Port: ND needs to blow up initiated measure process

Something happened on Tuesday which ought to give North Dakotans pause, and I'm not talking about the election of a tangerine-tinted reality television star to the White House.

Something happened on Tuesday which ought to give North Dakotans pause, and I’m not talking about the election of a tangerine-tinted reality television star to the White House.

Voters, after having been inundated with a heavy-handed marketing campaign that was long on slick production value and short on facts and nuance, cast their ballots overwhelmingly Nov. 8 for Marsy’s Law.

Or “constitutional rights for victims,” as the measure campaign’s vapid slogans put it.

Because the measure passed, North Dakotans can now be less certain of just outcomes in the criminal justice system. It’s an absolute travesty.

The whole production was the pet project of California billionaire Henry Nicholas who spent multiple millions of dollars on it.


He paid the signature collectors. He financed the commercials. On Oct. 28, just roughly a week before election day, he dropped another $320,000 into the effort, according to a disclosure filed with the Secretary of State’s office, to pay for advertising that was inescapable for North Dakotans in the final days of the election.

And it worked. On election day the constitutional measure got over 206,000 votes, good for 62 percent.

The measure’s supporters will tell us it’s just the will of the people, which is true as far as that goes. But we should be concerned that a flood of money from one individual - not a single North Dakotan contributed money to the Marsy’s Law campaign according to disclosures - drowned out the united voices of North Dakota’s legal community.

The North Dakota Victim’s Assistance Association, CAWS North Dakota, the North Dakota Women’s Network, the North Dakota Association of Criminal Defense Lawyers, the North Dakota State’s Attorneys’ Association, the ND Association for Justice, the First Nations Womens Alliance, and the North Dakota Fraternal Order of Police all oppose it.

“The North Dakota Constitution should not be a hobby farm for an eccentric California billionaire,” state Supreme Court Justice Dale Sandstrom told me about the measure back in October.

“Even for $2½ million dollars he should not be able to get the name of his deceased sister Marsy in the North Dakota Constitution, but under the measure he would,” he continued. “And I’m concerned that a lot of scarce legal resources will be consumed trying to figure out what the measure means and perhaps having to defend it in federal court.”

The people who actually work in and with North Dakota’s criminal justice system - from prosecutors to defense attorneys to judges to victim advocates - opposed Marsy’s Law because they view it as bad public policy.

But they didn’t have a billionaire sugar daddy to help amplify their voices with television ads and a blizzard of mailers. So they got drowned out. Which is why North Dakota’s initiated measure process has to change.


Because this isn’t the first time powerful, deep-pocketed interests have tried to buy their way into our state constitution. During the 2014 cycle a coalition of conservation groups tried to create their own constitutional. I’m talking about that cycle’s Measure 5 which was successfully defeated, but only after the millions spent by groups like Ducks Unlimited was countered by millions from the North Dakota Chamber of Commerce and other groups. Unfortunately, the Marsy’s Law opponents weren’t so lucky. This is not how good public policy is made. Our laws, our constitution, should not be beholden to the whims of campaign politics. Lawmakers need to take a long, hard look at the initiated measure process. If it were up to me I’d get rid of every aspect of it outside of referendums. Giving voters an opportunity to refer questionable legislation to the ballot box makes sense. What doesn’t make sense is creating new policy at the ballot box, outside of the scrutiny of the exacting and arduous legislative process.

Port, founder of, a North Dakota political blog, is a Forum Communications commentator.


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