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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 CENTRAL JUDICIAL 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 compelling Governor 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 and Ryan Taylor and their respective Lt. Governor candidates were not nominated in

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 his Constitutional 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 must contain 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 State Canvassing 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 in the county where the cause or some part thereof arose, subject to the power of the court to change the place of trial as provided in sections 28-04-09 and 28-04-10: 2. Against a public officer, or person specially appointed to execute the officer's duties, for an act done by that individual by virtue of office, or against a person who by that person's command or aid shall do anything touching the duties of such officer.

See also Dorgan v. Mercil which involved a petition for writ of mandamus: [**8] Significantly, this Court in Huber v. Wanner, 62 N.D. 303, 243 N.W. 661 (1932), said that the right of a public officer to be tried in the county where the cause of action arose is absolute under 28-04-03, NDCC, and that mere joinder of other parties does not deprive the public officer of that right.

Dorgan v. Mercil, 269 NW 2d 99- ND: Supreme Court 1978.

This Writ Not Barred by the Doctrine of Res Judicata


To the extent that it would be argued that the issues of this Writ of Mandamus were already decided in the case of Riemers v. Jaeger, it should be emphasized that there was no final judgment on the merits of Mr. Riemers requested alternative remedy to remove Jack Dalrymple and Ryan Taylor and their respective Lt. Governor candidates from the general election ballot. Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330. The doctrine of res judicata prevents multiple lawsuits involving the same cause of action. In Anderson v. Abraham, the North Dakota District Court defined the following three-part test to evaluate assertions of res judicata (Anderson v. Abraham, 214 F. Supp. 2d 1036 (DND 2002)): 1. Whether a prior judgment was entered by a court of competent jurisdiction. 2. Whether the prior decision was a final judgment on the merits. 3. Whether the same cause of action and the same parties or their privies were involved in the case.

None of these standards existed in prior case. In Riemers v. Jaeger, Riemers did not include Jack Dalrymple and Ryan Taylor and their respective Lt. Governor candidates as parties to his actions. Also, Riemers action was brought about in response to the Secretary of State, Al Jaeger, removing him from the 2012 general election ballot after the primary election for not having a lt. governor candidate as required by state law. This is not the cause of action in this case. Also, Riemers did not prove he had a legal right to his alternative remedy because he did not provide the nominating certificates for the Republican candidates for Governor and Lt. Governor in his brief. Nor did he provide the nominating certificate for the Democratic Lt. Governor candidate in his brief. Therefore, the lower court and the State Supreme Court were not able to review these documents and award Riemers his alternative remedy.
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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, Riemers claims neither the Republican nor the Democratic candidates for governor and lieutenant governor complied with N.D.C.C. 16.1-1106(2) and the Secretary of State should have removed the candidates from the general election ballot. [16] The record in the district court includes the Republican gubernatorial candidate's affidavit of candidacy and the Democratic gubernatorial 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 and the Democratic candidate for lieutenant governor. A petitioner for a writ of mandamus, a writ of prohibition or a writ of injunction must demonstrate a clear legal right to the performance of an act, and we review a district court's decision denying those writs for an abuse of discretion. 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 meaningful review of an alleged error, the appellant has not carried the burden of demonstrating reversible error." Olson v. Griggs County, 491 N.W.2d 725, 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 for lieutenant governor, Riemers failed to establish a factual basis requiring the Secretary of State to remove the Republican and Democratic candidates for governor and lieutenant governor from the November general election ballot. We conclude the district court did not act arbitrarily, unreasonably or unconscionably in deciding Riemers failed to establish a clear legal right to have the Secretary of State removes the Republican and Democratic candidates for governor and lieutenant governor 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 abuse its discretion in denying Riemers' request for a writ to remove those candidates from the general election ballot.

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

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. This means 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 the action 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 heard on 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. So the 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

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 North Dakota 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 on a joint ballot. Each vote cast for a candidate for governor is deemed cast also for the candidate for lieutenant governor running jointly with the candidate for governor. The joint candidates having the highest number of votes must be declared elected. If two or more joint candidates have an equal and highest number of votes for governor and lieutenant governor, the legislative assembly in joint session at its next regular session shall choose one pair of joint candidates for the offices.

The returns of the election for governor and lieutenant governor must be made 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 candidate for the Libertarian Party 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. (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 is persuasive, 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 governor and lieutenant governor, the petition or certificate must contain the names and other information required of candidates for both those offices. 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 sixtyfourth 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 reveals that the petition or certificate must contain the names and other information required of candidates for both those offices. This language requires two things. First, the gubernatorial candidates 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 regarding the 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. North Dakota law generally differentiates between a primary election and 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 are eligible as candidates to be voted for at the ensuing general election.6 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.

