Legislatively Proposed Repeal or Alteration of Voter‑Imposed Term Limits Is Constitutionally Barred and Void Ab Initio

Case: Bjerke v. North Dakota Legislative Assembly, 2026 ND 118

Court: Supreme Court of North Dakota

Date: June 25, 2026

Disposition: Writ of injunction granted; S.C.R. 4008 and “Constitutional Measure 1” declared void ab initio.

1. Introduction

In Bjerke v. North Dakota Legislative Assembly, two North Dakota electors—Terence B. Bjerke and Leverrett Oley Larsen—brought an original proceeding seeking declaratory relief and an injunction to prevent placement on the November 2026 ballot of a legislatively proposed constitutional measure. The measure (arising from S.C.R. 4008) would (1) amend the term-limit provision adopted by voters in 2022 and codified as N.D. Const. art. XV, § 1, and (2) repeal N.D. Const. art. XV, § 4, which expressly denies the Legislative Assembly authority to propose amendments that “alter or repeal” those term limits, reserving that power to the people through initiative.

The central issues were procedural and structural: whether the Legislative Assembly had constitutional authority to propose such a measure at all, whether the dispute was ripe before an election, whether the petitioners had standing, and whether the Court should exercise discretionary original jurisdiction. The Secretary of State took the position that his office lacked authority to refuse ballot placement based on constitutional doubts, while taking no position on the measure’s validity.

2. Summary of the Opinion

The Court exercised discretionary original jurisdiction under N.D. Const. art. VI, § 2, held that S.C.R. 4008 was unconstitutionally adopted because it exceeded the Legislative Assembly’s proposal authority as limited by N.D. Const. art. XV, § 4, and declared both S.C.R. 4008 and the resulting ballot measure void ab initio. The Court enjoined the Secretary of State from placing “Constitutional Measure 1” on the November 2026 ballot.

Because the art. XV, § 4 violation was dispositive, the Court declined to reach other claims (including an asserted violation of N.D. Const. art. III, § 8). The Court also denied attorney’s fees, reaffirming the narrowness of fee awards under N.D.C.C. § 32-23-08 outside the insurance coverage context.

3. Analysis

3.1 Precedents Cited

A. Original jurisdiction: mandatory (initiative review) versus discretionary (remedial writs)

The Court began by distinguishing its mandatory original jurisdiction over initiative/referendum petition decisions from the Secretary of State (N.D. Const. art. III, §§ 6–7) and its discretionary original jurisdiction to issue remedial writs (N.D. Const. art. VI, § 2).

  • Haugen v. Jaeger, 2020 ND 177 and N.D. State Bd. of Higher Educ. v. Jaeger, 2012 ND 64 were used to frame the Court’s mandatory initiative-review function: the Secretary of State’s role is limited to form-and-sufficiency and is “ministerial,” not substantive constitutional review.
  • In reinforcing that ministerial limitation, the Court cited Husebye v. Jaeger, Mun. Servs. Corp. v. Kusler, Haugland v. Meier, McCarney v. Meier, Preckel v. Byrne, and Anderson v. Byrne, plus State ex rel. Gammons v. Shafer (as a later proceeding involving the initiative provision at issue historically).
  • For discretionary original jurisdiction standards, the Court relied on Bd. of Trs. of N.D. Pub. Emps. Ret. Sys. v. N.D. Legis. Assembly, 2023 ND 185 (quoting State ex rel. Peterson v. Olson) for the proposition that original jurisdiction is discretionary and reserved for rare, public-rights controversies. It also cited Wheeler v. Schuetzle (and the historical account in Thomas J. Burke’s law review article) to emphasize that the Court’s original jurisdiction is exceptional, and N.D. Legis. Assembly v. Burgum for the “publici juris” standard.
  • The Court further referenced State ex rel. Link v. Olson and State ex rel. Vogel v. Garaas as examples supporting the “ad hoc” determination of whether a case fits original jurisdiction.

