Documente Academic
Documente Profesional
Documente Cultură
Petitioner,
v.
Respondent.
1
TABLE OF CONTENTS
Page
Statement of Issues……………………………………………………………..4
Paragraph
Argument …………………………………………………………………….¶ 32
Conclusion …………………………………………………………………………..¶ 50
2
TABLE OF AUTHORITIES
Cases
Statutes
N.D.C.C. § 16.1-01-01…………………………………………………..…..¶ 42
N.D.C.C. § 16.1-15-33…………………………………………………………..…¶ 21
N.D.C.C. § 27-02-17…………………………………………………………¶ 11
3
STATEMENT OF ISSUES
4
STATEMENT OF ORIGINAL SUPREME COURT JURISDICTION
[1] The instant Petition for a Writ of Mandamus is presented to the Supreme
Kylie Michelle Oversen and Dem-NPL candidate for the office of North Dakota
specifically from the decision filed five (5) days ago by the Supreme Court in
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 v. Alvin
Jonette Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.
[2] Over the past two business days – August 28, 2020 and August 31, 2020
such, Petitioners Jason Anderson and Kylie Michelle Oversen have been left
with no alternative but to file with the Supreme Court the instant Petition for
accept and certify the candidacy of Dem-NPL Party nominated and endorsed
5
Insurance Commissioner candidate Jason Anderson for inclusion on the North
[3] In Berg, supra, the Supreme Court exercised its original jurisdiction to
grant North Dakota Republican Party Chairman Rick Berg’s Petition a writ of
injunction, as the Court acted to “enjoin (Secretary of State Al) Jaeger from
[4] In its decision, the Supreme Court ordered Secretary of State Jaeger to
remove from the general election ballot the candidate who had been endorsed
by the Democratic-NPL Party and by the voters of North Dakota in the June
Commissioner.
consider and adjudicate the Berg Petition upon its merits, the Supreme Court
stated as follows:
[¶7] Article VI, § 2, of the North Dakota Constitution states this Court
“shall have appellate jurisdiction, and shall also have original
jurisdiction with authority to issue, hear, and determine such original
and remedial writs as may be necessary to properly exercise its
jurisdiction.” This Court’s authority to issue original writs is
discretionary and may not be invoked as a matter of right. Riemers v.
Jaeger, 2018 ND 192, ¶ 5, 916 N.W.2d 113. “It is well settled that the
power to exercise our original jurisdiction extends only to those cases
where the questions presented are publici juris and affect the
sovereignty of the state, the franchises or prerogatives of the state, or
the liberties of its people.” Id. “The interest of the state must be primary,
6
not incidental, and the public must have an interest or right that is
affected.” Id.
[¶8] The issue in this case concerns the eligibility of a candidate for state
office to hold the office and “involves the people’s power to govern
themselves through the voting process.” Riemers, 2018 ND 192, ¶ 6. Our
cases have recognized the public interest involved with the power of the
people to govern themselves in the voting process. Id. The issue here
involving the eligibility of a candidate for state office is a
matter of public interest warranting the exercise of this
Court’s original jurisdiction to consider Berg’s petition. (bold,
underlined emphasis added).
jurisdiction for the Supreme Court, given the corresponding subject matter of
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
7
[7] The issues presented by the instant Petition involve the very same office
Court in Berg, supra. Indeed, this Petition has been precipitated by the Court’s
Anderson and Kylie Michelle Oversen herein that the issues now before the
Supreme Court are no less compelling for the exercise by the Supreme Court
[9] As stated above, the current proceedings derive specifically from the
decision filed five (5) days ago by the Supreme Court in Rick Berg, individually
in his capacity as a resident and elector of the State of North Dakota, and as
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 correction of the error, wrong,
neglect, or act. (bold, underlined emphasis added).
8
capacity as North Dakota’s Secretary of State, and Travisia Jonette Minor,
a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D. August 26, 2020).
