GRAND FORKS — Although the 2020 election didn’t generate much heat in North Dakota, it did produce some peculiarities that have the potential for political theater and constitutional change — an odd combination for any election, and especially so for one in which the stakes were apparently low.
A dead man won a legislative seat. This may have historical importance in a couple of ways, but it is the theater that has attracted attention. History first, shall we? This result could bring back a powerful legislator who was defeated in the primary, Rep. Jeff Delzer, long the chairman of the House Appropriations Committee.
Gov. Doug Burgum has appointed someone to fill the dead man’s seat; the attorney general has objected, saying the law provides a way to fill a legislative vacancy. There’s precedent for the House of Representatives itself to decide. In the longer term, the resolution of the issue could more clearly establish roles of branches of the government, which turn out to be surprisingly hazy in contests of this type. As far as history is concerned, the important question probably is about separation of powers.
The political theater arises from the perceived conflict between Burgum and Attorney General Wayne Stenehjem. No love is lost between these two, who were opponents in the 2016 primary election. Beyond that clash of prominent figures is the resentment brewing among legislators against Burgum’s interference in legislative affairs as well as elections.
Burgum is rich, and he’s chosen to spend quite a lot of money in legislative races, hoping to strengthen his own program against the stubborn resistance of legislators, among whom Delzer has been prominent. Burgum didn’t limit his spending. He also invested to defeat a proposed constitutional amendment that would have nearly doubled the size of the state Board of Higher Education that legislators put forward after defeating Burgum’s own reform of higher education governance, which would have created three separate boards. The amendment, Measure 1 on the ballot, was drubbed. More than 70% of voters opposed it.
Burgum probably could have saved his money. Recent trends show that legislators have had poor luck with constitutional amendments that they present to voters. A second amendment advanced by lawmakers in this year’s election dealt with how amendments themselves should be handled. More than 60% of voters opposed it.
Compared with these legislative failures, initiated amendments have had success in recent elections. This has prompted discussion of reform of the process.
Bismarck Tribune columnist Ellie Shockley on Nov. 5 suggested an approach addressing objections that legislators have expressed toward initiated amendments funded heavily from outside the state, a tactic adopted by both conservatives and progressives in the recent past. She pointed out that gathering signatures is the expensive part of the petition process and suggested that the state should adopt a “modernized, electronic approach to gathering signatures.” Her argument is succinct: “Electronic signatures are friendly to genuine grassroots efforts, and they also obliterate the need for paid signature gatherers.” It’s not immediately clear how electronic signatures would work, but given the advanced communications technology that’s available today, with its built-in security measures, there ought to be a way.
State Sen. Ray Holmberg of Grand Forks, a Republican, has suggested another approach that would address the lack of discipline among legislators when it comes to proposing constitutional amendments. He has asked the state’s Legislative Council to draft an amendment that would require a supermajority of 60% of legislators to put an amendment on the ballot. He’d also require all amendments to be decided at a general election in November, when turnout is higher than in the June primary election. Plus, he’d require a 60% majority of votes cast for the amendment to be adopted.
In the last four elections, beginning in 2014, legislators have approved eight amendments, five of which were rejected by voters. None of the five had reached the 60% threshold that Holmberg would impose. Holmberg is a numbers nerd (he chairs the Senate Appropriations Committee) and he pointed out that the five measures in question collectively drew 472,000 in favor and 922,000 opposed, a 66% rejection rate.
The record is a little better if the 2012 vote is added, thus rounding out a decade’s worth of elections. There were six constitutional amendments on ballots that year alone, three each from lawmakers and petitioners. Four of them passed, and again the split was equal. Two initiated amendments passed, and so did two legislative amendments.
One of the legislative amendments passed established the procedure to fill a legislative vacancy, which is exactly the question at issue in a hearing before the state Supreme Court this week.
That’s another peculiarity about this year’s elections. The Supreme Court has been unusually active in election matters. Justices heard several cases involving elections, and with another high-profile case on the docket, they’re asked to decide the fate of the seat won by a dead man.
Mike Jacobs is a former editor and publisher of the Grand Forks Herald.