Berg v. Jaeger , 2020 ND 178 ( 2020 )

Filed 8/26/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 178Rick 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, Petitioner
v.
Alvin Jaeger, in his capacity as North
Dakota’s Secretary of State, and Travisia
Jonette Minor, A/K/A Travisia Martin, Respondents
No. 20200184
WRIT OF INJUNCTION GRANTED.
Per Curiam.
Courtney A. Presthus, Dickinson, N.D., for petitioner.
Matthew A. Sagsveen, Solicitor General, Office of the Attorney General,
Bismarck, N.D., for respondent Alvin Jaeger.
McLain J. Schneider (argued), Fargo, N.D., and David C. Thompson
(appeared), Grand Forks, N.D., for respondent Travisia Martin.
Berg v. Jaeger
No. 20200184
Per Curiam.
[¶1] Rick Berg, as a resident and elector of this state, and as chairman of the
North Dakota Republican Party, petitioned this Court to exercise its original
jurisdiction and issue a writ of mandamus directing Secretary of State Alvin
Jaeger to remove Travisia Jonette Minor, A/K/A Travisia Martin from the
November 3, 2020, general election ballot for the office of insurance
commissioner. We exercise our original jurisdiction to consider Berg’s petition,
and we grant an alternative writ of injunction.
I
[¶2] On April 2, 2020, Martin filed an affidavit of candidacy, statement of
interest, and certificate of endorsement with Jaeger requesting she be placed
on the primary election ballot as the North Dakota Democratic-NPL party
candidate for North Dakota Insurance Commissioner. In the affidavit of
candidacy, Martin certified she met the requirements to hold the office of
insurance commissioner.
[¶3] On May 20, 2020, the executive director of the North Dakota Republican
Party sent a letter to Jaeger stating Martin was ineligible to hold the office of
insurance commissioner because she was not a North Dakota resident for five
years preceding the November 2020 election. The Republican Party alleged
Martin was ineligible to hold elective office because she voted in Nevada in the
November 2016 election. The Republican Party requested Jaeger remove
Martin from the November 2020 general election ballot.
[¶4] On May 28, 2020, Jaeger sent a letter to Martin requesting information
regarding her North Dakota residence. In response, Martin asserted she had
maintained her physical residence in North Dakota since 2015. Martin also
admitted to voting in Nevada in the November 2016 election, claiming she was
unfamiliar with North Dakota’s voter eligibility requirements. Martin included
with her response a letter from Dale Vander Vorst attesting that Martin had
been residing with him in North Dakota since before November 2015. Martin
1
also included letters from her former attorney and orthopedic surgeon stating
she moved to North Dakota in 2015.
[¶5] Jaeger refused to remove Martin from the ballot, stating he may only
remove a candidate from the ballot if the candidate refuses to accept the party
nomination or if ordered to do so by a court. On July 9, 2020, Berg petitioned
this Court for a writ of mandamus directing Jaeger to remove Martin from the
general election ballot. Berg contends Martin was not a resident of North
Dakota in 2016 when she voted in Nevada, and therefore she will be ineligible
to hold the office of insurance commissioner because she will not have been a
resident for the required five years preceding election.
[¶6] Following oral argument, this Court ordered the district court to hold an
evidentiary hearing and make findings of fact on “whether [Martin] will have
been a North Dakota resident for the five years preceding the 2020 general
election.” On August 12, 2020, the district court held an evidentiary hearing.
The court heard testimony from Martin and Vander Vorst and received several
exhibits into evidence. After the hearing, the court found “Martin was not a
North Dakota resident until sometime after November 2016.”
II
[¶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, 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
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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.
III
[¶9] “Under N.D.C.C. § 32-34-01, this Court may issue a writ of mandamus
to compel performance of an act which the law specifically enjoins as a duty
resulting from an office.” Riemers, 2018 ND 192, ¶ 7. “A petitioner for a writ of
mandamus must show a clear legal right to performance of the act sought to
be compelled and must establish no plain, speedy, and adequate remedy exists
in the ordinary course of law.” Id. To be enforceable by mandamus, the law
must require an act to be done; mandamus cannot compel an official’s
discretionary actions. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND
214, ¶ 19, 723 N.W.2d 112.
