If a North Dakota Governor's written veto message says one thing about which language is being struck, but the marked-up bill attached to it says another, which one controls?
Plain-English summary
Governor Kelly Armstrong used the line-item veto on Section 7 of Senate Bill 2014, a 2025 appropriations bill. His written statement of objections, dated May 19, 2025, identified one specific item: a $150,000 passthrough grant from the Housing Incentive Fund to a Native American–focused organization for a homelessness liaison position. The Governor wrote, "I cannot support this provision within Section 7."
Attached to that letter was a copy of Senate Bill 2014. On the page containing Section 7, someone had drawn a red box and an X over the entire section, not just the $150,000 grant.
The Governor asked the AG: which document controls? The narrow language in my written statement, or the broader red mark drawn on the attached bill?
AG Drew Wrigley said the written statement controls. The North Dakota Constitution (Article V, Section 9) directs the Governor to "return" the vetoed item or bill "with a written statement of the [G]overnor's objections." Together, those two documents form the constitutionally mandated veto package. But the constitutional text only requires returning the bill plus a written statement. It does not direct the Governor to mark up the bill, and the framers could have written that requirement in if they wanted it. The written statement is what gets entered in the legislative journals, what gets read aloud during override votes, what gets recorded in the official Session Laws, and what gets filed with the Secretary of State. The marked-up bill is not.
The AG also drew an analogy to legislative practice. Until the 69th Legislative Assembly, amendments came in two forms: amendment instructions (the official version) and color-coded "Christmas tree" markups (a visual aid). When they conflicted, the instructions controlled. The veto message and the marked-up bill have the same relationship. The instructions, the written statement, control.
So Section 7 of Senate Bill 2014 stands except for the $150,000 grant the Governor's written message identified. The red mark is constitutionally inoperative.
The AG noted this is a question of first impression in North Dakota, addressed prudentially because no prior dispute has reached the courts. The opinion acknowledges 1935 Supreme Court dicta in Sandaker v. Olson that suggested markings on a bill might matter, but explains why that dicta is not controlling.
What this means for you
If you serve in the North Dakota Legislative Assembly
When you receive a veto package, the operative document for your override vote is the Governor's written statement of objections. The journals will record that statement. If the attached bill carries markings that suggest a broader or narrower veto than the statement, the markings are noise. Your override vote should be aimed at the language identified in the written statement, and the Session Laws after the session will codify the bill exactly as the written statement directs.
If you advise a Governor on veto procedure
Two practical takeaways. First, write the statement of objections with surgical precision. The AG was clear that the written statement is the legally operative document, so any ambiguity, missing word, or imprecise reference can change the legal effect of the veto. Second, if you choose to attach a marked-up bill as a courtesy, do not use it to expand or restrict what the written statement says. The mismatch creates a needless invitation to litigation, even if the AG and (probably) the courts will treat the written statement as controlling.
If you research legislative or constitutional history
This opinion is the first authoritative North Dakota interpretation of N.D. Const. art. V, § 9 on this point, and it lays out the historical practice in detail. The AG cites Session Laws from 1903, 1907, 1961, 1987, 1993, and 2007 as evidence that legislative records have always used the written statement of objections as the official veto document. Marked-up bills, when included, were not preserved in the journals or session laws.
If you're a journalist covering state appropriations
When a Governor vetoes a line item and reports describe both a written message and a markup, the written message is what becomes law. If the Legislature overrides, it overrides what the written message identified, not what the markup colored in. That is the unit of analysis for any "what did the veto actually do" reporting.
If you're a constitutional law attorney in another state
The opinion's reasoning leans on Idaho (Coeur D'Alene Tribe v. Denney) and Colorado (Romer v. Colorado General Assembly), both of which read similar veto provisions to require a written statement and treat markings as ancillary. The opinion would be persuasive authority for sister states facing the same question, particularly those with constitutions that, like North Dakota's, predate the line-item veto in its modern form.
Common questions
Q: Why is this a question of first impression after 130 years of statehood?
A: Because, as the AG notes in a footnote, there has been a "near universal understanding" that a clerical error in a visual aid does not undo a Governor's clear written objections. No one had pushed the issue to a court. Governor Armstrong's request put it on the record.
Q: What's an "item veto" and how is it different from a regular veto?
