ND attorney general, Ethics Commission dismissed from free speech lawsuit over political ad law

BISMARCK, N.D. (North Dakota Monitor) — A federal judge has dismissed the North Dakota Attorney General’s Office and North Dakota Ethics Commission from a former state lawmaker’s First Amendment suit challenging a political advertisement law.

The judge also hinted in an order he may ultimately find the statute, which criminalizes lying or making intentionally misleading statements in political ads, unconstitutional.

Brandon Prichard, who represented Bismarck in the Legislature in 2023 and 2024, in early November filed suit in federal court over the state’s corrupt practices law, claiming that it violates the First Amendment.

The Republican is a controversial figure in North Dakota politics in part for his attacks on incumbent Republican lawmakers.

Initially, the lawsuit named Attorney General Drew Wrigley, Burleigh County State’s Attorney Julie Lawyer as well as the North Dakota Ethics Commission and its executive director, Rebecca Binstock, as defendants. All defendants asked the judge to dismiss the suit.

North Dakota U.S. District Court Judge Dan Traynor last week agreed to drop Wrigley, Binstock and the Ethics Commission from the case, finding they have immunity under the U.S. Constitution. Lawyer remains a defendant.

Prichard brought the suit on the grounds that he, his wife and his political organization Citizens Alliance of North Dakota were subject to unfair investigations under the corrupt practices statute, which has caused them to self-censor their political speech.

While Prichard in the lawsuit claims all three defendants investigated him under the law, Traynor said there’s no evidence of the Attorney General’s Office or Ethics Commission ever enforcing the statute. For that reason, he dismissed those parties from the case. The 11th Amendment protects states and state agencies from suits like Prichard’s if they can show they do not enforce the law the plaintiff is challenging, Traynor wrote.

In contrast, the Burleigh County State’s Attorney’s Office did previously investigate the Prichards and Citizens Alliance for an alleged violation of the corrupt practices law, though the probe was ultimately dropped.

Former legislative candidate Duane Sand was also charged with violating the corrupt practices statute by the Burleigh County State’s Attorney’s Office in 2018. His opponent, George Keiser, had filed a police report alleging Sand misstated the incumbent’s voting record, The Bismarck Tribune reported. Prosecutors later dropped the charge against Sand after those involved reached a private settlement.

Lawyer filed a document in the Prichard case stating her office will not bring charges under the statute moving forward.

However, Traynor wrote that since the office prosecuted potential violations of the law in the past, Lawyer’s statement is not sufficient reason to dismiss her from the case. Burleigh County prosecutors’ previous enforcement actions means the plaintiffs could face prosecution in the future, which may present a First Amendment concern, he added.

“This would reasonably chill anyone’s speech,” Traynor wrote in the order.

Prichard’s lawsuit doesn’t include details about what prompted the Burleigh County probe.

Prichard in a statement to the North Dakota Monitor applauded last week’s order, calling the law he’s challenging “government overreach.”

Ethics Commission Chair Cynthia Lindquist and Deputy Attorney General Claire Ness in statements said they were grateful for Traynor’s decision.

The judge has yet to make a final decision in the case. Future hearings have yet to be scheduled.