20200234

FILED AUGUST 31, 2020

IN THE OFFICE OF THE
CLERK OF SUPREME COURT
STATE OF NORTH DAKOTA

In the Supreme Court

State Of North Dakota
Supreme Court No. ____

Kylie Michelle Oversen, individually and

in her capacity as Chairwoman of the
Democratic-Non-Partisan League Party
of North Dakota, and Jason Anderson,
a candidate nominated by the Democratic
-Non-Partisan League Party of North Dakota
for the statewide elective office of
North Dakota Insurance Commissioner.

Petitioner,
v.

Alvin Jaeger, in his capacity as North

Dakota Secretary of State.

Respondent.

PETITION FOR A WRIT OF MANDAMUS TO COMPEL NORTH

DAKOTA SECRETARY OF STATE AL JAEGER TO ACCEPT
AND CERTIFY DEM-NPL PARTY INSURANCE COMMISSIONER
CANDIDATE JASON ANDERSON FOR INCLUSION ON THE
NOVEMBER 3, 2020 GENERAL ELECTION BALLOT

David Clark Thompson

Attorney at Law [ND Attorney No. 03921]
DAVID C. THOMPSON, P.C.
321 Kittson Avenue
Grand Forks, North Dakota 58201
(701) 775-7012 (telephone)

COUNSEL FOR PETITIONERS KYLIE MICHELLE

OVERSEN AND JASON ANDERSON

1
 TABLE OF CONTENTS

Page

Table of Authorities …………………………………………………………….3

Statement of Issues……………………………………………………………..4

Paragraph

Statement of Original Supreme Court Jurisdiction …………………….¶1

Statement of the Case …………………………………………………….…¶ 8

Statement of Facts ………………………………………………………….¶ 15

Argument …………………………………………………………………….¶ 32

A. The provisions of N.D.C.C. § 16.1-11-18(4) unambiguously

require Secretary of State Al Jaeger to place Dem-NPL-
endorsed Insurance Commissioner candidate Jason Anderson of
Fargo upon the November 3, 2020 General Election ballot once the
requirements of this statute of been complied with – as they have
been. ……………………………………………………………………¶32

B. Respondent Secretary of State Al Jaeger has wrongfully

refused to certify the replacement nomination of Dem-NPL
Party Insurance Commissioner candidate Jason Anderson
of Fargo presented to him pursuant to N.D.C.C. § 16.1-11-
18(4) – erroneously interpreting N.D.C.C. § 16.1-11-18(6)(d)
as granting him authority to do so……………………….…………¶37

Conclusion …………………………………………………………………………..¶ 50

2
 TABLE OF AUTHORITIES

Cases

Interest of K.G., 551 N.W.2d 554, 556 (N.D. 1996)………….…..¶ 49, n 8

Kadlec v. Greendale Twp. Bd. of Twp. Supervisors,1998 ND 165 ¶12, 583

N.W.2d 817, 820 (N.D. 1998)…………………………………..……¶ 49, n. 8

Raboin v. North Dakota Workers Compensation Bureau, 1997 ND 221, ¶

17; 571 N.W.2d 833 (N.D. 1997) …………………………………….¶ 49, n. 8

State of North Dakota, and as Chairman of the North Dakota Republican

Party v. Alvin Jaeger, in his capacity as North Dakota’s v. Alvin Jaeger,
in his capacity as North Dakota’s Secretary of State, and Travisia Jonette
Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.
August 26, 2020) …………………………………………….…¶¶1, 9, 23, & 38

Statutes

N.D.C.C. § 16.1-01-01…………………………………………………..…..¶ 42

N.D.C.C. § 16.1-01-08………………………………………. . … ¶¶ 6, & 10 n. 2

N.D.C.C. § 16.1-11-06 ……………………………………..……¶16, & 27 n. 6

N.D.C.C. § 16.1-11-18 ………………………… ¶¶ 25, 29, 30,, 32, 33, 34,

35, 36, 37, 40, 47, 49, & 49 n. 8

N.D.C.C. § 16.1-12-04 ……………………………………………………..¶ 54

N.D.C.C. § 16.1-15-33…………………………………………………………..…¶ 21

N.D.C.C. § 27-02-17…………………………………………………………¶ 11

3
 STATEMENT OF ISSUES

A. The provisions of N.D.C.C. § 16.1-11-18(4) unambiguously

require Secretary of State Al Jaeger to place Dem-NPL-
endorsed Insurance Commissioner candidate Jason
Anderson of Fargo upon the November 3, 2020 General
Election ballot once the requirements of this statute of
been complied with – as they have been. ……………………¶32

B. Respondent Secretary of State Al Jaeger has wrongfully

refused to certify the replacement nomination of Dem-NPL
Party Insurance Commissioner candidate Jason Anderson
of Fargo presented to him pursuant to N.D.C.C. § 16.1-11-
18(4) – erroneously interpreting N.D.C.C. § 16.1-11-18(6)(d)
as granting him authority to do so……………………….……¶37

4
 STATEMENT OF ORIGINAL SUPREME COURT JURISDICTION

[1] The instant Petition for a Writ of Mandamus is presented to the Supreme

Court by Democratic-Nonpartisan League Party (Dem-NPL) Chairwoman

Kylie Michelle Oversen and Dem-NPL candidate for the office of North Dakota

Insurance Commissioner, Jason Anderson of Fargo. This Petition derives

specifically from the decision filed five (5) days ago by the Supreme Court in

Rick Berg, individually in his capacity as a resident and elector of the State of

North Dakota, and as Chairman of the North Dakota Republican Party v. Alvin

Jaeger, in his capacity as North Dakota’s Secretary of State, and Travisia

Jonette Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.

August 26, 2020).

