Sorum Petition

8/12/2019 Sorum Petition

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IN SOUTH CENTRAL DISTRICT COURT IN BURLEIGH

COUNTY STATE OF NORTH DAKOTA

Paul J. Sorum, )

2012 Independent Candidate for Governor of North Dakota ))

Petitioner )

)

vs. )

)

Jack Dalrymple, Governor of North Dakota )

and )

Drew Wrigley, Lt. Governor of North Dakota )

and )

Ryan Taylor, 2012 Dem. Candidate for Governor of ND )and )

Ellen Chaffee, 2012 Dem. Candidate for Lt. Governor of ND )

and )

Al Jaeger, North Dakota Secretary of State )

)

Respondents )

PETITION TO THE NORTH DAKOTA DISTRICT COURT, SOUTH CENTRALJUDICIAL DISTRICT, BURLEIGH COUNTY FOR WRIT OF MANDAMUS

I, Paul J. Sorum, the above named Petitioner, am a citizen of the State of North Dakota and

I was an independent candidate for governor in the November 2012 general election, and I

hereby petition above-captioned court for relief in the form of a Writ of Mandamus issued

to Respondent Jack Dalrymple, Governor of North Dakota, and Respondent Al Jaeger,

North Dakota Secretary of State, as follows:

1. For those reasons which are set forth hereafter, issuance of an order compellingGovernor Jack Dalrymple to fulfill his Constitutional mandate to faithfully execute

North Dakota election law codified in N.D.C.C. Title 16.1 with respect to the 2012

June Primary Election, and the 2012 November General Election.

2. For those reasons which are set forth hereafter, declare that Jack Dalrymple andRyan Taylor and their respective Lt. Governor candidates were not nominated in


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accordance with applicable North Dakota law and that the State Canvassing Board

should not have certified these candidates.

3. Issuance of an order compelling Secretary of State Al Jaeger to fulfill hisConstitutional mandate to faithfully execute and enforce North Dakotas election

laws, specifically by removing the Republican and Democratic candidates for

Governor, Jack Dalrymple and Ryan Taylor, from the June 12, 2012 ballot and theNovember 6, 2012 General Election ballot and/or by declaring their nominations

and/or election to be null upon the grounds that these gubernatorial candidates did

not list and include their respective Lieutenant Governor candidates on the same

certificate of endorsement form as is required by N.D.C.C. 16.1-11-06 (2), which

provisions state as follows: If the petition or certificate of endorsement is for the

office of governor or lieutenant governor, the petition or certificate mustcontain the

names and other information required of candidates for both those offices.

(emphasis added) This language is clear and unambiguous, and the intent thereof is

obvious and understandable. The use of the words must in this statute indicates

that the provisions are meant to be mandatory. See, e.g., James Valley Grain, LLC v.

David, 802 N.W.2d 158, 162 (N.D. 2011).

4. Issuance of an order compelling Secretary of State Al Jaeger to require the StateCanvassing Board to adjust and certify the results of November 2012 General

Election for Governor and Lt. Governor of North Dakota after removing the

Republican candidates for Governor and Lt. Governor, Jack Dalrymple and Drew

Wrigley, and Democratic candidates for Governor and Lt. Governor, Ryan Taylor

and Ellen Chaffee, from the November 6, 2012 General Election ballot.

Jurisdiction and Venue

State law, N.D.C.C. 28-04-03, entitled ACTIONS HAVING VENUE WHERE THE

CAUSE AROSE, provides that (emphasis added):

An action for any one of the following causes must be tried inthe county where the cause or some part thereof arose,

subject to the power of the court to change the place of trial asprovided in sections 28-04-09and 28-04-10:

2.Against a public officer, or person specially appointed to

execute the officer's duties, for an act done by that individualby virtue of office, or against a person who by that person's

command or aid shall do anything touching the duties of such

officer.


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Writing for the majority in Riemers v. Jaeger, Justice Crothers states:

Despite not including those candidates as parties in this action, Riemersclaims neither the Republican nor the Democratic candidates for

governor and lieutenant governor complied with N.D.C.C. 16.1-11-

06(2) and the Secretary of State should have removed the candidatesfrom the general election ballot.

[16] The record in the district court includes the Republicangubernatorial candidate's affidavit of candidacy and the Democraticgubernatorial candidate's certificate of endorsement. However, the

district court record does not include the certificates of endorsement of

the Republican candidates for governor and for lieutenant governor andthe Democratic candidate for lieutenant governor. A petitioner for a writ

of mandamus, a writ of prohibition or a writ of injunction mustdemonstrate a clear legal right to the performance of an act, and we

review a district court's decision denying those writs for an abuse ofdiscretion. See Eichhorn, 2006 ND 214, 19-20, 723 N.W.2d 112;Ennis, 506 N.W.2d at 392; Old Broadway, 450 N.W.2d at 736. "When

the record [on appeal] does not allow for intelligent and meaningfulreview of an alleged error, the appellant has not carried the burden of

demonstrating reversible error." Olson v. Griggs County, 491 N.W.2d725, 732 (N.D. 1992).

[17] Because the record presented to the district court does not include

the certificates of endorsement of the Republican candidates for

governor and lieutenant governor and the Democratic candidate forlieutenant governor, Riemers failed to establish a factual basis requiringthe Secretary of State to remove the Republican and Democratic

candidates for governor and lieutenant governor from the Novembergeneral election ballot. We conclude the district court did not act

arbitrarily, unreasonably or unconscionably in deciding Riemers failed toestablish a clear legal right to have the Secretary of State removes the

Republican and Democratic candidates for governor and lieutenantgovernor from the November general election ballot. The court's decision"in light of all documentation filed by both parties to date" is the product

of a rational mental process leading to a reasoned decision and is not a

misinterpretation or misapplication of the law. The court did not abuseits discretion in denying Riemers' request for a writ to remove thosecandidates from the general election ballot.

Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330


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In Riemers v. Jaeger, there was no final judgment on the merits regarding removing the

Republican and Democratic candidates for governor and lt. governor from the 2012 general

election ballot -- Riemers failed to establish a clear legal right to have the Secretary of State

remove these other candidates, i.e. Riemers failed to produce the other candidates

nominating certificates for the courts review in his brief.

Also, related to res judicata is the concept of issue preclusion or collateral estoppel. Thismeans that when an issue of fact has once been determined by a valid and final judgment

that issue cannot again be litigated between the same parties. Stoeber v. Parry, 91 F. 3d

1091 Court of Appeals, 8th

Circuit 1996.

In North Dakota, four tests must be met before collateral estoppel will bar re-litigation of a

fact or issue involved in an earlier lawsuit:

1. Was the issue decided in the prior adjudication identical to the one presented in theaction in question?

2. Was there a final judgment on the merits?3. Was the party against whom the plea is asserted a party or in privity with a party to

the prior adjudication?

4. Was the party against whom the plea is asserted given a fair opportunity to be heardon the issue?

Babara Lloyd Designs, Inc. v. Mitsui O.S.K. Lines Ltd., 2003 U.S. Dist. LEXIS 23453

(D.N.D. Dec. 31, 2003)

In Riemers v. Jaeger, the action that was brought by Riemers was in response to the

Secretary of State taking him off the general election ballot after the primary election. Sothe action was brought by Riemers for a very different reason. Riemers main remedy was

to compel the Secretary of State to place his name on the general election ballot as a

Libertarian party member. This was a very different issue from this case.

In Riemers v. Jaeger, there was no final judgment because Riemers did not provide all of

the candidates nominating certificates that he was claiming were defective in his brief he

submitted to the lower court. As a result, he was not able to prove that he had a legal

reason or legal right to ask that the Republican and Democratic candidates for governor and

lt. governor be removed from the general election ballot as his alternative remedy specified.

Lastly, in Riemers v. Jaeger, Riemers did not name the Republican and Democratic

candidates for governor and lt. governor as parties to his action. As a result, these parties

were not properly notified of Riemers action and thus not able to prepare a response. Jack

Dalrymple, Drew Wrigley, Ryan Taylor, and Ellen Chaffee are named in this action. All of

the parties in this action are different from Riemers v. Jaeger with the exception of Al

Jaeger. Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330


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Based on the courts prior standards, the issues of res judicata and collateral estoppel do not

apply to this Writ of Mandamus.

Included in the Appendixes are the following documents:

APPENDIX A -- Ryan Taylor 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX B -- Ellen Chaffee 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX C -- Jack Dalrymple 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX D -- Drew Wrigley 2012 Certificate of Endorsement form SFN 17196 (11-09)

LEGAL STANDING OF PETITIONER

As a citizen of North Dakota and as an independent candidate for Governor in the NorthDakota 2012 General Election, I, Paul Sorum, possess standing to petition this court to

declare elected office holders of the state, Jack Dalrymple and Al Jaeger, to comply with

applicable state election laws.

