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Arguments against governor's appointment filed in North Dakota House seat lawsuit

Arguments against governor's appointment filed in North Dakota House seat lawsuit

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Boeshans-Delzer-Volochenko

North Dakota's Supreme Court on Friday will hear arguments for why each of three people should be named a District 8 state representative to succeed David Andahl, who died Oct. 5 from COVID-19, but still won a seat. Gov. Doug Burgum has appointed Washburn coal executive Wade Boeshans, left. District 8 Republicans' Executive Committee has appointed longtime Rep. Jeff Delzer, R-Underwood, who was defeated in the June primary and with whom Burgum has clashed over budget issues. Democrats want third-place vote-getter Kathrin Volochenko seated. She won 11% of the vote. 

Two sides opposing Gov. Doug Burgum's legislative appointment to succeed a deceased but victorious candidate filed their arguments Thursday.

Supporters of an attorney general's opinion of how to fill the seat argue voters' intentions should be honored with District 8 Republicans' appointment under a state law for filling legislative vacancies. Democrats say the seat should go to their candidate -- the third-place vote-getter who won 11%.

North Dakota's Supreme Court hears oral arguments Friday morning from the three factions vying to fill the seat won by David Andahl, 55, of Baldwin, who died Oct. 5 from COVID-19. He was elected with 36% of the vote for a District 8 House seat in the general election.

The governor has appointed Washburn coal executive Wade Boeshans, citing a 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.” 

District 8 Republicans' Executive Committee on Wednesday night appointed longtime Rep. Jeff Delzer, R-Washburn, to the seat. House Majority Leader Chet Pollert, R-Carrington, supported the move, a process the district party began before Burgum filed his lawsuit asking the Supreme Court to allow his appointment.

Andahl and Dave Nehring, of Bismarck, defeated Delzer in the June primary to move on to the general election. The governor has clashed over budget issues with Delzer, who chairs the powerful House Appropriations Committee. Burgum, a wealthy, former software executive, gave more than $1.8 million of his own money to a political group run by former advisers that successfully targeted Delzer's seat.

North Dakota's Democratic-NPL Party says the seat won by Andahl should go to Kathrin Volochenko, of Mercer, the third-place vote-getter who won 11% of the vote in the general election as a Democratic-NPL District 8 House nominee.

Burgum filed the lawsuit last week, weeks after Attorney General Wayne Stenehjem issued an opinion that Andahl's death, if he were elected, would create a vacancy that the District 8 GOP could fill by appointment.

The state's longest-serving attorney general is representing the Legislature and the secretary of state in the lawsuit. In briefs filed Thursday afternoon, Stenehjem said "By misinterpreting applicable statutes and constitutional provisions, and by disregarding clear legislative history, the Governor incorrectly asserts that he has the power to fill the vacancy by appointment."

Stenehjem also wrote that the Legislature has sole authority to seat its members, and that Burgum's move would disenfranchise thousands of voters.

"They will suffer prejudice at the hands of a public official who was supposed to vigilantly guard their right to vote, not attack it after an election has already taken place," wrote the attorney general, a fellow Republican of the first-term governor who won reelection this month.

Governor's spokesman Mike Nowatzki has said Burgum "is fulfilling his Constitutional responsibility to fill the District 8 seat because there is no state law that applies to this unique situation."

In their briefs also filed Thursday, District 8 Republicans argued that district voters were aware of Stenehjem's opinion and knew that votes for Andahl would result in a Republican representative should he win.

"The will of the people in District 8 and the choice they made should be affirmed," Bismarck attorney John Olson wrote. 

Political observers have pointed out the intraparty Republican politics at play. Burgum in 2016 handily defeated Stenehjem, the state's longest-serving attorney general, for the Republican gubernatorial nomination from voters. 

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.

Democrats say that votes for Andahl are a "collective 'nullity'" and shouldn't be counted.

Attorneys for the party argue Volochenko should be seated, and that Burgum "is without authority to appoint any person to be a member of the Legislative Assembly."

"There were three eligible candidates on the ballot seeking two available seats, and two of those people received votes. Those two people should fill the seats the voters were filling on that day," attorneys for Volochenko argue in briefs.

State lawmakers take office Dec. 1; that's also when the Legislature's organizational session begins. 

Republicans hold supermajorities in the House and Senate with 65 victories in 69 legislative races this year.

Reach Jack Dura at 701-250-8225 or jack.dura@bismarcktribune.com.

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