1 in the SUPREME COURT STATE of NORTH DAKOTA Rick Berg

20200184 FILED JULY 22, 2020 IN THE OFFICE OF THE CLERK OF SUPREME COURT IN THE SUPREME COURT STATE OF NORTH DAKOTA

STATE OF NORTH DAKOTA

Rick Berg, individually in his capacity as a resident and elector of the State of North Dakota, and as Chairman of the North Dakota Republican Party, Supreme Ct. No. 20200184

Petitioner,

Alvin Jaeger, in his capacity as North Dakota’s Secretary of State,

Respondent.

______

RESPONSE BRIEF OF RESPONDENT ______

State of North Dakota Wayne Stenehjem Attorney General

By: Matthew A. Sagsveen Solicitor General State Bar ID No. 05613 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300 Email [email protected]

Attorneys for Respondent.

TABLE OF CONTENTS

Page

Table of Authorities ...... 3

Paragraph

Introduction ...... 1

Statement of the Case and Facts ...... 4

Standard of Review ...... 8

Law and Argument ...... 9

Conclusion ...... 12

TABLE OF AUTHORITIES

Cases Paragraph(s)

Dickinson Educ. Ass’n v. Dickinson Pub. Sch. Dist., 2014 ND 157, 849 N.W.2d 615 ...... 8

Kenmare Educ. Ass’n v. Kenmare Pub. Sch. Dist. No. 28, 2006 ND 136, 717 N.W.2d 603 ...... 8

Little v. Stark Cty. Sheriff ex rel. Stark Cty. Sheriff’s Office, 2018 ND 22, 906 N.W.2d 333 ...... 8

Nagel v. City of Bismarck, 2004 ND 9, 673 N.W.2d 267 ...... 8

Statutes

N.D.C.C. § 16.1-01-01(1) ...... 9

N.D.C.C. § 16.1-01-08 ...... 2, 10

N.D.C.C. § 16.1-01-08(1) ...... 10

N.D.C.C. § 16.1-01-08(2) ...... 10

N.D.C.C. § 16.1-01-08(3) ...... 10

N.D.C.C. § 16.1-01-08(4) ...... 10

N.D.C.C. § 32-34-01 ...... 8

N.D. Const. art. V, § 4 ...... 2

INTRODUCTION

[¶1] Rick Berg (“Berg”)1 petitions the North Dakota Supreme Court for an

Emergency Writ of Mandamus (“Petition”), requesting that the Court order the

Secretary of State, Alvin Jaeger (the “Secretary”), to immediately remove Travisia

Jonette Minor A/K/A Travisia Martin (“Martin”) from the general election ballot

because Martin is allegedly, but arguably admittedly, not eligible to hold an elective

office in North Dakota. Martin was nominated by the North Dakota Democratic

Party during the recent June primary election to be the Democratic Party’s

candidate for Insurance Commissioner.

[¶2] Berg claims in his Petition that Martin is not qualified to hold an elective

office because she fails to meet the residency requirements in N.D. Const. art. V,

§ 4. Berg argues the Secretary is mandated to remove Martin from the general

election Ballot (the “Ballot”) because Martin’s lack of eligibility to hold office in North

Dakota should be construed as a per se mistake or error under N.D.C.C. § 16.1-

01-08. Martin admitted to the Secretary that she has voted in Nevada within the

previous five years, which could make her ineligible to hold office in North Dakota.

[¶3] If the Court determines Martin’s placement on the ballot constitutes a per

se ballot error based upon the evidence before the Court, the Secretary, in his role

as supervisor of elections, will respectfully abide by any Order of the Court

directing the removal of Martin’s name from the general election ballot.

1 Berg is petitioning the Court as an individual resident and elector, and as Chairman of the North Dakota Republican Party. 4

STATEMENT OF THE CASE AND FACTS

[¶4] Berg filed his Petition requesting Martin’s removal from the general election

ballot on July 9, 2020. Docket # 1. Berg alleges that before the primary election

the Executive Director of the North Dakota Republican Party, Corby Kemmer

(“Kemmer”) requested that the Secretary have his office investigate certain issues relating to Martin’s eligibility. Pet., ¶ 13. Kemmer requested that the Secretary’s office investigate and confirm Martin’s residency status (App. 6), seek a response if Martin contests the question (App. 7), and request that Martin decline the nomination. Id.

[¶5] The Secretary sent Martin a letter on May 28, 2020, to inform her that his

office had received an inquiry as to whether she met the qualification to hold

statewide elected office based upon the constitutional residency requirement. Pet.,

¶ 15; App. 16. The Secretary’s letter included information from the Nevada

Secretary of State, who confirmed Martin was still a registered voter in Nevada, albeit inactive, and she last voted during the 2016 general election in Nevada.

App. 16. The Secretary requested that Martin respond to the claims she may not meet North Dakota’s residency requirements. Id.

[¶6] The Secretary was subsequently contacted by members of the media regarding Martin and her qualifications to hold office in North Dakota. Pet., ¶ 21,

App. 31 & 37. The Secretary was asked whether he would be responsible for

determining a candidate’s “ineligibility to hold office[.]” App. 31. The Secretary

responded to both media inquiries and explained that he did not have authority to

remove Martin from the ballot. App. 31 & 37. The Secretary could “only remove

5 her if she refuses to accept the nomination . . . or if [he is] directed to do so by the court because of a legal challenge . . . .” App. 31; see also App. 37. The primary election was held on June 9, 2020. Pet., ¶ 12.

[¶7] Martin responded to the Secretary through a letter dated June 18, 2020.