The states constitutional and statutory mandates were applied to one candidate for

Governor, but not to the other candidates. Under the 14th

Amendment of the U.S.

Constitution, Section 1, states (emphasis added), No state shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws. (See U.S.Constitution 1 of the Fourteenth Amendment).

Constitutional and Statutory Precedence

The North Dakota State Constitution Article V, 3 states (emphasis added):

Section 3. The governor and the lieutenant governor must be elected ona joint ballot. Each vote cast for a candidate for governor is deemed

cast also for the candidate for lieutenant governor running jointly withthe candidate for governor. The joint candidates having the highest

number of votes must be declared elected. If two or more jointcandidates have an equal and highest number of votes for governor andlieutenant governor, the legislative assembly in joint session at its next

regular session shall choose one pair of joint candidates for the offices.


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The returns of the election for governor and lieutenant governor must bemade in the manner prescribed by law. (N.D. Const. art. V, 3.)

In July of 2012, the North Dakota Attorney General Wayne Stenehjem issued an official

opinion regarding Libertarians candidate for North Dakota governor, Roland Riemers,

stating (emphasis added):

Based on the foregoing, it is my opinion that the gubernatorial candidatefor the Libertarian Party was not nominated for governor according to

state law because the requirement of N.D. Const. art. V, 3 for a jointballot for governor and lieutenant governor was not satisfied. (See N.D.

Att'y Gen. Op. 2012-L-07).

In deciding against an appeal from the Libertarian candidate for governor in 2012, the

North Dakota Supreme court wrote (emphasis added), The Attorney General's

interpretation of the mandatory constitutional requirement of N.D. Const. art. V, 3 ispersuasive, and the Secretary of State correctly applied that opinion. Riemers v. Jaeger,

2013 ND 30, 827 N.W.2d 330.

The North Dakota Century Code 16.1-11-06 (2) states:

If the petition or certificate of endorsement is for the office of governorandlieutenant governor, the petition or certificate must contain thenames and other information required of candidates for both thoseoffices. If the petition or certificate of endorsement is mailed, it must be

in the possession of the secretary of state before four p.m. of the sixty-fourth day before the primary election. N. D. C. C. 16.1-11-06 (2)

This part of North Dakota election law was also referenced in the same Attorney Generals

Opinion (Att'y Gen. Op. 2012-L-07) (emphasis added):

However, a plain reading4 of N.D.C.C. 16.1-11-06(2) clearly revealsthat the petition or certificate must contain the names and otherinformation required of candidates for both those offices.

This language requires two things. First, the gubernatorial candidates

certificate of endorsement or nominating petition should have mentionedthe name of a candidate for Lieutenant Governor together with the

ancillary information such as the appropriate address, telephonenumber, title of office, and party (which it did not). Second, a candidate

for Lieutenant Governor would have had to file a certificate ofendorsement or nominating petition together with all the required


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information including certain information regarding the candidate forGovernor. This provision of the law was likewise not followed. Because,

in this instance, there was no candidate for Lieutenant Governor on theprimary election ballot and because the gubernatorial candidate for the

Libertarian Party (who did appear on the primary election ballot) did notname a running mate and other pertinent information required of

candidates for both those offices in the nominating petition or certificateof endorsement, the Libertarian Party candidate for Governor was not

nominated in accordance with North Dakota law.

North Dakota law generally differentiates between a primary electionand a general election.5 Persons properly nominated at a primary

election in accordance with the provisions of N.D.C.C. ch. 16.1-11 areeligible as candidates to be voted for at the ensuing general election.6

However, because the gubernatorial candidate for this party was notnominated in accordance with N.D.C.C. 16.1-11-06(2), he was not

properly nominated and thus not eligible as a candidate for the ensuing

November general election.

Using the Attorney Generals standard, Jack Dalrymple and Ryan Taylor were not properly

nominated as gubernatorial candidates and thus not eligible to be candidates for the

November general election since theirrespective certificates of endorsement or nominating

petitions did not include the name of a candidate for Lieutenant Governor.

ARTICLE I of the North Dakota State Constitution, entitled DECLARATION OF

RIGHTS, Section 24 states:

The provisions of this constitution are mandatory and prohibitory unless,

by express words, they are declared to be otherwise.

ARTICLE V of the North Dakota State Constitution entitled EXECUTIVE BRANCH

Section 7 states:

The governor is the chief executive of the state. The governor shall have

the responsibility to see that the state's business is well administeredand that its laws are faithfully executed.

On multiple occasions, Governor Jack Dalrymple has failed in his duty to ensure that the

states election laws are faithfully executed as is mandated of him by the North Dakota

State Constitution. In willfully failing in his is mandated duties as governor before the June

12, 2012, and the November 6, 2012, elections, he has gained political advantage. In so

doing he has denied the voters of North Dakota a fair election and has stolen sovereign

power from the citizens of North Dakota.


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The Governor, Jack Dalrymple, will not fulfill his Constitutional mandate to faithfully

execute North Dakotas election laws, N.D.C.C. 16.1, because state law prohibits him

from being his partys nominee on the June 2012 ballot and therefore state law disqualifies

him from the November 6,2012 General Election.

The North Dakota Constitution, Article I, entitled Declaration of Rights provides, inpertinent part, that;

Section 2. All political power is inherent in the people. Government isinstituted for the protection, security and benefit of the people, and they

have a right to alter or reform the same whenever the public good mayrequire.

Section 9. All courts shall be open, and every man for any injury done

him in his lands, goods, person or reputation shall have remedy by dueprocess of law, and right and justice administered without sale, denial or

delay. Suits may be brought against the state in such manner, in suchcourts, and in such cases, as the legislative assembly may, by law,

direct.

Websters Dictionary defines Sovereign as one possessing supreme political power.

Franchise is defined as, freedom or immunity from some burden or restriction vested in a

person or group. Or, a special privilege granted to an individual or group.

Timing of Action

It might be argued that the mandate of the State Constitution and state election law are not

applicable after an election. The Attorney Generals opinion (N.D. Att'y Gen. Op. 2012-L-

07) included a very precise discussion on his strict interpretation as to when the states

election laws should be applied (emphasis added):

It should be noted that there is a general rule of construction regarding

election law:

All provisions of election law are mandatory if enforcement is sought

before election in a direct proceeding for that purpose; but after electionshould be held directory only, in support of the result, unless of a

character to effect an obstruction to the free and intelligent casting ofthe vote or to the ascertainment of the result, or unless the provisions

affect an essential element of the election . . . .


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Kiner v. Well, 71 N.W.2d 743, 744 (Syllabus by the Court 2) (N.D. 1955)(emphasis added). It might be argued that the first part of this rule of

construction would apply here and that the requirements of N.D.C.C. 16.1-11-06 and N.D. Const. art. V, 3 would not be mandatory after the

primary election. However, I do not believe this rule is applicable here.First, the primary election is only an election in a very limited sense:

Insofar as theprimary election deals with the selection of public officersit is a nominating election only at which the people choose candidates forparty and no-party offices. The final choice of offices is left entirely to

the general election. At the primary no one is elected. The electionprocedure relative to notice, form of ballot, canvas of votes, andcertification of the result deal with nominations and not final election to

office.

State ex rel. Lanier v. Hall, 23 N.W.2d 44, 47 (N.D. 1946). Second, even

if this rule of construction would be deemed to apply to a primary

election, it provides an exception that keeps post-primary electionprovisions mandatory if they affect an essential element of the election.Kiner v. Well, 71 N.W.2d at 744. The mandatory provisions in N.D.C.C.

16.1-11-06 requiring the naming of a gubernatorial running mate andN.D. Const. art. V, 3 requiring joint ballots and joint candidacies for

Governor and Lieutenant Governor are essential elements of the primaryand general elections since these offices are meant to be campaigned for

jointly and elected jointly. Consequently, it is necessary that these

statutory and constitutional requirements be considered as

mandatory at all times.

The Attorney Generals opinion on the timing of enforcing the mandatory provisions in

N.D.C.C. 16.1-11-06 is inclusive. The plain and simple meaning of all times is always

which includes before, during, and after both the primary and general elections.