A: A regular veto rejects an entire bill. An item veto rejects specific items within an appropriations bill. Item vetoes can be more contentious because the Governor is editing the bill rather than rejecting it outright. Article V, Section 9 of the North Dakota Constitution authorizes both.
Q: Does this mean a Governor can never use a marked-up bill to communicate a veto?
A: A Governor can attach one as a courtesy, but the AG was clear that markings cannot themselves effect a veto. Returning a bill with language stricken from it, but no written statement of objections, would not be a valid veto. The written statement is mandatory.
Q: What happens to legislation when the AG and the courts later disagree?
A: AG opinions govern public officials' actions until a court decides otherwise (N.D.C.C. § 54-12-01, State ex rel. Johnson v. Baker). If a court eventually rules the marked-up bill controls or that ambiguity should be resolved differently, that ruling supersedes the AG opinion. Until then, the AG opinion is the rule for the Secretary of State, the Legislative Assembly, and other state officials.
Q: What was the actual outcome for Section 7 of Senate Bill 2014?
A: With the $150,000 grant removed, Section 7 still appropriates $10 million from the General Fund to the Housing Incentive Fund for homeless programs (FY 2026–2027) and directs the Office of Management and Budget to transfer $25 million from the Strategic Investment and Improvements Fund to the Housing Incentive Fund for housing projects and programs.
Q: Why does the AG cite Idaho and Colorado cases?
A: Both states have constitutional veto provisions similar to North Dakota's. Idaho's Supreme Court in Coeur D'Alene Tribe v. Denney construed the meaning of "return" in their veto provision and held the written objections are the operative communication. Colorado's Supreme Court in Romer v. Colorado General Assembly held that marking "disapproved and vetoed" on a bill was not, by itself, a veto. Both inform the AG's reading of N.D. Const. art. V, § 9.
Citations
- N.D. Const. art. V, § 9, Governor's veto authority
- N.D. Const. § 80 (1889), original (now superseded) veto provision
- N.D.C.C. § 54-09-02, filings with Secretary of State
- N.D.C.C. § 54-12-01, authority for AG opinions
- Senate & House Legislative Manual 2025-26, § 204(4)
- SCS Carbon Transp. LLC v. Malloy, 2024 ND 109, 7 N.W.3d 268, constitutional interpretation
- Sorum v. State, 2020 ND 175, 947 N.W.2d 382, same
- Coeur D'Alene Tribe v. Denney, 387 P.3d 761 (Idaho 2015), meaning of "return" in veto provision
- Romer v. Colorado Gen. Assembly, 840 P.2d 1081 (Colo. 1992), written objections required
- Sandaker v. Olson, 65 N.D. 561, 260 N.W. 586 (1935), earlier dicta, distinguished
- Kelsh v. Jaeger, 2002 N.D. 53, 641 N.W.2d 100, give effect to every provision
- State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946), AG opinions govern until courts decide
Source
- Landing page: https://attorneygeneral.nd.gov/legal-opinion-a-governors-unambiguous-constitutionally-required-written-statement-of-objections-to-a-vetoed-bill-or-item-delineates-the-language-that-was-vetoed-to-the-extent-there-is/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/06/2025-L-02.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
Drew H. Wrigley, ATTORNEY GENERAL
LETTER OPINION 2025-L-02
Governor Kelly Armstrong
Office of the Governor
600 East Boulevard Ave
Bismarck, ND 58505-0100
Dear Governor Armstrong:
Thank you for your email requesting my opinion regarding your item veto within Section 7 of Senate Bill 2014. You asked whether the legally operative scope of your veto was constituted by the May 19, 2025, detailed, written statement of your objections to the item or, alternatively, by the red box and X placed over Section 7 on the copy of Senate Bill 2014 that was included with your written statement.
It is my opinion that the written statement of your objections unambiguously detailing the item to be vetoed is the constitutionally required and legally operative communication for purposes of defining the vetoed provision in accordance with principles of constitutional interpretation and longstanding practices. Any discrepancy between the written statement and the markings on the copy of Senate Bill 2014 that accompanied it does not alter the legal effect of your unambiguous veto detailed in that written statement.
