Mayoral Recall: Did the City of Bismarck Just Subject Itself to a Lawsuit?

Today Bismarck City Administrator Keith Hunke held a press conference to announce that the recall election for Bismarck Mayor Mike Seminary will not take place. Hunke cited an insufficient number of signatures due to disqualifications.

Petitioners turned in a total of 2,405 signatures on 93 petitions. The disqualifications were as followed:

305 due to non-Bismarck or non-existing addresses.
198 due to an unqualified petition circulator.
136 due to non-eligible voters and illegible entries.

Mr. Hunke’s Math is incorrect as well. During the press conference, he said these disqualifications totaled 667. But that is incorrect. The total disqualifications – as he gave in the press conference – come out to a total of 639. Regardless, the number of qualified signatures they are claiming is still short of the 1,898 required to move forward with the recall.

Of the three categories of disqualifications that Hunke cited, the 198 due to an alleged unqualified circulator are the ones that may end up being problematic for the city themselves. While Hunke claims that circulators must be "a qualified voter and qualified resident of Bismarck", there is nothing that I can find in the North Dakota State Constitution or North Dakota Century Code that makes such a requirement.

The North Dakota State Constitution, Article III Section 10 says:

"Any elected official of the state, of any county or of any legislative or county commissioner district shall be subject to recall by petition of electors equal in number to twenty-five percent of those who voted at the preceding general election for the office of governor in the state, county, or district in which the official is to be recalled."

There is nothing mentioned about the circulator in the State Constitution.

The North Dakota Century Code 16.1-01-09.1 says:

"A petition may not be circulated under the authority of article III of the Constitution of North Dakota or section 44-08-21 by an individual who is less than eighteen years of age, nor may the affidavit called for by subsection 3 be executed by an individual who is less than eighteen years of age at the time of signing. All petitions circulated under the authority of the constitution and of this section must be circulated in their entirety." (Emphasis Added)

Again, no mention is made of the requirements that City Administrator Keith Hunke claims.

So, where might Mr. Hunke have gotten his idea from that the circulator responsible for the 198 signatures must be "a qualified voter and qualified resident of Bismarck"? I believe he gets it from a document available from the Secretary of State’s Office titled, "Recalling an Elected Official of the State or a Political Subdivision."

The purpose of the document is to be a "reference source for state and local election officials, candidates, the public and the media". Under the heading, "WHO CAN CIRCULATE AND SIGN PETITIONS" it says, "Petition circulators and signers must be qualified voters of the district affected by the petition." While it is true that signers must be, I find nothing in the State Constitution or Century Code that places the same requirement on circulators.

I should also point out that the reference document supplied by the Secretary of State is NOT a legal document. This is a fact shown in the document itself. On its second page, under "DISCLAIMER", it says:

"Although every attempt has been made for accuracy, the reprint of these laws does not carry the same authority as the actual NDCC and should not be equated with the official NDCC. This compilation is only intended as a helpful resource and reference for consolidated election related laws. For official and legal purposes, the official NDCC should be used." (Emphasis Added)

So, where does this leave those behind the petition drive to recall the mayor? At this point, their best option may be to file a lawsuit against the city. While some may say that such an idea is crazy, I beg to differ.

Think of it, those 198 signatures thrown out on the basis that the circulator was not "qualified" are alone enough to put the petitioners over the top and to force the recall election. A fact that Hunke admitted to in the press conference.

But this goes beyond the 198 signatures. Almost 2,000 citizens of Bismarck had their civil rights stifled by what may very well be an illegal move by city officials to stop a recall election– a right to recall that is guaranteed and protected by the North Dakota State Constitution.

It’s serious business when a government entity violates constitutionally protected rights. Should it end up that I am right and the Bismarck city officials are wrong, they may have just subjected themselves to a class action lawsuit that will make the cost of a recall election look like dimes in a candy jar.

***Note: If any reader can provide legal documentation supporting the city’s claims about circulator requirements, please provide the legal reference.

Sources:
1. https://vip.sos.nd.gov/pdfs/Portals/recalling.pdf
2. http://www.legis.nd.gov/cencode/t44c08.pdf
3. http://www.legis.nd.gov/constit/a03.pdf
4. http://www.legis.nd.gov/cencode/t16-1c01.pdf
5. http://www.legis.nd.gov/cencode/t16-1c01.pdf

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About T. Arthur Mason 294 Articles
T. Arthur Mason is a native North Dakotan who has spent nearly all of his life in the Peace Garden State. As the third of four children in Western North Dakota, Mason grew to appreciate family and the outdoors. Some of his fondest memories are annual deer hunts with family and friends. In his early teenage years, faith became a central part of T. Arthur Mason's life. He and the majority of his family attend church together on a weekly basis and find this a fulfilling aspect of their lives. Through the influence of his father, T. Arthur Mason became intrigued with politics. As a boy, he attended political events with his father and enjoyed the friendships that resulted as a byproduct of those political associations. As Mason grew older, he became convinced that the quote often attributed to Thomas Jefferson was true, "That government is best which governs least." Today, T. Arthur Mason enjoys time with his wife and children, an occasional hunt, and an increasingly active life on the political scene. This blog is the fulfillment of a dream to design a web site in the realm of politics and to advocate for the principles of Liberty and constitutionally limited government. On behalf of all those that contribute to The Minuteman, we hope you enjoy your time on the site and will share the message with others.