Subsequently, influenced by the Attorney Generals opinion (N.D. Att'y Gen. Op. 2012-L-

07), the Secretary of State, Al Jaeger, removed Mr. Riemers from the June ballot

retroactively. The sequence of events is described in the North Dakota Supreme Courts

decision ruling against Riemers appeal: (See Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d

330)

[3] In July 2012, the Attorney General issued a written opinion, rulingRiemers was not nominated for governor according to state law because

the requirement of N.D. Const. art. V, 3 for a joint ballot for governorand lieutenant governor was not satisfied. N.D. Att'y Gen. Op. 2012-L-

07. The Attorney General's opinion also cited N.D.C.C. 16.1-11-06(2),providing "[i]f the [nominating] petition or certificate of endorsement is


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for the office of governor or lieutenant governor, the petition orcertificate must contain the names and other information required of

candidates for both those offices." The Attorney General explained:

"This language requires two things. First, the gubernatorial candidate's certificate of

endorsement or nominating petition should have mentioned the name of a candidate forLieutenant Governor together with the ancillary information such as the appropriate

address, telephone number, title of office, and party (which it did not). Second, acandidate for Lieutenant Governor would have had to file a certificate of endorsement

or nominating petition together with all the required information including certaininformation regarding the candidate for Governor. This provision of the law waslikewise not followed. Because, in this instance, there was no candidate for Lieutenant

Governor on the primary election ballot and because the gubernatorial candidate for theLibertarian Party (who did appear on the primary election ballot) did not name a

running mate and other pertinent information required of candidates for both thoseoffices in the nominating petition or certificate of endorsement, the Libertarian Partycandidate for Governor was not nominated in accordance with North Dakota law.

"'North Dakota law generally differentiates between a primary election and a generalelection.' Persons properly nominated at a primary election in accordance with the

provisions of N.D.C.C. ch. 16.1-11 are eligible as candidates to be voted for at theensuing general election. However, because the gubernatorial candidate for this party

was not nominated in accordance with N.D.C.C. 16.1-11-06(2), he was not properlynominated and thus not eligible as a candidate for the ensuing November general

election."

N.D. Att'y Gen. Op. 2012-L-07 (footnotes omitted).

[4] The Secretary of State followed the Attorney General's opinion and

did not certify Riemers for the November general election ballot as the

Libertarian candidate for governor.

The North Dakota Supreme Courts decision ruling against Riemers appeal (Riemers v.

Jaeger, 2013 ND 30, 827 N.W.2d 330) is further precedent that the mandates of North

Dakotas election laws must be enforced even after elections.

There is yet additional precedent in North Dakotas Supreme Court decisions. Governor

Thomas Moodie was removed from the ballot in 1934 for failure to meet the North Dakota

Constitutional requirements for being certified as a candidate after taking office.

In 1934, Moodie received the Democratic nomination for governor and beat his Republican

opponent, Lydia Langer. After Moodie's inauguration on January 7, 1935, it was revealed

that he had voted in a 1932 municipal election in Minnesota. According to the North

Dakotas Constitution, in order to be eligible as a candidate for governor, an individual has

to have lived in the state for five consecutive years before the election. The State Supreme

Court determined that Governor Moodie was ineligible to be on the ballot as a candidate for


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governor, and he was removed from office on February 16, 1935 after serving as governor

for five weeks (See State ex rel. Sathre v.Moody, 65 N.D. 340, 258 N.W. 558, 566)

Other Case Law Precedents

The judicial systems of other states consistently interpret their constitutional and statutory

requirements for certifying candidates strictly to ensure the faithful execution of their

election laws without exceptions.

In Carpenter v. Eagleton, the Supreme Court in Dutches County New York ruled, There is

no statutory basis upon which this court may permit respondent to cure his failure to timely

file a valid acceptance It is ordered that respondent's designation is null and void

pursuant to Election Law 6-146 and the Dutches County Board of Elections is hereby

enjoined from placing respondent's name on the primary election ballot as the

Conservative Party candidate (See Carpenter v. Eaglton, 2009 NY Slip Op 51708

NY:Supreme Court, Dutchess 2009)

InFalke v. State of Alaska, the Lieutenant Governor and the Election Supervisor in

Fairbanks, the Supreme Court of Alaska denied Democrat Paul Frith access to the ballot to

run for a state senate seat stating in their decision:

After concluding that the statutory requirements were clear and that thestatute vested no discretion in election officials, we held that the statute

should be strictly enforced. Id. We expressly stated that our holding was"grounded on the legal principle that statutory candidate election

deadlines are normally strictly enforced." Id. In view of this well-established principle, we conclude that the Elections Division policy of

permitting candidates to fill out forms after the statutory filing deadlinedoes not properly implement the statute. In reaching this conclusion wenote that the language in AS 15.25.040(a)(1) specifying the filing

deadline is clear, and that the statute does not vest discretion in electionofficials.

Falke v. State, 717 P. 2d 369 - Alaska: Supreme Court 1986.

In Albaugh v. Secretary OF State, gubernatorial candidate Albaugh filed his certificate of

candidacy as a Republican candidate for Governor on November 2, 1965. Early in July

1966, he was advised by the Secretary of State that he should promptly appoint a campaign

treasurer prior to the certification date by August 3, 1966. In reply he stated that he would

not appoint a treasurer. The Court of Appeals in Maryland denied Albaughs certification

for the ballot because state law mandated that he declare a treasurer. (Sec'y of State v.

McGucken, 222 A. 2d 693 - Md: Court of Appeals 1966)


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In Keys v. Secretary of State, the proceeding was instituted by plaintiff to compel the

Secretary of State to complete his certification as a candidate for the nomination on the

Democratic ticket for the office of lieutenant governor of the state at the primary election

held August 2, 1960. The Michigan Supreme Court ruled in pertinent part (emphasis

added):

plaintiff's petitions were insufficient to allow his certification as a

candidate for nomination for the office in question. Accordingly an orderwas entered denying the application for writ of mandamus and

dismissing the petition, it being indicated therein that an opinion wouldbe subsequently filed.

614 The question before us for consideration is whether certain petitions

filed by plaintiff were properly disregarded, wholly or in part, bydefendants on the ground that they were not in accordance with

statutory provisions relating thereto. The form and substance of suchpetitions are prescribed by section 544 of the Michigan election law [*]

(CLS 1956, 168.544 [Stat Ann 1956 Rev 6.1544]). In accordancewith the form prescribed the caption of each petition must indicate thecity or township, and the county, in which it is circulated. It is specifically

provided that:

"No one of said petitions, or parts of said petitions, shall be circulated inmore than 1 city or township, and all signers to said petition shall be

qualified and registered electors in said city or township."

Each petition, in accordance with the prescribed form, must bear thesignature of the party circulating it, and his address. Such circulator is

further *615 required to make oath before a notary public that he is a"qualified and registered elector," that each signature on the petition is

the genuine signature of the person purporting to sign, and that to thebest knowledge and belief of the circulator each signer was at the time a

qualified and registered elector of the city or township designated in thejurat. 615

It appears from the testimony taken before Judge Coash that a number

of petitions were rejected by the canvassing board because of failure toshow in what township or city the circulation thereof occurred, and otherpetitions were rejected because it appeared that they were circulated in

more than one township, or in a township and adjoining city. In otherinstances the caption of the petitions failed to state in what township or

city they were circulated, and the jurats thereto made reference to a

nonexistent city or township. It is clear that these petitions did notcomply with the statute, and the board was right in rejecting them.


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Mr. Keyes was not certified to be on the primary ballot in Michigan because of improper

signatures and other irregularities of form on his nominating petition in violation of state

election law. Keyes v. Secretary of State, 104 NW 2d 781 Mich.: Supreme Court 1960.

In Neill v. Bentsen, Bonnie Fitch filed an Application for a place on the Democratic Party

1992 General Primary Ballot and a Petition for Judicial Office on Primary Ballot. The

petition forms filed by Fitch fail to state which political party or party primary she desires

to run in. Her petition did not comply with the Tex. Elec. ode Ann. 172.027 (Vernon

Supp.1992) by stating that the purpose of the petition was to entitle her to have her name

placed on the ballot for the Democratic Party Primary.

The Texas Court of Appeals stated the following in their decision (Emphasis Adder):

The Election Code sections have not been complied with, and as a resultof this non-compliance Fitch's application for a place on the ballot and

the accompanying petition are invalid. Based on this failure to strictlycomply with the mandatory statutory provisions, it was a violation of

duty for Ken Bentsen to submit Fitch's name on the List of Candidatesand to certify her name to be placed on the ballot...

Respondents also claim that if this court enforces these election code

provisions and follows the case law precedents then the voters' 1st and14th Amendment rights will be violated. They assert that constitutional

and factual issues are presented under this claim which should be

resolved by a trier of fact. After review of this matter, we find no factissues presented and respondents failed to point out any fact issues intheir briefs or during oral argument. These constitutional rights assertedby respondents do not prevent the legislature from enacting statutory

provision for the conduct of general and primary elections. The sectionsinvolved in this case are clearly administrative provisions dealing with

the requirements a candidate must comply with in order to be placed onthe primary ballot. Just like any filing deadline imposed by the statute,

these provisions require compliance in order for the candidate to be

placed on the ballot. The constitutional rights asserted have no effect oncompliance with these provisions.

Neill v. Bentsen, 824 SW 2d 744 Tex: Court of Appeals 1992.

