Burgum Fulfills Constitutional Duty, Appoints Wade Boeshans To Unfilled District 8 House Seat

11/4/2020 Gmail - BURGUM FULFILLS CONSTITUTIONAL DUTY, APPOINTS WADE BOESHANS TO UNFILLED DISTRICT 8 HOUSE SEAT
Rob Port <robport@gmail.com>
BURGUM FULFILLS CONSTITUTIONAL DUTY, APPOINTS WADE BOESHANS TO UNFILLED DISTRICT 8 HOUSE
SEAT
Nowatzki, Mike <mnowatzki@nd.gov> Wed, Nov 4, 2020 at 10:00 AM
To: "Nowatzki, Mike" <mnowatzki@nd.gov>
NEWS: FOR IMMEDIATE RELEASE
Burgum fulfills constitutional duty, appoints Wade Boeshans to unfilled District 8

House seat
Unique circumstances require gubernatorial appointment to fill seat
VIEW THIS RELEASE ONLINE: governor.ND.gov
BISMARCK, N.D. (NOV. 4, 2020) – Gov. Doug Burgum today announced he is appointing Wade Boeshans to the unfilled North Dakota House of Representatives
seat in District 8 resulting from the passing of candidate David Andahl less than one month before the general election.
“Our hearts continue to go out to David Andahl’s family and friends. There is no doubt he would have served the state well in the Legislature,” Burgum said. “The
people of District 8 are entitled to full representation in the next legislative session, and Wade Boeshans is uniquely qualified to serve their needs.”
https://mail.google.com/mail/u/0?ik=a49c206146&view=pt&search=all&permmsgid=msg-f%3A1682446146155756301&simpl=msg-f%3A1682446146155756301 1/10
Boeshans, 49, has been the president and general manager of BNI Energy since 2013 and has worked for the company since 2005. He is currently chairman of the
Lignite Energy Council, President of the Bismarck State College Foundation and has been a leader in advancing critical carbon capture solutions for the state of
North Dakota and the lignite industry. He graduated from North Dakota State University in 1995 with a degree in civil engineering. He and his wife, Stacy, live in
Washburn and have two children.
“I’m honored and humbled to accept the appointment and will work hard every day to serve the citizens of District 8 and honor David Andahl’s legacy,” Boeshans
said. “My strong track record of leadership and deep understanding of the energy, environmental and economic challenges and opportunities currently facing
District 8 make me well-prepared to serve. I’ll be a thoughtful legislator who will work tirelessly with my colleagues for our businesses, communities and family-
supporting jobs to ensure the success of District 8 and the state of North Dakota.”
The decision to appoint was made after careful review of the North Dakota Constitution, North Dakota Century Code, relevant case law, legislative history and
attorney general opinions.
“After extensive research, it became clear that the only legal and constitutionally viable way to fill the District 8 seat is through gubernatorial appointment,” Gov.
Burgum said.
Given the following legal findings, a gubernatorial appointment to this unfilled legislative seat is necessary because:
· The Governor has a constitutional obligation to fill the seat by appointment under Article V, Section 8 of the North Dakota Constitution, which states:
“The governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by law.”
· Vacancy statutes in North Dakota Century Code do not apply in this case because David Andahl was not a qualified elector on the day of the election
and could not be elected to the seat.
· North Dakota law is also clear that the third-place finisher cannot be elected (moved into second place) by default of a first- or second-place finisher
being disqualified.
Boeshans will be sworn in during the Legislature’s organizational session in early December.
Legal Analysis
PART I
Mr. Andahl’s election is null and void as his deceased status renders him ineligible as he was not a qualified elector on the day of the election. Second, the third-
place finisher is unable to win by “default,” as votes cast in favor of Mr. Andahl are also to be viewed as votes NOT cast the other candidates. As such, with a null
and void election of a top two finisher, and a prohibition of a “default” win by the third-place finisher, there exists an open or vacant seat to be filled post-election.
Eligibility to be Elected
Article IV of the North Dakota Constitution contains the constitutional provisions governing the Legislative Branch. Article IV, Section 5 provides:
Section 5. Each individual elected or appointed to the legislative assembly must be, on the day of the election or appointment, a qualified elector in the district from
which the member was selected and must have been a resident of the state for one year immediately prior to that election. An individual may not serve in the
legislative assembly unless the individual lives in the district from which selected.
Since Mr. Andahl is deceased, he cannot be a “a qualified elector…on the day of the election”, nor did he “live[] in the district” as of the date of the election.
Accordingly, he cannot be elected to a seat in the North Dakota House of Representatives.
