Who’s REALLY At Fault For The Failures Of Measure 3?

Labor Day. Ah, September. The “Dog Days of August” are behind us.

Except that, this year, the dogs never showed up.

August used to be the month the politicians took time off to take the kids (and the dog) to the lake, while preparing for a campaign to begin after Labor Day.

Not this year.

In August of 2020, the North Dakota Republican Party reared its ugly head, throats roaring, fangs flashing, nostrils flaring, teeth gnashing, flames shooting from its eyes, hands full of pistols with both barrels blazing, all in a successful effort to send North Dakota Democrats so far back on the back bench that they’re not even participants in North Dakota’s government process any more.

I haven’t seen such anger, and unanimity, displayed by a political party since Barack Obama got elected and Donald Trump declared he was a Muslim born in Kenya and millions of Republicans got in line to march in his parade.

In August in North Dakota, politics dominated the news, unlike any other August I can recall.

As a result, the November ballot will be devoid of an effort called, for only a short time, Measure 3, and of a Democratic-NPL candidate for Insurance Commissioner, because of three lawsuits brought to the North Dakota Supreme Court by the Republican Party. More about the Supreme Court tomorrow, or another day. Today I just need to discuss one more time the angst I still feel over what happened to Measure 3, the Election Reform measure signed by 36,000 North Dakotans who only wanted to bring good government to their state.

With the ink hardly dry on those 36,000 signatures, more than two thirds of the state’s 116 Republican Legislators and all but three of the party’s 16 elected statewide officeholders–a total of 94 elected Republicans—took the sponsors of Initiated Measure 3 to the woodshed, and five Supreme Court Justices, four of them appointed to the bench by Republican Governors, gave them the harshest public spanking ever displayed in the marble halls of North Dakota’s Capitol.

There will be only two measures to be voted on in November. Measure 3 is no more. It’s too bad, because there were some really good things to be voted on in that measure, and I think North Dakotans might have approved them.

The measure was ostensibly about election reform. When I first heard about it, I thought to myself, “Oh, good, they’re going to take Legislative reapportionment away from the Legislature and give it to an independent committee. It’s about time.”

Frankly, the North Dakota Republican Party deserved to have it taken away from them. The gerrymandering that has gone on here for 20 years to benefit Republicans and disenfranchise Democrats is outrageous.

The North Dakota Democrats have lost a lot of elections because of sheer incompetence lately, but their failure in Legislative races is due in large part because Republicans have carved out districts designed to keep Democrats at bay and elect Republicans. It’s time to put an end to that.

But the initiated measure morphed into half a dozen other things, some of which should probably have been considered separately, and some of which should probably have never seen the light of day. The measure’s sponsors had an uphill battle. They had to convince voters to take away the power of Republicans to do as they see fit with apportioning Legislative seats, in a state that generally votes for Republicans. So the sponsors threw in a few things in an effort to make it more palatable. One was a section (Section 1, right at the top of the measure) to ostensibly make it a little easier for overseas service members to vote. When I saw that, I said “Brilliant! That’ll get some votes.”

But it kind of fell into the category of “cute,” and, ironically, it was that addition that got the measure thrown off the ballot by the North Dakota Supreme Court.

Section 1 required that, sixty days before an election (instead of the current 45), “the secretary of state shall transmit ballots and balloting materials to all covered voters who submit a valid military-overseas ballot application,” and it goes on to state that this requirement “shall apply for all elections covered in N.D.C.C. section 16.1-07-19.”

But the sponsors did not include the actual language of section 16.1-07-19, which lists the following elections:

1. A general, special, or primary election for federal office.

2. A general, special, or primary election for statewide or state legislative office or state ballot measure.

3. A general, special, or primary election for political subdivision office or political subdivision ballot measure.

Unfortunately for the Measure 3 Sponsors, the North Dakota Constitution says they need to list “the full text of the measure.” So the North Dakota Supreme Court, invoking a similar case from 96 years ago, in 1924, ruled that because Measure 3 only listed the section number, but did not include the “full text” of that section—the list of elections referred to in 16.1-07-19—the measure therefore did not meet the requirements of the North Dakota Constitution, and could not be on the ballot.

The Supreme Court did not just stumble into the case. It was sharp-eyed opponents of Measure 3 who spotted that problem, and brought it to their attention through a lawsuit. Let me walk you through the scenario that played out in early August.

As the deadline for placing the Measure in the petitions containing the signatures of 36,000 North Dakotans on the November ballot approached, advertising guru Pat Finken, a pretty sharp-eyed fellow himself (Forum columnist Mike McFeely calls him the “Republican uber-operative”), who chaired the Brighter Future Alliance, the group ostensibly leading the opposition to the measure, called Secretary of State Al Jaeger and asked for a meeting.