In State ex re. Maloney v. McCartney, in February 1976, the Governor of West Virginia,

Arch A. Moore, J, filed his certificate of candidacy and paid his filing fee in the office of

the respondent Secretary of State in order to have his name placed on the ballot for the May


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1976 Republican primary election to seek his third term. The West Virginia constitution

limits the governor of that state to only two terms. In their decision to

The Court holds that the applicable canon of constitutional construction

in this case is that where a constitutional provision is plain and

unambiguous it will be applied and not construed. As there is noprovision of the Constitution of the United States in conflict with WestVirginia's Art VII, 4 limitation on succession, and as there is no rule of

constitutional construction which requires other than a straight-forwardapplication of the constitutional provision in question, we hold that the

Governor is ineligible to succeed himself during the term beginningJanuary 1977 and that the writ of mandamus be awarded

The Governor has not cited, nor has this Court found, any United States

Supreme Court case even arguably on point holding a limitation onincumbent succession contrary to the Fourteenth Amendment to theConstitution of the United States. While this Court can and must find

provisions of the Constitution of the State of West Virginia invalid whenthey are in direct conflict with any provision of the Constitution of the

United States, the authority for such a holding must be clear and

compelling. Absent clear and compelling authority this Court is bound byoath to support every provision of the Constitution of the State of West

Virginia. See dissenting opinion ofJudge Haymond, Lance v. Board ofEducation, 153 W.Va. 559, 574, 170 S.E.2d 783, 791 (1969), rev'd subnom. Gordon v. Lance, 403 U.S. 1, 91 S. Ct. 1889, 29 L.Ed.2d 273

(1971).

Although the incidental effect of restrictive anti-succession provisionsmay be a limitation on the franchise, in a balancing test which weighs

the enlargement of the franchise by guaranteeing competitive primary*613 and general elections against the incidental disenfranchisement of

those favorably disposed to one individual, the Court must conclude thatrestrictive provisions on the succession of incumbents does not frustratebut rather furthers the policy of the Fourteenth Amendment. See

Williams v. Rhodes, 393 U.S. 23, 89 Sect. 5, 21 L.Ed.2d 24 (1968);

Comment, "The Emerging Right to Candidacy in State and LocalElections: Constitutional Protection of the Voter; The Candidate and the

Political Group." 17 Wayne L. Rev. 1543 (1971).

State ex rel. Maloney v. McCartney, 223 SE 2d 607 W Va: Supreme Court of Appeals

1976.

In Flach v. Debenedictus, when an incumbent declined to run for re-election, Republican

John Flach agreed to run for Supervisor in the Town of Coxsackie in Greene County in his

place. Mr. Flach failed, however, to sign the required consent form (see, New York Election


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Law 6-148 [5])whereby the substituted candidate indicates his or her acceptance of the

new nomination. Supreme Court dismissed this proceeding by petitioner to validate the

certificate to fill a vacancy, giving rise to this appeal. The New York Supreme Court stated

in its decision:

Election Law 6-148 (5) requires that a certificate to fill a vacancy shallhave appended thereto the substituted candidate's "written consent to

be so designated or nominated, duly acknowledged". In Matter ofRhodes v Salerno (57 NY2d 885), a certificate of acceptance under

Election Law 6-146 (1) which contained the candidate's signature wasinvalidated due to the absence of the required acknowledgement. Here,

the result must be the same since the statute at issue requirescompliance with "matters of prescribed content" (Matter of Rhodes v

Salerno, 90 AD2d 587, affd 57 NY2d 885, supra) and the consent formlacks the signature of the substituted candidate. Accordingly, Supreme

Court's order dismissing this proceeding upon finding the certificate

invalid due to the failure of petitioner to execute the consent form isaffirmed.

Flach v. Debenedictus et al., Constitution the Greene County Board of Elections, et al.,

Appellate Div. of the Supreme Court of the State of New York, 3rd

Dept. Oct. 15, 1999.

In the matter of Justice v. Gamache,Lee Kyriacou, a member of the City Council, for the

City of Beacon, since 1993, accepted the nomination of the Democratic Party, Working

Families Party, and Beacon First Party to run for reelection in the general election to beheld on November 6, 2007. On September 15, 2007, Kyriacou was appointed by the

Governor to the position of Executive Director of New York State Office of Real Property

Services. Kyriacou accepted the position, which was in Albany, and was informed by the

Governor's office that he would be required to resign from his position on the City Council

to avoid any potential conflict. As a result, on September 28, 2007, Kyriacou filed three

certificates of disqualification with the Dutchess County Board of Elections indicating that

he had been "disqualified from running for said office by reason of moving and no longer

residing in said district *510 with no intention of returning prior to the date of the General

Election, November 6, 2007." Shortly thereafter, the Democratic Party, Working Families

Party, and Beacon First Party, respectively, filed three certificates of substitutionnominating Eleanor Thompson to fill the vacancy created by Kyriacou's disqualification.

The court stated the following in disqualifying Thompson from being on the ballot:

Election Law 6-148 (5) requires that a certificate to fill a vacancy "shallhave appended thereto" the substituted candidate's "written consent to

be so designated or nominated, duly acknowledged." Here, with the


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certificate of substitution of the Working Families Party filed with theDutchess County Board of Elections on October 2, 2007, there was no

affidavit "appended thereto" from Thompson consenting to thenomination. Although three days later the Working Families Party

attempted to cure this defect by filing an affidavit from Thompsonconsenting to the nomination, that document was not appended to a

completed certificate of substitution. In both instances, the WorkingFamilies Party failed to comply with the requirements of Election Law

6-148 (5). Contrary to the respondents' contention that these twoseparate filings should be considered together, where, as here, the

matter is "of prescribed content," there must be strict compliance withthe statutory requirements (see Matter of Rhodes v Salerno, 57 NY2d

885, 887 [1982]; Matter of Hutson v Bass, 54 NY2d 772, 774 [1981];Matter of Flach v De Benedictus, 265 AD2d 670, 671 [1999]).

Accordingly, the certificate of substitution filed by the Working FamiliesParty nominating Thompson to fill the vacancy created by Kyriacou's

disqualification must be invalidated (see Matter of Flach v De Benedictus,

265 AD2d 670 [1999]; Matter of Farley v Mahoney, 115 AD2d 350[1985]; Matter of Scott v Curran, 277 App Div 344, 345 [1950], affd 301

NY 693 [1950]; see also Diaz v New York City Bd. of Elections, 335 FSupp 2d 364, 366-367 [2004]).

Matter of Justice v. Gamache, 45 AD 3d 508 NY: Appellate Div., 2nd

Dept. 2007.

Responsibility for Canceling Votes Already Cast

One might argue that candidates should not be removed from the ballot after an election

since in doing so voters may lose their votes if they were cast for a candidate that is

disqualified after the election.

The Attorney General knew this would be a consequence of his opinion which supported

the removal of Roland Riemers from the June 2012 ballot. Officially 619 voters had voted

for Riemers in the primary election and lost their vote as a result of the Secretary of States

actions which implemented the Attorney Generals opinion (N.D. Att'y Gen. Op. 2012-L-

07).

The State Supreme Courts decision in Riemers appeal confirmed that it is correct,

according to state law, to cancel the votes of those who voted for Riemers in the June 2012

election because of Riemers failure to meet the requirements of North Dakotas election

laws (Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330).

In 1934, Thomas Moodie was removed from the general election ballot after he had been

inaugurated for failing to meet the qualifications to hold office and be on the ballot as


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required by the North Dakotas Constitution. Mr. Moodie had been serving as Governor of

North Dakota for five weeks when he was removed by the court. (See State ex rel. Sathre

v.Moody, 65 N.D. 340, 258 N.W. 558, 566). The Supreme Courts decision canceled the

votes of 145,333 North Dakota voters who had voted for Moodie.

Attorney Generals opinion states (emphasis added), it is necessary that these statutory

and constitutional requirements be considered as mandatory at all times. In his definitiveopinion, the Attorney General does not qualify his conclusion on when our states election

laws are to be enforced there is no provision in his opinion for preserving votes that have

already been cast. (N.D. Att'y Gen. Op. 2012-L-07)

In McWaters v. Tucker, the justices of the Court of Civil Appeals in Galveston Texas

stated (emphasis added), Provisions of election laws which relate to voters, and, after the

voters have acted by voting, will and ought to be construed as being directory on easier

terms than provisions of election laws governing what is required of candidates. This,

because the right to vote is a fundamental one, whereas the right to hold an office is in the

nature of a privilege. (See McWaters v. Tucker et al. Baker v. Tucker et al. Nos. 12460,

12461. May 28, 1952)

In Escobar v. Sutherland in the Texas Court of Appeals, 8th District, the court writes in

pertinent part, in the end, it is the candidate who must insure that the application (to be

on the ballot) complies with established law. If the candidate does not, he is at risk of

having his candidacy rejected; if not by the County Chair, then by the courts. It is the

candidate's responsibility simply because it is the candidate's name that will (or will not)

appear on the ballot. (See Escobar v. Sutherland, 917 SW 2d 399 - Tex_ Court of Appeals,

8th Dist)

When voters vote for candidates who are listed on the ballot in error, it is the responsibilityof the candidates who did not comply strictly with the states legal requirements for

becoming certified for the privilege of holding elected office. Jack Dalrymple and Ryan

Taylor did not insure that their application to be on the ballot their nominating certificates

complied with state election laws. If some voters votes are cancelled as result of the

requested remedy, it is the result of the actions of candidates Jack Dalrymple and Ryan

Taylor alone.

