Dems, secretary of state disagree on process to replace candidate after lawmaker’s death

FARGO (North Dakota Monitor) — The Democratic-NPL Party holds all three seats in a south Fargo legislative district but may only have two candidates on the November ballot.

The party chose not to follow guidance from the North Dakota Secretary of State’s Office on how to fill a vacancy caused by the death of Rep. Liz Conmy in April.

Some Democratic-NPL Party leaders say the law is unclear and they disagree with state election officials on the procedure for replacing the legislative incumbent on the ballot.

Conmy, D-Fargo, died in an April 25 plane crash. North Dakota Secretary of State Michael Howe said it was too late to let Democrats replace Conmy’s name on the primary ballot, with ballots already provided to some voters for mail-in voting that started April 30. He said Democrats should use a write-in candidate in the June 9 primary to replace Conmy on the Nov. 3 general election ballot.

But no Democrats met Tuesday’s deadline to become a write-in candidate for District 11 House in the primary. Write-in candidates must be certified by the Secretary of State’s Office; other write-in votes will not be counted, Howe said.

District 11 Sen. Tim Mathern contends the Democratic-NPL Party should be able to name Conmy’s replacement on the Nov. 3 ballot, citing research from Legislative Council. Conmy and fellow Democrat Anastassiya Andrianova have no Democratic opposition for the House seats.

Mathern cites an email from Dustin Richard, an attorney for Legislative Council, which provides research and support for the state Legislature. The email points to a 2020 legislative race in which a state House candidate died a month before the November election, but still received enough votes to be elected.

An attorney general’s opinion said the candidate should be considered elected, with his death creating a vacancy to be filled by the nominating party. House Bill 1461 in the 2021 session sought to put that opinion into law.

“However, it appears this statute applies to candidates elected in a general election, not to those nominated in a primary election,” Richard said in an email to Mathern.

Richard’s email also says “any determination by the Secretary of State is likely to be binding.”

Legislative Council Director John Bjornson said his office addressed what it believes the law to say, but does not provide legal advice. A difference of interpretation would need to be resolved through the courts or an attorney general’s opinion, Bjornson said.

Mathern contends the general election procedure should be followed in the primary. He said the Legislature could address state law during the 2027 session to make it apply to the primary election, too.

House Minority Leader Zac Ista, who is an attorney, said the Secretary of State’s Office is doing its best to interpret an unclear area of state law.

“I think there’s also other reasonable interpretations of that law that are worth exploring,” Ista said.

Ista said one reason for not using the certified write-in process is that if the write-in candidate finished behind Andrianova and Conmy, it would have triggered the “sore loser rule.” That rule prevents a write-in candidate who loses in the primary from running as an independent candidate in the general election.

Ista said it would be up to the District 11 Dem-NPL executive committee to explore legal options, which could include seeking a state attorney general’s opinion or pursuing a court case.

Howe said he provided Democratic officials, including Mathern, the rules for filling Conmy’s seat shortly after her death.

“Because Rep. Conmy is deceased, she cannot advance to the general election,” Howe said Wednesday. “There would only be one House Democrat candidate advancing to the general election.”

Someone could still get their name on the general election ballot as an independent candidate for a legislative seat. That deadline is Aug. 31 and requires signatures from 300 qualified electors. If they were to win a seat, they could choose which party to caucus with.

Meanwhile, the District 11 executive committee is hearing from people interested in filling the remainder of Conmy’s seat and running in her place in November. It has set a Friday deadline for applications.

Mathern said his preference would be that the slots be filled by two different people — one for the existing term and one for the upcoming term — because of term limits rules.

A District 11 House write-in candidate did emerge among the Republicans, Fargo’s Doug Sharbono. There were previously no Republican candidates for District 11 House.

Mathern is running for reelection. Andrianova is running for the seat being vacated by Democrat Rep. Gretchen Dobervich.

Republicans hold a supermajority in the Legislature but Democrats have been able to field more candidates this year.

Reach North Dakota Monitor deputy editor Jeff Beach at jbeach@northdakotamonitor.com