Analysis of North Dakota case law reveals a number of North Dakota Supreme Court cases that support the conclusion that Mr. Andahl is “ineligible” and that votes
cast for him are not effective to elect him to office. The case law further supports that votes cast for him do “count against” any other candidates on the ballot, i.e.,
the third-highest vote getter cannot win by “default.”
North Dakota Supreme Court precedent allows that Mr. Andahl’s death renders him “ineligible” to hold office. See Nielsen v. Neuharth 331 N.W.2d 58, 60 (N.D.
1983) (citing Jenness v. Clark, 21 N.D. 150, 129 N.W. 357 (1910); Enge v. Cass, 28 N.D. 219, 148 N.W. 607 (1914)). The North Dakota Supreme Court in Jenness
v. Clark, explicitly held that “[a] person who is ineligible to hold a public office cannot be elected thereto and his election is a nullity.” Nielsen, 331 N.W.2d at 60
(citing Jenness, 21 N.D. 150, 129 N.W. 357 (1910)).
Eligibility to hold office or ability to “qualify for office” has been interpreted to mean the ability to satisfy the “requirement to take an oath of office and give an official
bond.” Nielsen, 331 N.W.2d at 60. See also, Enge v. Cass 331 N.W.2d 58 (“... where the word ‘eligibility ’is used in connection with an office, and there are no
explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold the office rather than the
qualification to be elected to the office.”).
Third Place Finisher
A North Dakota Supreme Court case instructive on this issue is Casselton Reporter v. The Fargo Forum. 65 N.D. 681, 261 N.W. 549 (1935).
This case considered an election of an official newspaper in which one of the candidates was found to be disqualified. Id. at 549-550. However, the disqualified
candidate won the election, and the losing candidate challenged the election results. Id. at 550. The Court reasoned that “where a majority of the voters vote for a
candidate whose disqualification is unknown, the minority candidate cannot claim to be elected upon the disqualification of the majority candidate.” Id. Ultimately,
the North Dakota Supreme Court held that while it could not declare the disqualified candidate the winner of the election due to the error, the majority vote in the
disqualified candidate’s favor was “effective to prevent the election of the newspaper receiving the minority vote,” so as to not disregard the intent of the electorate’s
preference. The Court ultimately held that not only was the election null, but also that no candidate had been chosen by virtue of the election.
Similar here, in the circumstance in which Mr. Andahl received the second most votes, the votes cast for Mr. Andahl are not wasted votes. Rather, a court should
uphold the intent of the voters who cast votes for Mr. Andahl, and hold that a vote for the disqualified or ineligible candidate must be considered as a protest against
the qualified person. Following this precedent, in this circumstance, the third-place finisher cannot win the seat by “default.”
PART II
Filling a Vacancy Caused by a Null and Void Election
The operative question becomes: what is the appropriate procedure to fill the open seat or vacancy left by the null and void election of a deceased candidate?
Section 44-01-04 of the North Dakota Century Code provides a pertinent part:
If any person elected to any state, district, county, or other political subdivision office fails to qualify and enter upon the duties of such office within the time fixed by
law, such office must be deemed vacant and must be filled by appointment as provided by law.
Statutory Procedures for District Committee To Fill Seat Are Not Applicable.
>>>Relevant to the instant (why instant??) analysis, the North Dakota Century Code provides for procedures to fill vacancies in the following circumstances:
(1) pre-election vacancy in a nomination following a primary election as contemplated in N.D.C.C. § 16.1-11-18, and
(2) vacancy of a legislative seat as contemplated in N.D.C.C. § 16.1-13-10.
< timeline graph would be very helpful here- or sooner)
Based on the analysis provided below, neither codified procedure is applicable in this unique situation.
Pre-Election Vacancy in a Nomination Following a Primary Election
Section 16.1-11-18 of the North Dakota Century Code provides for a procedure to fill a vacancy in a slate of legislative candidates after the candidates have been
nominated at the primary election, including a vacancy caused by death of a nominated candidate. This provision provides that the proper district executive
committee may fill the vacancy, and provides for several additional requirements and procedures.
However, importantly, the final sentence of Section 16.1-11-18 provides “[v]acancies to be filled according to the provisions of this section may be filled not later
than the sixty-fourth day prior to the election.” The North Dakota Supreme Court has made clear it will uphold time restrictions, such as the above quoted
