Votes cast for a deceased Bismarck-area state legislative candidate should be counted, and if he’s elected it would create a vacancy to be filled, according to Attorney General Wayne Stenehjem.
Stenehjem issued an opinion Tuesday to Secretary of State Al Jaeger, who on Thursday asked the longtime attorney general to weigh in on questions of what would happen if deceased Republican District 8 House nominee David Andahl is elected in November.
Andahl, 55, died Oct. 5 from COVID-19. So close to Election Day and with mail-in voting already underway, the ballots cannot be changed. About one-third of District 8 mail-in voters had already returned their ballots as of Monday.
Stenehjem said votes for Andahl must be counted, citing “the American rule,” that votes for a deceased or disqualified candidate represent a choice by voters.
“In the event the deceased candidate receives the majority of the votes, the candidate is elected. However, if the prevailing candidate has died, the candidate is no longer qualified, and a vacancy would exist,” Stenehjem concluded. He also cited state law for filling a legislative vacancy.
Stenehjem’s opinion says it “governs the actions of public officials until such time as the question presented is decided by the courts.”