North Dakotas constitutional and statutory requirements for certifying candidates before

placing them on the ballot exist to protect voters from unscrupulous candidates and election

officials.

In BURDICK v. TAKUSHI, theSupreme Court of the United States wrote (emphasis

added):

Election laws will invariably impose some burden upon individual voters.Each provision of a code, whether it governs the registration and

qualifications of voters, the selection and eligibility of candidates, or the


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voting process itself, inevitably affectsat least to some degreetheindividuals right to vote and his right to associate with others for political

ends.Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). Consequently,to subject every voting regulation to strict scrutiny and to require that the

regulation be narrowly tailored to advance a compelling state interest, aspetitioner suggests, would tie the hands of States seeking to assure that

elections are operated equitably and efficiently. See Brief for Petitioner 32-37. Accordingly, the mere fact that a States system creates barriers . . .

tending to limit the field of candidates from which voters might choose . . .does not of itself compel close scrutiny. Bullock v. Carter, 405 434*434 U.

S. 134, 143 (1972);Anderson, supra,at 788;McDonaldv. Board of ElectionCommrs of Chicago,394 U. S. 802 (1969).

In upholding Hawaiis election laws, writing for the majority of the U.S. Supreme Court,

Justice White states further (emphasis added):

It seems to us that limiting the choice of candidates to those who havecomplied with state election lawrequirements is the prototypicalexample of a regulation that, while it affects the right to vote, is

eminently reasonable.Anderson, supra, at 788. The dissent's suggestionthat voters are entitled to cast their ballots for unqualified candidates

appears to be driven by the assumption that an election system thatimposes any restraint on voter choice is unconstitutional. This is simply

wrong. See Supra, at 433-434.

(See BURDICK v. TAKUSHI 504 U.S. 428 (1992), DIRECTOR OF ELECTIONS OF

HAWAII, et al. No. 91-535.)

In the matter of Roosevelt Rhodes, Appellant, v. George D. Salerno, the New York Court of

Appeals wrote in pertinent part (emphasis added):

We would only add that section 6-146 of the Election Law requires a

candidate nominated by a political party other than of a party of whichhe is an enrolled member to accept or decline that nomination "in a

certificate signed and acknowledged by him." The statute further

provides that failure to comply will render the nomination null and void.We have repeatedly said that statutory commands as to matters of

content must be strictly complied with. (Matter of Ruiz v Sachs, 43

N.Y.2d 894, 895; Matter of Hutson v Bass, 54 N.Y.2d 772, 774; Matterof Frome v Board of Elections of Nassau County, 57 N.Y.2d 741.) The

courts enjoy no discretion to allow candidates to deviate from theselegislative mandates.


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(See 57 N.Y.2d 885 (1982) In the Matter of Roosevelt Rhodes, Appellant, v. George D.

Salerno, as Chairman of the State Board of Elections, Respondent)

Burden of Proof - Satisfied by Secretary of States TestimonyFacts of this case are not disputed but verified by Secretary of State Al Jaeger in his

testimony before the North Dakota Supreme Court in Riemers v. Jaeger. (See Riemers v.

Jaeger, 2013 ND 30, 827 N.W.2d 330).

In Riemers Supreme Court Hearing of November 6, 2012, the Secretary of States

attorney, Assistant Attorney General Douglas Bahr, admitted to the court that the North

Dakota Secretary of State, Al Jaeger, was aware that the certificate of endorsement forms

issued to candidates from his office were not in compliance with the states election law

statute N.D.C.C. 16.1-11-06(2). When asked about the states endorsement forms by the

Court, Mr. Bahr stated, Secretary of State Jaeger, of course, accepts the Attorney Generals

opinion and, although this form has been used for decades, since before Secretary Jaeger

came into the office, the Attorney General, on page four of his opinion, which I think is

page 37 of the appendix, held, implied, indicated that those forms should be together.

Because of that, Secretary Jaeger is working with his general council to address that. But

that doesnt mean...

During the course of oral arguments in this case, one of the Supreme Court Justices

interrupted Mr. Bahr at this point stating, Your arguments in the brief that it really doesnt

require that should be ignored Am I correct? I thought it was a rather strange

construction Mr. Bahr.

Mr. Bahr further replied, I agree. Um, I am an advocate, but the point is, even it, if the

form did not meet the statutory requirements, assuming arguendo it does not, that does not

mean Mr. Riemers had the clear legal right to the remedy he requested.

While North Dakota Secretary of State Jaeger removed one gubernatorial candidate, Mr.

Riemers, from the June Ballot exclusively upon the grounds that Mr. Riemers did not

having documented his lieutenant governor candidate properly on his certificate of

endorsement form SFN17196, Mr. Jaeger did not disqualify two other gubernatorial

candidates, Mr. Dalrymple and Mr. Taylor, from the ballot for not listing a lieutenantgovernor candidate on their certificate of endorsement forms as required by the state

constitution and state statue N.D.C.C. 16.1-11-06(2).

Mr. Jaeger has executed and enforced the law with respect to one candidate for governor,

but not the others.


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The North Dakota Constitution in Article I, Entitled Declaration of Rights, Section 22,

states,All laws of a general nature shall have a uniform operation.

Further, Section 1 of the Fourteenth Amendment to the U.S. Constitution, guarantees

citizens equal protection under the law, No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law; nor denyto any person within its jurisdiction the equal protection of the laws.

By admittedly enforcing the states election laws, N.D. Const. art. V, 3 andN.D.C.C.

16.1-11-06 (2), with respect to one candidate for governor, Mr. Riemers, but not with

respect to candidates Jack Dalrymple and Ryan Taylor, Mr. Jaeger has violated both Article

I of the State Constitution and the Fourteenth Amendment of the U.S. Constitution.

Requested Remedy is the Only Available Response to Satisfy Mandatory Law

The requested remedy is the clearest and most direct manner in which to satisfy the

requirements and precedents of the following:

1. North Dakota State Constitution Article V, 32. The North Dakota Century Code 16.1-11-06 (2)3. North Dakota Attorney Generals Opinion 2012-L-074. North Dakota Supreme Court Decision in Riemers v. Jaeger, 2013 ND 30, 827

N.W.2d 3305. The Equal Protection Clause in Section 1 of the 14thAmendment of the U.S.

Constitution

6. Section 22 of Article I of the North Dakota Constitution Entitled Declaration ofRights

7. All other precedents listed in this brief.

The requested remedy will also directly resolve the most important issue at hand -- the

question of sovereignty. If North Dakotas election laws are not going to be faithfully

executed and the constitutional mandates for qualifying to hold elected office are optional,it renders future of elections North Dakota meaningless.

Section 1 of Article I of North Dakotas Constitution guarantees that, All political power is

inherent in the people. But if our election laws are not faithfully executed or are enforced

selectively by those holding elected office, then we are not living in a sovereign state in a

free republic; we are living in an authoritarian state.


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The North Dakota Oaths of Office Amendment, Measure 2 was on the November 6, 2012

general election ballot as a legislatively referred constitutional amendment. It was

approved by 88.74% of the voters -- the same day that the State Supreme Court heard the

Reimers appeal. Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330.

The Oaths of Office Amendment is now officially Section 4 of Article XI of the North

Dakota Constitution (emphasis added):

Section 4. Members of the legislative assembly and the executive and

judicial branches, except such inferior officers as may be by lawexempted, before they enter on the duties of their respective offices,

shall take and subscribe the following oath or affirmation: "I do solemnlyswear (or affirm as the case may be) that I will support the Constitutionof the United States and the Constitution of the State of North Dakota;

and that I will faithfully discharge the duties of the office of _________

according to the best of my ability, so help me God" (if an oath), (underpains and penalties of perjury) if an affirmation, and any other oath,

declaration, or test may not be required as a qualification for any officeor public trust.

In the November 6, 2012 general election, nearly 89% of the voters voted to mandate that

our elected leaders, including judges in our judicial branch of government, seek Gods help

in strictly enforcing our State and U.S. Constitutions.

On October 11, 1798, John Adams stated, Our Constitution was made only for a moral and

religious people. It is wholly inadequate to the government of any other.