ANALYSIS
The Governor's authority to veto items in an appropriations bill is rooted in N.D. Constitution art. V, § 9, which provides:
The governor may veto a bill passed by the legislative assembly. The governor may veto items in an appropriation bill. Portions of the bill not vetoed become law.
The governor shall return for reconsideration any vetoed item or bill, with a written statement of the governor's objections, to the house in which it originated. That house shall immediately enter the governor's objections upon its journal.
This veto authority, and the process by which it is exercised, have remained largely unchanged since the first Constitution of North Dakota was adopted in 1889. While there have been North Dakota Supreme Court opinions and Attorney General opinions on whether certain legislative items may be vetoed, the question at the heart of this opinion, what portion of the constitutionally mandated veto package delivered to the house of origin delineates the precise verbiage vetoed by the Governor, appears to be one of first impression.
My analysis begins with the plain meaning of the constitutional provision governing vetoes, in accord with the Supreme Court of North Dakota's direction for constitutional interpretation:
When interpreting constitutional provisions, we apply general principles of statutory construction. We aim to give effect to the intent and purpose of the people who adopted the constitutional provision. We determine the intent and purpose of a constitutional provision, if possible, from the language itself. In interpreting clauses in a constitution we must presume that words have been employed in their natural and ordinary meaning.
To effectuate a veto, the Constitution requires the Governor to "return" the "vetoed item or bill" to its house of origin "with a written statement of the [G]overnor's objections." Together, those two documents comprise the constitutionally mandated veto package. The ordinary meaning of the word "return" in the Constitution's veto provision is "to send back" or "to bring back (something, such as a writ or verdict) to an office or tribunal". This meaning does not require a Governor to mark up the bill that is sent back to its house of origin. While our constitutional framers could easily have instructed that the language stricken by the Governor's clear written objections be crossed out in the bill or item returned to the house of origin, no such direction was given in our Constitution, and none can be appropriately inferred. The constitutional language only requires the Governor to send the vetoed item or bill back to the house of the Legislative Assembly in which it originated, along with a written statement of his objections. Again, these two items constitute the entirety of the required veto package which you properly "returned." Your veto package also satisfied the constitutional requirement to provide a written statement of your objections to the President of the Senate, and your objections were unambiguous. By the delivery of those two documents, your item veto was legally effective.
When construing a similar provision in the Idaho Constitution, the Supreme Court of Idaho stated:
The Constitution does not define the term 'return,' but Webster's American Dictionary of the English Language defines 'return' as 'to bring, carry, or send back; as, to return a borrowed book; to return a hired horse,' and, more specifically, '[i]n law, the rendering back or delivery . . . to the proper officer or court. . . .' N. Webster, An American Dictionary of the English Language (1828). Furthermore, we have held that 'the act of returning [the bill] with his objections is the veto of the bill.'
Governors may return vetoed items or bills exactly as they were passed by the legislature (i.e., without any markings) along with their written statements of objections, and the validity of the vetoes would not be impacted. Any such markings on a returned bill or item are neither constitutionally mandated nor legally operative for purposes of determining the scope of the items that are vetoed. As such, the marked-up copy of the bill included in the veto package did not raise any operable ambiguity regarding your veto.
This is clear when one considers that drawings or other markings on a returned item or bill cannot effectuate a veto by themselves. Under the North Dakota Constitution, simply returning a copy of a bill with language stricken from it would be insufficient to veto anything. While this instance presents a matter of first impression in North Dakota, the Supreme Court of Colorado interpreted a similar provision in their Constitution and found that marking a copy of a bill with the words "disapproved and vetoed" was not a veto. The Court explained that the Governor's detailed written objections to the bill are necessary for a constitutionally sound veto:
"[T]he purpose behind the provision requiring the executive to return a vetoed bill to the house of origin is to insure that the legislative branch shall have suitable opportunity to consider the Governor's objections to bills and on such consideration to pass them over his veto provided there are the requisite votes to do so."
