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Mike Nowatzki, Forum News Service, Published February 25 2014

Independent candidate asks judge to throw out results of 2012 ND governor's race

BISMARCK – The third-place finisher in North Dakota’s 2012 gubernatorial race is asking a judge to nullify the election results for Gov. Jack Dalrymple and Lt. Gov. Drew Wrigley and their Democratic challengers because their party endorsement forms didn’t comply with state law.

Paul Sorum, who ran in 2012 as an independent candidate, filed his request Jan. 22 in Burleigh County District Court in Bismarck. A hearing is set for 9 a.m. Monday at the Morton County Courthouse in Mandan before Judge Donald Jorgensen, who was assigned the case.

Sorum is asking the judge to order that the 2012 election results be recertified after removing the GOP and Democratic candidates, which would make him the winner with 1.69 percent of the vote.

Sorum said in a phone interview Tuesday that the law the candidates failed to follow is the same law cited by Attorney General Wayne Stenehjem and Secretary of State Al Jaeger, both Republicans, in the removal of the Libertarian Party’s candidate for governor, Roland Riemers, from the November 2012 ballot.

“They failed to apply the law to themselves. That’s the part that gets egregious,” Sorum said.

Solicitor General Douglas Bahr, a lawyer for the state, argues that the Riemers situation was “materially different” from Sorum’s case, and he’s asking that Sorum’s petition for a writ of mandamus be dismissed.

The law in question requires candidates for governor and lieutenant governor to list their running mates when they complete a certificate of endorsement to have their names placed on the ballot.

Dalrymple, Wrigley and Jaeger don’t dispute that the forms challenged by Sorum failed to comply with state law. But they contend the court shouldn’t toss the election results because the candidates used the authorized form, Bahr wrote in response to Sorum’s petition.

“Any technical noncompliance with the statute was not the fault of the candidates,” Bahr wrote.

At the time, the form had a blank space for listing the office for which the candidate was being endorsed. Jaeger said Tuesday that the form had been changed in the early 1990s, likely to make it uniform for all candidates, and had been used for gubernatorial races since then.

His office now has a separate endorsement form for governor and lieutenant governor, with room to list both candidates’ names – a change made after the old form’s shortcomings came to light in a legal challenge filed by Riemers.

Riemers, of Grand Forks, received enough votes in the June 2012 primary to get on the November ballot, but his running mate hadn’t submitted all of the required paperwork and was left off the primary ballot. After the primary, Jaeger sought a legal opinion from Stenehjem on whether Riemers was eligible for the November ballot without a running mate.

Stenehjem, citing the law that Sorum now cites in his lawsuit, as well as a requirement in the state constitution that the governor and lieutenant governor must be elected on a joint ballot, issued an opinion that Riemers wasn’t eligible, and Jaeger didn’t certify him for the ballot.

Riemers – who ended up submitting enough signatures to get on the November ballot anyway as an independent candidate – filed a petition similar to Sorum’s in August 2012. Riemers lost in district court and appealed to the Supreme Court, which affirmed the lower court’s ruling because he had failed to include the necessary records to establish that he had a “clear legal right” to have the candidates removed from the ballot.

Sorum, an architect who lives in Bismarck, said his petition includes the documents Riemers’ was missing, and he noted the Supreme Court didn’t rule on the underlying issue.

Bahr argues that while the form omitted information about running mates, it “was not an essential element of the election” and “did not obstruct the free and intelligent casting of the vote.”