B. Justiciability: ripeness, advisory opinions, and the key procedural/substantive distinction

The Legislative Assembly argued the petition was unripe because voters might reject the measure; the Court rejected that characterization by recasting the challenge as a procedural/structural defect—whether the measure could lawfully be placed on the ballot at all.

  • The Court used In re Guardianship of K.H.P., 2024 ND 189 to outline justiciability limits (mootness, ripeness, standing, advisory opinions) and cited Bies v. Obregon, 1997 ND 18 and State ex rel. Heitkamp v. Hagerty, 1998 ND 122 to reiterate North Dakota’s prohibition on advisory opinions and the “future contingencies” test for ripeness.
  • The Legislature relied heavily on Anderson v. Byrne, Preckel v. Byrne, and Mun. Servs. Corp. v. Kusler to argue courts should not pre-judge a measure’s constitutionality before enactment. The Court distinguished these authorities by emphasizing Anderson itself drew a line between (i) procedural/placement issues (reviewable pre-election) and (ii) substantive constitutionality “in the event of adoption” (not ripe).
  • To reinforce the procedural/substantive ripeness split, the Court cited out-of-state decisions: Labrador v. Idahoans for Open Primaries (quoting Davidson v. Wright), State ex rel. Brooks v. Evnen, Avangrid Networks, Inc. v. Sec'y of State, and Alaskans for Efficient Gov't, Inc. v. State. These cases supported the principle that pre-election review is appropriate when the alleged defect concerns compliance with constitutional procedures for ballot access.
  • The Court also referenced State v. State Bd. of Canvassers for the general idea that courts should not “intercept” an amendment if proper procedure is followed—then held the very dispute here was that proper constitutional procedure (considering art. XV, § 4) was not followed.

C. Standing in structural-election disputes

The Court found standing based on the petitioners’ asserted injury from unlawful ballot placement and their status as electors (and their additional factual connection as members of the prior term-limits sponsoring committee).

  • It applied North Dakota standing standards from Nw. Landowners Ass'n v. State, 2025 ND 147 (quoting Kjolsrud v. MKB Mgmt. Corp.), and reiterated standing as a threshold issue via State v. Leingang. It invoked State v. Carpenter and Heitkamp for the rule against resolving abstract questions.
  • It relied on First Int'l Bank & Tr. v. Peterson and the U.S. Supreme Court’s articulation in TransUnion LLC v. Ramirez (standing must be shown for each claim and form of relief), and it cited Flatt ex rel. Flatt v. Kantak on reviewability of standing as a question of law.
  • The Court noted that electors may be proper relators in sovereignty/public-right contexts, citing State ex rel. Walker v. Link, and referenced taxpayer standing principles via Billey v. N.D. Stockmen's Ass'n.

D. Guarantee Clause (republican form of government) as non-justiciable

To the extent the Legislature suggested that art. XV, § 4 undermines a “republican form of government,” the Court treated the claim as a federal Guarantee Clause theory and held it non-justiciable.

  • The Court cited Duncan v. McCall and Luther v. Borden for the classic proposition that the Guarantee Clause is committed to Congress, not courts.
  • It relied on Rucho v. Common Cause (Guarantee Clause does not provide a justiciable claim) and Pac. States Tel. & Tel. Co. v. State of Oregon (rejecting a Guarantee Clause challenge to initiative provisions).

E. Constitutional interpretation methodology and the “notwithstanding” clause

On the merits, the Court used familiar interpretive principles and focused on the text and structure of the competing constitutional provisions.

  • For interpretive method, the Court cited Sorum v. State and State ex rel. Heitkamp v. Hagerty; for intent-from-text and ordinary meaning, Kelsh v. Jaeger and Cardiff v. Bismarck Pub. Sch. Dist.; for historical-context construction, Ex parte Corliss; and for reconciling enactments with the constitution when possible, State ex rel. Rausch v. Amerada Petroleum Corp.. The opinion also cited Teigen v. State on full review of constitutional questions, and referenced the four-justice rule in N.D. Const. art. VI, § 4.
  • On the meaning of “notwithstanding,” the Court relied on its own recent analysis in State v. Bell, 2025 ND 201, which in turn drew on N.L.R.B. v. SW Gen., Inc. and Hohenshelt v. Superior Ct. of Los Angeles Cnty. for the interpretive effect of a “notwithstanding” clause (it indicates which provision prevails in a conflict).
  • To support the general “specific controls over general” principle (though expressed through statutory-construction analogy), the Court cited Int. of M.R.M.-B. (and within it State v. Sapa), applying the concept to constitutional provisions here.

