ND 2024-L-06 2024-12-17

Can a North Dakota home rule city like Fargo use approval voting for city elections instead of the ballot format required by state law?

Short answer: Yes. Fargo voters approved an approval-voting amendment to the city charter in 2018, and the city implemented it through Ordinance 5191. North Dakota law gives home rule cities the power to provide for 'all matters pertaining to city elections, except as to qualifications of electors,' and the Legislature has not prohibited city-level approval voting. So Fargo's approval voting ordinance supersedes the conflicting state ballot statute, N.D.C.C. § 16.1-06-04, for city-officer elections.

Disclaimer: This is an official North Dakota Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed North Dakota attorney for advice on your specific situation.

Plain-English summary

In November 2018, Fargo voters approved a charter amendment switching city elections to "approval voting." Under approval voting, you vote yes for every candidate you'd be okay with winning, instead of picking just one. The candidates with the most approvals get the seats. Fargo passed Ordinance 5191 to put the system in place.

State Representative Jim Kasper asked the AG whether Fargo's setup conflicts with N.D.C.C. § 16.1-06-04, which sets requirements for the form and quality of official ballots, and if so, whether the conflict means state law wins.

The AG concluded Fargo's ordinance is valid and supersedes state law for city elections. The Legislature granted home rule cities a broad power to "provide for all matters pertaining to city elections, except as to qualifications of electors" in N.D.C.C. § 40-05.1-06(9). Fargo's charter claims that power, and the city implemented it through ordinance. Because the Legislature has not prohibited cities from adopting approval voting (in fact, Governor Burgum vetoed a 2023 bill that would have done exactly that, and the Senate sustained the veto), the home rule supersession runs.

The opinion notes that the North Dakota Supreme Court has a related case under review (City of Fargo v. State, argued September 2024) that may add a "matter of local versus statewide importance" element to the supersession analysis. The AG's conclusion is the law as it stands at the time of the opinion.

What this means for you

If you're a Fargo voter or candidate

Approval voting remains the rule for Fargo city elections. You vote for any number of candidates you approve of in each race; the candidates with the most approvals win the available seats. There's no run-off and no spoiler dynamic in the way single-choice plurality voting creates. The state's standard ballot rules don't override this for city races.

If you're an election official in another North Dakota home rule city

This opinion gives you a roadmap. To switch to approval voting (or some other non-traditional system), you need: the power claimed in your charter, an implementing ordinance, and the absence of an explicit state-law prohibition on the specific format. The opinion lists examples of statutes where the Legislature did expressly prohibit home rule supersession (pesticides, criminal offenses, sport shooting ranges, mobile telecommunications). State law for ballot form is not in that exclusion list.

If you're tracking the 2024 City of Fargo v. State case

The AG explicitly flagged that the North Dakota Supreme Court is reviewing the home rule supersession test and may add a "local versus statewide importance" prong. If the court does add that element, future opinions and cases on this question may come out differently. The AG's opinion is binding on state officials until then.

If you're considering a state-law fix

The Legislature's express path to override this would be amending N.D.C.C. § 16.1-06-04 to explicitly prohibit home rule supersession, the way the Legislature has done for pesticides (§ 4.1-33-04) and other regulated areas. The 2023 attempt (HB 1273) failed when the Senate sustained the governor's veto.

Common questions

Q: What is approval voting?
A: Each voter can vote for as many candidates in a race as they approve of. The candidate (or candidates, in multi-seat races) with the most approval votes wins. There's no ranking and no run-off. It's different from ranked-choice voting, where you order candidates by preference.

Q: Does this opinion mean any home rule city can adopt approval voting?
A: A home rule city can if its charter claims the elections power under § 40-05.1-06(9) and the city passes an implementing ordinance. The opinion's reasoning applies to any city that meets those conditions, but the express conclusion is about Fargo.

Q: What about state elections (governor, legislature)?
A: Those are not affected. The home rule power applies only to city elections. Statewide and federal elections continue to follow N.D.C.C. title 16.1 and federal law.

Q: What was HB 1273?
A: A 2023 bill that would have prohibited home rule cities (and other political subdivisions) from adopting approval or ranked-choice voting in any election held within North Dakota. Governor Burgum vetoed it. The House voted to override; the Senate sustained the veto. So no statewide prohibition exists.