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 their respective 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 administered and 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, in pertinent part, that;
Section 2. All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require. 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 due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner, in such courts, 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-L07) 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 election should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election . . . .

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 the primary election deals with the selection of public officers it is a nominating election only at which the people choose candidates for party and no-party offices. The final choice of offices is left entirely to the general election. At the primary no one is elected. The election procedure relative to notice, form of ballot, canvas of votes, and certification 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 election provisions 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 and N.D. Const. art. V, 3 requiring joint ballots and joint candidacies for Governor and Lieutenant Governor are essential elements of the primary and 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-L07), 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, 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-L07. 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 10

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 regarding the 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. "'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.

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) In Falke 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 the statute 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 wellestablished principle, we conclude that the Elections Division policy of permitting candidates to fill out forms after the statutory filing deadline does not properly implement the statute. In reaching this conclusion we note 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 election officials.

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 order was entered denying the application for writ of mandamus and dismissing the petition, it being indicated therein that an opinion would be subsequently filed. 614 The question before us for consideration is whether certain petitions filed by plaintiff were properly disregarded, wholly or in part, by defendants on the ground that they were not in accordance with statutory provisions relating thereto. The form and substance of such petitions are prescribed by section 544 of the Michigan election law [*] (CLS 1956, 168.544 [Stat Ann 1956 Rev 6.1544]). In accordance with the form prescribed the caption of each petition must indicate the city 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 in more 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 the signature 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 the best knowledge and belief of the circulator each signer was at the time a qualified and registered elector of the city or township designated in the jurat. 615 It appears from the testimony taken before Judge Coash that a number of petitions were rejected by the canvassing board because of failure to show in what township or city the circulation thereof occurred, and other petitions were rejected because it appeared that they were circulated in more than one township, or in a township and adjoining city. In other instances 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 not comply with the statute, and the board was right in rejecting them. 13

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 result of this non-compliance Fitch's application for a place on the ballot and the accompanying petition are invalid. Based on this failure to strictly comply with the mandatory statutory provisions, it was a violation of duty for Ken Bentsen to submit Fitch's name on the List of Candidates and 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 and 14th 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 fact issues presented and respondents failed to point out any fact issues in their briefs or during oral argument. These constitutional rights asserted by respondents do not prevent the legislature from enacting statutory provision for the conduct of general and primary elections. The sections involved in this case are clearly administrative provisions dealing with the requirements a candidate must comply with in order to be placed on the 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 on compliance 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 no provision of the Constitution of the United States in conflict with West Virginia's Art VII, 4 limitation on succession, and as there is no rule of constitutional construction which requires other than a straight-forward application of the constitutional provision in question, we hold that the Governor is ineligible to succeed himself during the term beginning January 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 on incumbent succession contrary to the Fourteenth Amendment to the Constitution of the United States. While this Court can and must find provisions of the Constitution of the State of West Virginia invalid when they 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 by oath to support every provision of the Constitution of the State of West Virginia. See dissenting opinion of Judge Haymond, Lance v. Board of Education, 153 W.Va. 559, 574, 170 S.E.2d 783, 791 (1969), rev'd sub nom. 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 provisions may 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 that restrictive provisions on the succession of incumbents does not frustrate but 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 Local Elections: 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 shall have appended thereto the substituted candidate's "written consent to be so designated or nominated, duly acknowledged". In Matter of Rhodes v Salerno (57 NY2d 885), a certificate of acceptance under Election Law 6-146 (1) which contained the candidate's signature was invalidated due to the absence of the required acknowledgement. Here, the result must be the same since the statute at issue requires compliance with "matters of prescribed content" (Matter of Rhodes v Salerno, 90 AD2d 587, affd 57 NY2d 885, supra) and the consent form lacks 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 is affirmed.

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 be held 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 substitution nominating 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 "shall have appended thereto" the substituted candidate's "written consent to be so designated or nominated, duly acknowledged." Here, with the 16

certificate of substitution of the Working Families Party filed with the Dutchess County Board of Elections on October 2, 2007, there was no affidavit "appended thereto" from Thompson consenting to the nomination. Although three days later the Working Families Party attempted to cure this defect by filing an affidavit from Thompson consenting to the nomination, that document was not appended to a completed certificate of substitution. In both instances, the Working Families Party failed to comply with the requirements of Election Law 6-148 (5). Contrary to the respondents' contention that these two separate filings should be considered together, where, as here, the matter is "of prescribed content," there must be strict compliance with the 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 Families Party 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 F Supp 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-L07). 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
17

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 definitive opinion, 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 responsibility of 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, the Supreme 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 18

voting process itself, inevitably affectsat least to some degreethe individuals 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, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently. See Brief for Petitioner 3237. 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;McDonald v. Board of Election Commrs 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 have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable. Anderson, supra, at 788. The dissent's suggestion that voters are entitled to cast their ballots for unqualified candidates appears to be driven by the assumption that an election system that imposes 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 which he 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; Matter of Frome v Board of Elections of Nassau County, 57 N.Y.2d 741.) The courts enjoy no discretion to allow candidates to deviate from these legislative mandates.