[2] Over the past two business days – August 28, 2020 and August 31, 2020

-- North Dakota Secretary of State Al Jaeger has repeatedly refused to accept

the filings by Dem-NPL Party Chairwoman Kylie Michelle Oversen of

endorsement and nomination materials for Dem-NPL replacement candidate

Jason Anderson for the Office of North Dakota Insurance Commissioner. As

such, Petitioners Jason Anderson and Kylie Michelle Oversen have been left

with no alternative but to file with the Supreme Court the instant Petition for

a Writ of Mandamus to compel North Dakota Secretary of State Al Jaeger to

accept and certify the candidacy of Dem-NPL Party nominated and endorsed

5
Insurance Commissioner candidate Jason Anderson for inclusion on the North

Dakota November 3, 2020 General Election Ballot.

[3] In Berg, supra, the Supreme Court exercised its original jurisdiction to

grant North Dakota Republican Party Chairman Rick Berg’s Petition a writ of

injunction, as the Court acted to “enjoin (Secretary of State Al) Jaeger from

placing [Dem-NPL Insurance Commissioner candidate](Travisia) Martin’s

name on the (November 3, 2020) general election ballot.” Id. at ¶30.

[4] In its decision, the Supreme Court ordered Secretary of State Jaeger to

remove from the general election ballot the candidate who had been endorsed

by the Democratic-NPL Party and by the voters of North Dakota in the June

9, 2020 primary election for the office of North Dakota Insurance

Commissioner.

[5] In explaining its determination to exercise original jurisdiction to

consider and adjudicate the Berg Petition upon its merits, the Supreme Court

stated as follows:

[¶7] Article VI, § 2, of the North Dakota Constitution states this Court
“shall have appellate jurisdiction, and shall also have original
jurisdiction with authority to issue, hear, and determine such original
and remedial writs as may be necessary to properly exercise its
jurisdiction.” This Court’s authority to issue original writs is
discretionary and may not be invoked as a matter of right. Riemers v.
Jaeger, 2018 ND 192, ¶ 5, 916 N.W.2d 113. “It is well settled that the
power to exercise our original jurisdiction extends only to those cases
where the questions presented are publici juris and affect the
sovereignty of the state, the franchises or prerogatives of the state, or
the liberties of its people.” Id. “The interest of the state must be primary,

6
 not incidental, and the public must have an interest or right that is
affected.” Id.

[¶8] The issue in this case concerns the eligibility of a candidate for state
office to hold the office and “involves the people’s power to govern
themselves through the voting process.” Riemers, 2018 ND 192, ¶ 6. Our
cases have recognized the public interest involved with the power of the
people to govern themselves in the voting process. Id. The issue here
involving the eligibility of a candidate for state office is a
matter of public interest warranting the exercise of this
Court’s original jurisdiction to consider Berg’s petition. (bold,
underlined emphasis added).

[6] Additionally, N.D.C.C. § 16.1-01-08 grants specific statutory original

jurisdiction for the Supreme Court, given the corresponding subject matter of

the instant case. 1

1 North Dakota Century Code § 16.1-01-08 provides in its entirety as follows:

16.1-01-08. Correcting errors on ballots - Requiring performance

of duty - Correcting or prosecuting wrongful performance.
The secretary of state shall thoroughly investigate, when the matter
comes to the secretary of state's attention, any of the following:

1. Any error or omission which has occurred or is about to

occur in the placing of any name on an official election
ballot.
2. Any error which has been or is about to be committed in
printing the ballot.
3. Any wrongful act which has been or is about to be done by any
judge or election clerk, county auditor, canvassing board, a
canvassing board member, or any other person charged with any
duty concerning the election.
4. Any neglect of duty which has occurred or is about to occur.

If required, the secretary of state shall order the officer or person charged with
such error, wrong, or neglect to correct the error, desist from the wrongful act,
or perform any required duty. The secretary of state may call upon any county
7
[7] The issues presented by the instant Petition involve the very same office

– that of North Dakota Insurance Commissioner – and the very same

November 3, 2020 general election ballot -- as were addressed by the Supreme

Court in Berg, supra. Indeed, this Petition has been precipitated by the Court’s

decision in Berg, supra.

[8] As such, it is hereby respectfully submitted by Petitioners Jason

Anderson and Kylie Michelle Oversen herein that the issues now before the

Supreme Court are no less compelling for the exercise by the Supreme Court

of expedited original jurisdiction than those which precipitated the Supreme

Court’s original jurisdiction proceedings in Berg, supra.

STATEMENT OF THE CASE

[9] As stated above, the current proceedings derive specifically from the

decision filed five (5) days ago by the Supreme Court in Rick Berg, individually

in his capacity as a resident and elector of the State of North Dakota, and as

Chairman of the North Dakota Republican Party v. Alvin Jaeger, in his

auditor for aid in investigation and correction of the problem. The secretary of
state shall cause any person who violates the secretary of state's order to be
prosecuted, if the violation constitutes an offense pursuant to this chapter. If
the administrative remedies fail to correct the problem, or if the secretary of
state refuses to act, any person may petition the supreme court, or the
district court of the relevant county where the election of a county officer is
involved, for an order compelling the correction of the error, wrong,
neglect, or act. (bold, underlined emphasis added).
8
capacity as North Dakota’s Secretary of State, and Travisia Jonette Minor,

a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D. August 26, 2020).

[10] During oral argument heard by the Supreme Court in Berg, members of

the Court were clearly aware of and concerned about the potential

consequences of any decision in the case which would have the effect of

disqualifying Dem-NPL Insurance Commissioner candidate Travisia Martin

as a candidate for that office. 2

2 At 8:46 of the official Supreme Court audio recording of the Oral Argument
Justice McEvers asked counsel for Republican Party Chairman Petitioner Rick
Berg, "how long has your client had this information?" Petitioner’s counsel
responded at 8:55 of the recording that regardless of how long Petitioner had
been in possession of the subject information which formed the basis for his
Petition, the matter was not ripe for presentation to the Supreme Court until
the Secretary of State had decided not to act to remove Travisia Martin from
the ballot.
With regard to the matter of whether the Dem-NPL Party would be able to
replace Travisia Martin on the November 3, 2020 General Election Ballot ion
the event that the Supreme Court would disqualify her for failing to satisfy the
five-year durational residency requirement set forth in Article V, § 4 of the
North Dakota Constitution for candidates for statewide executive branch
elective offices, at 38:25 of the Supreme Court audio recording of Oral
Argument in the case, Justice Crothers asked counsel for Ms. Martin at 38:38
of the , "(i)f Ms. Martin was not on the ballot, could the Democratic
Party put forward another candidate? Counsel for Ms. Martin responded
to Justice Crothers at 38:55 of the Oral Argument audio recording that there
is a statute that could potentially give the answer to that question -- N.D.C.C.
§ 16.1-11-18 -- which contains a provision that relates to the situation in which
a candidate individual ceases to be qualified to serve, if elected.

