Legislative vacancy law makes sense

There have been an unusual number of vacancies in the Legislature lately — a result of both deaths and resignations. That raises an important question.

What happens when there is a vacancy in the Legislature? The answer depends upon what state you live in.

In North Dakota, legislative vacancies are filled by the legislative district organization (be it Democrat or Republican) of the legislator whose seat was vacated. Whether the legislator was a Democrat or a Republican, the corresponding local district party may appoint a successor to fill the vacancy untill the next election.

Other states operate differently and so, once, did North Dakota. 

That changed after former Speaker of the House Clarence Martin died while in office, during a legislative session. His desk on the House floor was draped in black — a respectful honor and remembrance — for the duration of the session. The problem was, legislators realized, that the legislative district which he had represented was actually not equally represented during that legislative session, having only one representative and one senator in office, voting on legislation, while all others had two House members and one Senate member.

The current system of filling vacancies was implemented not long after that, and it has worked well since.

Some would prefer that vacancies be filled either by gubernatorial appointments or special elections, but there are good reasons why both fall short.

A governor (a member of the executive branch of government) appointing a member of the Legislature (a different branch), while an expeditious approach, presents its own problems regarding separation of powers.

Special elections take time to schedule and are expensive to carry out. Because, under such circumstances, they would occur at unusual times, they would also likely draw a smaller number of voters, meaning that a relatively small minority of voters in a legislative district could be deciding who would represent the entire district. 

What’s more, depending upon when the vacancy occurs, the successor may not have much to do during the balance of the unexpired term, so there would be little disenfranchisement of his or her constituents. Because North Dakota is one of only four states in the nation that meet every other year, rather than annually, if the legislative session has already passed, prior to the vacancy occurring, the remaining 20 months or so would largely involve studies by interim committees, which don’t result in actual passage of legislation until the next session. That would beg the question of whether a special election would be worth the cost.

For all these reasons and for the decades during which this law has been in effect, it has proven to be a good system — both expeditious and fair — which ensures continued representation for the people and fiscal responsibility for local governments that bear the cost of elections.

That doesn’t mean that all agree and, in North Dakota, there was a very public recent example of that, along with a demonstration that the law, in fact, prevails.

In 2020, during COVID, a legislative candidate backed by former Gov. Doug Burgum to defeat a long-time incumbent Republican legislator tragically contracted the virus and died at the outset of the election season. The Governor reportedly inquired of the Secretary of State whether the name of the candidate on the ballot could be changed. The response was that it could not because the election had already begun (ballots had been printed and absentee ballots had been sent out). Another quiet inquiry was reportedly made of the Attorney General — what would happen if the deceased candidate won? The response was that the local Republican district would then appoint a successor. That, given the situation, did not sit well.

After Republicans overwhelmingly prevailed in the election in that District and before the local Republican District Party had the opportunity to appoint someone to fill the vacancy, the Governor publicly announced that he was going to appoint someone to do so. The announcement resulted in little response, other than surprise, particularly from those who knew the law. 

The Governor then filed a lawsuit, taking the matter to the state’s Supreme Court in an attempt to assert his authority to make the appointment. The Court’s decision made it clear that a governor has no statutory or Constitutional authority to appoint a successor to fill a vacancy in the Legislature.

The local District appointed the incumbent legislator to fill the vacancy, and not much has been heard, relative to challenging this law, since.

This year, the legal process for filling vacancies in the North Dakota Legislature is again on display, and it continues to work well.