The North Dakota Supreme Court has rejected Republican Governor Doug Burgum’s legal attempt to fill a state legislature seat with his own appointment because the apparent winner of the election died back in October of coronavirus.
“We declare a vacancy in office will exist on December 1, 2020, and the Governor does not have statutory or constitutional authority to make an appointment to fill the vacancy in this case. He has not established a clear legal right to performance of the acts he seeks,” wrote the North Dakota Supreme Court in a unanimous opinion this week.
Burgum attempted his legal maneuver after Republican candidate David Andahl, 55, who successfully primaried a long-time member of the state legislature back in June, died a month before the election. While he received push-back for his attempt, including from the Republican state attorney general, he has since accepted the court’s judgement.
“This case involved a question of the governor’s constitutional responsibility in a set of circumstances never before seen in North Dakota. The Supreme Court determined that responsibility is not applicable in this case. While we disagree with the findings, we respect the Court’s opinion and will continue to do our best every day to serve the citizens of North Dakota,” said Bergum, reports The Bismarck Tribune.
Earlier this month, the Democratic-NPL Party, a local affiliate of the Democratic Party, accused Burgum of engaging in a “macabre power grab.” The Democratic-NPL Party claimed that Kathrin Volochenko, the runner-up, should receive the seat instead of a Republican.
“The election is not yet official, but the governor already made a macabre power grab in an attempt to keep the seat he thought he had already bought by meddling in his party’s primary,” declared Kylie Overseen, chairperson of the Democratic-NPL Party.
After an untimely death by an NDGOP candidate to #COVID19, Doug Burgum attempted a macabre power grab to take back control over a the District 8 House today. But Kathrin Volochenko earned the votes as a qualified candidate. pic.twitter.com/m6TixdkY1C
— ND Dem-NPL (@nddemnpl) November 4, 2020
But the North Dakota Supreme Court rejected Volochenko’s arguments as well, ruling that the casting of ballots for an ineligible candidate counted “as a protest against the qualified person,” and not simply as “a nullity” for the purposes of the election.
This has been referred to as the American rule. It is based on the “fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried, unless he or it receives a majority or plurality of the legal votes cast in the election.” Casselton Reporter v. The Fargo Forum, 65 N.D. 681, 261 N.W. 549, 551 (1935). If a candidate does not receive a majority or plurality of the votes cast, he or she cannot be elected. See Woll, at 404 (“no right to office can be assumed in the defeated candidate”); Casselton Reporter, at 552 (majority of votes cast for ineligible candidate “is effective to prevent the election” of losing candidate).
Here, two seats were up for election. Because two seats were available, Volochenko needed to receive at least the second highest number of votes to be elected. See N.D.C.C. § 16.1-01-06 (highest number of votes elects). She did not achieve the status of being the second highest vote recipient, and she was not elected by virtue of being the third highest vote recipient. Therefore as a matter of law, Volochenko’s electoral status as the third place finisher does not prevent a vacancy from occurring in the office of State Representative for District Eight.
ABC News reports that Republican members of the legislature have since chosen Rep. Jeff Delzer, who was successfully primaried by Andahl back in June, to fill the seat.
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