9
[11] In Berg, supra, with one minor exception, the Supreme Court adopted

the findings of a district court to which the Supreme Court had sent that

original jurisdiction case for a determination of “issues of fact” and “other

assessments” pursuant to N.D.C.C. § 27-02-17. Berg, supra, at ¶¶13 & 15.

[12] In Berg, supra, the Supreme Court’s essential findings of fact were the

following, made within the context of the five (5) year durational residency

requirement in Article V, § 4 of the North Dakota Constitution for candidates

for statewide executive branch elective offices:

(A)ll of the evidence and testimony presented to this Court regarding

Martin’s intent and her actions, both prior-to and up until her vote in
2016, suggest she had not fully abandoned her Nevada domicile and
residency, and she continued to avail herself of the rights of being a
citizen of Nevada. She availed herself of these rights specifically to the
exclusion of exercising many of those rights in North Dakota, including
the right to vote.

Because there has not been a showing that during the necessary
timeframe Martin had a union of both act and intent to change her
residence from Las Vegas, Nevada, and establish it in North Dakota, the
Court finds Martin was not a North Dakota resident until sometime after
November 2016. Therefore, this Court specifically finds that Martin will
not have been a North Dakota resident for the five years preceding the
2020 general election.

Berg, supra, at ¶13, pages 7-8. 3

3 The District Court also held as follows:

However, the Court does specifically find that Martin was a credible
witness. She appeared truthful and candid, and nothing in her
testimony suggested any ill will or intent both in her current testimony
or in her actions throughout the timeframe relevant to this matter.
10
[13] However, the Supreme Court also necessarily adopted the following

factual observation made by the district court in Berg, supra, as the Court

made clear in ¶15 thereof 4:

The Court first notes that the question of whether or not Martin
has been a North Dakota resident since at least November 3,
2015, is a difficult finding to make. ‘The difficulties which are met
with in connection with this question are due not so much to any
obscurity or uncertainty in the law as to the infinite variety of facts and
circumstances which have to be considered in its application to
individual cases.” Moodie, 258 N.W. at 564. The Supreme Court’s
requested finding is far less clear cut than either of the parties
suggest it to be, and this Court is left with limited time to make
the requested finding.’ (bold, underlined emphasis added).

“Order Regarding Assigned Factual Findings”, filed August 4, 2020, in

the Office of the Clerk of the Supreme Court, Berg, supra, at ¶21, page
7.

[14] Nevertheless, the Supreme Court held as follows in Berg, supra:

“Order Regarding Assigned Factual Findings”, filed August 4, 2020, in

the Office of the Clerk of the Supreme Court, Berg, supra, at ¶22, page
8.

4 The Supreme Court expressly stated in Berg, supra, at ¶15:

[¶15] Regardless of how we describe our use of the record, here

the district court’s factual findings are entitled to appreciable
weight. The district court found after 2016 Martin began working
exclusively in North Dakota. Our review of the record indicates that
Martin began working in North Dakota after that time, but not
exclusively. Aside from that detail, our review of the record
confirms the district court’s findings are supported by
substantial evidence; therefore, we adopt the remainder of the
district court’s findings of fact. (bold, underlined emphasis added).
11
 [¶27] Here, Martin seeks election to the executive branch office of
insurance commissioner. “To be eligible to hold an elective office
established by this article, a person must be a qualified elector of
this state, must be at least twenty-five years of age on the day of
the election, and must have been a resident of this state for the five
years preceding election to office.” N.D. Const. art. V, § 4. Thus, to
be eligible to hold an elective office in the executive branch, one
must have been a resident of this state for five years on election
day. Because Martin was not a resident until after November 2016,
she will not have been a North Dakota resident for five years on
November 3, 2020. Therefore, she is not eligible to hold the office
of insurance commissioner. . .

[¶29] If a petitioner for a writ sets forth a claim entitling them to

relief, we will consider the petition even though an alternative writ
may be a more appropriate remedy. Stearns v. Twin Butte Pub.
Sch. Dist. No. 1, 185 N.W.2d 641, 645 (N.D. 1971). “[T]his court, in
the exercise of its original jurisdiction, 14 may frame its process as
the exigencies require.” State ex rel Lofthus v. Langer, 46 N.D.
462, 177 N.W. 408, 413 (1919). A writ of injunction is the
correlative of a writ of mandamus. State ex rel. McArthur v.
McLean, 35 N.D. 203, 159 N.W. 847, 851 (1916). The former
issues to restrain action while the latter issues to compel action.
Id. We will issue a writ of injunction if the resolution of the issues
in the instant case necessitates such a result.

[¶30] While Berg petitioned for mandamus rather than an

injunction, Berg has established a right to relief. Martin is not
eligible to hold the office of insurance commissioner, and it would
be erroneous to place her name on the ballot. We therefore enjoin
Jaeger from placing Martin’s name on the general election ballot.

[¶31] We issue a writ of injunction restraining Secretary of State

Jaeger from placing the name of Travisia Jonette Minor, A/K/A
Travisia Martin, on the November 3, 2020, general election ballot.

Berg, supra, at ¶¶ 27 & 29-31

[15] Therefore, the consequence of this decision by Supreme Court in Berg

was the judicially-ordered removal from the November 3, 2020 general election

12
ballot of the Democratic-Nonpartisan League’s endorsed candidate for the

office of North Dakota Insurance Commissioner – Travisia Martin.

