AG: North Dakota governor can't fill dead candidate's seat

BISMARCK, N.D. — North Dakota Gov. Doug Burgum has no authority to appoint a coal company executive to fill a state House seat won by a Republican candidate who died before the election, the attorney general said Wednesday.

Burgum announced Wednesday that he was appointing BNI Energy President Wade Boeshans to the seat won Tuesday by David Andahl, who died last month from COVID-19.

North Dakota Attorney General Wayne Stenehjem said in a statement that Burgum's appointment on the day following the election "is both inaccurate and untimely." Burgum defeated Stenehjem in the Republican gubernatorial primary in 2016.

Andhahl, 55, had been sick with COVID-19 for several days before he died on Oct. 5. Andahl and fellow District 8 House candidate Dave Nehring won the Republicans' endorsements and voters' nominations in the June primary.

Nehring and Andahl were top vote-getters for the two open House seats Tuesday over a pair of Democratic candidates in the sprawling rural district north of Bismarck.

Andahl and Nething knocked off one of North Dakota's most powerful lawmakers, Republican Rep. Jeff Delzer, chairman of the House Appropriations Committee in the June primary. Burgum gave more than $1.8 million to a political action committee that successfully targeted Delzer, who had clashed with Burgum over policy and spending priorities throughout the governor's first term. Burgum was reelected Tuesday.

GOP House Majority Leader Chet Pollert said Burgum "overstepped his boundaries" by funding a campaign against an incumbent member of his own party.

Stenehjem, who is also a Republican, issued an opinion last month that said if Andahl was elected to the post, the office would be deemed vacant. Under state law, a committee representing the party of the previous officeholder would fill the opening by appointment, potentially putting Delzer back in the seat he had held since 1995. Voters within the district also are allowed to petition for a special election, Stenehjem's opinion said.

But Burgum said in a statement that "the only legal and constitutionally viable way to fill the District 8 seat is through gubernatorial appointment."

Stenehjem disagreed, saying "the Constitution provides that the Legislative branch, not the Executive branch, has the authority to fill a vacancy in the legislative assembly."

"Further," Stenehjem wrote, "the results of yesterday's election have yet to be certified, and will not be until the state canvassing board meets. Therefore, there is no vacancy to be filled at this time because the terms of the legislators elected in 2016 will continue until November 30, 2020. The term of newly elected members begins on December 1, 2020.

Boeshans, 49, joined BNI Energy in 2005 and has headed the company since 2013. He also is the chairman of the Lignite Energy Council, based in Bismarck. The House district represents a sprawling rural area north of Bismarck.