Q: How does the City of Fargo v. State case affect this?
A: The court is considering whether to add a "local versus statewide importance" element to the supersession test. If they do, a city ordinance might be invalid even when it falls within an enumerated power, if the matter is one of statewide rather than local importance. The opinion's conclusion stands until the court decides.

Background and statutory framework

The North Dakota home rule supersession framework requires three things for a city ordinance to override state law: the power must be enumerated in N.D.C.C. § 40-05.1-06, the charter must claim the power, and the city must implement it through ordinance. Sauby v. City of Fargo, 2008 ND 65, and Klug v. City of Minot, 2011 ND 67, are key cases on the framework.

Section 40-05.1-06(9) gives home rule cities authority over "all matters pertaining to city elections, except as to qualifications of electors." Prior AG opinions (such as a 1999 opinion to the Harvey city auditor) have read this power as broad. The exclusion of "qualifications of electors" limits cities to procedural matters; they can't change who is allowed to vote.

The opinion notes the Legislature's pattern of explicit prohibitions where it wants to override home rule: § 4.1-33-04 (pesticides), § 12.1-01-05 (criminal offenses), § 18-13-10 (an unspecified topic), § 42-01-01.1 (sport shooting ranges), § 44-04-17.1(11) (open records), and § 57-34.1-03 (mobile telecommunications). The absence of similar language in the ballot statute (§ 16.1-06-04) is treated as legislative silence, which doesn't override home rule.

Citations and references

Statutes:
- N.D.C.C. ch. 40-05.1 (home rule cities)
- N.D.C.C. § 16.1-06-04 (ballot form and quality)

Cases:
- Sauby v. City of Fargo, 2008 ND 65, 747 N.W.2d 65
- Klug v. City of Minot, 2011 ND 67, 795 N.W.2d 906
- Litten v. City of Fargo, 294 N.W.2d 628 (N.D. 1980)
- State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946)

Source

Original opinion text

STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

LETTER OPINION
2024-L-06

The Honorable Jim Kasper
State Representative
District 46
1128 Westrac Drive
Fargo, ND 58103-8729

Dear Representative Kasper:

Thank you for your letter asking several questions about a home rule city's authority to implement election procedures for local elections. You ask whether the City of Fargo's Home Rule Charter and implementing ordinance outlining its approval voting election procedure supersede the election procedures found in North Dakota Century Code (N.D.C.C.) title 16.1, specifically the provisions of N.D.C.C. § 16.1-06-04 concerning the form and quality of ballots. It is my opinion, the Legislature expressly granted home rule cities the authority to provide for "all matters pertaining to city elections, except as to qualifications of electors." This broad power encompasses a home rule city's authority to prescribe the manner of electing its officials under its home rule charter. Because the City of Fargo has included the power in its Home Rule Charter and properly implemented the power through an ordinance, the City of Fargo's Home Rule Charter and the ordinance implementing its city election procedures supersede any conflicting provisions of N.D.C.C. title 16.1, including N.D.C.C. § 16.1-06-04 concerning the form and quality of ballots.

ANALYSIS

"The Legislature has provided by law for the establishment and exercise of home rule in cities." The intention of the home rule chapter is to provide the people of home rule cities "the full right of self-government in both local and city matters within the powers enumerated" in the home rule charter. If included in its home rule charter and implemented through ordinances, a home rule city may exercise the powers listed in N.D.C.C. § 40-05.1-06. "A validly enacted 'home rule charter and the ordinances made pursuant to the charter in such matters supersede within the territorial limits and other jurisdiction of the city any law of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.'" "[T]he legislature intended the cities to exercise broad plenary powers in those items specified under § 40-05.1-06, except where specifically provided that these powers may be exercised only by conforming or complying with state law."

The Legislature expressly granted home rule cities the authority to "provide for all matters pertaining to city elections, except as to qualifications of electors." This office has previously indicated the power to provide for "'all matters pertaining to city elections' is very broad." Accordingly, the Legislature has granted a home rule city the power to make decisions regarding the manner of electing its officials.

