BISMARCK, N.D. (AP) — North Dakota Gov. Doug Burgum doesn’t have the authority to appoint someone to a state House seat won by a Republican candidate who died before the election, the North Dakota Supreme Court ruled Tuesday.
The court, in a unanimous ruling, wrote that Burgum “has not established a clear legal right” to appoint his preferred candidate. Instead, the court said, the power lies with the district committee of the political party the former member represented.
The decision came just days after the court heard oral arguments in the case brought by the Republican governor. It was a setback for Burgum, who spent heavily to help oust a fellow Republican who had stymied the governor at the Capitol — and had hoped to prevent that very same rival, Jeff Delzer, from being appointed to fill the dead candidate’s seat.
Burgum had argued the Constitution gave him the right to appoint someone to a state House seat won by won Nov. 3 by David Andahl even though Andahl died Oct. 5 from coronavirus complications. The House district represents a sprawling rural area north of Bismarck.
A day after the election, Burgum appointed Washburn coal executive Wade Boeshans to the seat. He sued the Legislature, secretary of state, and Democratic and Republican activists to bring the issue to the high court.
Legislators argue that they, not Burgum, have the power to fill the seat. Last week, they chose Delzer, a farmer with a reputation for tight-fisted budgeting, to do it.
Attorney General Wayne Stenehjem told justices Friday in oral arguments that Burgum’s appointment was executive branch overreach and violated the separation of powers. A governor may not “impose a legislator on a district they neither asked for or was involved with,” Stenehjem argued.