On Friday, August 7, they met. Finken and his lawyers pointed out the flaw in the measure, and then brought up that obscure 1924 Supreme Court decision, Dyer v. Hall, in which the court ruled that the Secretary of State could refuse to accept an initiated measure amending the North Dakota Constitution because ‘it incorporated certain laws as part of the measure but did not set forth the text of the laws.”  

Which is exactly what Measure 3 did in this year.

Finken requested that Jaeger refuse to accept the petitions. Jaeger, taken aback, said he would consult his own lawyer. He called North Dakota Attorney General Wayne Stenehjem. The two met and talked it over.

I don’t know exactly how their conversation went, but, unlike 1924, when Secretary of State Thomas Hall turned the petitioners away, Stenehjem, I am told, said Jaeger should put the measure on the ballot. He thought they could get it past the Supreme court.

Jaeger told me later that he knew he was going to end up in court no matter what. If he turned the petitioners away, he was going to get sued by the sponsors of Measure 3. If he accepted them, he was going to get sued by the Brighter Future Alliance—Finken had delivered that message the previous week.

Jaeger didn’t tell me the details of his discussion with Stenehjem. He didn’t say that they didn’t want to disenfranchise the 36,000 North Dakotans who had signed the petition. He didn’t tell me that they would rather let the Supreme Court Justices be the “bad guys” who kept the measure off the ballot instead of him, and of course Stenehjem, who would have to defend him in front of the Supreme Court. But surely those two things came up.

What he also didn’t tell me is that they had precedent for letting it go on the ballot. Four years ago they accepted petitions from the sponsors of Marsy’s Law with exactly the same situation. The Marsy’s Law petition escaped Jaeger’s (and Stenehjem’s) scrutiny, and no one challenged it. The measure called for an amendment to the North Dakota Constitution, just like Measure 3 this year, part of which reads:

“Nothing in this section shall abrogate a defendant’s sixth amendment rights under the Constitution of the United States nor diminish the state’s disclosure obligations to a defendant.”

They referred to the Sixth Amendment of the U.S.Constitution, but did not put the full text of the Sixth Amendment in their petition.

The measure passed and the language is part of the North Dakota Constitution today. Because Jaeger overlooked it when the petitions came in, and no one called it to his attention. If someone had brought suit against Jaeger for that in 2016, and taken it to this Supreme Court, it seems obvious that they would have ruled against the petitions, based on Dyer v. Hall, just like they did this year. But no one challenged it.

So they got to court, and Tim Purdon, attorney for the Measure 3 committee, pointed out to the Court that the Marsy’s law petition was just the latest in a long list—he cited six measures dating back to 2002—of measures that referenced sections of the Century Code or the Constitution, but did not include the text of those sections. A number of those passed and became law, or a part of the Constitution. Because of that, he said, this measure should go on the ballot as well. I’ve listed them in the footnote at the end of this column. 

No matter, the court said. No one brought those petitions to us to rule on. The only precedent we have is the 1924 case. In other words, Pat Finken was not around to challenge the petitions and ask the Court to keep them of the ballot. So, North Dakotans got to vote on them, all these years, in clear violation of the Constitution.

Here’s the irony in that: One of the key players in the campaign for Marsy’s Law in 2016 was none other than Pat Finken, whose company, Odney Advertising, helped manage the Marsy’s Law campaign and received more than $100,000 for their services.

And some more irony: Finken and Stenehjem are pretty good friends. Finken managed Stenehjem’s unsuccessful campaign for Governor against Doug Burgum in 2016. But they ended up on different sides this August. Although I wonder. Jaeger said publicly he opposed Measure 3, and he’s glad it is not on the ballot. I’m guessing Stenehjem felt the same way, but he had his job to do.

Almost every other elected Republican in the state was against Measure 3. Only Stenehjem and Jaeger did not sign the Amicus Brief, because they were, ostensibly, parties to the lawsuit. Oh, yeah, and Public Service Commissioner Brian Kroshus, who told me later he just didn’t have time to read the brief and didn’t feel comfortable signing on unless he had read it. (Aside—Brian’s got a little ranch out in the Bad Lands where he spends a lot of time with his family in the summer. He’s got his priorities right.) 

It took a massive effort to get 94 Republicans to sign on to the Amicus Brief. It didn’t happen overnight. But it did happen pretty much in secret, which is even more amazing. Somehow, word never got out that there was going to be a lawsuit challenging the petitions. Here’s the sequence of events.

