BISMARCK, N.D. (AP) — North Dakota’s Constitution gives Gov. Doug Burgum the right to appoint someone to a state House seat won by a Republican candidate who died before the election, his lawyer argued Friday as the state Supreme Court waded into what attorneys called an unprecedented case.
There also is not an applicable law that allows the Legislature to fill the seat, said Robert Pathroff, a Bismarck attorney representing the Republican governor.
Lawyers argued during the livestreamed hearing about who has the authority to fill the District 8 seat that was won Nov. 3 by David Andahl even though he died Oct. 5 from coronavirus complications. The House district represents a sprawling rural area north of Bismarck.
A day after the election, Burgum appointed Washburn coal executive Wade Boeshans to the seat. Burgum sued the Legislature, secretary of state, and Democratic and Republican activists to bring the issue to the high court.
North Dakota Attorney General Wayne Stenehjem told justices that Burgum’s appointment was executive branch overreach and violated separation of powers. A governor may not “impose a legislator on a district they neither asked for or was involved with,” Stenehjem argued.
On Wednesday, Rep. Jeff Delzer was named by Republican district activists to succeed Andahl. Delzer is a bachelor farmer with a reputation for tight-fisted budgeting. He had served in the Legislature for parts of four decades, but clashed with Burgum over policy and spending priorities throughout the governor’s first term.
Burgum gave more than $3.1 million to a political action committee that largely targeted Delzer.
Backed by Burgum’s campaign cash, Andahl and Dave Nehring won the Republicans’ endorsements and voters’ nominations in the June primary. GOP activists in the district endorsed Delzer 17-1, with Nehring, a member of the party's executive committee, casting the dissenting vote.
Democrats also agree that Burgum has no authority to fill the seat. Attorney David Thomson told justices that the Democratic candidate in the race, Kathrin Volochenko, should be the district's next representative because she got the next-highest number of votes — even if she was beat by a 3-to-1 margin by the Republican candidates.
The attorney general and Pathroff both dismissed that argument. There's no time frame for a ruling by the court.
Pathroff also denied that the governor’s appointment would disenfranchise the district’s voters, citing their rejection of Delzer in the June primary.
“Voters of District 8 expressly communicated their protest to the nomination of the very individual District 8 has now deemed to appoint to the Legislature,” Pathroff said.
The high court will rule on the case later. North Dakota legislators take office on Dec. 1.