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Published April 07 2012

Forum editorial: ND Supreme Court says vote, then we’ll see

The justices of the North Dakota Supreme Court who refused to rule on the constitutionality of the Legislature’s usurpation of the authority of the state Board of Higher Education are being called “gutless.” That’s a tad harsh.

The court last week said it would allow a vote to go forward on whether the University of North Dakota should retain the embattled Fighting Sioux nickname and logo. The measure was pushed by North Dakotans who disagree with the Legislature’s decision to reverse a previous decision that would have compelled UND to use the logo. That reversal sparked a storm of anger from nickname supporters. They wrote a petition and secured enough signatures to get the question on the June ballot. The court’s ruling last week cleared the way for the secretary of state to put the measure on the ballot.

However, in deferring to voters, the court left the door wide open to taking up the constitutional question, which is whether the Legislature can mess with what for generations has been the constitutional purview of the higher ed board. If voters say “yes” to drop the nickname, the constitutional question is moot, for now. The court likely would opt not to determine if the Legislature overstepped. If, however, voters say “no” to retain the logo (the ballot language is confusing), the court likely will take up the matter again because the measure was prompted by legislative action that, under the state constitution, may or may not be constitutional. The court’s function, after all, is to rule on constitutional questions, not block a legitimate ballot measure, no matter how ultimately foolish the measure might be.

Some court watchers suggested the oh-so-careful black-robed jurists were less-than-Solomonic by essentially cutting the baby in half. That is, they merely prolonged by at least two months an argument that will damage the university the longer it goes on. It is hard to argue with that conclusion.

But gutless? Not hardly. The justices might actually have been quite gutsy because they know that if voters are willing to further hurt UND and embarrass the state by voting to retain the nickname, the court will have to take it up again.

Forum editorials represent the opinion of Forum management and the newspaper’s Editorial Board.

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