STATEMENT OF FACTS

[16] The Democratic Nonpartisan League (Dem-NPL) Party nominated

Travisia Martin to be the party’s candidate for the statewide elective office of

Insurance Commissioner pursuant to the statutory mechanism of N.D.C.C. §

16.1-11-06, which provides that a candidate for North Dakota statewide office

may be placed on the ballot through a “certificate of endorsement signed by the

state chairman of any legally recognized political party containing the

candidate's name, post-office address, and telephone number, the title of the

office to which the candidate aspires, and the party which the candidate

represents.” N.D.C.C. § 16.1-11-06(a)(1).

[17] This was accomplished in Ms. Martin’s instance when she was issued a

such a Certificate of Endorsement for the office of North Dakota Insurance

Commissioner signed on March 27, 2020 by North Dakota Dem-NPL Party

Chairwoman Kylie Michelle Oversen. See, the Certificate of Endorsement of

Travisia Martin by the Dem-NPL Party, filed with the North Dakota Secretary

of State on March 27, 2020, Petitioners Appendix at page 1.

[18] On May 20, 2020, Corby Kemmer, the Executive Director of the North

Dakota Republican Party, sent correspondence (with documentary exhibits) to

Secretary of State Al Jaeger, alleging that Dem-NPL Insurance Commissioner

13
candidate Travisia Martin was “ineligible to hold the office she seeks”, in light

of the provisions of Article V, Section 4 of the North Dakota Constitution.

[19] Secretary of State Al Jaeger nevertheless duly certified Travisia Martin

to be placed on the Primary Election Ballot as the Dem-NPL Party candidate

for the office of North Dakota Insurance Commissioner.

[20] Travisia Martin was in turn placed on the Primary Election Ballot as the

Dem-NPL candidate for the office of North Dakota Insurance Commissioner

and received 34,200 votes from North Dakota electors in an all-mail Primary

Election held on June 9, 2020.

[21] On June 19, 2020, these Primary Election results – including Travisia

Martin’s election to be the Dem-NPL candidate for North Dakota Insurance

Commissioner in the November 3, 2020 General Election -- were certified by the

North Dakota State Canvassing Board, which, pursuant to N.D.C.C. § 16.1-15-

33, consists of the Clerk of the North Dakota Supreme Court, the Secretary of

State, the State Treasurer, and the leaders of the North Dakota Republican

and Democratic-NPL parties. 5

[22] On July 9, 2020, North Dakota Republican Party Chairman Rick Berg

filed with the North Dakota Supreme Court a Petition for a Writ of Mandamus,

5https://bismarcktribune.com/news/state-and-regional/govt-and-politics/state-
canvassing-board-certifies-results-of-june-election/article_4011a520-4d68-
5ce3-8c5b-57267db48e31.html
14
in which Berg requested that that the Supreme Court “exercise its original

jurisdictional authority” to compel Secretary of State Al Jaeger to remove

Martin “from the general election ballot for North Dakota Insurance

Commissioner.”

[23] On August 26, 2020, the North Dakota Supreme Court filed its decision

in Rick Berg, individually in his capacity as a resident and elector of the State

of North Dakota, and as Chairman of the North Dakota Republican Party v.

Alvin Jaeger, in his capacity as North Dakota’s Secretary of State, and Travisia

Jonette Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.

August 26, 2020).

[24] In that decision, the Supreme Court exercised its original jurisdiction to

grant to the Petitioner Rick Berg a writ of injunction, pursuant to which the

Supreme Court acted to “enjoin (Secretary of State Al) Jaeger from placing

(Travisia) Martin’s name on the (November 3, 2020) general election ballot.”

Id. at ¶30.

[25] Also on August 26, 2020 – on the same day as the Supreme Court’s filing

of its above-referenced decision in Berg, supra -- Dem-NPL Party Chairwoman

Kylie Michelle Oversen spoke with North Dakota Secretary of State Al Jaeger

regarding the submission by the Dem-NPL Party of a replacement candidate

for the office of North Dakota Insurance Commissioner pursuant to the

statutory authorization of N.D.C.C. § 16.1-11-18(6)(d).

15
[26] Late that same afternoon on August 26, 2020, Secretary of State Jaeger

sent the following e-mail to Dem-NPL Party Chairwoman Oversen:

From: Jaeger, Al <ajaeger@nd.gov>

Date: Wed, Aug 26, 2020 at 6:07 PM
Subject: Insurance Commission Candidate
To: Oversen, Kylie <kylie.oversen@gmail.com>
Cc: Silrum, Jim <jsilrum@nd.gov>

Kylie,

After our discussion this afternoon, we did more research and discussed
your question in detail.

It is our understanding of NDCC § 16.1-11-18(6)(d) that a vacancy in

the nomination for your party’s candidate for Insurance Commissioner
does not exist. That subdivision says, “Ceases to be qualified to serve,
if elected, as otherwise provided by law.” This means that the
candidate must have been qualified at some point earlier, but is no
longer. The Supreme Court determined your candidate was not
qualified when she was on the June ballot. Therefore, she cannot cease
to be qualified because she was not qualified when she was on the
ballot. Therefore, no vacancy exists according to the law.

Therefore, the only way another candidate can be included on the ballot
is if they were to submit a Petition/Certificate of Nomination to run as
an independent candidate with no less than 1,000 signatures along
with the remaining candidacy paperwork before 4 pm on Monday,
August 31, 2020. See NDCC 16.1-12-02. More information about the
paperwork required can be found on Vote.ND.Gov at
https://vip.sos.nd.gov/PortalListDetails.aspx?ptlhPKID=24&ptlPKID=3
#content-start.

Al Jaeger
Secretary of State

See, the e-mail from Secretary of State Al Jaeger to Dem-NPL Party

Chairwoman Kylie Michelle Oversen, sent at 6:07 p.m. on August 26,
2020, Appendix of Petitioner at page 9.