A
[¶10] Berg claims Martin is not eligible to hold the office of insurance
commissioner because she will not have been a North Dakota resident for five
years preceding the election.
[¶11] Eligibility to hold elective office in the executive branch is governed by
N.D. Const. art. V, § 4, which states that “[t]o be eligible to hold an elective
office established by this article, a person must be a qualified elector of this
state, must be at least twenty-five years of age on the day of the election, and
must have been a resident of this state for the five years preceding election to
office.” A resident of this state, as used in the Constitution, means having had
a legal residence “entitling one to vote or to hold office in the state of North
Dakota.” State ex rel. Sathre v. Moodie, 65 N.D. 340, 258 N.W. 558, 562 (1935).
Several factors relevant to determining one’s legal residence are set forth in
N.D.C.C. § 54-01-26:
Every person has in law a residence. In determining the place of
residence, the following rules must be observed:
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1. It is the place where one remains when not called
elsewhere for labor or other special or temporary purpose
and to which the person returns in seasons of repose.
2. There can be only one residence.
3. A residence cannot be lost until another is gained.
....
7. The residence can be changed only by the union of act and
intent.
[¶12] “A legal residence is the place where an individual has established his
home, where he is habitually present, and which he intends to return to when
he is away for business or pleasure.” Dietz v. City of Medora, 333 N.W.2d 702,
705 (N.D. 1983). “Every person has only one legal residence, as distinguished
from the possibility of several actual physical residences.” Id. All of the facts
and circumstances in an individual’s life may be used when considering the
factual issue of whether or not there has been a change of legal residence. Id.Legal residence, determined under the rules in N.D.C.C. § 54-01-26, is a
question of fact to be determined by the factfinder. Dietz, at 705.
[¶13] If an issue of fact is presented in an original proceeding in this Court,
N.D.C.C. § 27-02-17 provides:
If an issue of fact is joined, or an assessment of damages by a jury
is necessary, in any action or proceeding commenced in the
supreme court, the court, in its discretion, may send the same to
some district court, and it there must be determined in the same
manner as other issues of fact are tried or other assessments are
made, and a return thereof must be made as directed by the
supreme court. In such cases, the supreme court may order a
special verdict to be found and returned.
Because Martin’s residence is a question of fact, we asked the district court for
factual findings relating to Martin’s residence for the five years preceding the
general election. In finding that Martin did not become a North Dakota
resident until after November 2016, the district court stated in part:
In considering the testimony from Martin, the Court is also
left with evidence and testimony that her actions and intentions
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regarding her residency often conflicted at various times during
the relevant timeframe. 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.
....
Given all the evidence and testimony, this Court specifically
finds that Martin was not a North Dakota resident at the time she
cast her vote in the November 2016 election. While Martin had, in
part, acted as though she was a North Dakota resident by
physically moving to North Dakota, and while she likely had begun
the intention of changing domiciles, she had not fully abandoned
her former Nevada domicile, and she did not yet have a bona fide
intention to change and remain in North Dakota permanently.
This finding is based on numerous factors, some of which are more
persuasive than others, but none of which are conclusive. Taken
together, the facts indicate that Martin did not have union of act
and intent to change her residence at least through November 8,
2016.
Prior to casting her 2016 vote in Nevada, the Court
recognizes that Martin had physically moved to North Dakota and
she began renting out her Nevada home. However, the rental
agreement for Martin’s Nevada home indicated a month-to-month
term, leaving Martin free at any time to provide “30-day’s notice”
to her tenant to move out. See Respondent’s Exhibit 2; Appellate
Appendix at p. 22. The rental agreement also stated it was
intended “to promote household harmony by clarifying the
responsibilities and expectations of the Owner and Tenant while
sharing the home.” (emphasis added). This language itself
suggests that Martin, in executing the document, intended to
remain as part of the “household” and to “share” the home. This is
further evidenced by the fact that Martin kept her personal vehicle
at the home.
