              Filed 08/25/2020 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 177

Michael J. Haugen, Jacob Stutzman, Trent
Barkus, and Brighter Future Alliance,                              Petitioners
      v.
Alvin Jaeger, in his official capacity as
North Dakota Secretary of State, and the
Sponsoring Committee of Measure 3,                               Respondents



                                No. 20200213

WRIT OF INJUNCTION GRANTED.

Per Curiam.

David W. Asp (argued), Minneapolis, MN, and Shane C. Goettle (appeared),
Mandan, N.D., for petitioners.

David R. Phillips (argued), Assistant Attorney General, and Matthew A.
Sagsveen (appeared), Solicitor General, Office of the Attorney General,
Bismarck, N.D., for respondent Alvin Jaeger.

Timothy Q. Purdon (argued), Bismarck, N.D., for respondent Sponsoring
Committee of Measure 3.

Challis D. Williams (on brief), Grand Forks, N.D., for amicus curiae.
                              Haugen v. Jaeger
                                No. 20200213

Per Curiam.

[¶1] Michael J. Haugen, Jacob Stutzman, Trent Barkus, and the Brighter
Future Alliance seek a writ enjoining Secretary of State Alvin Jaeger from
placing an initiated measure on the November 3, 2020 ballot. The measure
seeks to amend the North Dakota Constitution concerning elections and
legislative districting. We grant the writ, concluding the petition does not
comply with the constitutional requirement that it contain the full text of the
measure. We set aside the Secretary of State’s decision to place Measure 3 on
the November ballot and enjoin him from doing so.

                                        I

[¶2] In March of 2020, the Sponsoring Committee sought the Secretary of
State’s approval, as to form, for a petition to initiate a measure that would
amend the North Dakota Constitution to include provisions dealing with the
transmission of voting ballots to overseas military members, voting records,
open primaries, a run-off election system, and legislative districting. The
Secretary of State approved the petition as to form and provided the
Sponsoring Committee with a petition title. The petition title reads:

      This initiated measure would add a new section to and amend
      Section 2 of Article IV of the North Dakota Constitution. It would
      require ballots to be transmitted to qualified military-overseas
      electors by the sixty-first day before an election. It would require
      all voting machines to produce a paper record of each vote cast and
      the Secretary of State to conduct a random audit of election results
      and issue an audit report within 120 days of an election. It would
      establish a new process for open primary elections in which all
      electors would be allowed to vote the ballot regardless of political
      party affiliation; all candidates for each office would be listed on a
      single ballot; candidates would be allowed, but not required, to
      identify their political party; and, regardless of political party
      identification, the four candidates receiving the most votes would
      advance to the general election ballot for that office. No other
      candidates could appear except those nominated through the

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      primary election. It would permit political parties to state on the
      ballot which candidates they endorse. It would allow voters in
      general elections to rank their first, second, third, and fourth
      choices of the candidates for each office and have the votes counted
      through a defined procedure until a candidate receives a majority
      of the votes cast for that office. It would require the Ethics
      Commission to draw legislative senatorial districts by unanimous
      vote, divide each senatorial district into two legislative house
      districts, hold eight public hearings on the proposed redistricting
      plan with two of the hearings held on two different American
      Indian Reservations, and follow certain criteria for the drawing of
      legislative districts. It would require the Secretary of State to
      provide the Ethics Commission with the tools and data necessary
      to draw the districts and the legislature to provide adequate funds
      for the duties of the Ethics Commission.

[¶3] On July 6, 2020, the Sponsoring Committee submitted the final petitions
with accompanying signatures to the Secretary of State for approval. On
August 11, 2020, the Secretary approved the petition to appear on the
November ballot as Measure 3. On August 12, 2020, the Petitioners filed for a
writ enjoining the Secretary of State from placing Measure 3 on the November
ballot. They argue the petition is legally insufficient because it does not contain
the full text of the measure and its title does not adequately represent the
measure’s substance.

                                         II

[¶4] It is the Secretary of State’s duty to review the form and sufficiency of
petitions to initiate or refer a measure. See N.D. Const. art. III, §§ 2, 6; see also
North Dakota State Bd. of Higher Ed. v. Jaeger, 2012 ND 64, ¶ 10, 815 N.W.2d
215. These responsibilities are “limited” and “ministerial in nature.” State Bd.
of Higher Ed., at ¶ 10. “Under the principle of separation of powers, courts do
not substitute their judgment for that of an executive officer who has exercised
a discretionary function. That has no application, however, to ministerial acts.”
McCarney v. Meier, 286 N.W.2d 780, 783 (N.D. 1979) (citation omitted).

[¶5] “All decisions of the secretary of state in the petition process are subject
to review by the supreme court in the exercise of original jurisdiction.” N.D.