19

(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 Testimony


Facts 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 lieutenant governor 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.

20

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 deny to any person within its jurisdiction the equal protection of the laws. By admittedly enforcing the states election laws, N.D. Const. art. V, 3 and N.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. 2. 3. 4. North Dakota State Constitution Article V, 3 The North Dakota Century Code 16.1-11-06 (2) North Dakota Attorney Generals Opinion 2012-L-07 North Dakota Supreme Court Decision in Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330 5. The Equal Protection Clause in Section 1 of the 14th Amendment of the U.S. Constitution 6. Section 22 of Article I of the North Dakota Constitution Entitled Declaration of Rights 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.

21

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 law exempted, before they enter on the duties of their respective offices, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm as the case may be) that I will support the Constitution of 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), (under pains and penalties of perjury) if an affirmation, and any other oath, declaration, or test may not be required as a qualification for any office or 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:

22

1. For those reasons which are set forth hereafter, issuance of an order compelling Governor 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 and Ryan Taylor and their respective Lt. Governor candidates were not nominated in 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 his Constitutional 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 must contain 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 State Canvassing 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. Dated this 22nd day of January, 2014,

______________________________________________ Paul J. Sorum, pro se Petitioner


3501 Calypso Dr Bismarck, ND 58504 Phone: 701-219-5601 paul.sorum61@gmail.com

23

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)

24

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E
LETTER OPINION 2012-L-07

July 5, 2012

The Honorable Alvin A. Jaeger Secretary of State 600 East Boulevard Avenue Bismarck, ND 58505 Dear Secretary of State Jaeger: Thank you for your letter, on behalf of the State Canvassing Board, requesting my opinion on whether the gubernatorial candidate for the Libertarian Party was nominated in accordance with state law at the June 12, 2012, primary election and is eligible for certification and advancement to the general election ballot. Based on the following, it is my opinion that the gubernatorial candidate for the Libertarian Party was not nominated in accordance with North Dakota law at the June 12, 2012, primary election and consequently, the State Canvassing Board should not certify that nomination nor should you, as Secretary of State, issue a notice of nomination or otherwise permit this solitary candidates 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 have his name placed on the ballot as a candidate for Governor in the Libertarian Party column and 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 position of Lieutenant Governor in the Libertarian Party column, to appear jointly on the ballot with the gubernatorial candidate. You further state that the State Canvassing Board met on June 25, 2012, and verified that the Libertarian Partys candidate for Governor did receive more than the 300 votes normally required to advance to the November general election. Based on these circumstances, you question whether the gubernatorial candidate was properly nominated in accordance with North Dakota law and whether these results of the

LETTER OPINION 2012-L-07 July 5, 2012 Page 2 primary election should be certified by the State Canvassing Board1 and the candidate notified by your office2 of his nomination and placement on the general election ballot. State law provides as follows: State candidates petition or political party certificate of endorsement required to get name on ballot - Contents - Filing. 1. Every candidate for United States senator, United States representative, a state office except the office of state senator or state representative, and judges of the supreme and district courts shall present to the secretary of state, between the first date candidates may begin circulating nominating petitions according to this chapter and before four p.m. of the sixtieth day before any primary election, either: a. The certificate of endorsement signed by the state chairman of any legally recognized political party containing the candidates name, post-office address, and telephone number, the title of the office to which the candidate aspires, and the party which the candidate represents; or The nominating petition containing the following: (1) The candidates name, post-office address, and telephone number, and the title of the office to which the candidate aspires, the appropriate district judgeship number if applicable, and whether the petition is intended for nomination for an unexpired term of office if applicable. The name of the party the candidate represents if the petition is for an office under party designation.

b.

(2)

1 2

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

LETTER OPINION 2012-L-07 July 5, 2012 Page 3 (3) The signatures of qualified electors, the number of which must be determined as follows: (a) If the office is under party designation, the signatures of three percent of the total vote cast for the candidates of the party with which the candidate affiliates for the same position at the last general election. However, no more than three hundred signatures may be required. If there was no candidate of a party for a position at the preceding general election, at least three hundred signatures. If the office is under the no-party designation, at least three hundred signatures.

