BISMARCK — In an online hearing Thursday afternoon, Aug. 20., the North Dakota Supreme Court heard arguments in the dispute over a controversial election reform measure slated to appear on November's ballot.
When Measure 3 was approved for the general election ballot by Secretary of State Al Jaeger earlier this month, it drew a legal challenge almost immediately. In a last-ditch attempt to bar the measure from appearing before voters, the conservative group Brighter Future Alliance argued Fargo-based North Dakota Voters First used illegal tactics during their petitioning process.
While Brighter Future Alliance's suit is directed at Jaeger, emails in the group's case filings revealed a similar bias against the measure by the secretary of state. In one message to an oil industry lawyer, Jaeger said he was "very much opposed" to the Measure 3 petition and that he was "in a tough spot to speak out" about it because of his role as the umpire of November's election.
If Measure 3 passes in November, it would bring sweeping changes to North Dakota election laws, taking redistricting out of the hands of lawmakers, putting all candidates — regardless of party — onto a single ballot and making North Dakota one of only two states in the country to use statewide ranked-choice voting.
During the hearing, justices probed nuances of the Dyer case to establish whether its century-old precedent could apply to the present situation.
Brighter Future Alliance's attorney David Asp argued that Dyer established a "clear rule" that "people have a right to see the language that they're going to put into the constitution," otherwise they "don't know what they're agreeing to put on the constitution or agreeing to vote for."
Lawyers from the attorney general's office representing Jaeger argued the secretary of state correctly carried out a "ministerial duty" by approving the measure after it reached the signature cut-off during the petitioning process.
NDVF attorney Tim Purdon acknowledged "quite a political backlash" among many North Dakotans, and he argued the objections to the petitioning tactics are a sideshow to the legal argument over the measure's inclusion on the November ballot.
In their filing to the state Supreme Court, Brighter Future Alliance included examples of complaints emailed to the Secretary of State's Office alerting Jaeger of NDVF's petitioning tactics. Primarily, Brighter Future Alliance and critics of Measure 3 say petitioners obscured significant parts of the proposed amendment while advertising a less substantial provision that would extend the voting time frame for overseas military members.
Brighter Future Alliance's suit was filed alongside three active or former military personnel — Jacob Stutzman, Trent Barkus and Michael Haugen, formerly the Adjutant General of the North Dakota National Guard — who say they signed the petition for its overseas military provision and later regretted it.
While Brighter Future Alliance's suit is directed at Jaeger, emails in the group's case filings revealed a similar bias against the measure by the secretary of state. In one message to an oil industry lawyer, Jaeger said he was "very much opposed" to the Measure 3 petition and he was "in a tough spot" to speak against it because of his role as the umpire of November's election.
"They're asking you to take a big a step here, taking away the vote on Measure 3 after over 30,000 folks have signed this petition," Purdon said in a closing statement to the court, calling his opponents' reliance on a century-old case "very thin gruel" and asking the court to leave the final verdict on the measure up to North Dakota voters.
"Let the people vote," he said.
Four of the five North Dakota Supreme Court justices were present for the digital hearing. Gerald VandeWalle, the court's oldest justice, is expected to be released from a Bismarck hospital this week after a battle with COVID-19. The court noted VandeWalle will review Thursday's hearing and take part in the decision.
The court did not provide an estimated timeline for its decision, but Jaeger has said his office intends to produce drafts of the November ballot by Aug. 31.
Readers can reach Forum reporter Adam Willis, a Report for America corps member, at firstname.lastname@example.org.