Prior to casting her 2016 vote in Nevada, Martin also had
not changed any of her addresses on any of her government-issued
identification cards. Her driver’s license still reflected her Nevada
5
address, as did her passport. She did not work in North Dakota
prior to voting in 2016, mainly due to her injury. She did not obtain
her professional license in North Dakota until December 2016,
although she had started the process before that time. She did not
own a home in North Dakota, but lived with her partner in his
home in Mandan. She continued her medical care with her medical
providers in Nevada through 2016.
And the Court certainly cannot ignore the fact that Martin
voted in Las Vegas, Nevada on November 8, 2016. In doing so, she
specifically chose not to avail herself of the rights of citizenship in
North Dakota, but instead to avail herself of the rights of
citizenship in Nevada. She did this in-person by physically
appearing at the polling location in Nevada. She identified herself
with her passport, which contained her Nevada address. In doing
so, Martin consciously availed herself of that Nevada address in
order to cast her vote. Her intent was clearly to cast a legal vote.
And in doing so, she did not intend to exercise any rights of
citizenship in North Dakota, but intended to exercise them in
Nevada.
“When you intend the facts to which the law attaches a
consequence, you must abide the consequence whether you intend
it or not.” Moodie, 258 N.W. 558 at 566 (quoting Dickinson v.
Brookline, 181 Mass. at 196). Martin intended to cast a legal vote
in Nevada, and she was a registered voter in Nevada with a valid
Nevada address at the time she cast her vote. By showing her
passport as valid identification and proof of residency, Martin
indicated that her Nevada address was intended by her to be her
legal residence for the purpose of voting and enjoying all the civil
rights and privileges that come therewith.
At the hearing in this matter, counsel for Martin
continuously argued that voting and registering in a particular
place is not conclusive proof of residence. This Court agrees, and
that is what the law states. However, by voting in Nevada and
availing herself of the rights of citizenship in Nevada, Martin
removed any doubt this Court may have had regarding her
intended residency in 2016.
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Other than physically living in North Dakota, most of
Martin’s other actions suggested an intention to retain her legal
residence in Nevada, including maintaining her home, driver’s
license, passport, and vehicle registration all in Nevada. She
continued to receive medical care in Nevada, traveled there often,
and kept her personal vehicle there. “[N]otwithstanding one may
testify that his intention was to make his home in a certain place,
if his acts are of a character to negative his declaration or
inconsistent with it, it is clear that the court cannot be governed
by his testimony as to intention.” Moodie, 258 N.W. 558 at 563.
This Court finds that although Martin testified that she intended
North Dakota to be her residence in 2015-16, the vast majority of
her actions in that timeframe are inconsistent with such an
intention.
To the extent the Court had any doubts that Martin had not
yet formed act and intent to change her domicile to North Dakota
after hearing the testimony regarding her actions up until
November 8, 2016, this doubt was removed by the testimony
regarding Martin’s decision to cast her vote in Nevada and to avail
herself of the rights of citizenship there. “The fact of voting is not
conclusive, but it is a strong circumstance which indicates the
intention of the voter to cast a legal vote.” Id. at 564.
This Court has no doubt that Martin fully formed the intent
to make North Dakota her legal residence at some point after 2016.
After that time, she began working exclusively in North Dakota,
she bought a home with her partner in North Dakota, and she sold
her home in Nevada. She has also since changed all of her
government-issued identification documents to reflect her North
Dakota address, including her passport.
However, all of the evidence and testimony presented to this
Court regarding Martin’s intent and her actions, both prior-to and
up until her vote in 2016, suggest she had not fully abandoned her
Nevada domicile and residency, and she continued to avail herself
of the rights of being a citizen of Nevada. She availed herself of
these rights specifically to the exclusion of exercising many of
those rights in North Dakota, including the right to vote.
7
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.
[¶14] When exercising our appellate jurisdiction, we review a district court’s
factual findings under the clearly erroneous standard of review. Rustad v.