(b)

(c)

(4)

The mailing address and the date of signing for each signer.

2.

If the 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. 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 sixtieth day before the primary election.3

As you indicate, your office did not receive completed documents prior to the statutory 60-day deadline from a candidate for the position of Lieutenant Governor in the Libertarian Party column, to appear jointly with the gubernatorial candidate. However, a
3

N.D.C.C. 16.1-11-06 (emphasis added). The use of the words shall and 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). See also N.D.C.C. 16.1-12-02 which provides, in part, that [i]f the petition is for the office of governor or lieutenant governor, it must contain the names and other required information of candidates for both those offices. N.D.C.C. 16.1-12-02(4).

LETTER OPINION 2012-L-07 July 5, 2012 Page 4 plain reading4 of 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 those offices. This language requires two things. First, the gubernatorial candidates 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 regarding the 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. North Dakota law generally differentiates between a primary election and 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 are eligible as candidates to be voted for at the ensuing general election.6 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.7 Moreover, the North Dakota Constitution requires that candidates for Governor and Lieutenant 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 joint ballot. Each vote cast for a candidate for governor is deemed cast also for the candidate for lieutenant governor running jointly with the candidate for governor. The joint candidates having the highest number of votes must be declared elected. If two or more joint candidates have an equal and highest number of votes for governor and lieutenant governor, the
4

See N.D.C.C. 1-02-02 (words used in a statute are to be understood in their ordinary sense). 5 Bolinske v. Jaeger, 756 N.W.2d 336, 339 (N.D. 2008). 6 Id. at 339, 340. 7 Id.

LETTER OPINION 2012-L-07 July 5, 2012 Page 5 legislative assembly in joint session at its next regular session shall choose one pair of joint candidates for the offices. The returns of the election for governor and lieutenant governor must be made in the manner prescribed by law.8 Because no candidate for Lieutenant Governor for the Libertarian Party appeared on the primary election ballot, likewise there would be no Lieutenant Governor candidate advancing to the general election ballot. Thus, even if it were assumed for the sake of argument that the gubernatorial candidate was lawfully nominated in the June primary election, 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 prior opinion 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 requires that the general election ballot contain the names of joint candidates for the offices of governor and lieutenant governor. . . . In the case of independent candidates, the Secretary of State shall refuse to place the name of any candidate for either of these offices on the general election ballot unless the petitions also contain the name of a joint candidate for the other office.10
8

N.D. Const. art. V, 3 (emphasis added). The multiple use of the word must in these provisions 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 constitutional deficiency of a lack of a Lieutenant Governor candidate could be remedied if the gubernatorial candidate is elected, deems there to be a vacancy in the office of Lieutenant Governor, and appoints someone to fill that office. While a Governor has the power to fill a vacancy in state office under N.D.C.C. 44-02-03, the situation here does not involve a vacancy within the meaning of N.D.C.C. 44-02-01. That law requires an actual officeholder who is an incumbent who is subject to one of the ten enumerated causes of vacancies set out in this statute. Those specific vacancy triggers are that the officeholder has died in office; been adjudged mentally ill; resigned from office; been removed from office; failed to discharge the duties of office; failed to qualify for office (by failing to take the oath); ceased to be a state resident; been convicted of certain felonies; ceased to possess a qualification of office; or had the incumbents election declared void by a court. Id. Not only would there be no incumbent Lieutenant Governor, none of the enumerated vacancy triggers would be present here. 9 N.D. Const. art. V, 3. 10 N.D.A.G. 76-86. This opinion only construed the language from the constitutional provision. N.D.C.C. 16.1-11-06 was not enacted until 1981, some five years after this opinion was issued. To the extent part of N.D.A.G. 76-86 is inconsistent with this letter, it is hereby overruled.

LETTER OPINION 2012-L-07 July 5, 2012 Page 6 Based on the foregoing, it is my opinion that the gubernatorial candidate for the Libertarian Party 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 may not certify that the candidate has been nominated as provided by law.11 Nor may the Secretary of State mail a notice of nomination to such a solitary candidate (stating that the candidates name will be placed on the official ballot to be voted for at the ensuing general election) since this candidate has not been nominated in accordance with state law12 or
11 12

See N.D.C.C. 16.1-15-40 and 16.1-15-21. 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 before election in a direct proceeding for that purpose; but after election should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election . . . .

