Jaeger says he can’t block nickname measureSecretary of State Al Jaeger has told the North Dakota Supreme Court that he “lacks the authority” to block a referred measure concerning the University of North Dakota’s Fighting Sioux nickname on the June primary election ballot.
By: BY CHUCK HAGA, FORUM COMMUNICATIONS CO. , The Jamestown Sun
Secretary of State Al Jaeger has told the North Dakota Supreme Court that he “lacks the authority” to block a referred measure concerning the University of North Dakota’s Fighting Sioux nickname on the June primary election ballot.
Assuming that the petitions hold a sufficient number of valid signatures, Jaeger said in a brief filed Tuesday, “If the Secretary of State is to be restrained from placing the measure on the ballot, that direction must come from the court.”
That essentially is what Attorney General Wayne Stenehjem, acting at the request of the State Board of Higher Education, has asked the court to do.
Stenehjem went to the Supreme Court on Feb. 17 seeking to have the Fighting Sioux nickname law declared unconstitutional. He also asked the court to enjoin Jaeger from putting the referred measure on the primary ballot, as there would be no point in restoring an unconstitutional law.
The nickname law, requiring UND to keep the Fighting Sioux nickname and logo, was adopted last spring but repealed during the Legislature’s November special session. Nickname supporters then circulated petitions to force a statewide vote on the repeal, and they presented well more than the required number of signatures to Jaeger by the March 7 deadline.
The filing of petitions had the effect of suspending the repeal and reinstating the nickname mandate, which in turn brought UND again under sanctions by the NCAA.
Jaeger has declared that the petitions appear to have a sufficient number of signatures to make the June ballot, but he said today that his office continues to validate signatures. By law, he has 35 days from the filing date — in this case, until March 13 — to certify the petitions, and no decision will be made until that date.
In Jaeger’s brief, attorneys Sarah Andrews Herman and Matthew Kipp note that he “is not required nor permitted to determine whether the proposed measure is constitutional in substance,” nor is he required “to hazard an opinion as to whether, if adopted, it would be subject to constitutional objections.”
They argue that, as the Constitution, state law and previous court opinions make clear, the secretary of state’s “neutral role is limited to passing only on the form and sufficiency of the petitions. It is beyond the secretary of state’s authority to determine whether a particular measure is constitutional.”
Grant Shaft, president of the State Board of Higher Education, said after conferring Tuesday with Stenehjem that Jaeger’s brief apparently seeks to clarify his authority. If the court finds the nickname law unconstitutional and wants the referral kept off the ballot, the court must direct him to take that action.
“The board, the attorney general — none of the parties have the authority to take something off the ballot unless the court directs,” Shaft said.
But Sean Johnson, of Bismarck, a spokesman for the pro-nickname petitioners, said the board’s agenda continues to be “to refuse the people their rightful vote.”
The board made use of the legislative process to fight the nickname law, by backing the November repeal, Johnson noted.
“Along the way, they missed many opportunities to conduct a constitutional challenge to the law. Yet, when the people exercised their right to redress grievance via petition over the legislative decision… all of a sudden it becomes a constitutional issue.”
Shaft and others have said the board held off on challenging the nickname law to give state leaders time to present it as evidence of strong statewide backing for the name and logo when they met with NCAA leaders in August.
The result of that meeting, however, was a consensus among state leaders that the NCAA’s position was firm, the nickname should be retired to protect UND and its athletics program and the law would have to be repealed in the scheduled special session.
Chuck Haga is a reporter at the Grand Forks Herald, which is owned by Forum Communications Co.