Petition for Writ of Mandamus. WRIT GRANTED.
Riemers, Grand Forks, ND, petitioner.
Matthew A. Sagsveen, Solicitor General (argued) and Courtney
R. Titus, Assistant Attorney General (appeared), Bismarck,
ND, for respondent.
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.
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
"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
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 ...