North Dakota Gov. Doug Burgum filed a lawsuit on Thursday to allow him to appoint a successor for a state House seat representing the Bismarck area.
In a four-person race to claim two North Dakota House seats, Republican David Andahl received 35% of the vote, the second-greatest share of the vote. Fellow Republican Dave Nehring received 40% of the vote, and Democratic candidate Kathrin Volochenko received just 11%.
The problem is that Andahl died from COVID-19 on Oct. 5, just a month before the election. His death and subsequent victory have created a legal quagmire in the process of selecting a successor. North Dakota Attorney General Wayne Stenehjem wrote an opinion that justified treating Andahl’s win like a sitting legislator deciding to step down or retire — giving the responsibility of filling the new seat to the district’s Republican Party.
Burgum’s lawsuit seeks to declare Andahl’s election null and void on the grounds that he was not an eligible candidate at the time of the election. Such a ruling would preclude the possibility of Volochenko’s third-place standing from sending a Democrat to the state legislature and would allow the governor to execute his “constitutional right” to appoint a new state representative.
Burgum has already named who he wants to be Andahl’s successor — Washburn coal executive Wade Boeshans. In making his appointment, Burgum cited a constitutional provision stating that “the governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by the law.”
Stenehjem criticized the appointment, saying that it was “inaccurate and untimely” because the election vote has yet to be certified.
The State Canvassing Board will meet Friday to certify the results of the election. Burgum has asked the court to hear oral arguments immediately. Were the court to deem Andahl an ineligible candidate ahead of the board’s certification of the results, Burgum’s case for appointing a seat himself instead of the local Republican Party would be strengthened.
“Immediate injunctive relief is necessary to prevent the Secretary of State’s issuance of a certificate of election to a deceased, and therefore ineligible, candidate for the state legislature,” the lawsuit says.
District party leaders told the Bismarck Tribune that they are deciding their next steps “but are still planning to proceed with a meeting later this month to make an appointment to the House seat.”
“There may be two people Dec. 1 sitting in the seat. I don’t know. We’ll see,” District 8 Republican Chairman Loren DeWitz said.
