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Riemers v. Jaeger

Supreme Court of North Dakota

August 3, 2018

Roland Riemers, Petitioner
v.
Alvin A. Jaeger, Secretary of State, State of North Dakota, Respondent

          Petition for Writ of Mandamus. WRIT GRANTED.

          Roland Riemers, Grand Forks, ND, petitioner.

          Matthew A. Sagsveen, Solicitor General (argued) and Courtney R. Titus, Assistant Attorney General (appeared), Bismarck, ND, for respondent.

          OPINION

          Crothers, Justice.

         [¶ 1] Roland Riemers petitioned this Court to exercise its original jurisdiction and issue a writ of mandamus directing Secretary of State Alvin Jaeger to order a recount of the June 12, 2018 primary election for the office of secretary of state. Riemers argues he was entitled to an automatic recount under N.D.C.C. § 16.1-16-01(1)(a) because he "failed to be nominated in a primary election by one percent or less of the highest vote cast for a candidate for the office sought." We exercise our original jurisdiction to consider Riemers' petition, and we grant his request for a writ of mandamus.

         I

         [¶ 2] Riemers was the sole Libertarian party candidate for secretary of state in the June 12, 2018 primary election. After the election, the North Dakota canvassing board certified that he received 247 votes for the office. Under N.D.C.C. §§ 16.1-11-06(1)(b)(3)(a) and 16.1-11-36, Riemers needed a minimum of 300 votes to be nominated as the Libertarian candidate for the office and to advance to the November general election. In the primary election, Republican candidate Will Gardner received the highest number of votes for the office of secretary of state at 54, 563.

         [¶ 3] In a June 13, 2018 letter to the Secretary of State, Riemers demanded an automatic recount under N.D.C.C. § 16.1-16-01, asserting he failed to be nominated in the primary election by one percent or less of the highest vote cast for a candidate for the office sought. The Secretary of State's office informed Riemers that the position for which his name appeared on the primary ballot was not eligible for a recount:

"It does not qualify according to N.D.C.C. § 16.1-16-01 nor under the recount guidelines published by this office.
"You were the only candidate for Secretary of State in the Libertarian Party column and received the highest number of votes as well as the only qualifying votes for the contest for your party. The formula to determine whether an automatic recount occurs, or a demand recount may be called is calculated based on the votes cast for at least two or more candidates. Since you were the only candidate for the Libertarian Party Secretary of State contest, it is not possible to have a recount since the respective columns for the political parties on the ballot are to determine the nominees within that party. It is not determined across political party columns as you stated in your letter."

         [¶ 4] After Riemers was denied a recount by the Secretary of State, he petitioned this Court under N.D.C.C. § 32-34-01 for a writ of mandamus directing the Secretary of State to follow N.D.C.C. § 16.1-16-01 and order a recount of the votes in the primary election for secretary of state.

         II

         [¶ 5] Article VI, § 2, of the North Dakota Constitution authorizes this Court to exercise original jurisdiction and to issue original and remedial writs necessary to properly exercise its jurisdiction. See also N.D.C.C. § 27-02-04. This Court's power to issue original writs is discretionary and may not be invoked as a matter of right. RECALLND v. Jaeger, 2010 ND 250, ¶ 7, 792 N.W.2d 511; Bolinske v. Jaeger, 2008 ND 180, ¶ 4, 756 N.W.2d 336; Kelsh v. Jaeger, 2002 ND 53, ¶ 2, 641 N.W.2d 100; State ex rel. Kusler v. Sinner, 491 N.W.2d 382, 384 (N.D. 1992). 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. RECALLND, at ¶ 7; Kelsh, at ¶ 2; Sinner, at 384. The interest of the state must be primary, not incidental, and the public must have an interest or right that is affected. RECALLND, at ¶ 7; Kelsh, at ¶ 2; Sinner, at 384.

         [¶ 6] The issue in this case implicates the right of a candidate for state office in a primary election to advance to the general election and involves the people's power to govern themselves through the voting process. Our cases have continuously recognized the public interest involved with the power of the people to govern themselves in the voting process. RECALLND, 2010 ND 250, ¶ 7, 792 N.W.2d 511; Kelsh, 2002 ND 53, ¶ 2, 641 N.W.2d 100; Sinner, 491 N.W.2d at 384. The issue here involving an automatic recount in a primary election for a ...


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