16
[27] Two days later, on Friday, August 28, 2020, Dem-NPL Chairwoman

Oversen forwarded to Secretary of State Jaeger documentary materials

presenting the replacement Dem-NPL candidacy of Jason Anderson of Fargo

for the office of North Dakota Insurance Commissioner 6 under cover of the

following e-mail:

Good afternoon, Secretary of State Jaeger

I am writing to request placement of the name of Jason Anderson on
the ballot for the office of Insurance Commissioner, as endorsed and
put forth by the Executive Committee of the Democratic-NPL.

We respectfully disagree with your interpretation of NDCC § 16.1-11-

18(6)(d), as (1) "ceasing to be qualified to serve" is not clearly defined in
statute, (2) there has not been a court interpretation of this section to
our knowledge, and (3) the legislative history of this section of code does
not specifically address the legislative intent of this particular language
(see SB 2405, 2003).

We believe that because Ms. Travisia Martin was on the ballot in June,
per your approval of her candidacy finding her eligible to be on the
ballot, and that she was only removed pursuant to an order of the
Supreme Court, a vacancy does in fact exist. As such, we are placing
Jason Anderson's name into nomination as the Dem-NPL candidate, in
accordance with the procedure set forth by law.

6These documentary materials included an “Affidavit of Candidacy” executed

by Jason Anderson, as provided for within N.D.C.C. §§ 16.1-11-10 and 16.1-12-
02.1, a “Certificate of Endorsement” by the North Dakota Democratic-NPL
Party pursuant to N.D.C.C. § 16.1-11-06, and a “Statement of Interests”
presented pursuant to North Dakota Century Code Chapter 16.1-09. See,
these documentary materials filed on August 28, 2020, by Dem-NPL
Chairwoman Kylie Michelle Oversen on behalf of Dem-NPL Insurance
Commissioner candidate Jason Anderson, included in the Appendix of
Petitioners at pages 2-7.
17
 You will find Mr. Anderson's paperwork attached to this email. If there
is any discrepancy or missing information, please let me know.

We respectfully request your prompt attention to this matter.

Sincerely,

Kylie Oversen
Chairwoman
ND Democratic-NPL

See, the electronic mail message from North Dakota Dem-NPL

Chairwoman Kylie Oversen, sent August 26, 200, at 2:02 P.M., a copy of
whichincluded at Appendix of Petitioners at page 2.

[28] Later on that afternoon of August 28, 2020, Deputy Secretary of State

Jim Silrum responded to Dem-NPL Chairwoman Oversen’s presentation of

Dem-NPL endorsement and nomination materials relating to Jason Anderson

of Fargo as a Dem-NPL replacement candidate for the office of North Dakota

Insurance Commissioner:

From: Oliver, Lee Ann M. <loliver@nd.gov>

Date: Fri, Aug 28, 2020 at 4:15 PM
Subject: RE: Insurance Commissioner
To: Kylie Oversen <kylie.oversen@gmail.com>, Jaeger, Al A.
<ajaeger@nd.gov>, Silrum, Jim <jsilrum@nd.gov>
Cc: Michael Taylor <michael@demnpl.com>, Oliver, Lee Ann M.
<loliver@nd.gov>

Ms. Oversen,

Secretary Jaeger is out of the office as am I, but he asked me to respond

on his behalf.

As we previously stated, a vacancy does not exist. We did not “approve”

Ms. Martin, we only accepted her paperwork in which she declared that
she was qualified to serve if elected. The Court determined she is not
18
 qualified. Therefore, a vacancy does not exist and we cannot and will
not accept the new paperwork you filed today.

By the way my correct email address is jsilrum.nd.gov and this is the

reason for my late response to you.

Jim Silrum
Deputy Secretary of State

See, the electronic mail message from Jim Silrum, sent August 28, 2020,
at 4:15 P.M., a copy of which is included at Appendix of Petitioners at
page 10.

[29] Petitioners Jason Anderson and Kylie Michelle Oversen have complied

with the requirements of N.D.C.C. § 16.1-11-18(4), which provides as follows:

4. If a vacancy occurs in a slate of statewide candidates after the

candidates have been nominated at the primary election, the proper
state executive committee may fill any vacancy by filing a certificate of
nomination with the secretary of state. The chairman and secretary of
the committee shall make and file with the secretary of state a certificate
setting forth the cause of the vacancy, the name of the person for whom
the new nominee is to be substituted, the fact that the committee was
authorized to fill vacancies, and any further information as may be
required to be given in an original certificate of nomination. When such
a certificate is filed, the secretary of state shall certify the new
nomination and the name of the person who has been nominated to fill
the vacancy in place of the original nominee to the various auditors. If
the secretary of state already has forwarded the certificate, the secretary
of state forthwith shall certify to the auditors the name and address of
the new nominee, the office the new nominee is nominated for, the party
or political principle the new nominee represents, and the name of the
person for whom the new nominee is substituting. Failure to publish the
name of a new nominee does not invalidate the election. 7

7 See, the documentary materials presenting the replacement Dem-NPL

candidacy of Jason Anderson of Fargo for the office of North Dakota Insurance
Commissioner as filed with the Secretary of State by Dem-NPL Chairwoman
Kylie Michelle Oversen on August 28, 2020, as referenced in Footnote 6, supra.
Appendix of Petitioners at page 4. See, also, the “Certificate of Cause of
19
[30] The deadline for filling a political party candidate vacancy for a

statewide office, pursuant to N.D.C.C. § 16.1-11-18(6), is the sixty-

fourth day prior to the November 3, 2020 General Election -- and this

deadline date is today, August 31, 2020.

[31] In light of the refusal by the Secretary of State this past Friday, August

28, 2020, to accept the filing by Dem-NPL Party Chairwoman Kylie Michelle

Oversen of Dem-NPL Party endorsement and nomination materials for Dem-

NPL replacement candidate Jason Anderson for the Office of North Dakota

Insurance Commissioner, Petitioners Jason Anderson and Kylie Michelle

Oversen have been left with no alternative but to file with the Supreme Court

the instant Petition for a Writ of Mandamus to compel North Dakota Secretary

of State Al Jaeger to accept and certify the candidacy of Dem-NPL Party

nominated and endorsed Insurance Commissioner candidate Jason Anderson

for inclusion on the North Dakota November 3, 2020 General Election Ballot.