Pet. ¶ 18, App. 19-20. Martin confirmed she had voted in Nevada within the previous five years, but she states in her letter that she believed she met North

Dakota’s residency requirement because she “maintained [her] physical residence in North Dakota since 2015 . . . .” App. 19. Martin also provided further responses regarding her voting history and living arrangements. App. 19-20.

STANDARD OF REVIEW

[¶8] A writ of mandamus may be issued:

By the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

N.D.C.C. § 32-34-01. The petitioner “seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts sought to be compelled by the writ.” Little v. Stark Cty. Sheriff ex rel. Stark Cty. Sheriff’s

Office, 2018 ND 22, ¶9, 906 N.W.2d 333 (quoting Nagel v. City of Bismarck, 2004

ND 9, ¶ 11, 673 N.W.2d 267); Dickinson Educ. Ass’n v. Dickinson Pub. Sch. Dist.,

2014 ND 157, ¶ 10, 849 N.W.2d 615; Kenmare Educ. Ass’n v. Kenmare Pub. Sch.

Dist. No. 28, 2006 ND 136, ¶ 9, 717 N.W.2d 603. A petitioner “seeking a writ of mandamus must have no other plain, speedy, and adequate remedy in the

ordinary course of the law.” Little, 2018 ND 22, ¶9, 906 N.W.2d 333 (quoting

Nagel, 2004 ND 9, ¶ 11, 673 N.W.2d 267); Dickinson Educ. Ass’n, 2014 ND 157,

¶ 10, 849 N.W.2d 615; Kenmare Educ. Ass’n, 2006 ND 136, ¶ 9, 717 N.W.2d 603.

LAW AND ARGUMENT

[¶9] The Secretary, as the supervisor of elections, clearly has broad powers

under the law. N.D.C.C. § 16.1-01-01(1). In this role the Secretary may examine an election ballot, electronic voting system, or device used in connection with any election for the purpose of determining sufficient compliance with the law and established criteria and standards adopted by the Secretary. Id. The Secretary has the authority to direct changes if a ballot is not in sufficient compliance with the law or established criteria. Id.

[¶10] The Secretary also has a duty to investigate certain matters related to elections under N.D.C.C. § 16.1-01-08, which he has done in this case. The

Secretary shall investigate issues such as errors and omissions which have, or are about to occur, in the placing of any name on a ballot, or printing a ballot, N.D.C.C.

§§ 16.1-01-08(1) & (2), including any wrongful act by election officials or neglect of duty. N.D.C.C. §§ 16.1-01-08(3) & (4). All of the Secretary’s remedies in the remainder of the law relate to election officials:

If required, the secretary of state shall order the officer or person charged with such error, wrong, or neglect to correct the error, desist from the wrongful act, or perform any required duty. The secretary of state may call upon any county auditor for aid in investigation and correction of the problem. The secretary of state shall cause any person who violates the secretary of state’s order to be prosecuted, if the violation constitutes an offense pursuant to this chapter. If the administrative remedies fail to correct the problem, or if the secretary of state refuses to act, any person may petition the supreme court, or the district court of the relevant county where the

election of a county officer is involved, for an order compelling the correct of the error, wrong, neglect, or act.

N.D.C.C. § 16.1-01-08 (emphasis added).

[¶11] The law does not list every circumstance that could be construed as a ballot

error, such as an ineligible candidate, and stops short of directing the Secretary to take preventative measures to prevent such a situation. But the law recognizes that the Secretary may be ordered to correct a problem. The law provides that “[i]f required, the secretary of state shall order . . . .” Since the law does not directly address the circumstances presented by this case, the Secretary will abide by any order or directive from the Court, requiring or restricting the Secretary from placing

Martin’s name on the general election ballot.

CONCLUSION

[¶12] Based on the foregoing law and arguments in this brief, the Secretary will abide by any order issued by the Court relating to whether Martin should be included on the November 2020 general election ballot.

Dated this 22nd day of July, 2020.

State of North Dakota Wayne Stenehjem Attorney General

By: /s/ Matthew A. Sagsveen Matthew A. Sagsveen Solicitor General State Bar ID No. 05613 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300 Email [email protected] Attorneys for Respondent.

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Rick Berg, individually in his capacity as a resident and elector of the State of North Dakota, and as Chairman of the North Dakota Republican Party, CERTIFICATE OF COMPLIANCE

Petitioner,

v. Supreme Ct. No. 20200184 Alvin Jaeger, in his capacity as North Dakota’s Secretary of State,

Respondent.

[¶1] The undersigned certifies pursuant to N.D. R. App. P. 32(a)(8)(A), that the

Appellant’s/Appellee’s Brief contains 8 pages.

[¶2] This brief has been prepared in a proportionally spaced typeface using

Microsoft Office Word 2016 word processing software in Arial 12 point font.

Dated this 22nd day of July, 2020.

State of North Dakota Wayne Stenehjem Attorney General

By: /s/ Mathew A. Sagsveen Matthew A. Sagsveen Solicitor General State Bar ID No. 05613 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300 Email [email protected]

Attorneys for Respondent.

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Rick Berg, individually in his capacity as a resident and elector of the State of North Dakota, and as Chairman of the North Dakota Republican Party, CERTIFICATE OF SERVICE

Petitioner,

v. Supreme Ct. No. 20200184 Alvin Jaeger, in his capacity as North Dakota’s Secretary of State,

Respondent.

[¶1] I hereby certify that on July 22, 2020, the following documents:

RESPONSE BRIEF OF RESPONDENT, and CERTIFICATE OF COMPLIANCE were filed electronically with the Supreme Court through the E-Filing Portal and served on the following:

Courtney Presthus – [email protected]

State of North Dakota Wayne Stenehjem Attorney General

Attorneys for Respondent.