Baumgartner, 2020 ND 126, ¶ 8, 943 N.W.2d 786. This case is not an appeal
but one where we exercised our original jurisdiction and sent the factual issue
of Martin’s residence to the district court under N.D.C.C. § 27-02-17. The
statutory duty performed by the district court judge, who heard and observed
the witnesses, aided the discharge of our duty in deciding whether to grant the
relief requested by Berg. In other contexts, this Court has considered the
district court’s findings by de novo or independent review. See Jensen v. State,
373 N.W.2d 894, 899-900 (N.D. 1985) (review of the record is de novo in habeas
corpus cases); Olson v. North Dakota Dist. Court, 271 N.W.2d 574, 579 (N.D.
1978) (in supervisory writ petition for change of venue, “we make an
independent review of the record to determine if a reasonable likelihood of
prejudice exists, giving appreciable weight to the trial court’s findings of fact
based on testimony of live witnesses.”). Other jurisdictions use a slightly
different articulation of how they employ facts found by a non-appellate court.
See, e.g., Turner v. Commonwealth, 694 S.E.2d 251, 262-63 (Va. Ct. App. 2010)
(stating that in original jurisdiction habeas corpus cases, a lower court’s factual
findings are entitled to deference and are binding upon the appellate court
exercising original jurisdiction unless plainly wrong or without evidence to
support them).
[¶15] Regardless of how we describe our use of the record, here the district
court’s factual findings are entitled to appreciable weight. The district court
found after 2016 Martin began working exclusively in North Dakota. Our
review of the record indicates that Martin began working in North Dakota
after that time, but not exclusively. Aside from that detail, our review of the
8
record confirms the district court’s findings are supported by substantial
evidence; therefore, we adopt the remainder of the district court’s findings of
fact.
B
[¶16] Martin argues the five-year residency requirement of N.D. Const. art. V,
§ 4, violates the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. Martin claims the residency requirement
significantly limits voters’ choices relating to elected officials and impairs the
rights of new residents to seek public office.
[¶17] Martin relies on Robertson v. Bartels, 150 F.Supp. 2d 691, 699 (D.N.J.
2001), which struck down a residency requirement to be elected to New
Jersey’s General Assembly. New Jersey required a candidate seeking
membership in the General Assembly to be a resident for one year in the
“district for which he shall be elected.” Id. at 693. The court held “New Jersey’s
one-year residency requirement for candidates for the Senate and General
Assembly does not survive the strict scrutiny inquiry and is, therefore,
violative of the [Fourteenth Amendment] Equal Protection Clause.” Id. at 699.
The New Jersey Supreme Court disagreed with the Robertson decision and
declined to apply it beyond the affected election. In re Contest of Nov. 8, 2011
Gen. Election of Office of New Jersey Gen. Assembly, 40 A.3d 684, 704 (N.J.
2012). No other jurisdiction has followed the holding in Robertson. See, e.g.,
Lewis v. Guadagno, 837 F.Supp. 2d 393 (D.N.J. 2011); but see Callaway v.
Samson, 193 F.Supp. 2d 783, 788 (D.N.J. 2002) (enjoining local election one-
year residency requirement as violating a particular candidate’s constitutional
right to travel).
[¶18] In this expedited proceeding the State has had minimal opportunity to
respond to Martin’s equal protection challenge. At oral argument the State
cited cases upholding residency restrictions on candidates for elective office did
not violate the Equal Protection Clause. See Hankins v. State of Hawaii, 639
F.Supp. 1552 (D. Haw. 1986) (upholding Hawaii’s five-year residency
requirement as a condition of eligibility for office of governor); Sununu v. Stark,
383 F.Supp. 1287 (D.N.H. 1974), aff’d, 420 U.S. 958 (1975) (upholding New
9
Hampshire’s seven-year residency requirement upon candidate seeking office
of state senator); Chimento v. Stark, 353 F.Supp. 1211 (D.N.H. 1973), aff’d, 414
U.S. 802 (1973) (upholding New Hampshire’s seven-year residency
requirement as a condition of eligibility for office of governor).