To allow the mandates of our State Constitution (and consequently our state statutes which

implement our Constitution) to be ignored for the comforts of political advantage is to rely

on something other than Gods help and is an abomination in His eyes. Our U.S. and State

Constitutions are constructed to implement the essential and arguably the only legitimate

function of government to protect the peoples inalienable rights (rights we are born with)

by preventing injustice.

For this reason, the good people of North Dakota have made it illegal for our elected leaders

to do anything less than seek that which is truly good and moral in protecting the rights of

individuals as guaranteed in our Constitution.

REMEDY REQUIRED

Petitioner Paul J. Sorum requests that the court grant the following relief by either or both

vehicles of a Writ of Mandamus:


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1. For those reasons which are set forth hereafter, issuance of an order compellingGovernor Jack Dalrymple to fulfill his Constitutional mandate to faithfully execute

North Dakota election law codified in N.D.C.C. Title 16.1 with respect to the 2012

June Primary Election, and the 2012 November General Election.

2. For those reasons which are set forth hereafter, declare that Jack Dalrymple andRyan Taylor and their respective Lt. Governor candidates were not nominated inaccordance with applicable North Dakota law and that the State Canvassing Board

should not have certified these candidates.

3. Issuance of an order compelling Secretary of State Al Jaeger to fulfill hisConstitutional mandate to faithfully execute and enforce North Dakotas election

laws, specifically by removing the Republican and Democratic candidates for

Governor, Jack Dalrymple and Ryan Taylor, from the June 12, 2012 ballot and the

November 6, 2012 General Election ballot and/or by declaring their nominations

and/or election to be null upon the grounds that these gubernatorial candidates did

not list and include their respective Lieutenant Governor candidates on the same

certificate of endorsement form as is required by N.D.C.C. 16.1-11-06 (2), which

provisions state as follows: If the petition or certificate of endorsement is for the

office of governor or lieutenant governor, the petition or certificate mustcontain the

names and other information required of candidates for both those offices.

(emphasis added) This language is clear and unambiguous, and the intent thereof is

obvious and understandable. The use of the words must in this statute indicates

that the provisions are meant to be mandatory. See, e.g., James Valley Grain, LLC v.

David, 802 N.W.2d 158, 162 (N.D. 2011).

4. Issuance of an order compelling Secretary of State Al Jaeger to require the StateCanvassing Board to adjust and certify the results of November 2012 GeneralElection for Governor and Lt. Governor of North Dakota after removing the

Republican candidates for Governor and Lt. Governor, Jack Dalrymple and Drew

Wrigley, and Democratic candidates for Governor and Lt. Governor, Ryan Taylor

and Ellen Chaffee, from the November 6, 2012 General Election ballot.

Dated this 22nd day of January, 2014,

______________________________________________Paul J. Sorum, pro se

Petitioner

3501 Calypso Dr

Bismarck, ND 58504Phone: 701-219-5601

[email protected]


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APPENDIX A

Ryan Taylor 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX B

Ellen Chaffee 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX C

Jack Dalrymple 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX D

Drew Wrigley 2012 Certificate of Endorsement form SFN 17196 (11-09)

APPENDIX E

North Dakota Attorney General Wayne Stenehjem Opinion 2012-L-07

APPENDIX F

Riemers v. Jaeger, 2013 ND 30, 827 N.W. ND Supreme Court Decision

APPENDIX G

North Dakota Oath of Office Amendment (2012)


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Appendix A


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Appendix B


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Appendix C


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Appendix D


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LETTER OPINION

2012-L-07

July 5, 2012

The Honorable Alvin A. JaegerSecretary of State600 East Boulevard AvenueBismarck, ND 58505

Dear Secretary of State Jaeger:

Thank you for your letter, on behalf of the State Canvassing Board, requesting my opinionon whether the gubernatorial candidate for the Libertarian Party was nominated inaccordance with state law at the June 12, 2012, primary election and is eligible forcertification and advancement to the general election ballot. Based on the following, it ismy opinion that the gubernatorial candidate for the Libertarian Party was not nominated inaccordance with North Dakota law at the June 12, 2012, primary election andconsequently, the State Canvassing Board should not certify that nomination nor shouldyou, as Secretary of State, issue a notice of nomination or otherwise permit this solitarycandidates name to be placed on the general election ballot.

ANALYSIS

In your letter, you indicate that prior to the 60-day candidate filing deadline for the June 12,2012, primary election, an individual filed the required documents with your office to havehis name placed on the ballot as a candidate for Governor in the Libertarian Party columnand that his name was placed on the primary election ballot. You also indicate, however,that your office did not receive completed documents prior to the deadline for the positionof Lieutenant Governor in the Libertarian Party column, to appear jointly on the ballot withthe gubernatorial candidate. You further state that the State Canvassing Board met onJune 25, 2012, and verified that the Libertarian Partys candidate for Governor did receivemore than the 300 votes normally required to advance to the November general election.

Based on these circumstances, you question whether the gubernatorial candidate wasproperly nominated in accordance with North Dakota law and whether these results of the

Appendix E


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LETTER OPINION 2012-L-07July 5, 2012Page 2

primary election should be certified by the State Canvassing Board1 and the candidate

notified by your office

2

of his nomination and placement on the general election ballot.

State law provides as follows:

State candidates petition or political party certificate ofendorsement required to get name on ballot - Contents - Filing.

1. Every candidate for United States senator, United Statesrepresentative, a state office except the office of statesenator or state representative, and judges of the supremeand district courts shall present to the secretary of state,

between the first date candidates may begin circulatingnominating petitions according to this chapter and beforefour p.m. of the sixtieth day before any primary election,either:

a. The certificate of endorsement signed by the statechairman of any legally recognized political partycontaining the candidates name, post-office address,and telephone number, the title of the office to whichthe candidate aspires, and the party which thecandidate represents; or

b. The nominating petition containing the following:

(1) The candidates name, post-office address,and telephone number, and the title of theoffice to which the candidate aspires, theappropriate district judgeship number ifapplicable, and whether the petition is intendedfor nomination for an unexpired term of office ifapplicable.

(2) The name of the party the candidaterepresents if the petition is for an office underparty designation.

1See N.D.C.C. 16.1-15-40 and 16.1-15-21(1) and (2).2See N.D.C.C. 16.1-15-40.


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(3) The signatures of qualified electors, the

number of which must be determined asfollows:

(a) If the office is under party designation,the signatures of three percent of thetotal vote cast for the candidates of theparty with which the candidate affiliatesfor the same position at the last generalelection. However, no more than threehundred signatures may be required.

(b) If there was no candidate of a party for aposition at the preceding generalelection, at least three hundredsignatures.

(c) If the office is under the no-partydesignation, at least three hundredsignatures.

(4) The mailing address and the date of signing foreach signer.

2. If the petition or certificate of endorsement is for the office ofgovernor or lieutenant governor, the petition or certificatemust contain the names and other information required ofcandidates for both those offices. If the petition or certificateof endorsement is mailed, it must be in the possession of thesecretary of state before four p.m. of the sixtieth day beforethe primary election.3

As you indicate, your office did not receive completed documents prior to the statutory60-day deadline from a candidate for the position of Lieutenant Governor in theLibertarian Party column, to appear jointly with the gubernatorial candidate. However, a

3N.D.C.C. 16.1-11-06 (emphasis added). The use of the words shall and must in thisstatute indicates that the provisions are meant to be mandatory. See, e.g., James ValleyGrain, LLC v. David, 802 N.W.2d 158, 162 (N.D. 2011). See also N.D.C.C. 16.1-12-02which provides, in part, that [i]f the petition is for the office of governor or lieutenantgovernor, it must contain the names and other required information of candidates for boththose offices. N.D.C.C. 16.1-12-02(4).


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plain reading4of N.D.C.C. 16.1-11-06(2) clearly reveals that the petition or certificate

must contain the names and other information required of candidates for both thoseoffices.

This language requires two things. First, the gubernatorial candidates certificate ofendorsement or nominating petition should have mentioned the name of a candidate forLieutenant Governor together with the ancillary information such as the appropriateaddress, telephone number, title of office, and party (which it did not). Second, acandidate for Lieutenant Governor would have had to file a certificate of endorsement ornominating petition together with all the required information including certaininformation regarding the candidate for Governor. This provision of the law waslikewise not followed. Because, in this instance, there was no candidate for Lieutenant

Governor on the primary election ballot and because the gubernatorial candidate for theLibertarian Party (who did appear on the primary election ballot) did not name a runningmate and other pertinent information required of candidates for both those offices in thenominating petition or certificate of endorsement, the Libertarian Party candidate forGovernor was not nominated in accordance with North Dakota law.

