Attorney General Wayne Stenehjem said Friday that a formal opinion was not needed concerning the omission of Public Service Commission candidate Joshua Voytek.
The Libertarian contender’s name was not included on the June ballot because an envelope containing Voytek’s candidate registration documents were inadvertently included with a collection of business registration forms within the Secretary of State’s office.
Final candidate filing ended April 9th. The lost documents were discovered 45 days later on May 24th. The envelope was post marked April 6th. The Secretary of State immediately sought the opinion of the Attorney General as to what options the Secretary of State and Voytek may have to remedy the error.
In an email, obtained through a Freedom of Information Act request, from Assistant Attorney General John Fox to Secretary of State Jeager dated May 24 2010, stated that the omission of a candidate from a ballot is extremely rare nationally and is unprecedented in North Dakota.
Fox wrote “We found no North Dakota law or opinions on point.” Fox and his staff were able to locate two cases that were sufficiently similar to give direction in forming an opinion.
The first case cited in Fox’s opinion was heard in 1990 in Connecticut Superior Court under the title Ucif v. Tashman. The second case was from Michigan in 1957, Wojcinski v. Board of Canvassers.
Fox concluded his letter by saying “As we discussed, given the circumstances, there is probably not much that could be done here except for advancing the candidate to the November ballot.” Using that opinion Secretary of State Jeager announced that Voytek would be placed on the November ballot to rectify the error.
This announcement prompted Democratic candidate for Secretary of State along with Senator John Warner of Ryder to press for a more formal opinion. Attorney General Stenehjem responded to the request by saying “Because I have advised the Secretary of State, based on the legal research we conducted, I respectfully decline to issue further opinion.”
Secretary of State Jeager included a similar statement in his response the Freedom of Information Act request, “My decision was based on the advice from legal counsel and the circumstance of the situation, which was an unprecedented event. As the AG’s letter indicates the court’s opinion in one case is very much applicable to this situation. Therefore, I did the right thing in making the decision that I did.”