Vacancy and Nomination”, filed by Dem-NPL Party Chairwoman Kylie

Oversen with the office of the North Dakota Secretary of State on August 31,
2020, Appendix of Petitioners at page 8.
.
20
[32]
ARGUMENT

A. The provisions of N.D.C.C. § 16.1-11-18(4) unambiguously

require Secretary of State Al Jaeger to place Dem-NPL-
endorsed Insurance Commissioner candidate Jason Anderson
of Fargo upon the November 3, 2020 General Election ballot
once the requirements of this statute of been complied with –
as they have been.

[33] As a foundational matter, it should be emphasized within the context of

the instant Petition that Petitioners Jason Anderson and Kylie Michelle

Oversen have complied with the requirements of N.D.C.C. § 16.1-11-18(4),

which provides as follows:

4. If a vacancy occurs in a slate of statewide candidates after

the candidates have been nominated at the primary election,
the proper state executive committee may fill any vacancy by
filing a certificate of nomination with the secretary of state.
The chairman and secretary of the committee shall make and
file with the secretary of state a certificate setting forth the
cause of the vacancy, the name of the person for whom the new
nominee is to be substituted, the fact that the committee was
authorized to fill vacancies, and any further information as
may be required to be given in an original certificate of
nomination. When such a certificate is filed, the secretary of
state shall certify the new nomination and the name of the
person who has been nominated to fill the vacancy in place
of the original nominee to the various auditors. If the secretary of
state already has forwarded the certificate, the secretary of state
forthwith shall certify to the auditors the name and address of the new
nominee, the office the new nominee is nominated for, the party or
political principle the new nominee represents, and the name of the
person for whom the new nominee is substituting. Failure to publish
the name of a new nominee does not invalidate the election. (bold and
underlined emphasis added).

21
[34] All of the requirements set forth in N.D.C.C. § 16.1-11-18(4) have been

satisfied by Petitioners Jason Anderson and Kylie Michelle Oversen. In

addition to the above-referenced documents which were filed with the

Secretary of State last Friday, August 28, 2020 [See, Footnote 6, supra], a

“Certificate of Cause of Vacancy and Nomination” certified and executed under

oath by Dem-NPL Chairwoman Kylie Michelle Oversen was filed with the

Secretary of State today, August 31, 2020. See Appendix of Petitioner at

page 8. This “Certificate of Cause of Vacancy and Nomination” provides, in

its full text, as follows:

CERTIFICATE OF CAUSE OF
VACANCY AND NOMINATION

Pursuant to N.D.C.C. § 16.1-11-18(4), the Democratic-NPL Executive

Committee sets forth the following:

1. Travisia Martin was dually nominated as the Democratic-NPL candidate

for Insurance Commissioner of North Dakota and was accordingly placed
on the primary ballot in June 2020.
2. Ms. Martin certified that she was eligible to run for and hold the office
of Insurance Commissioner.
3. Under an order of the North Dakota Supreme Court, the North Dakota
Secretary of State has subsequently removed from nomination the name
of Travisia Martin, creating a vacancy on the general election ballot for
the office of Insurance Commissioner.
4. Accordingly, the Democratic-NPL Executive Committee, which is
authorized to fill such vacancies, met and endorsed Jason Anderson as
the substitute Democratic-NPL endorsed candidate for the office of
Insurance Commissioner.
5. In accordance with N.D.C.C. § 16.1-11-18, the Chair and Secretary of the
Democratic-NPL hereby submit the name of Jason Anderson and
respectfully request adherence to the section which states that the

22
 secretary of state shall certify the new nomination and the name of the
person who has been nominated to fill the vacancy in place of the original
nominee to the various auditors.

Respectfully submitted this 31st day of August 2020.

/s/ Angel Young

Angel Young, Secretary

/s/ Kylie Oversen

Kylie Oversen, Chair

Subscribed and sworn to before me this 31st day of August 2020.

/s/ Cindy R. Norton

(Notary Public)

“Certificate of Cause of Vacancy and Nomination”, filed by Dem-NPL

Party Chairwoman Kylie Oversen with the office of the North Dakota
Secretary of State on August 31, 2020, Appendix of Petitioners at
page 8.

[35] Therefore, pursuant to N.D.C.C. § 16.1-11-18(4), once this certificate was

filed, Respondent Secretary of State Al Jaeger was without discretion to refuse

to “certify the new nomination and the name of the person who has been

nominated to fill the vacancy [Jason Anderson] in place of the original nominee

[Travisia Martin].”

[36] Significantly, there are no caveats, conditions or exceptions within the

text of N.D.C.C. § 16.1-11-18(4) which would authorize Secretary of State

Jaeger to refuse to “certify the new nomination and the name” of Dem-NPL

Insurance Commissioner nominee/endorsee Jason Anderson of Fargo.

23
[37] Rather, Respondent Secretary of State Jaeger has improperly refused to

accept and certify the nomination of Dem-NPL Insurance Commissioner

nominee/endorsee Jason Anderson of Fargo pursuant to N.D.C.C. § 16.1-11-

18(4), incorrectly claiming that the provisions of N.D.C.C. § 16.1-11-18(6)

allow him to reject and refuse to recognize the documentary materials filed on

behalf of Mr. Anderson’s candidacy.

B. Respondent Secretary of State Al Jaeger has wrongfully

refused to certify the replacement nomination of Dem-NPL
Party Insurance Commissioner candidate Jason Anderson
of Fargo presented to him pursuant to N.D.C.C. § 16.1-11-
18(4) – erroneously interpreting N.D.C.C. § 16.1-11-18(6)(d)
as granting him authority to do so.

[38] Relying on last week’s decision of the North Dakota Supreme Court in

Rick Berg, individually in his capacity as a resident and elector of the State of

North Dakota, and as Chairman of the North Dakota Republican Party v. Alvin

Jaeger, in his capacity as North Dakota’s Secretary of State, and Travisia

Jonette Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.

