Gov. Doug Burgum is asking North Dakota's Supreme Court to let him appoint a successor to a Bismarck-area state legislative seat won by a deceased candidate.
The governor on Thursday filed the lawsuit against Secretary of State Al Jaeger, House Majority Leader Chet Pollert, R-Carrington, and District 8 Republican Chairman Loren DeWitz.
Hours earlier, Attorney General Wayne Stenehjem appointed three Bismarck lawyers as special assistant attorneys general to represent Burgum. Stenehjem made the appointment at the governor's request.
The lawsuit asks the high court to declare Andahl's election null and void, to preclude third-place vote-getter Democrat Kathrin Volochenko, to stop the other parties from filling the seat and to allow the governor by his "constitutional right" to appoint a new state representative. Burgum asked the court for immediate oral arguments due to the timing of the election results' certification.
The State Canvassing Board meets Friday afternoon to certify the results.
"Immediate injunctive relief is necessary to prevent the Secretary of State’s issuance of a certificate of election to a deceased, and therefore ineligible, candidate for the state legislature," the lawsuit says.
The first-term governor and the state's longest-serving attorney general, both Republicans, disagree as to how to fill the District 8 House seat won by David Andahl, 55, of Baldwin, who died Oct. 5 from COVID-19. District 8 is a swath north and east of Bismarck.
North Dakota's Democratic-NPL Party also might enter the fray.
Andahl and fellow Republican Dave Nehring, of Bismarck, won 36% and 41% of the vote, respectively. They had defeated longtime Rep. Jeff Delzer, R-Underwood, in the June primary. Delzer chairs the House Appropriations Committee and has tangled 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.
Stenehjem has cited his Oct. 13 opinion that Andahl's death, if he were elected, would create a vacancy that District 8 Republicans' Executive Committee could fill by appointment. Jaeger, Pollert and DeWitz have said they will follow the opinion.
Burgum last week appointed Washburn coal executive Wade Boeshans to the seat, 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.”
The attorney general called the governor's appointment "inaccurate and untimely," citing his opinion and the general election vote yet to be certified.
Democrats have been consulting with attorneys about a way forward.
"It's our position that after his untimely death, David Andahl was no longer qualified to be elected, so the seat should go to Kathrin Volochenko as a qualified candidate who received the next-highest number of votes," party spokesman Alex Rohr said.
Volochenko, of Mercer, received 11% of the vote.
Political observers have pointed out the intraparty Republican politics at play in the fight, including Burgum's conflicts with Delzer and his one-time rivalry with Stenehjem in the 2016 gubernatorial primary, when Burgum handily defeated the attorney general for the party nomination from voters. Burgum won a second term this month with Lt. Gov. Brent Sanford.
The Tribune reached DeWitz as he was reading the governor's filing. District party leaders are deciding their next steps, but are still planning to proceed with a meeting later this month to make an appointment to the House seat, he said.
"There may be two people Dec. 1 sitting in the seat. I don't know. We'll see," DeWitz said, referring to when state lawmakers take office.
Pollert, the top House lawmaker, reiterated that the vacancy is a legislative responsibility to fill. The House has final say on the seating of its members.
The House chief declined to comment on what Burgum's lawsuit might do for executive-legislative relations, which he has previously said were set back by Burgum's donations targeting the top House budget writer's reelection bid.
Jaeger declined to comment beyond that the State Canvassing Board will carry out its certification of the election results.
"We're going to proceed with what the law requires us to do," the longtime secretary of state said.
The case is the second one involving Burgum and the Legislature. In 2018, the state Supreme Court heard and resolved disputes of executive and legislative authority in the governor's veto powers and provisions set by lawmakers in several budget bills.
Reach Jack Dura at 701-250-8225 or firstname.lastname@example.org.
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