[10] During oral argument heard by the Supreme Court in Berg, members of
the Court were clearly aware of and concerned about the potential
consequences of any decision in the case which would have the effect of
2 At 8:46 of the official Supreme Court audio recording of the Oral Argument
Justice McEvers asked counsel for Republican Party Chairman Petitioner Rick
Berg, "how long has your client had this information?" Petitioner’s counsel
responded at 8:55 of the recording that regardless of how long Petitioner had
been in possession of the subject information which formed the basis for his
Petition, the matter was not ripe for presentation to the Supreme Court until
the Secretary of State had decided not to act to remove Travisia Martin from
the ballot.
With regard to the matter of whether the Dem-NPL Party would be able to
replace Travisia Martin on the November 3, 2020 General Election Ballot ion
the event that the Supreme Court would disqualify her for failing to satisfy the
five-year durational residency requirement set forth in Article V, § 4 of the
North Dakota Constitution for candidates for statewide executive branch
elective offices, at 38:25 of the Supreme Court audio recording of Oral
Argument in the case, Justice Crothers asked counsel for Ms. Martin at 38:38
of the , "(i)f Ms. Martin was not on the ballot, could the Democratic
Party put forward another candidate? Counsel for Ms. Martin responded
to Justice Crothers at 38:55 of the Oral Argument audio recording that there
is a statute that could potentially give the answer to that question -- N.D.C.C.
§ 16.1-11-18 -- which contains a provision that relates to the situation in which
a candidate individual ceases to be qualified to serve, if elected.
9
[11] In Berg, supra, with one minor exception, the Supreme Court adopted
the findings of a district court to which the Supreme Court had sent that
[12] In Berg, supra, the Supreme Court’s essential findings of fact were the
following, made within the context of the five (5) year durational residency
Because there has not been a showing that during the necessary
timeframe Martin had a union of both act and intent to change her
residence from Las Vegas, Nevada, and establish it in North Dakota, the
Court finds Martin was not a North Dakota resident until sometime after
November 2016. Therefore, this Court specifically finds that Martin will
not have been a North Dakota resident for the five years preceding the
2020 general election.
However, the Court does specifically find that Martin was a credible
witness. She appeared truthful and candid, and nothing in her
testimony suggested any ill will or intent both in her current testimony
or in her actions throughout the timeframe relevant to this matter.
10
[13] However, the Supreme Court also necessarily adopted the following
factual observation made by the district court in Berg, supra, as the Court
The Court first notes that the question of whether or not Martin
has been a North Dakota resident since at least November 3,
2015, is a difficult finding to make. ‘The difficulties which are met
with in connection with this question are due not so much to any
obscurity or uncertainty in the law as to the infinite variety of facts and
circumstances which have to be considered in its application to
individual cases.” Moodie, 258 N.W. at 564. The Supreme Court’s
requested finding is far less clear cut than either of the parties
suggest it to be, and this Court is left with limited time to make
the requested finding.’ (bold, underlined emphasis added).
was the judicially-ordered removal from the November 3, 2020 general election
12
ballot of the Democratic-Nonpartisan League’s endorsed candidate for the
STATEMENT OF FACTS
Travisia Martin to be the party’s candidate for the statewide elective office of
16.1-11-06, which provides that a candidate for North Dakota statewide office
candidate's name, post-office address, and telephone number, the title of the
office to which the candidate aspires, and the party which the candidate
[17] This was accomplished in Ms. Martin’s instance when she was issued a
Travisia Martin by the Dem-NPL Party, filed with the North Dakota Secretary
[18] On May 20, 2020, Corby Kemmer, the Executive Director of the North
13
candidate Travisia Martin was “ineligible to hold the office she seeks”, in light
[20] Travisia Martin was in turn placed on the Primary Election Ballot as the
and received 34,200 votes from North Dakota electors in an all-mail Primary
[21] On June 19, 2020, these Primary Election results – including Travisia
33, consists of the Clerk of the North Dakota Supreme Court, the Secretary of
State, the State Treasurer, and the leaders of the North Dakota Republican
[22] On July 9, 2020, North Dakota Republican Party Chairman Rick Berg
filed with the North Dakota Supreme Court a Petition for a Writ of Mandamus,
5https://bismarcktribune.com/news/state-and-regional/govt-and-politics/state-
canvassing-board-certifies-results-of-june-election/article_4011a520-4d68-
5ce3-8c5b-57267db48e31.html
14
in which Berg requested that that the Supreme Court “exercise its original
Martin “from the general election ballot for North Dakota Insurance
Commissioner.”