August 26, 2020), Secretary of State Jaeger erroneously has engaged in a

tautological exercise of circular logic, as he has rejected the filings made on

behalf of Dem-NPL Insurance Commissioner candidate Jason Anderson of

Fargo.

[39] In that which can only be accurately described as a skewed and

improperly tilted interpretation of last week’s decision of the Supreme Court

24
in Berg, supra, Secretary of State Jaeger stated, in pertinent part, as follows,

on August 28, 2020, engaging in misstatement and misrepresentation of this

decision:

It is our understanding of NDCC § 16.1-11-18(6)(d) that a vacancy in

the nomination for your party’s candidate for Insurance Commissioner
does not exist. That subdivision says, “Ceases to be qualified to
serve, if elected, as otherwise provided by law.” This means that
the candidate must have been qualified at some point earlier, but
is no longer. The Supreme Court determined your candidate was
not qualified when she was on the June ballot. Therefore, she
cannot cease to be qualified because she was not qualified when
she was on the ballot. Therefore, no vacancy exists according to
the law. (bold, underlined emphasis added).

[40] N.D.C.C. § 16.1-11-18(6)(d) provides as follows:

6. A vacancy in a nomination following a primary election

may not be filled according to subsection 4 or 5 unless the
nominated candidate:
a. Dies;
b. Would be unable to serve, if elected, as a result of a
debilitating illness;
c. Ceases to be a resident of the state or an individual
nominated for legislative office will not be a resident
of the legislative district at the time of the election; or
d. Ceases to be qualified to serve, if elected, as
otherwise provided by law.

Vacancies to be filled according to the provisions of this section

may be filled not later than the sixty-fourth day prior to the
election. (bold, underlined emphasis added).

[41] Nowhere within the decision of the Supreme Court in Berg, supra, was

there any discussion – much less repudiation -- of the qualification by

Secretary of State Jaeger of former Dem-NPL Insurance Commissioner

25
candidate Travisia Martin for her placement on the June Primary Election

ballot. It is undisputed that this occurred, and that the Primary election results

were properly certified by the State Canvassing Board on June 19, 2020.

[42] Indeed, N.D.C.C. § 16.1-01-01 designates the Secretary of State as the

“supervisor of elections”, and states, in pertinent part, as follows:

16.1-01-01. Secretary of state to supervise election procedures -

County administrator of elections.

1. The secretary of state must be, ex officio, supervisor of

elections and may employ additional personnel to administer this
title. The secretary of state shall supervise the conduct of
elections and in that supervisory capacity has, in addition to
other powers conferred by law, the power to examine upon the
secretary of state's request or the request of any election official, any
election ballot . . . . . for the purpose of determining sufficient
compliance with the law and established criteria and standards
adopted by the secretary of state according to section 16.1-06-26 (bold,
underlined emphasis added).

[43] In its decision in Berg, supra, the Supreme Court never held that former

Dem-NPL Insurance Commissioner candidate Travisia Martin had not been

“qualified” by Secretary of State Jaeger for placement on the June Primary

Election ballot.

[44] On his misplaced circular logic employed to justify his rejection of Dem-

NPL replacement Insurance Commissioner candidate Jason Anderson’s

documentary submission, Secretary of State Jaeger conflates and

confuses the concepts of “qualification” with that of “eligibility”.

26
[45] As the Supreme Court noted in its decision in Berg, supra:

Eligibility to hold elective office in the executive branch is governed by

N.D. Const. art. V, § 4, which states that “[t]o be eligible to hold an
elective office established by this article, a person must be a qualified
elector of this state, must be at least twenty-five years of age on the
day of the election, and must have been a resident of this state for the
five years preceding election to office.” (bold, underlined emphasis
added).

[46] While it is undisputed that former Dem-NPL Insurance Commissioner

candidate Travisia Martin was a “qualified elector of this state”, the Supreme

Court determined -- within the context of that which the District Court

described as “a difficult finding to make”, that Ms. Martin was not eligible to

“hold” the elective office of North Dakota Insurance Commissioner because the

Court found that Ms. Martin had not been a North Dakota resident since at

least November 3, 2015 to satisfy the five-year durational residency

requirement of N.D. Const. art. V, § 4.

[47] The fact that Travisia Martin was ultimately determined by the

Supreme Court in its decision of last week to be ineligible to hold the office of

North Dakota Insurance Commissioner, in no way may morphs into a legal

determination to the effect that Ms. Martin had not previously been

“qualified” by Secretary of State Jaeger as a candidate for that office for the

purposes of N.D.C.C. § 16.1-11-18(6)(d) when she “(c)ease(d) to be qualified”

as a candidate for that office by virtue of the Supreme Court’s decision in Berg,

supra.

27
[48] Put simply, Travisia Martin may certainly was able to be “qualified” by

the Secretary of State for placement on the ballot as a candidate for Insurance

Commissioner -- while later having been found to be “ineligible” to “hold”

the office by the Supreme Court in its decision of last week in Berg, supra.

[49] In the language of N.D.C.C. § 16.1-11-18(6)(d), Travisia Martin

“(c)ease(d) to be qualified to serve, if elected, as otherwise provided by law” –

once the Supreme Court by virtue of the “decisional law” of its decision in Berg,

supra, caused Ms. Martin to be “disqualified” as a candidate for North Dakota

Insurance Commissioner. 8

8 Parenthetically, it should be noted that the legislative history of N.D.C.C. §

16.1-11-18, and of N.D.C.C. § 16.1-11-18(6)(d) specifically, does not provide any
elucidation, relative to the phrase, “(c)eases to be qualified to serve, if elected,
as otherwise provided by law”. See, generally, the Legislative history
accompanying 2003 Senate Bill 2405, Appendix of Petitioners at page 13.

