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Dale Wetzel, Associated Press, Published October 31 2012

North Dakota Election Day campaign ban blocked

BISMARCK – A federal judge Wednesday barred state and local prosecutors from enforcing North Dakota’s ban on Election Day campaigning, saying the century-old restriction violates political speech rights.

“There is no valid justification for the law in modern-day society, nor any compelling state interest offered to support its continued existence,” Judge Daniel Hovland wrote in his 13-page decision.

Attorney General Wayne Stenehjem said Wednesday that Hovland’s ruling will not be appealed. He will ask the Legislature next year to repeal the law, Stenehjem said.

Gary Emineth, a former North Dakota Republican state chairman, sued last month to challenge the law, saying he wanted to urge people to support GOP candidates on Election Day and leave signs standing in the yard of his home in Lincoln, southeast of Bismarck.

The lawsuit named Stenehjem; Al Jaeger, North Dakota’s secretary of state; and Richard Riha, the top prosecutor in Burleigh County, as defendants. Emineth lives in Burleigh County. The law prohibits anyone on Election Day from attempting to influence others to vote for, or oppose, any candidate or initiative on the ballot. Violations carry a $500 fine.

It bars the airing of radio or television ads and the publication of print advertising. It prohibits Election Day leafleting and requires people with political signs in their yards to take them down. The law exempts only billboards and bumper stickers. The language in the law spotlighted by Hovland’s ruling was first approved by the Legislature in 1911.

Lawmakers have declined to repeal it, most recently in 1999, when Stenehjem – who was then a Republican state senator from Grand Forks – described its restrictions as unconstitutional. He was elected attorney general the following year.

“Back then, people said, ‘Well, we’ll let the law stand and let the courts do what they do.’ Now, we have this ruling,” Stenehjem said. “It really was a rather sharp assessment of the constitutionality of the statute, and I think (legislators) need to pay close attention to it.”

Hovland’s decision notes that the U.S. Supreme Court has upheld Election Day campaigning restrictions within 100 feet of a polling place. North Dakota’s law is much broader, he wrote.

“One can hardly conceive of a statute less narrowly tailored than a blanket prohibition on all election-related speech,” the judge wrote. “Such a broad restriction on constitutional rights has rarely, if ever, been found to be constitutional, regardless of the context.”

Emineth said he would not object to restricting Election Day campaigning near a voting station. But North Dakota’s existing law is much too intrusive, and requires him to take down his yard signs and keep quiet about campaigns around his friends, he said.

“I probably will keep my yard signs up. I might even do a little campaigning,” he said.

Emineth was represented by the Center for Competitive Politics, an Alexandria, Va.-based organization that has challenged campaign finance restrictions. An attorney for the center, Allen Dickerson, called Hovland’s ruling “very careful and fair.”

Should the Legislature refuse to repeal the law, or change it in a way that eliminates free-speech concerns, Emineth has the option of seeking a permanent injunction, Dickerson said.

Stenehjem said he wanted to avoid having the state further defend the law in court, because taxpayers could end up paying Emineth’s legal bills.

“Those could be tens of thousands of dollars, in a pointless effort,” Stenehjem said.


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