North Dakota law generally differentiates between a primary election and a generalelection.5 Persons properly nominated at a primary election in accordance with theprovisions of N.D.C.C. ch. 16.1-11 are eligible as candidates to be voted for at theensuing general election.6 However, because the gubernatorial candidate for this partywas not nominated in accordance with N.D.C.C. 16.1-11-06(2), he was not properlynominated and thus not eligible as a candidate for the ensuing November generalelection.7

Moreover, the North Dakota Constitution requires that candidates for Governor andLieutenant Governor must run together and be elected on a joint ballot. N.D. Const. art.V, 3 provides as follows:

The governor and the lieutenant governor must be elected on a jointballot. Each vote cast for a candidate for governor is deemed cast also forthe candidate for lieutenant governor running jointly with the candidate forgovernor. The joint candidates having the highest number of votes mustbe declared elected. If two or more joint candidates have an equal andhighest number of votes for governor and lieutenant governor, the

4See N.D.C.C. 1-02-02 (words used in a statute are to be understood in their ordinarysense).5Bolinske v. Jaeger, 756 N.W.2d 336, 339 (N.D. 2008).6Id. at 339, 340.7Id.


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legislative assembly in joint session at its next regular session shall

choose one pair of joint candidates for the offices. The returns of theelection for governor and lieutenant governor must be made in the mannerprescribed by law.8

Because no candidate for Lieutenant Governor for the Libertarian Party appeared on theprimary election ballot, likewise there would be no Lieutenant Governor candidateadvancing to the general election ballot. Thus, even if it were assumed for the sake ofargument that the gubernatorial candidate was lawfully nominated in the June primaryelection, the constitutional requirement of having joint candidates subject to election on a

joint ballot in the November general election would not be met.9 As noted in a prioropinion issued by this office construing the substantially similar predecessor provision to

N.D. Const. art. V, 3:

It is, however, our further opinion that Section 74 of the Constitution requiresthat the general election ballot contain the names of joint candidates for theoffices of governor and lieutenant governor. . . . In the case of independentcandidates, the Secretary of State shall refuse to place the name of anycandidate for either of these offices on the general election ballot unless thepetitions also contain the name of a joint candidate for the other office.10

8N.D. Const. art. V, 3 (emphasis added). The multiple use of the word must in theseprovisions indicates the provisions are meant to be mandatory. James Valley Grain,LLC v. David, 802 N.W.2d at 162. It could be suggested that this constitutionaldeficiency of a lack of a Lieutenant Governor candidate could be remedied if thegubernatorial candidate is elected, deems there to be a vacancy in the office ofLieutenant Governor, and appoints someone to fill that office. While a Governor has thepower to fill a vacancy in state office under N.D.C.C. 44-02-03, the situation here doesnot involve a vacancy within the meaning of N.D.C.C. 44-02-01. That law requires anactual officeholder who is an incumbent who is subject to one of the ten enumeratedcauses of vacancies set out in this statute. Those specific vacancy triggers are that theofficeholder has died in office; been adjudged mentally ill; resigned from office; beenremoved from office; failed to discharge the duties of office; failed to qualify for office (byfailing to take the oath); ceased to be a state resident; been convicted of certainfelonies; ceased to possess a qualification of office; or had the incumbents electiondeclared void by a court. Id. Not only would there be no incumbent LieutenantGovernor, none of the enumerated vacancy triggers would be present here.9N.D. Const. art. V, 3.10 N.D.A.G. 76-86. This opinion only construed the language from the constitutionalprovision. N.D.C.C. 16.1-11-06 was not enacted until 1981, some five years after thisopinion was issued. To the extent part of N.D.A.G. 76-86 is inconsistent with this letter, itis hereby overruled.


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Based on the foregoing, it is my opinion that the gubernatorial candidate for the LibertarianParty was not nominated in accordance with North Dakota law at the June 12, 2012,primary election. Because of this, it is my opinion that the State Canvassing Board maynot certify that the candidate has been nominated as provided by law.11 Nor may theSecretary of State mail a notice of nomination to such a solitary candidate (stating that thecandidates name will be placed on the official ballot to be voted for at the ensuing generalelection) since this candidate has not been nominated in accordance with state law12or

11See N.D.C.C. 16.1-15-40 and 16.1-15-21.12 See N.D.C.C. 16.1-15-40. It should be noted that there is a general rule of

construction regarding election law:

All provisions of election law are mandatory if enforcement is sought beforeelection in a direct proceeding for that purpose; but after election should beheld directory only, in support of the result, unless of a character to effect anobstruction to the free and intelligent casting of the vote or to theascertainment of the result, or unless the provisions affect an essentialelement of the election . . . .

Kiner v. Well, 71 N.W.2d 743, 744 (Syllabus by the Court 2) (N.D. 1955) (emphasisadded). It might be argued that the first part of this rule of construction would apply hereand that the requirements of N.D.C.C. 16.1-11-06 and N.D. Const. art. V, 3 would notbe mandatory after the primary election. However, I do not believe this rule is applicablehere. First, the primary election is only an election in a very limited sense:

Insofar as the primary election deals with the selection of public officers it isa nominating election only at which the people choose candidates for partyand no-party offices. The final choice of offices is left entirely to the generalelection. At the primary no one is elected. The election procedure relativeto notice, form of ballot, canvas of votes, and certification of the result dealwith nominations and not final election to office.

State ex rel. Lanier v. Hall, 23 N.W.2d 44, 47 (N.D. 1946). Second, even if this rule ofconstruction would be deemed to apply to a primary election, it provides an exception thatkeeps post-primary election provisions mandatory if they affect an essential element of theelection. Kiner v. Well, 71 N.W.2d at 744. The mandatory provisions in N.D.C.C. 16.1-11-06 requiring the naming of a gubernatorial running mate and N.D. Const. art. V, 3 requiring joint ballots and joint candidacies for Governor and Lieutenant Governor areessential elements of the primary and general elections since these offices are meant tobe campaigned for jointly and elected jointly. Consequently, it is necessary that thesestatutory and constitutional requirements be considered as mandatory at all times.


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otherwise met the constitutional requirements for placement of his name on the general

election ballot.

Sincerely,

Wayne StenehjemAttorney General

jjf/pab

This opinion is issued pursuant to N.D.C.C. 54-12-01. It governs the actions of publicofficials until such time as the question presented is decided by the courts.13

13See State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946).


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North DakotaSupreme CourtOpinions

Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330

[Go to Documents] Filed Feb. 26, 2013 [Download as WordPerfect]Concurrencefiled.

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2013 ND 30

Roland Riemers, Plaintiff and Appellant

v.

Alvin A. Jaeger, as Secretary of State of North Dakota, Defendant and

Appellee

No. 20120353

Appeal from the District Court of Grand Forks County, Northeast

Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Roland Riemers, self-represented, P.O. Box 14702, Grand Forks, N.D.

58208, plaintiff and appellant.

Douglas A. Bahr, Solicitor General, 500 North 9th Street, Bismarck,

N.D. 58501-4509, for defendant and appellee.

Riemers v. Jaeger

No. 20120353

Crothers Justice.

[1] Roland Riemers appeals from a districtcourt order denying his

petition for a writ to require Secretary of State Alvin Jaeger to remove the

Republican and Democratic-NPL party candidates for governor and

lieutenant governor from the ballot for the November 2012 general

election, or alternatively, to require the Secretary of State to place him on

that ballot as the Libertarian party candidate for governor. We affirm.

I

Appendix F
http://www.ndcourts.gov/court/lawyers/04940.htmhttp://www.ndcourts.gov/court/court.htmhttp://www.ndcourts.gov/http://www.ndcourts.gov/court/docket/20120353.htmhttp://www.ndcourts.gov/http://www.nd.gov/http://www.ndcourts.gov/http://www.ndcourts.gov/Search/Opinions.asphttp://www.ndcourts.gov/court/opinions/20120353.htmhttp://avantgo.com/mydevice/autoadd.html?title=Riemers%20v.%20Jaeger,%202013%20ND%2030,%20827%20N.W.2d%20330&url=http://www.ndcourts.gov/court/opinions/20120353.htm&max=NaN&depth=1&images=0&links=0&refresh=daily&hours=1&dflags=0&hour=0&quarter=00&s=00http://www.ndcourts.gov/court/opinions/20120353.htmhttp://www.ndcourts.gov/Help/Opinions.htmhttp://www.ndcourts.gov/court/lawyers/04940.htmhttp://www.ndcourts.gov/court/bios/Crothers.htmhttp://www.ndcourts.gov/court/bios/Jahnke.htmhttp://www.nd.gov/http://www.ndcourts.gov/court/court.htmhttp://-/?-http://www.ndcourts.gov/wp/20120353.wpdhttp://www.ndcourts.gov/court/docket/20120353.htmhttp://www.ndcourts.gov/Help/Opinions.htmhttp://www.ndcourts.gov/court/opinions/20120353.htmhttp://avantgo.com/mydevice/autoadd.html?title=Riemers%20v.%20Jaeger,%202013%20ND%2030,%20827%20N.W.2d%20330&url=http://www.ndcourts.gov/court/opinions/20120353.htm&max=NaN&depth=1&images=0&links=0&refresh=daily&hours=1&dflags=0&hour=0&quarter=00&s=00http://www.ndcourts.gov/court/opinions/20120353.htmhttp://www.ndcourts.gov/Search/Opinions.asphttp://www.ndcourts.gov/http://www.nd.gov/http://www.ndcourts.gov/comment/http://www.ndcourts.gov/custom/custom.htmhttp://www.ndcourts.gov/court/Subscribe.htmhttp://www.ndcourts.gov/court/Forms/http://www.ndcourts.gov/court/New.htmhttp://www.ndcourts.gov/court/Notices/Notices.htmhttp://www.ndcourts.gov/Calendar/http://www.ndcourts.gov/court/Courts.htmhttp://www.ndcourts.gov/Research/http://www.ndcourts.gov/rules/http://www.ndcourts.gov/Lawyers/http://www.ndcourts.gov/court/Welcome.htmhttp://www.ndcourts.gov/court/Index.htmhttp://www.ndcourts.gov/Search/Query.asphttp://www.ndcourts.gov/Search/Opinions.asphttp://www.ndcourts.gov/http://-/?-http://www.ndcourts.gov/


