Court: North Dakota governor can't fill dead candidate seat

David Andahl won election for a North Dakota legislature seat despite dying from COVID-19 in October. (David Andahl/Facebook)

North Dakota Gov. Doug Burgum does not have the authority to appoint someone to a state House seat won by a Republican candidate who died before the election, the North Dakota Supreme Court concluded Tuesday.

The court, in a unanimous ruling, decided that Burgum “has not established a clear legal right” to appoint his preferred candidate.

Tuesday’s decision came just days after the court heard attorneys’ oral arguments in the case brought by the Republican governor.

Burgum said in a statement that he disagreed with the opinion.

“(But) we respect the Court’s opinion and will continue to do our best every day to serve the citizens of North Dakota,” the statement said.

Burgum had argued the Constitution gave him the right to appoint someone to a state House seat won Nov. 3 by David Andahl even though he died Oct. 5 from coronavirus complications. The House district represents a sprawling rural area north of Bismarck.

Burgum spent heavily to help defeat the last holder of the seat, fellow Republican Jeff Delzer, over Delzer’s opposition to him on budgeting matters.

Delzer, who has spent nearly 30 years in the Legislature, had not commented on the case earlier but broke his silence Tuesday. He declined to talk about the governor’s efforts to unseat him.

“I feel sorry for the Andahl family for having to go through all this,” Delzer said. “It’s a shame he passed away and could not fill the seat. I am honored to be chosen to fill the seat and will do the best I can for the district and the state of North Dakota.”

A day after the election, Burgum appointed Washburn coal executive Wade Boeshans to the seat. Burgum sued the Legislature, secretary of state, and Democratic and Republican activists to bring the issue to the high court.

Legislators argue that they, not Burgum, have the power to fill the seat. And this week, they chose Delzer, a farmer with a reputation for tight-fisted budgeting.

North Dakota Attorney General Wayne Stenehjem told justices Friday in oral arguments that Burgum’s appointment was executive branch overreach and violated separation of powers. A governor may not “impose a legislator on a district they neither asked for or was involved with,” Stenehjem argued.

“This is exactly what I’ve said all along,” Stenehjem said of the high court’s ruling. “This entire exercise was a waste of taxpayer dollars and time, all of which could have been avoided had the Governor came across the hall to receive legal advice from the person who was elected by the citizens of North Dakota to provide legal advice to state officials.”

Burgum gave more than $3.1 million to a political action committee that targeted Delzer. Backed by Burgum’s campaign cash, Andahl and Dave Nehring won the Republicans’ endorsements and voters’ nominations in the June primary.

Democrats also argued that Burgum had no authority to fill the seat. They said Democrat Kathrin Volochenko should be the district’s next representative because she got the next-highest number of votes.

The Supreme Court dismissed that argument.