Between July 6, when the Measure 3 sponsors filed their petitions with Jaeger, and August 11, when Jaeger certified the measure for the ballot, Finken prepared his lawsuit, and had it all ready to go, at the same time that his lawyers put together the Amicus Brief. Somebody—I don’t know who—signed up 94 Republicans. Probably some staffer at Republican state headquarters.

I’m having a hard time believing that all those responsible leaders would agree to sign on to a lawsuit unless someone told them they were pretty likely to win.

Seems to me it would have been pretty embarrassing if state’s entire elected Republican leadership lost a lawsuit like that.

Seems to me they would have turned to their lawyer—the state’s Attorney General—and asked for advice before they all signed on.

I know for sure that some of those 94 people were told by someone—I don’t know who–not to worry about Measure 3 passing in November, because the Supreme Court was not going to let it on the ballot. A Republican I know, who knows a lot of people on that list, said a few days after the lawsuit was filed they’d “bet a beer Jon and the Supremes won’t allow it on the ballot.”

I don’t know who discovered Dyer v. Hall deep in the Supreme Court records. I asked Finken. He said “his team of lawyers.” But you just have to wonder if someone in the Capitol with really good legal files dating back to statehood might have helped find it. I’m not going to make any accusations here. You figure the rest out yourself.

FOOTNOTE: Secretary of State Al Jaeger told me on the phone a few days ago that he has approved more than 90 petitions in his 30 years in office. I asked him why he approved the Election Reform petition for circulation back in March if it did not meet the requirements of the Constitution. He said he only approves the petition “as to form,” and that he is “not required to read and approve the language of the petition.”

Wrong.

The North Dakota Constitution, Article III, Section 2, says

“The secretary of state shall approve the petition for circulation if it is in proper form and contains the names and addresses of the sponsors and the full text of the measure.”

It seems pretty clear to me the Secretary of State is responsible for making sure the petition contains “the full text of the measure” before he approves it.

Granted, the measure’s sponsors should have been aware of this too, I guess, but in the end, it is Jaeger’s responsibility.

But Al’s been ignoring his responsibility for years.

In his argument before the Supreme Court, the sponsoring committee’s attorney, Tim Purdon, cited a few of the petitions Jaeger approved, all of which appeared to be in violation of the same section of the North Dakota Constitution the Supreme Court used to keep Measure 3 off the ballot this year.

Here are some things Purdon pointed out.

  • As I mentioned earlier, in 2016, the initiated constitutional amendment known as Marsy’s Law referenced, but did not include the text of, the Sixth Amendment to the United States Constitution. This amendment passed. It’s in our Constitution today.
  • Also in 2016, an initiated statutory Measure 3 revised certain North Dakota statutes relating to tobacco regulation. This initiated measure referenced, among other statutes, N.D.C.C. § 51-25-01 and the Federal Food, Drug Cosmetic Act, 21 U.S.C. § 301 et seq., without providing the text of either of those external statutes. This initiated measure was ultimately rejected by voters.
  • In 2012, an initiated statutory measure related to an indoor smoking ban referenced alcoholic beverage licensing requirements, N.D.C.C. ch. 5-02, medical professional licensing under N.D.C.C. title 43, and gambling and gaming facilities as defined in N.D.C.C. § 12.1-28-01. None of those statutory compilations was included in the petition. This initiated measure also passed. It’s part of the North Dakota Century Code today.
  • Also in 2012, an initiated statutory measure made it a felony to harm domestic animals. That initiated measure cited, but did not include the text of, N.D.C.C. ch. 20.1-03 (relating to hunting, trapping, and fishing licenses or permits) N.D.C.C. § 36-21.1-01, and N.D.C.C. ch. 12.1-32. This initiated measure was rejected.
  • In 2008, an initiated statutory measure revised a number of statutes relating to tobacco. This initiated measure referenced, but did not include, N.D.C.C. ch. 23-28 and a “master settlement agreement and consent agreement adopted by the east central judicial district court in its judgment entered December 28, 1998 [Civil No. 98-3778] in State of North Dakota, ex rel. Heidi Heitkamp v. Philip Morris, Inc.” That statute, the master settlement agreement, and the consent agreement were all missing from the initiated measure’s petition. This measure passed. It’s part of our Century Code today.
  • In 2002, an initiated measure relating to student loans referenced income tax liability as computed under N.D.C.C. § 57-38-29 or 57-38- 30.3. Those statutes were not included in the text of the measure. This measure was rejected.

EVERY SINGLE ONE OF THOSE was in violation of the same section of the North Dakota Constitution the Supreme Court used to throw out Measure 3. Yet the Supreme Court ignored those precedents and instead cited a century-old case in their opinion.

Do you think the deck was stacked? Tomorrow we’ll take a look at that Supreme Court.

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