F. Remedy (injunction) and attorney’s fees

  • As to remedy, Haugen v. Jaeger was again pivotal: it provided North Dakota authority for enjoining ballot placement when a constitutional defect prevents lawful placement.
  • As to attorney’s fees under N.D.C.C. § 32-23-08, the Court relied on State Farm Fire & Cas. Co. v. Sigman and W. Nat'l Mut. Ins. Co. v. Univ. of North Dakota to characterize fee awards as previously limited to the “unique situation” of insurance coverage declaratory actions. It invoked Sorum v. State to reaffirm the American Rule in constitutional litigation against the State.
  • In a footnote discussing historical procedural form for original actions (“State ex rel.”) and the Attorney General’s role, the Court referenced Wheeler v. Schuetzle, State ex rel. Lesmeister v. Olson, SunBehm Gas, Inc. v. Lesmeister, State ex rel. Vogel v. Garaas, State ex rel. DeKrey v. Peterson, State ex rel. Link v. Olson, State v. Langer, and waiver principles from State v. Freed.

3.2 Legal Reasoning

A. Why the Court could decide the case before the election

The Court’s core justiciability move was to define the claim as a challenge to authority and procedure, not to the measure’s substantive wisdom or constitutionality if enacted. Under that framing, the alleged injury and controversy existed immediately: the Legislative Assembly had placed in motion a constitutionally prohibited route to the ballot.

This reasoning builds a North Dakota-specific articulation of a common election-law distinction: a pre-election challenge is ripe when it alleges the measure is not eligible for ballot placement because the constitution withholds power from the proponent or requires a different route to the ballot.

B. Textual conflict resolved by “notwithstanding” and by specificity

On the merits, the Court treated the constitution as speaking in two voices:

  • N.D. Const. art. IV, § 16 grants the Legislative Assembly broad authority: “Any amendment to this constitution may be proposed” by legislative action and then submitted to electors.
  • N.D. Const. art. XV, § 4 expressly limits that authority “Notwithstanding” art. IV, § 16: the legislature “shall not have authority” to propose an amendment to “alter or repeal” the term limitations in art. XV, § 1, and that authority is “reserved to initiative petition of the people under article III.”

The Court concluded that the “notwithstanding” clause is an internal rule of priority—an instruction that, in this subject area, the art. XV limitation prevails over the art. IV general grant. Independently, the Court reasoned that art. XV, § 4 is more specific than art. IV, § 16 as to who may propose changes to term limits, and therefore controls in that domain.

C. The “process” constitutional violation and the void ab initio consequence

Because art. XV, § 4 denies the legislature authority to propose such an amendment in the first place, the defect was not merely a flaw in the measure’s content; it was a defect in the constitutional mechanism used to reach the ballot. The Court therefore declared S.C.R. 4008 and the associated ballot measure void ab initio (treated as invalid from the outset) and enjoined the Secretary of State from placing it on the ballot.

D. Guarantee Clause argument rejected as non-justiciable

The Court’s treatment of the “republican form of government” contention is significant not for its depth but for its categorical nature: to the extent the argument was grounded in the U.S. Constitution’s Guarantee Clause, it cannot be litigated in court. That removed a potential structural counterattack on art. XV, § 4 from the case.

E. Attorney’s fees denied under a narrow declaratory-judgment fee practice

Even though petitioners prevailed, the Court applied the American Rule and refused to expand N.D.C.C. § 32-23-08 fee awards beyond the limited insurance-declaratory-judgment context recognized in State Farm Fire & Cas. Co. v. Sigman and W. Nat'l Mut. Ins. Co. v. Univ. of North Dakota.