[¶19] The cases upholding residency requirements conclude the requirements
fulfill legitimate state interests because they allow the candidate to become
familiar with his or her constituency and ensure the voters have been exposed
to the candidate. Hankins, 639 F.Supp. at 1556; Sununu, 383 F.Supp. at 1290;
Chimento, 353 F.Supp. at 1215. Sununu and Chimento upheld the residency
requirements under the “compelling state interest” standard of review, and
Hankins applied rational basis review. Hankins, at 1556; Sununu, at 1290;
Chimento, at 1214. The Hankins court also concluded Hawaii’s five-year
residency requirement for the office of governor survived strict scrutiny
analysis. Hankins, at 1557.
[¶20] For candidates seeking an elected office in the executive branch, N.D.
Const. art. V, § 4, imposes a five-year residency requirement. By contrast, N.D.
Const. art. IV, § 5, imposes only a one-year residency requirement for
candidates seeking election to the legislative assembly. The State has a
legitimate interest in requiring that candidates for an executive branch office
possess a familiarity with the constituency and knowledge of statewide issues.
While Martin’s opportunity to seek this office is limited to some degree, her
opportunity to seek elective office in this state is not severely hindered by the
constitutional residency requirements. We conclude the five-year residency
requirement of N.D. Const. art. V, § 4, does not violate the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution.
C
[¶21] Berg contends N.D.C.C. § 16.1-08-01 requires Jaeger to remove Martin
from the general election ballot. Section 16.1-08-01, N.D.C.C. states:
The secretary of state shall thoroughly investigate, when the
matter comes to the secretary of state’s attention, any of the
following:
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1. Any error or omission which has occurred or is about to
occur in the placing of any name on an official election
ballot.
2. Any error which has been or is about to be committed in
printing the ballot.
3. Any wrongful act which has been or is about to be done
by any judge or election clerk, county auditor, canvassing
board, a canvassing board member, or any other person
charged with any duty concerning the election.
4. Any neglect of duty which has occurred or is about to occur.
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 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.
[¶22] Berg claims the alleged ballot error here is Martin’s eligibility to hold the
office of insurance commissioner. Berg argues N.D.C.C. § 16.1-08-01 obligates
Jaeger to investigate Martin’s eligibility and correct the error by removing her
from the election ballot.
[¶23] Berg’s argument that Martin’s ineligibility requires Jaeger to remove her
name from the election ballot is similar to an argument this Court addressed
in Petition of Teigen, 221 N.W.2d 94 (N.D. 1974). In Teigen, the president of
the State Bar Board, William Pearce, filed an affidavit with this Court
disputing the eligibility of Torfin Teigen, who was seeking the office of judge of
the Supreme Court of North Dakota. Id. at 95. Pearce stated that under the
Constitution, “no person shall be eligible to the office of judge of the Supreme
Court unless he be learned in the law.” Id. Pearce believed an error would occur
in placing Teigen’s name on the ballot because Teigen was not learned in the
11
law, was not admitted to practice law in the state, and therefore was not
“eligible for the office of judge of the Supreme Court of North Dakota.” Id.
Pearce requested that Secretary of State Meier be restrained from placing
Teigen’s name on the ballot. Id. at 95-96. In response, Meier stated he was
without authority to inquire whether Teigen was eligible to hold the office. Id.
at 96. Meier stated that if the petitions filed by Teigen as a candidate for office
were proper on their face, he was required to place Teigen’s name on the ballot,
“unless otherwise restrained by a lawful order of this Court.” Id.
[¶24] This Court concluded “that the phrase ‘learned in the law’ is synonymous
with and means ‘admitted to the bar’ or ‘admitted to practice’ by the Supreme
Court of our State.” Teigen, 221 N.W.2d at 98. This Court stated that Teigen
had not submitted any evidence showing he received a law degree or was
admitted to the bar of any state. Id. We held “that one must first be admitted
to the bar or to the practice of law by this court before one may have his name
placed on the ballot as a candidate for the office of judge of this court.” Id. at
99. This Court “ordered that the Secretary of State, Mr. Ben Meier, be enjoined
from certifying the name of Torfin Austin Teigen to the County Auditors of the
State of North Dakota for nomination to the office of Judge of the Supreme
Court of the State of North Dakota.” Id. at 100.
