Rod St. Aubyn: North Dakota's Election Laws Need A Lot Of Work

voter id

No matter who or what measures win on Tuesday one thing is abundantly clear. North Dakota’s election laws need to be changed. Because of alleged improper disclosure of campaign contributions on several of the Initiated Measures, claims of corrupt practices, and violation of residency laws highlight the weakness of ND laws on these issues. The Secretary of State has to take a serious look at this before the next session and the Legislature needs to address these issues during the upcoming legislative session. I will try to summarize each issue which has been reported numerous times by Rob in this blog.

Campaign Contribution Disclosure Law

Chapter 16.1-08.1 of the ND Century Code covers the requirements for campaign contribution statements. On a personal note, I am glad that the Secretary of State is working on a new computer system as the current one with the online information on campaign contributions is less than user-friendly and is somewhat difficult to find certain contributions.

As Rob previously pointed out, several of the entities opposing Measure 7 (the measure repealing the pharmacy ownership law) failed to report their contributions.

Only after Rob reported this did several entities finally make contribution reports. One has to wonder if Rob had not reported this would those entities ever have submitted the required reports. Rob further alleged other abuses in not reporting in-kind contributions. There are penalties (late fees up to $100 or $200 for late amended forms) that are to be assessed for late reporting of these reports. The ultimate penalty is a Class A misdemeanor. There also exists the possibility of an audit being done at the request of the Secretary of State if he/she determines that “a substantial irregularity is evident or reasonably alleged.”

The entity could be assessed “a fine to the secretary of state equal to two hundred percent of the aggregate of contributions and expenditures found to be in violation or an amount sufficient to pay the cost of the audit, whichever is greater.” There have been claims that there are violations with several of the measure proponents and opponents.

It would be easy to determine whether something is fishy when you look at the total contributions reported and then compare that to the estimated cost of advertising done in Measure 1 (The measure that puts into the state constitution language that says “The inalienable right to life of every human being at any stage of development must be recognized and protected), Measure 5 (Constitutional measure directing 5% of oil extraction taxes to conservation measures) , Measure 6 (Equal Parental Rights Measure), and Measure 7 (Measure to repeal the state’s Pharmacy Ownership laws). Even though there have been several public claims of violation with these campaign contribution reports, I am not aware that the Secretary of State is considering an audit for any of these entities. I am not sure if those late filers had to pay a fee yet and I doubt that any of these alleged violations have been referred to a state’s attorney for possible prosecution.

Corrupt Practices Law

The ND Century Code defines the Corrupt Practices in Chapter 16.1-10. There are several acts that are defined as a corrupt practice, but one of them is when a person “Expends any money for election purposes contrary to the provisions of this chapter. “ This is the chapter that requires the disclaimer that must be posted on any advertisement in any “newspaper, pamphlet or folder, display card, sign, poster, or billboard, website, or by any other similar public means, on behalf of or in opposition to any candidate for public office, designed to assist, injure, or defeat the candidate by reflecting upon the candidate’s personal character or political action, or by a measure committee, or a corporation making a direct expenditure either for or against a measure, must disclose on the advertisement the name of the person, as defined in section 16.1-08.1-01, or political party paying for the advertisement.”

As Rob has reported several times, this has been alleged to have occurred numerous times. I also caught this myself with a Pheasants Forever postcard. As previously noted in my previous blog story, the penalty for this corrupt practice law states that any “person violating any provision of this chapter, for which another penalty is not specifically provided, is guilty of a class A misdemeanor.” I have also witnessed failure to note this disclaimer on other candidates’ signs and brochures. It specifically calls for “websites” to have this disclaimer.

One question is if a website located on Facebook must also have this disclaimer. I have seen many who do not have that disclaimer.

This chapter on Corrupt Practices states in NDCC 16.1-10-07. “Candidate guilty of corrupt practice to vacate nomination of office. If any person is found guilty of any corrupt practice, the person must be punished by being deprived of the person’s government job, or the person’s nomination or election must be declared void, as the case may be. This section does not remove from office a person who is already in office and who has entered upon the discharge of the person’s duties when such office is subject to the impeachment provisions of the Constitution of North Dakota.”

Residency Laws

Rob recently posted a story reporting the claim that several legislative candidates were not residents of their legislative districts. Rep. Randy Boehning was reportedly working in Minot and not living in his district. In the story it stated that his Democratic opponent, Jess Roscoe, also noted an out of town residence in her candidacy papers on file at the Secretary of State. The article also noted that Jaci Stofferahn, a Democratic legislative candidate in District 13, noted her address as the current home of a former Democratic legislator from District 13, Jaqueline Brodshaug. It was also previously noted that Rep. Corey Mock, from District 42 in Grand Forks, is actually living in another district.

Determining residency in ND is difficult at best. First the Constitution states that “Each person elected to the legislative assembly must be, on the day of the election, a qualified elector in the district from which the member was chosen and must have been a resident of the state for one year immediately prior to that election.” The constitution goes on to say that “Each house is the judge of the qualifications of its members, but election contests are subject to judicial review as provided by law.” A “qualified elector” is defined as every citizen of the United States who is eighteen years or older; a resident of this state; and has resided in the precinct at least thirty days next preceding any election.” Under NDCC 16.1-01-04 (7) it states that “For the purposes of this title, an individual may not be deemed to have lost residence in the individual’s precinct or in the state by reason of the individual engaging in temporary government service or private employment outside the individual’s precinct or outside the state.” So that seems to address Rep. Boehning’s case.

Now to complicate matters even more, NDCC 54-01-26 explains “Rules for determining” residence. The last rule states “The residence can be changed only by the union of act and intent.” How do you prove intent?

Regarding Rep. Corey Mock, it was alleged that when he elected to the ND House he was a resident of District 42, but later moved to another district. It was reported that several other sitting legislators also moved from their legislative districts while in office. It is my understanding that these others did not run for election and were at the end of their legislative term. The state constitution only states that they must be a resident at the time that they were elected, but nowhere that I could find does it state that they must resign if they move out of their district while they are in office. Since Rep. Mock is in the middle of his legislative term and if he is in fact living in another district does this mean he can remain in office until the next election?

Regarding Rep. Randy Boehning, Jess Roscoe, and Jaci Stofferahn, someone will have to determine if they are in fact a “qualified elector” for their districts (resident for 30 days prior to the election). For Corey Mock someone will have to determine if he is still eligible to serve District 42 if he is in fact living in another legislative district. But who is that someone? Is it the County Auditor, the Secretary of State, or the State’s Attorney representing that legislative district? This poses another interesting issue as well. If the candidate is not a “legal resident of that district” and he/she voted in the election, did he/she commit voter fraud?

As I have shown, ND’s election laws need a lot of work. What is the incentive of reporting campaign contributions if it is basically a slap on the hand if you are caught, especially if no audits are ever done? If a person fails to put the required disclaimer on a brochure or other item, should they automatically be deprived of their elected office if found guilty? How can anyone really prove if a person is a resident with the very “liberal” definitions of residency? Let’s hope that the Secretary of State and the Legislature take a very hard look at these issues during the next legislative session.