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 the primary election deals with the selection of public officers it is a nominating election only at which the people choose candidates for party and no-party offices. The final choice of offices is left entirely to the general election. At the primary no one is elected. The election procedure relative to notice, form of ballot, canvas of votes, and certification 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 election provisions 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 and N.D. Const. art. V, 3 requiring joint ballots and joint candidacies for Governor and Lieutenant Governor are essential elements of the primary and 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.

LETTER OPINION 2012-L-07 July 5, 2012 Page 7 otherwise met the constitutional requirements for placement of his name on the general election ballot. Sincerely,

Wayne Stenehjem Attorney General jjf/pab This opinion is issued pursuant to N.D.C.C. 54-12-01. It governs the actions of public officials until such time as the question presented is decided by the courts.13

13

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

Appendix F
North Dakota Supreme Court Opinions
Riemers v. Jaeger, 2013 ND 30, 827 N.W.2d 330
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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 district court 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

[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 of interests 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-L07. The Attorney General's opinion also cited N.D.C.C. 16.1-1106(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 regarding the 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.

"'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 lieutenant governor 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.,

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 automatically advanced 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 the Republican 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 under N.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 or declaratory 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

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 governor and lieutenant governor from the same party to "contain the names and other information required of candidates for both those offices" and because the certificates from the Republican and Democratic candidates for those offices did not include information about the candidates for both those offices, the certificates did not comply with the law. Riemers therefore claims the district court should have ordered the Secretary of State to remove those candidates from the general election ballot. He alternatively claims the Secretary of State should not have removed him from the general election ballot as the Libertarian candidate for governor. He claims the Secretary of State's conduct in requesting an Attorney General's opinion regarding his ballot status and by not requesting an opinion about the ballot status of the Democratic and Republican candidates was discriminatory. We review Riemers' arguments within the procedural framework of his claims for a writ of mandamus, a writ of prohibition, a writ of quo warranto and for preventive relief. [10] A district court may issue a writ of mandamus "to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." N.D.C.C. 32-34-01. It is well established that a "petitioner for a writ of mandamus must demonstrate a 'clear legal right' to performance of the particular act sought to be compelled by the writ" and "must further demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of law." Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, 19, 723 N.W.2d 112.

[11] A "writ of prohibition is the counterpart of the writ of mandamus [and] arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person." N.D.C.C. 32-35-01. A "writ of prohibition may be issued . . . to an inferior tribunal, or to a corporation, board, or person in any case, if there is not a plain, speedy, and adequate remedy in the ordinary course of law." N.D.C.C. 32-3502. [12] A district court's decision to issue a writ of mandamus or a writ of prohibition is discretionary, and the court's denial of those writs will not be overturned on appeal absent an abuse of discretion. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D. 1990). "A [district] court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law." MayPort Farmers Co-op v. St. Hilaire Seed Co., Inc., 2012 ND 257, 8 (quoting McGhee v. Mergenthal, 2007 ND 120, 9, 735 N.W.2d 867). [13] Rule 65, N.D.R.Civ.P., describes the "framework for injunction procedure in North Dakota." N.D.R.Civ.P. 65, Explanatory Note. As the Explanatory Note recognizes, "[g]rounds for granting a permanent injunction are listed in N.D.C.C. 32-05-04" and "[g]rounds for granting a temporary restraining order or preliminary injunction are listed in N.D.C.C. 32-06-02." N.D.R.Civ.P. 65, Explanatory Note. Under N.D.C.C. 32-05-03, "[p]reventive relief consists in prohibiting a party from doing that which ought not to be done" and "is granted by injunction, temporary or final." A "final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant . . . [w]hen pecuniary compensation would not afford adequate relief; [or w]hen it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief." N.D.C.C. 32-05-04(1) and (2). "An injunction cannot be granted . . . to prevent the execution of a public statute by officers of the law for the public benefit [or] to prevent the exercise of a public or private office in a lawful manner by the person in possession." N.D.C.C. 32-05-05(4) and (6). See Frey v. City of Jamestown, 548 N.W.2d 784, 787 (N.D. 1996) (injunctive relief appropriate if municipality fails to comply with statutory procedures for annexation and zoning, but not to test wisdom of annexation or zoning decision). In Ennis v. Dasovick, 506 N.W.2d 386, 392 (N.D. 1993) (quotation and citations omitted), this Court discussed requirements for injunctive relief:
"A writ of injunction under N.D.C.C. Chapter 32-06 is the correlative of the writ of mandamus under N.D.C.C. Chapter

32-34; the former restrains action while the latter compels action. We have recognized the availability of injunction in several governmental contexts. In Ferch v. Housing Authority of Cass County, 79 N.D. 764, 790, 59 N.W.2d 849, 866 (1953), we specifically recognized that public officers could be compelled to comply with the law 'through mandamus, or mandatory injunction buttressed by contempt proceedings.' The effect of the two procedures is essentially the same. "Requesting relief through an injunction instead of mandamus does not justify dismissal of a complaint. Under either procedure, the plaintiff must have a clear legal right to the performance of the act and there can be no plain, speedy and adequate remedy in the ordinary course of law. 'The law must not only authorize the act, but it must require it to be done.'"