restriction, as they are “a proper exercise of legislative control binding upon [the] court, as well as upon the secretary of state.” See State v. Hall, 37 N.D. 259, 163
N.W. 1055, 1059–60 (1917).
In this situation, Mr. Andahl passed away October 5, 2020, (add- only 29 days before the election – fact check # of days) which is within 64 days of the upcoming
November election. Undoubtedly, the vacancy as defined in this statute occurred within the time frame in which the “pre-election” vacancy could no longer be filled.
See N.D.C.C. § 16.1-11-18.
As such, based on the plain language of the statute, the procedure contained in Section 16.1-11-18 of the North Dakota Century Code does not govern to fill the
“vacancy” left by Mr. Andahl’s death.
Vacancy of a Legislative Seat
Section 16.1-13-10 of the North Dakota Century Code provides the procedure to fill a vacancy existing in the office of a member of the legislative assembly.
The plain language of this statute, however, makes clear that the statute contemplates that a candidate has already assumed the office of a member of the
legislative assembly, and after assuming the office, the seat becomes vacant for whatever reason (e.g., death). (“If a vacancy in the office of a member of the
legislative assembly occurs, the county auditor of the county in which the former member resides or resided shall notify the chairman of the legislative management
of the vacancy...”) (“Upon receiving notification of a vacancy, the chairman of legislative management shall notify the district committee of the political party that the
former member represented in the district in which the vacancy exists.”) (“If the former member was elected…” )
This vacancy statute does not apply in this situation where a candidate passes away before actually assuming the office. In this situation, Mr. Andahl is ineligible
and thus was never “a member of the legislative assembly” to trigger the application of N.D.C.C. § 16.1-13-10. Thus, the plain language of Section 16.1-13-10 of
the North Dakota Century Code supports that the procedure contained therein is not applicable in this situation.
Moreover, case law indicates that the vacancy statute allowing the District 8 Republican Committee to appoint someone to the seat is not triggered due to Mr.
Andahl not being a qualified elector on election day. See State ex rel. Olson v. Bakken, 329 N.W.2d 575, 581 (N.D. 1983)
Ultimately, the procedures outlined in the North Dakota Century Code described above are not applicable to fill the contemplated vacancy and there is not a method
provided by North Dakota law to fill Mr. Andahl’s open seat (add? given that he passed away during the gap in prescriptive remedies… i.e. after the 64 days prior
to the election, and before he was either elected or sworn in as member of legislative assembly.
North Dakota Constitution Article V, Section 8 is applicable and provides that the Governor must fill the vacancy.
The North Dakota Constitution provides a “gap-filler” that applies to the open seat or vacancy contemplated in this memo.
According to Art. V, § 8 of the North Dakota Constitution:
The governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by law.
< should we keep the above single sentence, and simply remove the italicized below portion, since it does not apply.. legislative appointments are like SBHE that
require a senate confirmation)
If, while the senate is recessed or adjourned, a vacancy occurs in any office that is filled by appointment with senate confirmation, the governor shall make a
temporary appointment to the office. When the senate reconvenes the governor shall make a nomination to fill the office. Except on request of the senate, no
nominee rejected by the senate may again be nominated for that office at the same session, nor may the nominee be appointed to that office during a recess or
adjournment of the senate.
As such, the Governor may fill the vacancy by appointment.
In 2002, Attorney General Wayne Stenehjem analyzed appropriate vacancy principles consistent with the analysis above when opining on the appropriate
procedure to fill a vacancy in office when there is not a clear method for filling the vacancy provided by law. 2002 N.D. Op. Atty. Gen. No. L-60.
In this opinion, the North Dakota Potato Council (the “Council”) sought to fill a seat on its council after a member’s term expired. However, no ballots were returned
after the election, rendering the seat open. The Agriculture Commissioner asked for the Attorney General to weigh in and inform the Council as to the appropriate
procedure to fill the open seat. The Attorney General analyzed the definition of vacancy as specifically outlined in the provision of the Century Code directly
applicable to the Council, and determined the circumstances present did not constitute a vacancy triggering the ability for the Council to appoint a member to fill the
vacancy.
The Attorney General determined the Century Code is silent as to a remedy when no votes are cast in the election and the incumbent’s term has expired. Because