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Const. art. III, § 7. We independently examine the Secretary of State’s decision
on a petition issue to determine whether he has complied with the law. Mun.
Services Corp. v. Kusler, 490 N.W.2d 700, 702 (N.D. 1992). Our authority to
review the Secretary of State’s petition decisions is “without limitation or
qualification.” Id. at 701.

[¶6] Article III of the North Dakota Constitution sets out the requirements
for petitions to initiate or refer a measure. The provisions of Article III are self-
executing and mandatory. N.D. Const. art. III, § 1. Among other requirements,
a petition must contain “the full text of the measure.” N.D. Const. art. III, § 2.
When a petition is challenged, the burden of proof is on the party attacking the
petition. N.D. Const. art. III, § 6. Because questions of law do not involve
burdens of proof, there is no burden of proof on anyone when the Court reviews
purely legal issues not involving factual disputes. McCarney, 286 N.W.2d at
783.

[¶7] The challengers assert the petition for Measure 3 does not contain the
measure’s full text. They point to Section 1 of Measure 3 which deals with the
transmission of ballots to overseas military members. Section 1 requires that,
sixty days before an election, “the secretary of state shall transmit ballots and
balloting materials to all covered voters who submit a valid military-overseas
ballot application.” It goes on to state this requirement “shall apply for all
elections covered in N.D.C.C. section 16.1-07-19.” The measure does not
provide the language of section 16.1-07-19, which lists the following elections:

      1.     A general, special, or primary election for federal office.
      2.     A general, special, or primary election for statewide or state
             legislative office or state ballot measure.
      3.     A general, special, or primary election for political
             subdivision office or political subdivision ballot measure.

[¶8] In Dyer v. Hall, 199 N.W. 754 (N.D. 1924), this Court held the Secretary
of State’s refusal to accept an initiated measure amending the North Dakota
Constitution was justified because it incorporated certain laws as part of the
measure but did not set forth the text of the laws. The laws the measure sought
to incorporate were “a large number of statutes, enacted during a period of


                                         3
many years and scattered throughout several volumes of compiled statutes and
session laws . . . .” Id. at 757. The Court reasoned the constitutional
requirement that a petition contain a measure’s full text prohibited
incorporating statutes by reference in a measure to amend the Constitution
because those laws would become embodied in the Constitution and not subject
to change by normal legislative action. Dyer, at 756. The Court also expressed
concern about transparency in the petition process, noting that if laws are
incorporated in a petition only by reference, voters “have no opportunity to read
or examine fairly the contents and appreciate the real import of the proposed
amendment.” Id. at 757.

[¶9] The Secretary of State and the Sponsoring Committee argue the rule set
out in Dyer is not applicable here. They claim this case is different because the
petition for Measure 3 has only a single statutory citation, rather than the
many laws included in the Dyer petition. They also claim the concern in Dyer—
that electors would not have access to the laws referenced in a petition—is no
longer an issue. They assert technological advances have given the average
voter convenient access to legal materials via the internet.

[¶10] We are not persuaded by these arguments. The Dyer Court, although
concerned with lessening the possibility of fraud and ensuring voters’ access to
laws referenced in petitions, was also “necessarily concerned with what would
ultimately be the fundamental law of the state and with the form in which it
would abide in the event of the adoption of the proposal.” Anderson v. Byrne,
242 N.W. 687, 691 (N.D. 1932). The Court concluded the purpose of the full-
text requirement was to “obviate all uncertainty as to the subject-matter dealt
with in the Constitution . . . .” Dyer, 199 N.W. at 757. Despite advances in
technology, this concern is still prevalent today. Embedding a statute into the
Constitution, which by definition is a law inferior to the Constitution and
subject to change by normal legislative procedure, would threaten the sanctity
of our fundamental law.

      Constitutions are supposed to be models of clear and concise
      statement, solemnly adopted by the people as guides to and
      restraints, not only upon Legislatures, but the people themselves.
      To require the people, the Legislature, and the courts, when

                                       4
      constitutional questions arise, to go outside the instrument, to
      delve into statutes, some of which may have been modified or
      repealed by subsequent inconsistent legislation and to search
      through several volumes of laws, is utterly foreign to American
      constitutional theory and practice.

Id. Here, as in Dyer, the full-text requirement in N.D. Const. art. III, § 2,
prohibits incorporating a statute by reference in a petition to initiate or refer
a measure that would amend the Constitution. Because the requirements in
Article III are mandatory, it is “absolutely necessary” for a petition to meet this
requirement. RECALLND v. Jaeger, 2010 ND 250, ¶ 26, 792 N.W.2d 511.

                                        III

[¶11] Given our holding, we need not address the challengers’ argument
concerning the sufficiency of the petition title. We grant the Petitioners a writ
of injunction, set aside the Secretary of State’s decision, and enjoin him from
placing Measure 3 on the November ballot.

[¶12] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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