Were All the Signatures in the Bismarck Mayoral Recall Invalidated Properly?

Bismarck Mayor Mike Seminary, April 2016 file photo. David Samson / Forum News Service

Yesterday we got news that, because of over 600 invalidated signatures, the activists trying to recall Bismarck Mayor Mike Seminary had failed to put the issue on the ballot.

They needed 1,898 signatures to start a recall election. They submitted 2,405 signatures, but 668 signatures were invalidated for various reasons according to the Bismarck Tribune, leaving just 1,737 valid signatures.

Some pretty sloppy work by the petitioners.

But of the 668 invalidated signatures, 198 were thrown out because they were collected by a petition circulator city officials say wasn’t qualified. From the Tribune:

[City Administrator Keith] Hunke said the unqualified circulator did not meet residency requirements. According to the North Dakota Secretary of State’s recall handbook on its website, “Petition circulators and signers must be qualified voters of the district affected by the petition.” Hunke said there were a number of issues with the circulator in question, including days the person had lived in Bismarck and actions not taken to establish residency, such as change of address or vehicle registration needed to qualify as a legal voter.

I called Leann Oliver, head of the elections division of the North Dakota Secretary of State’s website and asked her about this residency requirement. She pointed me to section 16.1-01-09.1 of the North Dakota Century Code which has, as one of its requirements for petition circulators working a recall, a mandate that they sign an affidavit saying they are a “qualified elector.”

That language, though, doesn’t say that one most be a “qualified elector” of the jurisdiction where a recall is taking place. Only that they be a “qualified elector” in general.

I asked Oliver about that, and she said the Secretary of State’s office got guidance on the question from the Attorney General’s Office. Their opinion is that the “qualified elector” requirement means you must be a resident of whatever jurisdiction where the petitioning is taking place. So you’d just need to be a resident of North Dakota for a statewide recall petition, but a resident of Bismarck to recall that city’s mayor.

But that’s the AG’s interpretation of the law. Nowhere in the Century Code is there an explicit requirement that a person circulating a recall petition be a qualified elector of the specific jurisdiction where the recall is taking place.

If the 198 signatures invalidated because of the circulator are actually valid then the recall should be going forward.

As of right now the City of Bismarck has dismissed the recall. “Hunke said, if petitioners wish to appeal his office’s findings, they can file a challenge in district court,” the Tribune has reported.

The recall activists may want to do just that. It seems to me like they may have a case, though settling the legal questions would further delay a recall election, and Seminary’s term ends in June of next year anyway.

Still, this seems like an area of the law which is in need of clarification, be it through the courts or perhaps the next session of the Legislature.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and the host of the Rob (Re)Port on Fargo-based WDAY AM970 from noon-2pm weekdays.

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