[23] On August 26, 2020, the North Dakota Supreme Court filed its decision
in Rick Berg, individually in his capacity as a resident and elector of the State
Alvin Jaeger, in his capacity as North Dakota’s Secretary of State, and Travisia
Jonette Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.
[24] In that decision, the Supreme Court exercised its original jurisdiction to
grant to the Petitioner Rick Berg a writ of injunction, pursuant to which the
Supreme Court acted to “enjoin (Secretary of State Al) Jaeger from placing
Id. at ¶30.
[25] Also on August 26, 2020 – on the same day as the Supreme Court’s filing
Kylie Michelle Oversen spoke with North Dakota Secretary of State Al Jaeger
15
[26] Late that same afternoon on August 26, 2020, Secretary of State Jaeger
Kylie,
After our discussion this afternoon, we did more research and discussed
your question in detail.
Therefore, the only way another candidate can be included on the ballot
is if they were to submit a Petition/Certificate of Nomination to run as
an independent candidate with no less than 1,000 signatures along
with the remaining candidacy paperwork before 4 pm on Monday,
August 31, 2020. See NDCC 16.1-12-02. More information about the
paperwork required can be found on Vote.ND.Gov at
https://vip.sos.nd.gov/PortalListDetails.aspx?ptlhPKID=24&ptlPKID=3
#content-start.
Al Jaeger
Secretary of State
16
[27] Two days later, on Friday, August 28, 2020, Dem-NPL Chairwoman
for the office of North Dakota Insurance Commissioner 6 under cover of the
following e-mail:
We believe that because Ms. Travisia Martin was on the ballot in June,
per your approval of her candidacy finding her eligible to be on the
ballot, and that she was only removed pursuant to an order of the
Supreme Court, a vacancy does in fact exist. As such, we are placing
Jason Anderson's name into nomination as the Dem-NPL candidate, in
accordance with the procedure set forth by law.
Sincerely,
Kylie Oversen
Chairwoman
ND Democratic-NPL
[28] Later on that afternoon of August 28, 2020, Deputy Secretary of State
Insurance Commissioner:
Ms. Oversen,
Jim Silrum
Deputy Secretary of State
See, the electronic mail message from Jim Silrum, sent August 28, 2020,
at 4:15 P.M., a copy of which is included at Appendix of Petitioners at
page 10.
[29] Petitioners Jason Anderson and Kylie Michelle Oversen have complied
fourth day prior to the November 3, 2020 General Election -- and this
[31] In light of the refusal by the Secretary of State this past Friday, August
28, 2020, to accept the filing by Dem-NPL Party Chairwoman Kylie Michelle
NPL replacement candidate Jason Anderson for the Office of North Dakota
Oversen have been left with no alternative but to file with the Supreme Court
the instant Petition for a Writ of Mandamus to compel North Dakota Secretary
for inclusion on the North Dakota November 3, 2020 General Election Ballot.
the instant Petition that Petitioners Jason Anderson and Kylie Michelle
21
[34] All of the requirements set forth in N.D.C.C. § 16.1-11-18(4) have been
Secretary of State last Friday, August 28, 2020 [See, Footnote 6, supra], a
oath by Dem-NPL Chairwoman Kylie Michelle Oversen was filed with the
CERTIFICATE OF CAUSE OF
VACANCY AND NOMINATION
22
secretary of state shall certify the new nomination and the name of the
person who has been nominated to fill the vacancy in place of the original
nominee to the various auditors.
to “certify the new nomination and the name of the person who has been
nominated to fill the vacancy [Jason Anderson] in place of the original nominee
[Travisia Martin].”
