Two days ago, the Administrator for the City of Bismarck, Keith Hunke, held a press conference to announce that the recall election of Mayor Mike Seminary would not be moving forward. Hunke gave an overview of disqualified signatures. Among them were 198 signatures – enough to put petitioners over the required 1,898 – that were disqualified due to the city’s claim of an "unqualified circulator".
That day I wrote an article laying out the fact that the North Dakota Century Code is silent on the circulator requirement that the city is claiming. To end that article, I wrote this:
"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."
I can now tell you with assurance that there has been discussions about a class action lawsuit being pursued by petitioners. In fact, I have been told by a source that there has been contact with the American Civil Liberties Union (ACLU), other law firms, and that they are indeed interested in the case.
And there is good reason they would be interested. It is because the issue of the supposed residency requirement for a circulator is "ripe" for change in North Dakota. Why? Because North Dakota is essentially a final holdout on the idea of residency requirements for circulators.
In a case known as "Initiative & Referendum Institute v. Jaeger" in 1998, the state was challenged on its requirement that circulators be residents of North Dakota. The state won.
So, how could the issue be ripe for change if the state previously won? For two reasons.
First, this case takes it a step further than the requirement that a circulator be a resident of the state of North Dakota. The City of Bismarck suggests that a circulator must be a resident of the city. Which, as previously noted, is a requirement not found in the North Dakota State Constitution or the North Dakota Century Code.
Second, and perhaps more importantly, there were courts before and since that have ruled – in multiple cases – that residency requirements for circulators place an undue burden on an individual’s constitutional rights and are therefore unconstitutional. In fact, from what I can find, there are no fewer than eight cases related to this issue. The last case to rule in favor of residency requirements for circulators was none other than Initiative & Referendum Institute v. Jaeger.
One of the most fascinating decisions striking down a residency requirement involved former presidential candidate Ralph Nader in "Nader v. Brewer". In this case involving the state of Arizona, the Ninth Circuit Court of Appeals was critical of the Eighth Circuit that ruled on the North Dakota case; calling their decision "unpersuasive".
The criticism didn’t end there. Another reason the Ninth Circuit was critical was because the Eighth Circuit ruled in favor of North Dakota without even considering a related case known as "Krislov v. Rednour"– a case decided not long before Initiative & Referendum Institute v. Jaeger.
And here’s the fascinating part… what exactly did the court rule on in Krislov v. Rednour? It was this:
"Requiring signature gatherers to be registered voters of the relevant political subdivision violates the First and Fourteenth Amendments of the United States Constitution." (Emphasis Added)
This is exactly what the City of Bismarck would be facing if a class action lawsuit is brought against them.
There’s two options the City of Bismarck and Mayor Mike Seminary had better look at– and fast.
First, they can recognize the potentially poor legal footing they are standing on and just let the recall move forward. Besides, what does Mike Seminary have to fear if he’s as confident as he makes himself appear to be?
Second, Mike Seminary could simply resign. After all, he’s the one who often expresses how much he loves the city and the people of Bismarck. He alone has the power to end this all.
In both cases, it alleviates the problems currently facing the city of being sued. The individual I spoke with from the recall movement estimated that the city could be held liable for millions of dollars in a lawsuit.
Let’s suppose the city decides to continue digging in its heels. What will it look like in June if Seminary is beat in a bid for reelection? Or what if he chooses not to run for reelection at all after all this?
If his reputation has taken a hit already, imagine what it will be like then. Especially if the city gets sued and loses. This could very well be the difference between him being thought of as the worst mayor in Bismarck’s history and being the most hated mayor in Bismarck’s history.
If these folks have any common sense at all, they’ll end this. And they’ll end it now. For the good of everyone involved.