BISMARCK, N.D. (CN) — North Dakota Governor Doug Burgum does not have the authority to fill a state House seat won by deceased Republican candidate David Andahl, the North Dakota Supreme Court ruled unanimously Tuesday.
Burgum sought authority in a suit against North Dakota Secretary of State Alvin Jaeger to fill the seat Andahl won even though he died of Covid-19 complications 29 days before the election.
The justices ruled a governor’s constitutional gap-filing authority does not exist when there is already a legal remedy in place to fill the seat, and that votes for an ineligible — in this case, deceased — candidate should be counted as protest against eligible candidates.
The authority to fill the seat passes to Republicans of the Eighth District. The seat is not even technically vacant until Dec. 1, when the legislative term expires.
“We declare a vacancy in office will exist on Dec. 1, 2020, and the governor does not have statutory or constitutional authority to make an appointment to fill the vacancy in this case,” Justice Daniel J. Crothers wrote for the unanimous court.
Andahl was on the ballot and early voting had already begun when the 55-year-old candidate died on Oct. 5.
Since the Eighth District has two seats, Republican Dave Nehring — who won 40.7% of the total vote — gets one of them. Andahl nabbed 35.5% of the vote, entitling him to the second seat.
Candidate Kathrin Volochenko, a Democrat who came in third with 11.4% of the vote, sued Jaeger to contest the election results. She said the votes for Andahl should not count and that she should be declared the second-place finisher entitled to the other House seat.
But the state’s high court disagreed, holding that “under established law, votes cast for an ineligible candidate are counted and ‘considered as a protest against the qualified person.’”
After Burgum expressed interest in appointing BNI Energy president Wade Boeshans to the seat in early November, North Dakota Attorney General Wayne Stenehjem waded into the fray as well.
“The Constitution provides that the Legislative branch, not the Executive branch, has the authority to fill a vacancy in the legislative assembly,” Stenehjem said.
Before he died, Andahl defeated incumbent Jeff Delzer in the primary after receiving endorsements from Burgum and U.S. Senator Kevin Cramer.
Republican legislators in the state also found themselves at odds with Burgum, claiming they had the authority to appoint someone to fill the seat before the Supreme Court issued its ruling. Republicans have cast their lot to appoint Delzer back to the position, a move which is stoking Republican infighting given Burgum’s opposition to the incumbent.
In a statement, Burgum's office said, "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."
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