[¶25] In Teigen, 221 N.W.2d at 96, Pearce filed his affidavit under N.D.C.C.
§ 16-01-10, the predecessor to N.D.C.C. § 16.1-08-01, relating to the correction
of errors on ballots. Section 16-01-10, N.D.C.C., provided:
Wherever it shall be made to appear by an affidavit to the supreme
court, or to the district court of the proper county that:
1. An error or omission has occurred or is about to occur in the
placing of any name on an official election ballot;
2. Any error has been or is about to be committed in printing such
ballot;
3. Any wrongful act has been or is about to be done by any judge
or clerk of election, county auditor, canvassing board, member
thereof, or other person charged with any duty concerning the
election; or
4. Any neglect of duty has occurred or is about to occur,
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a judge of such court shall order the officer or person charged with
such error, wrong, or neglect to correct the error, desist from the
wrongful act, perform the duty, or show cause at a time and place
to be fixed by the court why he should not do so. Failure to obey
the order of such judge shall be contempt of court.
[¶26] Similar to N.D.C.C. § 16-01-10, N.D.C.C. § 16.1-08-01 allows any person
to petition a district court or this Court “for an order compelling the correction
of the error” if the error “has occurred or is about to occur in the placing of any
name on an official election ballot.”
[¶27] Here, Martin seeks election to the executive branch office of insurance
commissioner. “To be eligible to hold an elective office established by this
article, a person must be a qualified elector of this state, must be at least
twenty-five years of age on the day of the election, and must have been a
resident of this state for the five years preceding election to office.” N.D. Const.
art. V, § 4. Thus, to be eligible to hold an elective office in the executive branch,
one must have been a resident of this state for five years on election day.
Because Martin was not a resident until after November 2016, she will not
have been a North Dakota resident for five years on November 3, 2020.
Therefore, she is not eligible to hold the office of insurance commissioner.
[¶28] Berg seeks a writ of mandamus from this Court directing Jaeger to
remove Martin from the election ballot. In Teigen, 221 N.W.2d at 100, we
enjoined Secretary Meier from placing Teigen on the ballot. Under N.D.C.C.
§ 27-02-04, this Court may issue a writ of injunction when exercising our
original jurisdiction. An injunction may be granted “[w]hen it shall appear by
the complaint that the plaintiff is entitled to the relief demanded, and such
relief, or any part thereof, consists in restraining the commission or
continuance of some act, the commission or continuance of which during the
litigation would produce injury to the plaintiff.” N.D.C.C. § 32-06-02(1).
[¶29] If a petitioner for a writ sets forth a claim entitling them to relief, we will
consider the petition even though an alternative writ may be a more
appropriate remedy. Stearns v. Twin Butte Pub. Sch. Dist. No. 1, 185 N.W.2d
641, 645 (N.D. 1971). “[T]his court, in the exercise of its original jurisdiction,
13
may frame its process as the exigencies require.” State ex rel Lofthus v. Langer,
46 N.D. 462, 177 N.W. 408, 413 (1919). A writ of injunction is the correlative
of a writ of mandamus. State ex rel. McArthur v. McLean, 35 N.D. 203, 159
N.W. 847, 851 (1916). The former issues to restrain action while the latter
issues to compel action. Id. We will issue a writ of injunction if the resolution
of the issues in the instant case necessitates such a result.
[¶30] While Berg petitioned for mandamus rather than an injunction, Berg has
established a right to relief. Martin is not eligible to hold the office of insurance
commissioner, and it would be erroneous to place her name on the ballot. We
therefore enjoin Jaeger from placing Martin’s name on the general election
ballot.
IV
[¶31] We issue a writ of injunction restraining Secretary of State Jaeger from
placing the name of Travisia Jonette Minor, A/K/A Travisia Martin, on the
November 3, 2020, general election ballot.
[¶32] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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