The familiar rules of statutory construction here in North Dakota were set
forth in Kadlec v. Greendale Twp. Bd. of Twp. Supervisors,1998 ND 165 ¶12,
583 N.W.2d 817, 820 (N.D. 1998), where the Supreme Court explained:
The primary goal in construing statutes is to ascertain the
legislature's intent. Northern X-Ray Co. v. State, 542 N.W.2d 733,
735 (N.D. 1996). In ascertaining legislative intent, we first look to the
language of the statute, giving the language its plain, ordinary
meaning. Raboin v. North Dakota Workers Compensation Bureau,
1997 ND 221, P 17, 571 N.W.2d 833. As we said in Interest of K.G.,
551 N.W.2d 554, 556 (N.D. 1996), we interpret statutes in context,
endeavoring to give meaningful effect to each statute on the same
subject without making one or the other useless.
1998 ND 165 at ¶12; 583 N.W.2d at 820

28
 CONCLUSION

[50] Over the past two business days – August 28, 2020 and August 31, 2020

-- North Dakota Secretary of State Al Jaeger has repeatedly refused to accept

the filings by Dem-NPL Party Chairwoman Kylie Michelle Oversen of

endorsement and nomination materials for Dem-NPL replacement candidate

Jason Anderson for the Office of North Dakota Insurance Commissioner.

[51] Secretary of State Al Jaeger’s refusal to accept the candidacy of Dem-

NPL nominated and endorsed replacement Insurance Commissioner candidate

Jason Anderson is directly violative of the non-discretionary and mandatory

provisions of to N.D.C.C. § 16.1-11-18(4) and N.D.C.C. § 16.1-11-18(6)(d).

[52] As such, Petitioners Jason Anderson and Kylie Michelle Oversen have

been left with no alternative but to file with the Supreme Court in the exercise

of its original jurisdiction the instant Petition for a Writ of Mandamus to

compel North Dakota Secretary of State Al Jaeger to accept and certify the

candidacy of Dem-NPL Party nominated and endorsed Insurance

Commissioner candidate Jason Anderson for inclusion on the North Dakota

November 3, 2020 General Election Ballot.

[53] Time is of the essence. The deadline for filling a political party

candidate vacancy for a statewide office, pursuant to N.D.C.C. § 16.1-

11-18(6), is the sixty-fourth day prior to the November 3, 2020 General

Election -- and this deadline date is today, August 31, 2020.

29
[54] Additionally, N.D.C.C. §16.1-12-04(1) provides that, “(n)ot less than

fifty-five days before any general or special election to fill any statewide

office, the secretary of state shall electronically transmit a certified list to each

county auditor the names of the individuals nominated for statewide office

according to this chapter as shown on the certificates of nomination filed in the

secretary of state's office.” (bold underlined emphasis added).

[55] In light of these serious and immediate time constraints the Petitioners

hereby respectfully request that the Supreme Court act, as expeditiously as

possible, to address and adjudicate the instant Petition for a Writ of

Mandamus.

Dated this 31st day of August, 2020,

/s/ David C. Thompson

David C. Thompson (ND No. 09321)
(admitted pro hac vice)
Attorney at Law
DAVID C. THOMPSON, P.C.
321 Kittson Avenue
Grand Forks, North Dakota, 58206-5235
(701) 775-7012 (telephone)
(701) 775-2520 (facsimile)

COUNSEL FOR PETITIONERS KYLIE MICHELLE

OVERSEN AND JASON ANDERSON

30
31
 In the Supreme Court
State Of North Dakota
Supreme Court No. ____

Kylie Michelle Oversen, individually and

in her capacity as Chairwoman of the
Democratic-Non-Partisan League Party
of North Dakota, and Jason Anderson,
a candidate nominated by the Democratic
-Non-Partisan League Party of North Dakota
for the statewide elective office of
North Dakota Insurance Commissioner.

Petitioner,
v.

Alvin Jaeger, in his capacity as North

Dakota Secretary of State.

Respondent.

PROOF OF SERVICE FOR PETITION FOR A WRIT OF MANDAMUS

TO COMPEL NORTH DAKOTA SECRETARY OF STATE AL JAEGER
TO ACCEPT AND CERTIFY DEM-NPL PARTY INSURANCE
COMMISSIONER CANDIDATE JASON ANDERSON FOR INCLUSION
ON THE NOVEMBER 3, 2020 GENERAL ELECTION BALLOT

[1] Pursuant to Rule 25(d) of the North Dakota Rules of Appellate Procedure, I

hereby certify that I served the documents identified hereafter today by electronic

means in compliance with Rule 25(a)(2)(c) of the North Dakota Rules of Appellate

Procedure upon the following known previously appearing counsel for North Dakota

Secretary of State Al Jaeger, North Dakota Assistant Attorney General Matthew

1
Arnold Sagsveen, at e-mail address masagsve@nd.gov; and and North Dakota

Secretary of State Al Jaeger at e-mail address ajaeger@nd.gov ;

PETITION FOR A WRIT OF MANDAMUS TO COMPEL

NORTH DAKOTA SECRETARY OF STATE AL JAEGER TO
ACCEPT AND CERTIFY DEM-NPL PARTY INSURANCE
COMMISSIONER CANDIDATE JASON ANDERSON FOR
INCLUSION ON THE NOVEMBER 3, 2020 GENERAL
ELECTION BALLOT

and

APPENDIX TO PETITION FOR A WRIT OF MANDAMUS TO

COMPEL NORTH DAKOTA SECRETARY OF STATE AL
JAEGER TO ACCEPT AND CERTIFY DEM-NPL PARTY
INSURANCE COMMISSIONER CANDIDATE JASON
ANDERSON FOR INCLUSION ON THE
NOVEMBER 3, 2020 GENERAL ELECTION BALLOT

Dated this 31st day of August, 2020,

/s/ David Clark Thompson

David Clark Thompson
Attorney at Law [ND Attorney No. 03921]
DAVID C. THOMPSON, P.C.
321 Kittson Avenue
Grand Forks, North Dakota 58201
(701) 775-7012 (telephone)

COUNSEL FOR PETITIONERS KYLIE MICHELLE

OVERSEN AND JASON ANDERSON