That reasoning is sound and informs my determination in this opinion. To conclude otherwise defies the principles of constitutional construction and renders the mandate for "a written statement of the governor's objections" a nullity. This would enshrine an absurdity disfavored by our constitution. Here, your veto message very clearly sets forth your objections to the "$150,000 passthrough grant" within Section 7 of Senate Bill 2014. Specifically, you identified the objectionable item to be vetoed as "a $150,000 passthrough grant from the Housing Incentive Fund to a Native American-focused organization for the purpose of funding a homelessness liaison position" and wrote "I cannot support this provision within Section 7." There is no ambiguity about which item in Section 7 was vetoed. Regardless of any markings on the returned bill, it is clear from the plain language used in your full written statement of objections that you did not veto all of Section 7 of the bill. Based on the unambiguous written statement of objections, legislators can precisely identify the vetoed provision for purposes of considering the veto and, if necessary, voting on whether to override it.
Long-established North Dakota legislative practices also support the conclusion that elective markings on a returned bill do not supersede a governor's unambiguous written statement of objections delineating a vetoed item. For more than a century, legislative records have included written statements of objections as the official documentation of governors' vetoes. Only the written statements of objections are recorded in the official journals of the Legislative Assembly and the official Session Laws published after each legislative session. They are also filed with the North Dakota Secretary of State. Any electively marked up or otherwise annotated copies of the vetoed items or bills included in the veto packages have not been recorded for consideration of legislators. Consequently, the only way to ascertain the scope of previous item vetoes in the official legislative records is to read the written statement of the Governor's objections. And when the Legislative Assembly votes on whether to override a veto, the proceedings have historically only included readings of, and references to, the written statement of objections and the adopted version of the legislation without legislators being provided with any notations or markings that may have accompanied the Governor's written statement of objections.
Similarly, the Session Laws codified after the end of a legislative session also document each veto by recording only the Governor's written statement of objections. Marked up or notated copies of vetoed items or bills that Governors may have included with written statements of objections are not included. In lieu of a notated copy of a bill, the Session Laws have included either a copy of the vetoed measure as it was originally adopted (i.e., without any markup or excisions reflecting the veto) or a reference to the measure, such as its title. This appears to be true for almost all vetoes dating back to 1903 with a few minor deviations in practice in 1907, not relevant to the question here.
Giving effect solely to the Governor's written statement of objections over any perceived graphic discrepancy of the returned bill in the veto package is also consistent with the Legislative Assembly's analogous, longstanding method for reconciling divergent amendment instructions and amendment mark-ups (colloquially called the "m" versions or the "Christmas tree versions" of amendments). Until the 69th legislative assembly, amendments to legislation were created by drafting specific instructions for making the intended changes to the underlying bill. As a convenient but purely elective visual aid, legislative drafters could prepare a color-coded mark-up of the bill to help legislators and others visualize the effect of the amendment instructions. Notably, the "m" version was not recorded in the journals; only the amendment instructions were. If there was a discrepancy between the amendment instructions and the "m" version, the amendment instructions superseded the conflicting, marked up visual aid. In the present case, your written statement of objections operates like mandatory amendment instructions, while the red annotation on the returned version of Senate Bill 2014 is merely an elective marking. Any discrepancy between the latter and the former must be resolved in favor of the former, the written statement of objections.
Pursuant to the applicable constitutional analysis, after the vetoed item is removed, section 7 of Senate Bill 2014 reads:
There is appropriated out of any moneys in the general fund in the state treasury, not otherwise appropriated, the sum of $10,000,000, which the office of management and budget shall transfer to the housing incentive fund for homeless programs, during the biennium beginning July 1, 2025, and ending June 30, 2027. The appropriation under this subsection is considered a one-time funding item.
The office of management and budget shall transfer the sum of $25,000,000 from the strategic investment and improvements fund to the housing incentive fund for housing projects and programs during the biennium beginning July 1, 2025, and ending June 30, 2027.
SUMMARY
Delivering the veto package consisting of your written statement of objections and the copy of Senate Bill 2014 to the Senate satisfied the constitutional criteria for an item veto, and the written statement of objections was clear and unambiguous. To the extent the electively marked-up copy of Senate Bill 2014 in the veto package arguably diverged from your written statement of objections, that discrepancy is constitutionally inoperative and neither nullifies nor modifies the veto as it was proclaimed in your written statement of objections. It is my opinion that the detailed, written statement of your objections is the legally operative document for purposes of discerning the language vetoed pursuant to N.D. Const. art. V, § 9.
Drew H. Wrigley
Attorney General
DHW/CN/mjh
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.