the law did not provide a method for how to fill the vacancy, the Attorney General proceeded to analyze Article V, Section 8 of the North Dakota Constitution to
determine how to fill the vacancy.
The Attorney General ultimately opined that no method other than Article V, Section 8 of the North Dakota Constitution is provided by law to fill the vacancy;
therefore, the Governor may exercise his power of appointment to fill the vacancy created in the Council’s office.
Analysis of the Attorney General’s Recent Opinion in this Matter
PART I
The Attorney General recently opined that “the constitutional requirement [to be a qualified elector of the respective district] did not
void votes for a deceased judicial candidate, and instead prevented a disqualified candidate from taking office. To support this
proposition, the Attorney General cited to an Oklahoma Supreme Court Opinion.
The Oklahoma Constitutional provision cited in the Oklahoma Supreme Court Opinion is distinguishable from art. IV, § 5 of the North
Dakota Constitution as the language differs significantly. As discussed above, Mr. Andahl undoubtedly cannot satisfy the criteria for a
“qualified elector” on the upcoming election day, which is required under the North Dakota Constitution. A “qualified elector” is an
individual who is a citizen of the United States, eighteen years of age or older, and a resident of North Dakota. Moreover, Mr. Andahl
is not able to satisfy the “requirement to take an oath of office and give an official bond,” which has been cited as the standard for
“eligibility” to hold office provided by the North Dakota Supreme Court. See Nielsen v. Neuharth 331 N.W.2d 58, 60 (N.D. 1983).
The North Dakota Supreme Court in Jenness v. Clark, explicitly held that “[a] person who is ineligible to hold a public office cannot be
elected thereto and his election is a nullity.” Nielsen, 331 N.W.2d at 60 (citing Jenness, 21 N.D. 150, 129 N.W. 357 (1910)).
Thus, based on applicable provisions of the North Dakota Constitution as well as North Dakota Supreme Court precedent, Mr.
Andahl is ineligible to hold a public office, and therefore, cannot be elected thereto. Simply stated, since Mr. Andahl is was not
qualified elector on the day of the election, the election is a nullity.
PART II
The Attorney General also recently opined that the process set forth to fill the contemplated vacancy is set forth in N.D.C.C. § 16.1-
13-10, which provides the procedure to fill a vacancy existing in the office of a member of the legislative assembly.
The plain language of N.D.C.C. § 16.1-13-10 makes clear the statute contemplates that a candidate has already assumed the
office of a member of the legislative assembly, and after assuming the office, the seat becomes vacant. This is supported by a
plain reading of the following statutory language:
“If a vacancy in the office of a member of the legislative assembly occurs, the county auditor of the county in which the former
member resides or resided shall notify the chairman of the legislative management of the vacancy…”
“Upon receiving notification of a vacancy, the chairman of legislative management shall notify the district committee of the political
party that the former member represented in the district in which the vacancy exists.”
“If the former member was elected…”
In this situation, Mr. Andahl is ineligible and thus was never “a member of the legislative assembly” to trigger the application of
N.D.C.C. § 16.1-13-10.
Therefore, pursuant to N.D. Const. art. V, § 8, the Governor is able to exercise his Constitutional power of appointment to fill the
contemplated vacancy.
— # # # —
C O N T A C T:
Mike Nowatzki
mnowatzki@nd.gov
701.328.2424
Mark Staples
mstaples@nd.gov
701.328.2937
600 E Boulevard Ave.
Bismarck ND 58505-0001
PHONE: 701.328.2200
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Burgum Fulfills Constitutional Duty, Appoints Wade Boeshans To Unfilled District 8 House Seat

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11/4/2020 Gmail - BURGUM FULFILLS CONSTITUTIONAL DUTY, APPOINTS WADE BOESHANS TO UNFILLED DISTRICT 8 HOUSE SEAT

Rob Port <robport@gmail.com>

NEWS: FOR IMMEDIATE RELEASE

Burgum fulfills constitutional duty, appoints Wade Boeshans to unfilled District 8

VIEW THIS RELEASE ONLINE: governor.ND.gov

Third Place Finisher

Filling a Vacancy Caused by a Null and Void Election

(2) vacancy of a legislative seat as contemplated in N.D.C.C. § 16.1-13-10.

< timeline graph would be very helpful here- or sooner)

Pre-Election Vacancy in a Nomination Following a Primary Election

Vacancy of a Legislative Seat

According to Art. V, § 8 of the North Dakota Constitution:

As such, the Governor may fill the vacancy by appointment.

Analysis of the Attorney General’s Recent Opinion in this Matter

“If the former member was elected…”

600 E Boulevard Ave.

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