The City of Fargo has adopted a home rule charter delineating powers essentially identical to those in N.D.C.C. § 40-05.1-06. Specifically, the Charter states that the City of Fargo has the power "[t]o provide for all matters pertaining to city elections, except as to qualifications of electors." On November 6, 2018, the electors of the City of Fargo approved a petition to amend the City's Home Rule Charter pertaining to the procedure for electing city officials. The voters of Fargo sought to implement a different voting system called approval voting, which allows each elector to vote for all the candidates the elector approves of in each race instead of choosing just one. The "[c]andidates receiving the most votes will be elected until all necessary seats are filled in each race." The City of Fargo subsequently enacted Ordinance No. 5191 to implement the approval voting procedures outlined in Article 11 of the Home Rule Charter.

It is noted that the North Dakota Supreme Court currently has a case under review which may result in a modified standard of review for determining whether an implementing ordinance of a home rule charter city supersedes a state law and adding an element which would consider if the implementing ordinance concerns a matter of only local, rather than statewide, importance. See City of Fargo v. State, Case No. 20240125 (N.D. argued Sept. 25, 2024).

The City of Fargo has properly implemented its approval voting procedures through an ordinance. Thus, the last issue remaining is whether the Legislature has indicated that the only manner of exercising these powers is by mirroring state law, specifically the provisions of N.D.C.C. § 16.1-06-04 concerning the form and quality of ballots.

Section 16.1-06-04, N.D.C.C., sets forth numerous requirements for official ballots, including that the ballot "must contain the names of all candidates," however, the text of the law does not expressly prohibit a city from enacting ordinances which adopt conflicting requirements. Indeed, during the 2023 Legislative Session, the 68th Legislative Assembly passed House Bill 1273, which would have done just that: clearly prohibit political subdivisions, including home rule charter cities, from adopting ordinances providing for approval or rank-choice voting in all elections, including local elections, held within the state. Governor Doug Burgum vetoed that bill. The North Dakota House of Representatives voted to override the Governor's veto, but the State Senate voted to sustain the veto. North Dakota law, therefore, continues to exclude any language prohibiting home rule charter cities from adopting ordinances related to approval voting procedures or the format of ballots related to city elected officials.

Where the Legislature intends to explicitly prohibit a home rule charter city from adopting an ordinance which would conflict with a state law otherwise falling within the powers enumerated at N.D.C.C. § 40-05.1-06, the statutory language is clear. See, e.g., N.D.C.C. § 4.1-33-04 ("A political subdivision, including a home rule city or county, may not adopt or continue in effect any ordinance, resolution, or home rule charter provision regarding the registration, labeling, distribution, sale, handling, use, application, transportation, or disposal of pesticides."); N.D.C.C. § 12.1-01-05 ("Except as provided in section 40-05-06, an offense defined in this title or elsewhere by law may not be superseded by any city or county ordinance, or city or county home rule charter ..."); N.D.C.C. § 18-13-10 ("Notwithstanding any other provision of law, home rule charter, or ordinance made under a home rule charter, a political subdivision may not enact or enforce any ordinance or regulation conflicting with any provision of this chapter or with any policy of this state expressed by this chapter."); N.D.C.C. § 42-01-01.1 ("Notwithstanding any other provision of law, a county or city enacting a home rule charter under chapter 11-09.1, 40-05.1, or 54-40.4 may not regulate a sport shooting range except as otherwise provided in this section."); N.D.C.C. § 44-04-17.1(11) ("'Political subdivision' includes any county or city, regardless of the adoption of any home rule charter, ..."); N.D.C.C. § 57-34.1-03 ("Notwithstanding any other provision of law or any ordinance or resolution of a political subdivision, including a political subdivision operating under a home rule charter, mobile telecommunications services provided in a taxing jurisdiction to a customer, ... are deemed to be provided by the customer's home service provider.").

Thus, the City of Fargo, a home rule city, which has included the power in its home rule charter and properly implemented the power through an ordinance, has the authority to prescribe the manner of electing its officials under its home rule charter, including the format of the ballot.

Because the City of Fargo is a home rule city which validly adopted an approval voting procedure through its appropriately adopted and enacted home rule charter powers and implementing ordinance, it is my opinion that the City of Fargo's approval voting ordinance supersedes conflicting state laws related to the procedure for the election of city officials, including N.D.C.C. § 16.1-06-04 concerning the form and quality of ballots.

Drew H. Wrigley
Attorney General

This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until such time as the question presented is decided by the courts.