3.3 Impact

A. A strong enforcement mechanism for “entrenchment-by-initiative” in North Dakota’s constitution

The decision gives full operative effect to a voter-adopted constitutional “reservation” clause that reallocates amendment-proposal power from the legislature to the people. Practically, it recognizes that the people can, via constitutional text, carve out subject areas where only the initiative process may propose amendments—at least where the constitution expressly says so.

B. A clarified pathway for pre-election review of ballot-placement authority

The Court’s ripeness analysis solidifies an important rule for North Dakota: pre-election review is available where the challenge targets the constitutional authority to place a measure on the ballot (a “procedural” eligibility issue), not the potential post-adoption constitutionality of the measure’s substantive policy. This reduces uncertainty in future disputes where governmental actors attempt to use one constitutional route to the ballot in an area where another route is constitutionally mandated.

C. Practical consequences for the Legislative Assembly and the Secretary of State

  • Legislative drafting constraint: The legislature must account for constitutional “no-proposal” zones created by voter initiatives and cannot rely on art. IV, § 16 as an all-purpose proposal authority when a later, specific “notwithstanding” limitation applies.
  • Administrative neutrality preserved: The Secretary of State’s position—that the office is not empowered to independently adjudicate constitutionality of legislatively proposed measures—remains intact; the remedy runs through courts, not administrative refusal.
  • Litigation timing: Parties now have clearer support to bring prompt, pre-election original actions when the claim is that a measure is constitutionally ineligible for ballot placement.

D. Limits: the Court avoided severability and other claims

The Court explicitly declined to address severability of a concurrent resolution and did not reach the petitioners’ alternative constitutional theory under N.D. Const. art. III, § 8. Thus, the precedential force is strongest on (1) proposal authority limits created by art. XV, § 4 and (2) pre-election justiciability for such authority-based challenges.

4. Complex Concepts Simplified

  • “Original jurisdiction” (mandatory vs discretionary): Mandatory original jurisdiction means the constitution requires the Supreme Court to hear certain disputes first (commonly initiative petition form/sufficiency decisions). Discretionary original jurisdiction means the Court may choose to hear rare, high-importance matters first, usually through “writs” (like injunctions), when statewide sovereign interests or public rights are at stake.
  • Ripeness: A case is ripe when the dispute is concrete enough to decide now. A challenge to what a law would do if passed is often unripe before an election. A challenge that the measure cannot legally be put on the ballot can be ripe before the election because the alleged harm (unlawful ballot placement) is happening now.
  • Standing: Standing asks whether the plaintiffs are sufficiently affected to sue. The Court accepted that electors can be injured by constitutionally unauthorized ballot placement, especially in a public-right/sovereignty dispute.
  • “Notwithstanding” clause: Think of “notwithstanding” as “even if something else says otherwise.” It tells readers which rule wins if two provisions conflict. Here, art. XV, § 4 was written to override the legislature’s general amendment-proposal power in art. IV, § 16 for the specific subject of term limits.
  • Void ab initio: This means “invalid from the beginning.” The Court treated S.C.R. 4008 as never having valid legal force because the legislature lacked constitutional authority to adopt it for ballot placement.
  • Guarantee Clause non-justiciability: Arguments that a state’s system is not “republican” under the U.S. Constitution’s Guarantee Clause are generally not for courts to decide; they are considered political questions entrusted to Congress.

5. Conclusion

Bjerke v. North Dakota Legislative Assembly establishes a clear rule of constitutional power allocation in North Dakota: where the constitution expressly provides—“notwithstanding” the legislature’s general amendment-proposal authority—that only the people by initiative may propose an amendment on a specified subject, the Legislative Assembly cannot place a competing proposal on the ballot under art. IV, § 16. Such a measure is procedurally ineligible for ballot placement, ripe for pre-election adjudication, and void ab initio. The decision strengthens judicial enforcement of voter-adopted structural limits on legislative power and provides a roadmap for prompt, pre-election remedies (including injunction) when a ballot measure is advanced through a constitutionally forbidden process.