[14] Section 32-13-01, N.D.C.C., provides that the "remedies formerly attainable by the . . . writ of quo warranto, and proceedings by information in the nature of quo warranto may be obtained by civil action in the district court under the provisions of [N.D.C.C. ch. 32-13]." This Court held the predecessor of N.D.C.C. ch. 32-13 did not repeal or abolish the writ of quo warranto, but provided an additional method in a civil action to obtain the remedies formerly attainable by that writ. See State ex rel. Sathre v. Roberts, 67 N.D. 92, 95-97, 269 N.W. 913, 915-16 (1936). Section 32-13-03(1), N.D.C.C., authorizes a civil action when any person unlawfully holds a public office. See Walker v. Weilenman, 143 N.W.2d 689, 695 (N.D. 1966) (stating action by quo warranto available to test right of person to hold office); State ex rel. Sathre v. Byrne, 65 N.D. 283, 291, 258 N.W. 121, 125 (1934) (stating quo warranto available as remedy in proceeding involving right to hold office). See also 65 Am. Jur. 2d Quo Warranto 1 (2011) ("The common-law remedy of quo warranto is employed either to determine the right of an individual to hold public office or to challenge a public official's attempt to exercise some right or privilege derived from the state.") (footnotes omitted). A [15] Within the procedural framework of judicial remedies sought by Riemers, we consider his specific claims. He argues the district court erred in finding he presented no statutory authority or case law requiring the Secretary of State to remove the Republican and Democratic candidates for governor and lieutenant governor from the November general election ballot. He argues the language in N.D.C.C. 16.1-1106(2) is clear and requires certificates of endorsement of candidates for governor or lieutenant governor to include required information for both candidates:

"If 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. 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 sixtieth day before the primary election." (Emphasis added.)

Despite not including those candidates as parties in this action, Riemers claims 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 candidates from the general election ballot. [16] The record in the district court includes the Republican gubernatorial candidate's affidavit of candidacy and the Democratic gubernatorial 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 and the Democratic candidate for lieutenant governor. A petitioner for a writ of mandamus, a writ of prohibition or a writ of injunction must demonstrate a clear legal right to the performance of an act, and we review a district court's decision denying those writs for an abuse of discretion. 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 meaningful review of an alleged error, the appellant has not carried the burden of demonstrating reversible error." Olson v. Griggs County, 491 N.W.2d 725, 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 for lieutenant governor, Riemers failed to establish a factual basis requiring the Secretary of State to remove the Republican and Democratic candidates for governor and lieutenant governor from the November general election ballot. We conclude the district court did not act arbitrarily, unreasonably or unconscionably in deciding Riemers failed to establish a clear legal right to have the Secretary of State remove the Republican and Democratic candidates for governor and lieutenant governor 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 abuse its discretion in denying Riemers' request for a writ to remove those candidates from the general election ballot.

B [18] Riemers alternatively claims he should have been reinstated to the general election ballot as the Libertarian candidate for governor, with Johns as his lieutenant governor candidate. [19] The initial Libertarian candidate for lieutenant governor, Ames, did not provide the Secretary of State with a signed statement of interests required by N.D.C.C. 16.1-09-02, and he was not placed on the primary ballot. As a result, no Libertarian candidate for lieutenant governor was on the primary ballot and nominated for certification to the general election ballot. It also is undisputed that Riemers was listed on the primary ballot as the Libertarian candidate for governor without an accompanying running mate for lieutenant governor. While a questionable result, that question is not before us and we express no opinion about the propriety of including Riemers on the primary ballot without an accompanying Libertarian candidate for lieutenant governor. Riemers was not removed from the primary ballot as the Libertarian candidate for governor; rather, the Secretary of State followed the Attorney General's written opinion and did not certify Riemers for the general election ballot under N.D. Const. art. V, 3, without a constitutionally required running mate for lieutenant governor. See N.D. Att'y Gen. Op. 2012-L-07. [20] This Court has said that "when any constitutional or other legal question arises regarding the performance of an official act[, the state officials'] duty is to consult with the attorney general and be guided by the opinion [the attorney general], if requested to do so, must give them." State ex rel. Johnson v. Baker, 74 N.D. 244, 259, 21 N.W.2d 355, 364 (1945). See also N.D.C.C. 54-12-01(6) (stating the Attorney General "shall [c]onsult with and advise the governor and all other state officers and when requested give written opinions on all legal or constitutional questions relating to the duties of such officers"). An Attorney General's opinion is entitled to respect if persuasive. Riemers v. City of Grand Forks, 2006 ND 224, 11, 723 N.W.2d 518. If state officials follow the opinion, it protects the officials until a court decides the issue. Johnson, 74 N.D. at 259, 21 N.W.2d at 364. If state officials fail to follow the opinion, however, the officials act at their peril. Id. [21] The Attorney General's interpretation of the mandatory constitutional requirement of N.D. Const. art. V, 3 is persuasive, and the Secretary of State correctly applied that opinion. We conclude Riemers failed to demonstrate a clear legal right to be certified for the general election ballot as the Libertarian candidate for governor and the district court did not abuse its discretion in denying his petition for a writ to require the Secretary of State to certify his name for that ballot as the Libertarian candidate for governor.