Jaeger to refuse to “certify the new nomination and the name” of Dem-NPL
23
[37] Rather, Respondent Secretary of State Jaeger has improperly refused to
allow him to reject and refuse to recognize the documentary materials filed on
[38] Relying on last week’s decision of the North Dakota Supreme Court in
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 v. Alvin
Jonette Minor, a/k/a Travisia Martin, 2020 ND 178, ___ N.W.2d ___ (N.D.
Fargo.
24
in Berg, supra, Secretary of State Jaeger stated, in pertinent part, as follows,
decision:
[41] Nowhere within the decision of the Supreme Court in Berg, supra, was
25
candidate Travisia Martin for her placement on the June Primary Election
ballot. It is undisputed that this occurred, and that the Primary election results
were properly certified by the State Canvassing Board on June 19, 2020.
[43] In its decision in Berg, supra, the Supreme Court never held that former
Election ballot.
[44] On his misplaced circular logic employed to justify his rejection of Dem-
26
[45] As the Supreme Court noted in its decision in Berg, supra:
candidate Travisia Martin was a “qualified elector of this state”, the Supreme
Court determined -- within the context of that which the District Court
described as “a difficult finding to make”, that Ms. Martin was not eligible to
“hold” the elective office of North Dakota Insurance Commissioner because the
Court found that Ms. Martin had not been a North Dakota resident since at
[47] The fact that Travisia Martin was ultimately determined by the
Supreme Court in its decision of last week to be ineligible to hold the office of
determination to the effect that Ms. Martin had not previously been
“qualified” by Secretary of State Jaeger as a candidate for that office for the
as a candidate for that office by virtue of the Supreme Court’s decision in Berg,
supra.
27
[48] Put simply, Travisia Martin may certainly was able to be “qualified” by
the Secretary of State for placement on the ballot as a candidate for Insurance
the office by the Supreme Court in its decision of last week in Berg, supra.
once the Supreme Court by virtue of the “decisional law” of its decision in Berg,
Insurance Commissioner. 8
The familiar rules of statutory construction here in North Dakota were set
forth in Kadlec v. Greendale Twp. Bd. of Twp. Supervisors,1998 ND 165 ¶12,
583 N.W.2d 817, 820 (N.D. 1998), where the Supreme Court explained:
The primary goal in construing statutes is to ascertain the
legislature's intent. Northern X-Ray Co. v. State, 542 N.W.2d 733,
735 (N.D. 1996). In ascertaining legislative intent, we first look to the
language of the statute, giving the language its plain, ordinary
meaning. Raboin v. North Dakota Workers Compensation Bureau,
1997 ND 221, P 17, 571 N.W.2d 833. As we said in Interest of K.G.,
551 N.W.2d 554, 556 (N.D. 1996), we interpret statutes in context,
endeavoring to give meaningful effect to each statute on the same
subject without making one or the other useless.
1998 ND 165 at ¶12; 583 N.W.2d at 820
28
CONCLUSION
[50] Over the past two business days – August 28, 2020 and August 31, 2020
[52] As such, Petitioners Jason Anderson and Kylie Michelle Oversen have
been left with no alternative but to file with the Supreme Court in the exercise
compel North Dakota Secretary of State Al Jaeger to accept and certify the
[53] Time is of the essence. The deadline for filling a political party
29
[54] Additionally, N.D.C.C. §16.1-12-04(1) provides that, “(n)ot less than
fifty-five days before any general or special election to fill any statewide
office, the secretary of state shall electronically transmit a certified list to each
county auditor the names of the individuals nominated for statewide office
[55] In light of these serious and immediate time constraints the Petitioners
Mandamus.
30
31
In the Supreme Court
State Of North Dakota
Supreme Court No. ____
Petitioner,
v.
Respondent.
[1] Pursuant to Rule 25(d) of the North Dakota Rules of Appellate Procedure, I
hereby certify that I served the documents identified hereafter today by electronic
means in compliance with Rule 25(a)(2)(c) of the North Dakota Rules of Appellate
Procedure upon the following known previously appearing counsel for North Dakota
1
Arnold Sagsveen, at e-mail address masagsve@nd.gov; and and North Dakota
and