State Democracy Research Initiative
University of Wisconsin Law School

NORTH DAKOTA

Posted on

North Dakota has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments. The timing of an election may vary depending on the type of ballot measure; while most ballot measures must be submitted to voters at a regular statewide election, the Governor may call a special election for a veto referendum. All ballot measures are subject to the same ballot content requirements, which include a financial impact estimate compiled following public hearings, as well as information prepared by the Secretary of State in consultation with the Attorney General. The Secretary of State must also consult with the Attorney General to prepare an analysis that is published in newspapers before the election. North Dakota law explicitly provides for pre-election judicial review of actions of the Secretary of State pertaining to initiatives and veto referendums, but not for legislatively referred amendments. The state constitution protects against judicial review which would invalidate an initiative or veto referendum after it has been submitted to and adopted by the electorate.

BACKGROUND INFORMATION

What forms of direct democracy are available, and when?

Statewide Ballot Measures in North Dakota

North Dakota has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments.

√ Initiatives – Statutory

√ Initiatives – Constitutional

The people of North Dakota have reserved the initiative power to propose and enact laws and/or constitutional amendments independently of the legislature. N.D. Const. art. III, §§ 1, 9.

√ Veto Referendums

North Dakotans also have the referendum power to approve or reject any act of the legislature, or parts thereof. N.D. Const. art. III, § 1. The veto referendum power extends to any law; the submission of a veto referendum petition suspends the operation of the challenged law, except with respect to emergency measures and appropriation measures for the support and maintenance of state institutions. See id. § 5.

√ Legislatively Referred Amendments

An amendment to the state constitution proposed by the legislature must be approved by North Dakota voters. N.D. Const. art. IV, § 16.

Election Timing

The timing of an election on a ballot measure may vary depending on the form of direct democracy; while most ballot measures must be submitted to voters at a regular statewide election, the Governor may call a special election with respect to a veto referendum.

  • An initiative must be submitted to voters at a “statewide election.” D. Const. art. III, §§ 5, 9. The state constitution provides that an initiative petition must be filed at least 120 days before the statewide election in which it will be submitted to voters. See id. § 5. North Dakota statutes governing notice to voters suggest that an initiative is submitted at a general election. See N.D. Cent. Code §§ 16.1-01-07, 16.1-13-05.
  • A veto referendum is submitted to voters at a “statewide election or a special election called by the Governor.” N.D. art. III, § 5. For a veto referendum submitted at a regular “statewide election,” North Dakota statutes governing notice to voters contemplate submission at a general election. See N.D. Cent. Code §§ 16.1-01-07, 16.1-13-05.
  • A legislatively referred amendment must be submitted to voters after it is approved by a majority of the members of each legislative house. N.D. art. IV, § 16. North Dakota statutes governing notice to voters seems to contemplate, but does not expressly require, submission at a general election. See N.D. Cent. Code §§ 16.1-01-07, 16.1-13-05.

BALLOT PREPARATION

What is included on the ballot, and who prepares it?

The ballot for any statewide ballot measure in North Dakota must display the following information.

  • The full measure, or a concise summary thereof.
    • If the Secretary of State concludes the measure is too long to practicably print in full, she is to prepare a concise summary of the measure in consultation with the Attorney General. N.D. Cent. Code § 1-06-09(1).
    • A concise summary must be written in plain, clear, understandable language, using words with common, everyday meaning; and it must fairly represent the substance of the measure. See Id.
  • Estimate of the measure’s financial impact.
    • This estimate is prepared by the Legislative Council following public hearings at which public testimony is presented, as well as consultations with implicated state institutions. See N.D. Cent. Code § 16.1-01-17; see also id. § 16.1-06-09(1).
    • For any measure that is adopted, an estimate of the measure’s actual fiscal impact is similarly prepared after one fiscal year. See N.D. Cent. Code § 16.1-01-17.
  • Concise statement of the effect of an affirmative or negative vote.
    • The concise statement is prepared by the Secretary of State in consultation with the Attorney General. N.D. Cent. Code § 11-06-09(1).
    • Like the concise summary, the concise statement must also be written in plain, clear, understandable language, using words with common, everyday meaning.

INFORMATION TO VOTERS

What information is provided to voters before the election, and how?

Publication

County auditors must publish an election notice in their official county newspaper once per week for the two consecutive weeks before an election; such notice must include notice of any ballot measure that will appear before the voters, as well as a sample ballot. See N.D. Cent. Code §§ 16.1-13-05, 16.1-01-07, 16.1.-13-12. This publication must also be available at each polling location. Id. § 16.1-06-19. Additionally, for two consecutive weeks before this notice is published, the Secretary of State must publish an analysis of any ballot measure that will appear before voters, prepared by the Secretary of State in consultation with the Attorney General, “in columns to enable the electors to become familiar with the effect of the proposed constitutional amendment or . . . measure.” Id. § 16.1-01-07.

Voter Information Pamphlet

While North Dakota law does not require a formal Voter Information Pamphlet, as noted, an analysis of a ballot measure, prepared by the Secretary of State in consultation with the Attorney General, is included in a pre-election publication. See N.D. Cent. Code § 16.1-01-07. This published analysis serves to allow electors to become familiar with the proposal’s effects. See id.

JUDICIAL REVIEW

When and how can the court step in?

  • With respect to an initiative or veto referendum, the state constitution provides the North Dakota Supreme Court with original jurisdiction to review “all decisions of the Secretary of State in the petition process,” in a proceeding filed no later than 75 days before the statewide election at which the measure is to be voted on. N.D. art. III, § 7. This may include actions to enjoin the Secretary of State from placing a measure on the ballot. See, e.g., Haugen v. Jaeger, 948 N.W.2d 1 (N.D. 2020) (enjoining the Secretary of State from certifying a ballot question due to problems with the underlying petition circulated for signatures). However, the state constitutional provision makes clear that if the Secretary of State’s decision “is being reviewed at the time the ballot is prepared, the Secretary of State shall place the measure on the ballot and no court action shall invalidate the measure if it is approved at the election by a majority of the votes cast thereon.” N.D. Const. art. III, § 7.
  • With respect to a legislatively referred amendment, North Dakota’s direct democracy provisions do not explicitly provide for judicial review of ballots or related materials, but review may be available under other channels.