Legislature's authority of what needs to be done," Pollert said. "He disagrees."
Democrats on Wednesday announced they are consulting with legal advisers, saying Burgum made "a macabre power grab," and that Democrat Kathrin Volochenko, who came in third place with 11% of the vote, "earned a seat at the table."
Paths and politics
The battle over the seat is entangled among intraparty Republican politics, political science professors say.
Stenehjem's opinion is the foremost authority, University of Mary Associate Professor of Politics Mark Springer believes.
"He would know the state constitution better than anyone," Springer said.
Stenehjem is an elected official, not an appointed attorney general as in other states, and he and Burgum were one-time rivals for the governor's office -- adding an element of Republican division to the fight, Springer said.
"It's such a strange dynamic," he said.
Burgum's conflicts with Delzer are well known.
Before the 2019 Legislature convened, Delzer led a rule change that shifted how lawmakers considered Burgum's proposals. Burgum later said he felt his executive budget had been "tossed in the garbage." Delzer said all of Burgum's proposals were fully vetted and many were adopted, and that the rule change was years in the making and added more transparency in budget writing.
It's unknown whom District 8 Republicans might appoint to the seat, but Delzer has the opportunity -- opening up the possibility of him continuing in the Legislature with Burgum as governor.
Pollert said "there's a lot of theories" about Burgum appointing Boeshans to preclude Delzer, but "as far as the personality conflicts between Delzer and Burgum ... there's probably some of that there."
A lawsuit headed to North Dakota's Supreme Court appears likely, Springer said.
"I could see a valid case in any number of these scenarios, depending on how the court wants to look at the situation," he said.
Democrats have the strongest case, according to Wood, the UND political science professor, who sees "a few questions that I think that are going to have to be resolved in the courts." He believes the governor's argument for appointment appears the weakest without a court precedent.
Key is the definition of a "qualified elector" status of a legislative candidate, and whether Andahl, who died a month before Election Day, could be qualified, according to Wood.
"I don't see how a dead person can be a qualified elector," he said. "If they can't be a qualified elector, then they can't hold that office and they should not have been on that ballot, and the person that was harmed was the next-highest vote-getter. That to me seems like the strongest, most straightforward argument, and people may not like that."
A lawsuit would raise questions of who represents the governor if the attorney general is at odds with him, and whether the House seat would be held vacant after Dec. 1 as a lawsuit played out.
There also is the question of whether seating the Democratic-NPL third-place candidate would violate voters' intent in electing a dead Republican who could be succeeded by a member of his party.
"If a majority of voters in a state had put in Mickey Mouse instead of Dave Andahl, then what, would we feel some sort of obligation to go and find a replacement that carries the same characteristics as Mickey Mouse?" Wood said.
Reach Jack Dura at 701-250-8225 or email@example.com.