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[2] In April 2012, the Libertarian party of North Dakota endorsed

Riemers as its candidate for governor and Richard Ames as its candidate

for lieutenant governor for the 2012 election. According to Riemers, both

candidates filed separate certificates of endorsement and statements of

interests with the Secretary of State to place their names on the ballot for

the June 2012 primary election, but Ames did not submit a signature page

with his statement of interests. See N.D.C.C. 16.1-09-02 (stating "

[e]very candidate for elective office shall sign and file the statement ofinterests as required by this chapter"). The Secretary of State placed

Riemers' name on the primary ballot as the Libertarian candidate for

governor, but Ames' name was not placed on that ballot. After Riemers

received enough votes in the June primary election to qualify for

placement on the ballot for the November general election, the Secretary

of State asked the Attorney General whether Riemers had been

nominated as a candidate for governor according to state law and

whether he was eligible for certification on the general election ballot

without an accompanying candidate for lieutenant governor.

[3] In July 2012, the Attorney General issued a written opinion, ruling

Riemers was not nominated for governor according to state law because

the requirement of N.D. Const. art. V, 3 for a joint ballot for governor

and lieutenant governor was not satisfied. N.D. Att'y Gen. Op. 2012-L-

07. The Attorney General's opinion also cited N.D.C.C. 16.1-11-

06(2), providing "[i]f the [nominating] petition or certificate of

endorsement is for the office of governor or lieutenant governor, the

petition or certificate must contain the names and other information

required of candidates for both those offices." The Attorney General

explained:

"This language requires two things. First, the gubernatorial

candidate's certificate of endorsement or nominating petition

should have mentioned the name of a candidate for

Lieutenant Governor together with the ancillary information

such as the appropriate address, telephone number, title of

office, and party (which it did not). Second, a candidate for

Lieutenant Governor would have had to file a certificate of

endorsement or nominating petition together with all the

required information including certain information regardingthe candidate for Governor. This provision of the law was

likewise not followed. Because, in this instance, there was no

candidate for Lieutenant Governor on the primary election

ballot and because the gubernatorial candidate for the

Libertarian Party (who did appear on the primary election

ballot) did not name a running mate and other pertinent

information required of candidates for both those offices in

the nominating petition or certificate of endorsement, the

Libertarian Party candidate for Governor was not nominated

in accordance with North Dakota law.


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"'North Dakota law generally differentiates between a

primary election and a general election.' Persons properly

nominated at a primary election in accordance with the

provisions of N.D.C.C. ch. 16.1-11 are eligible as candidates

to be voted for at the ensuing general election. However,

because the gubernatorial candidate for this party was not

nominated in accordance with N.D.C.C. 16.1-11-06(2), he

was not properly nominated and thus not eligible as a

candidate for the ensuing November general election."

N.D. Att'y Gen. Op. 2012-L-07 (footnotes omitted).

[4] The Secretary of State followed the Attorney General's opinion and

did not certify Riemers for the November general election ballot as the

Libertarian candidate for governor. According to Riemers, he asked the

Secretary of State to provide him with copies of the certificates of

endorsement for the Republican and Democratic candidates for governor

and lieutenant governor and the certificates of endorsement provided to

him separately listed the respective candidates for governor and lieutenantgovernor for those parties without referencing information about a running

mate. See N.D.C.C. 16.1-11-09 and 16.1-11-10 (statutory form for

certificate of endorsement and accompanying affidavit). In

correspondence with the Secretary of State, Riemers claimed those

separate certificates of endorsement violated the mandatory language of

N.D.C.C. 16.1-11-06(2) and those candidates also should be

removed from the general election ballot.

[5] The Secretary of State informed Riemers that those candidates'

certificates of endorsement were properly filed under state law:

"I have attached PDF 2923. On page 1, it states that a

candidate or candidates (in case of Gov/Lt Gov) have one of

two choices to have their names placed on the Primary

Election Ballot. If they select the petition method (which, is

the same form that is required of Independent candidates for

Governor/Lt Governor for the General election), the name of

the Lt Governor candidate must be listed on the petition prior

to its circulation.

"If they select the Certificate of Endorsement method, then a

separate SFN 17196 is filed for both the Governor candidate

and the Lt Governor candidate. They are not listed together

on one form, as is the case with the petition method. Each

candidate separately files an Affidavit of Candidacy and a

Statement of Interests form. These are the same forms

required of the candidates that selected the petition method.

"SFN 02704 and SFN 17196 are different forms and are used,

as dictated by the selection made by the candidates, i.e.,


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petition or endorsement.

"For the primary election, the respective candidates for the

Republican Party and Democratic/NPL Party selected the

Endorsement method. Their papers related to that selection

were properly filed according to state law. Subsequently, they

were nominated in the primary election to be listed under the

name of their political party for the November ballot. The

selected names for the respective parties are automaticallyadvanced and they do not have to file any further forms. This

is the same option that is available for Governor/Lt Governor

candidates representing any other political party."

[6] Riemers thereafter submitted sufficient signatures to the Secretary of

State for certification on the November general election ballot as an

independent candidate for governor, with Anthony Johns as his

accompanying candidate for lieutenant governor. On September 10,

2012, the Secretary of State certified the candidates for the general

election ballot under N.D.C.C. 16.1-12-04(1), including theRepublican and Democratic candidates for governor and lieutenant

governor and Riemers and Johns as independent candidates for those

offices.

[7] On September 10, 2012, after filing the petition in this proceeding in

the district court on August 30, 2012 and being informed a previous

attempt to serve the petition on the Secretary of State by certified mail

was insufficient underN.D.R.Civ.P. 4(d)(2), Riemers personally served

an Assistant Attorney General with the petition for a writ of mandamus, a

writ of prohibition, a writ of quo warranto, and for preventive ordeclaratory relief. Riemers named the Secretary of State as the

respondent and asked the district court to require the Secretary of State

to remove the Republican and Democratic candidates for governor and

lieutenant governor from the November general election ballot for failure

to file a joint certificate of endorsement for the primary election. Riemers

alternatively sought an order requiring the Secretary of State to place his

name on the general election ballot as the Libertarian candidate for

governor with Anthony Johns as the Libertarian candidate for lieutenant

governor. Riemers also sought an order directing the Secretary of State to

stop discriminating against minor party and independent candidates.

[8] Based on the documents filed by the parties, the district court denied

Riemers' requests for relief, finding he had shown no clear legal right to a

writ of mandamus to remove the Republican and Democratic candidates

for governor and lieutenant governor from the November general election

ballot or to place him on that ballot as the Libertarian candidate for

governor. The court found the Secretary of State properly relied on N.D.

Att'y Gen. Op. 2012-L-07 in not placing Riemers on the general election
http://www.ndcourts.gov/court/rules/civil/rule04.htm


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ballot as the Libertarian candidate for governor because he did not have

an accompanying Libertarian candidate for lieutenant governor. The court

said Riemers was not entitled to quo warranto relief and denied his claim

for injunctive relief, stating, "Other than bare allegations, however, [he]

has presented no credible evidence that the North Dakota Secretary of

State has engaged in discriminatory behavior against him or anyone else."

II

[9] Riemers identifies several issues for review, including that the district

court erred in finding he presented only bare allegations and no credible

evidence the Secretary of State had engaged in discriminatory conduct or

exceeded his authority, that the court erred in finding he presented no law

requiring removal of the Republican and Democratic candidates for

governor and lieutenant governor from the general election ballot, that he

should not have been removed from the general election ballot as the

Libertarian candidate for governor and that it is not too late to remove the

Republican and Democratic candidates from the general election ballot.Riemers claims N.D.C.C. 16.1-11-06(2) requires certificates of

endorsement for candidates for go