C [22] To the extent Riemers sought a writ of quo warranto, the district court did not err in dismissing his proceeding. Issues about the right to hold office are the proper subject of quo warranto or a proceeding under N.D.C.C. ch. 32-13. See State ex rel. Sathre v. Moodie, 65 N.D. 340, 344, 258 N.W. 558, 559 (1935); Byrne, 65 N.D. at 291, 258 N.W. at 125. See also 65 Am. Jur. 2d Quo Warranto 1. No issue is raised in the posture of this proceeding about any person's right to hold office, and we agree with the district court's statement "the remedy [Riemers] seeks by his averment [was] not presently available to him under N.D.C.C. Ch. 32-13." D [23] Riemers claims the district court erred in denying his request to enjoin the Secretary of State from discriminating against third party and independent candidates for public office. He claims the Secretary of State discriminated against him by requesting an Attorney General's opinion to remove him from the general election ballot as the Libertarian candidate for governor, and by not requesting an Attorney General's opinion about the Republican and Democratic candidates' failure to file a joint statement under N.D.C.C. 16.1-11-06(2). [24] Section 54-12-01(6), N.D.C.C., contemplates that the Attorney General shall give a written opinion on legal and constitutional issues relating to the duties of state officials "when requested." See Johnson, 74 N.D. at 259, 21 N.W.2d at 364. However, neither that statute nor Johnson requires a state official to request a written Attorney General's opinion for all issues that may arise during the official performance of public duties. Nor has Riemers cited any law requiring a state official to request a written opinion for all legal questions that may arise during the course of the official's discharge of public duties. As this Court recognized in Johnson, state officials will be protected if they request an opinion and follow it, and they act at their peril if they do not follow that procedure. Id. [25] Moreover, Riemers' claim for injunctive relief broadly sought to stop the Secretary of State from discriminating against minor party and independent candidates. Although the Secretary of State may not unlawfully discriminate against individuals or entities, injunctive relief must "state its terms specifically" and "describe in reasonable detail . . . the acts restrained or required." N.D.R.Civ.P. 65(g)(2)(A)(i) and (ii). Other courts construing language similar to N.D.R.Civ.P. 65(g)(2)(A)(i) and (ii) have recognized that broad injunctive language requiring a party to obey the law may be struck because entities against whom an injunction is

issued are entitled to a fair and precisely drawn notice of the injunctive prohibitions. See Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987) (applying F.R.Civ.P. 65). The district court did not err in denying Riemers' request to enjoin claimed discrimination by the Secretary of State. III [26] We affirm the district court order. [27] Daniel J. Crothers Mary Muehlen Maring Carol Ronning Kapsner

VandeWalle, Chief Justice, concurring. [28] I concur in the result reached by the majority opinion. I write separately to note that if the record is sufficient to conclude that the certificate of endorsement of the Republican candidates for governor and lieutenant governor did not contain the names of the candidates on one certificate of endorsement and the certificate of endorsement of the Democratic candidates for governor and lieutenant governor did not contain the names of the candidates on one certificate of endorsement, and if the applicable constitutional and statutory provisions require that the names of the candidates for both offices be named on one certificate of endorsement, I would nevertheless conclude that Riemers is not entitled to relief because his petition for that relief came too late. The appropriate time to request the relief to have the Republican and Democratic nominees' names removed from the ballot was before the primary election, not after the electorate had voted in that election. See N.D. Const. art. III, 7 (providing that if a decision of the secretary of state with regard to an initiative or referral petition is being reviewed at the time the ballot is prepared, the measure is to be placed on the ballot "and no court action shall invalidate the measure if it is approved at the election by a majority of the votes cast thereon"). [29] Nor is it material that Riemers' name appeared on the ballot as a candidate for governor when it should not have been on the ballot without a candidate for lieutenant governor. Presumably if the Libertarian candidate for lieutenant governor had completed the statement of interest his name and Riemers would also have appeared together on the ballot under the Libertarian column. These facts were known before the primary election and the appropriate time to raise these issues was before the primary election. [30] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom
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Appendix G

