The issue of who gets to serve in a District 8 House seat is before the North Dakota Supreme Court.
One of the two Republican candidates, David Andahl, died in October, from COVID-19. His name could not be taken off the ballot. He collected enough votes, however, to be elected.
Acting on the opinion of Attorney General Wayne Stenehjem, the district’s Republican Party Executive Committee picked Rep. Jeff Delzer to fill the seat. Delzer lost his re-election bid in the primary. Meanwhile, Gov. Doug Burgum, whose political action committee spent money to defeat Delzer, says the Constitution gives him the power to appoint, because Andahl wasn’t seated. And the Democrats say the seat should go to Kathrin Volochecnko, who finished third in the general election.
Attorney Robert Pathroff – representing Burgum – told the Court the law District 8 Republicans used to appoint Delzer refers to someone already in office – and that means the Governor has the authority under the Constitution to make that appointment.
"The Court only needs to answer onse simple question," Pathroff said. "Has the Legislature enacted a law that provides a method to fill a vacancy in an office, resultging from the pre-election death of a winning Legislative candidate? The answer to that question is 'no.'"
Stenehjem argued the Constitution gives the Legislature the ultimate authority over determining its members.
"My point is that it's hard to imagine a more egregious incursion into the perogatives of the Legislative body," Stenehjem said.
Attorney David Thompson – representing Volochenko – argued because Andahl was not eligible to serve, his votes should be thrown out.
"Our position is this -- there is no vacancy," Thompson argued. "Kathrin Volochenko was the second-highest vote getter of the qualified candidates."
The High Court has taken the case under advisement.