Not so long ago in a courthouse in another corner of the state, I sat through a murder trial, the first of my career in the news biz. I listened to all the evidence. I interviewed the attorneys.
But when the jury foreman announced the verdict, I was gobsmacked.
“Not guilty,” he said.
What happened? I asked the prosecuting attorney.
In response, he gave me a piece of advice that I haven’t forgotten. “Never second-guess a jury,” he said.
His wisdom resonated last week, but this time the decisive opinion came not from a jury of peers, but from the North Dakota Supreme Court. There are some differences in circumstances, of course, but the result is the same. The case is closed.
After a not guilty verdict, the accused goes free and cannot be tried again for the same crime. Similarly, there’s no appeal of a state Supreme Court decision unless the issues involved meet standards for the federal courts.
The “defendant” in the North Dakota Supreme Court last week was a killer of a different kind. The case involved Measure 3, an initiated constitutional amendment that would have changed fundamentally the way that legislative districts are drawn in North Dakota and the way that candidates are chosen. It would have made the Ethics Commission — created by an earlier initiated measure — responsible for drawing legislative district lines. It would also have established preference voting statewide, so each voter could rank candidates. Among still other reforms, the measure would have created open primaries, in which party affiliation would be minimized.
The political establishment felt threatened by all of this.
A month ago in this space, I said that the measure was an overreach. It was that, of course, but that’s not what destroyed the measure at the Supreme Court. Nor was the method of gathering signatures, which drew criticism (though few official complaints). Instead, Measure 3 foundered on an obscure precedent from 1924, which held that the text of any statute affected by an initiated measure must be available to signers. That ruling was overlooked at half a dozen recent cases, not because the court didn’t rule but because no one raised the issue.
This time ‘round, political interests were eager to raise the issue. Republicans saw the measure as a threat to Republican hegemony in the state, and they acted. The challenge to the measure was coordinated by Odney Advertising of Bismarck, as much a Republican strategic weapon as it is an advertising agency and think tank. About 100 Republican office holders signed on to an “amicus brief” to support the attack on the measure.;
Two Republicans (not counting those on the sponsoring committee) were left marooned, Secretary of State Al Jaeger, who approved the ballot-worthiness of the petitions, and Attorney General Wayne Stenehjem, who mounted a defense of Jaeger’s decision (and may have molded it).
The Supreme Court’s decision was nevertheless unanimous. All five justices agreed that the measure couldn’t be on the ballot despite the number of signatures that were collected.
The method of collecting signatures had been challenged on political blogs, though few complaints were filed. These involved the possibility that potential signers might have been misled by the first clause of the proposed amendment, which established a streamlined way of voting for military personnel stationed outside the state. Nobody actually objected to the change, but opponents of the measure argued that the provision overshadowed other pieces of the initiative. Cynically, they called on military enlistees as petitioners in their suit just as proponents of the measure had in collecting signatures
The upshot is that the Supreme Court found adequate legal grounds to rule that the petitions were invalid, despite the 35,000 signatures that petitioners had gathered. Their ruling effectively ends election reform perhaps for as much — or more — than a decade.
And that goes to show: Never second-guess a jury — nor a panel of judges.
It’s OK to second-guess petition signers, though, and a constitutional amendment cooked up by Republican legislators would do that, requiring that any constitutional amendment would have to be approved by lawmakers before it took effect. Voters would get a second chance to approve the amendment over the Legislature’s veto, but that would extend the process from a single year to as many as four or even six years.
That idea is on the ballot in November, as Measure 2.
In the meantime, election reform is effectively dead in North Dakota. Legislative districts will be redrawn, by legislators, after the 2021 session, and that map will last through the 2030 census.
Wrong again: For a brief period, late in the last century, the agriculture commissioner served on the North Dakota Emergency Commission. Sarah Vogel was ag commissioner during this time and thus a member of the commission. Vogel is unquestionably a woman and a Democrat, which makes me unquestionably wrong in last week’s column.
Mike Jacobs is a former editor and publisher of the Grand Forks Herald.