North Dakota Oaths of Office Amendment, Measure 2 (2012)


From Ballotpedia The North Dakota Oaths of Office Amendment, Measure 2 was on the November 6, 2012 statewide ballot in North Dakota as a legislativelyreferred constitutional amendment, where it was approved. The measure required the governor and other executive officials to take an oath of office. Previously, the North Dakota Constitution did not require executive officials to take an oath.[1]

Contents
1 Election results 2 Text of measure 2.1 Constitutional changes 3 Support 4 Opposition 5 Path to the ballot 6 Timeline 7 See also 8 External links 9 References

Oaths of Office Amendment

Quick stats Constitutional Type: amendment Constitution: Article XI, Section 4 Referred by: North Dakota State Legislature Topic: Status: Administration of government

The measure was sponsored by Rep. Tom Conklin.

Election results
See also: 2012 ballot measure election results
North Dakota Measure 2 Result Yes No Votes 259,497 32,926 Percentage 88.74% 11.26%

Officials results obtained from the North Dakota Secretary of State (http://results.sos.nd.gov/resultsSW.aspx?text=BQ&type=SW&map=CTY) .

Text of measure
The official ballot text read as follows:[2] Constitutional Measure No. 2 (House Concurrent Resolution No. 3009, 2011 Session Laws, Ch. 521)

This constitutional measure would amend and reenact section 4 of Article Xl of the North Dakota Constitution. This measure would require members of the executive branch of state government to take the oath of office as prescribed in this section. YES means you approve the measure summarized above. NO means you reject the measure summarized above.

Constitutional changes
The proposed measure amends Section 4 of Article XI of the Constitution of North Dakota.[3] Article XI, Section 4 would be amended to read: Text of Section 4: Members of the legislative assembly and the executive and judicial departmentbranches, except such inferior officers as may be by law exempted shall, before they enter on the duties of their respective offices, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm as the case may be) that I will support the constitution of 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), (under pains and penalties of perjury) if an affirmation, and noany other oath, declaration, or test shallmay not be required as a qualification for any office or public trust.

Support
No formal support was identified.

Opposition
No formal opposition was identified.

Path to the ballot


See also: Amending the North Dakota Constitution According to the North Dakota Constitution an amendment proposed by either the House or the Senate requires only majority approval. The measure was approved by the House on March 30, 2011, following a vote of 88-4. The Senate gave the final approval on April 12, 2011, with a vote of 44-3.[4]

Timeline
The following is a timeline of events surrounding the measure: Event Approval Final Approval Date Mar. 30, 2011 Apr. 12, 2011 Developments Measure was approved by the House following a vote of 88-4. The Senate gave the final approval with a vote of 44-3.

See also
North Dakota 2012 ballot measures 2012 ballot measures By Eric Veram Ballot measure writer Email (mailto:ejveram@ballotpedia.org) Submit a link

External links

HCR 3009 (status) (http://www.legis.nd.gov/assembly/62-2011/bill-actions/ba3009.html) HCR 3009 (text) (http://www.legis.nd.gov/assembly/62-2011/documents/11-3051-02000.pdf)

References
1. Associated Press,"ND constitutional amendment says governor, exec branch officials must take oaths of office," April 12, 2011 (http://www.therepublic.com/view/story/a9c4fb5ad15d4acea339638bd8693f4a/ND-XGR--ConstAmendment-Oath/) 2. North Dakota Secretary of State,"Ballot measure 2," retrieved September 19, 2012 (https://vip.sos.nd.gov/pdfs/Portals/BallotLanguageMeasure4-Smoking-Nov6,2012.pdf) 3. North Dakota Legislature,"HCR 3009 full text," retrieved April 20, 2011 (http://www.legis.nd.gov/assembly/622011/documents/11-3051-02000.pdf) 4. North Dakota Legislature,"HCR 3009 actions," retrieved April 20, 2011 (http://www.legis.nd.gov/assembly/622011/bill-actions/ba3009.html)

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