Former US Attorney General: ND’s Measure 1 won’t lead to ‘parade of horrors’

Former U.S. Attorney General John Ashcroft speaks Thursday, Oct. 23, 2014, at the Fargo Air Museum about Measure 1, the “right to life” amendment on North Dakota’s ballot. Michael Vosburg / Forum Photo Editor

By Ryan Johnson

Forum News Service

FARGO – A law on the books in Missouri for almost 30 years shows North Dakota’s “right to life” amendment wouldn’t lead to the “parade of horrors” its opponents have claimed, former U.S. Attorney General John Ashcroft said Friday.

During a press conference at the Fargo Air Museum announced by ND Choose Life, the main coalition working to support passage of Measure 1, Ashcroft discussed why he believes the two contain “substantially the same” language – and wouldn’t cause the unintended consequences to end-of-life care and in vitro fertilization its opponents have raised as concerns.

While serving as governor of Missouri from 1985 to 1993, Ashcroft signed into law a statute approved by lawmakers that went into effect Jan. 1, 1988.

It defines life as beginning at conception and says “the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges and immunities available to other persons, citizens, and residents of this state …”

“That really says in words that aren’t quite as economical, but it says basically the same thing you have in Measure No. 1,” Ashcroft told a crowd of about 75.

Measure 1, put on the 2014 ballot when legislators approved a resolution during the 2013 session, would add to the state constitution: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”

North Dakotans Against Measure 1, the main coalition opposing it, said in a Thursday press release the Missouri law and what’s proposed here are “very different.” Missouri has a state statute, while Measure 1 would amend the state’s constitution.

The release also said Missouri’s law specifically defines life as beginning at conception and includes “specific limitations” set forth by the U.S. and state constitutions and court rulings, limitations Measure 1 doesn’t have.

“Measure 1 is a constitutional amendment that is fundamentally different than an unenforceable state law in his home state,” Dina Butcher, chairwoman of North Dakotans Against Measure 1, said in written statement about Ashcroft’s visit. “The fact remains that Measure 1 is a permanent change to our constitution with far-reaching effects that include end-of-life directives and IVF treatments.”

Ashcroft, who also held a press conference in Bismarck on Thursday morning, said Missouri’s statute hasn’t prevented doctors there from being able to offer IVF infertility treatment.

The three IVF doctors in the state, who all practice at the Sanford Reproductive Medicine Clinic in Fargo, have previously said Measure 1 would make it “impossible” to continue offering IVF. Dr. Steffen Christensen, director of the clinic, said it will “cease and desist” IVF treatments within 30 days if approved by voters to protect the clinic’s staff.

Ashcroft also took on claims Measure 1 could prevent doctors from treating pregnancies with complications endangering the life of the mother and undermine an individual’s ability to determine their own end-of-life care directives. Neither has happened in Missouri since its statute, which he said contains “virtually identical” concepts as Measure 1, went into effect.

“We have not had any experience or difficulty that relates to the kind of terrible outcomes that some individuals have raised as a potential if this is enacted,” he said. “And while you don’t need people from Missouri to tell you how to vote, you do need to be voting based on the truth.”

Ashcroft said he didn’t know who paid for his trip to North Dakota. Shelle Aberle, communications director for ND Choose Life, also said she didn’t know who paid for Ashcroft’s visit, but he was invited to speak here by former Gov. Ed Schafer.


Poll shows 45 percent oppose, 39 percent support Measure 1

FARGO – New poll results released Thursday show more voters oppose than support North Dakota’s “right to life” amendment on the ballot.

The new poll, commissioned by the Say Anything Blog and Valley News Live, found 45 percent of the 430 “certain” or “very likely” voters surveyed opposed Measure 1, while 39 percent supported it. Sixteen percent were unsure.

The poll, which has a margin of error of plus or minus 5 percent, is based on surveys of respondents between Oct. 13 and 16.

An earlier poll commissioned by Forum Communications found 50 percent of respondents planned to vote in favor of Measure 1, while 33 percent said they’d vote “no” and 17 percent were undecided.

That poll was conducted in early October and also has a margin of error of plus or minus 5 percent.

Measure 5 backers file complaint over ads by oil industry group

By Mike Nowatzki

Forum News Service

BISMARCK – Backers of a North Dakota ballot measure that would create a conservation fund with oil tax revenue complained Thursday that the American Petroleum Institute’s campaign ads against the measure violate state law.

Steve Adair, chairman of the measure’s sponsoring committee for Measure 5, filed an election complaint with Secretary of State Al Jaeger, alleging violations of campaign disclosure laws by API.

Adair argued in the complaint that API is violating the law because its ads include “Paid for by the American Petroleum Institute” but don’t list the name of the “chairman or other responsible individual” as required by law for trade associations.

“To us, the materials are clearly illegal, so we would hope that they would stop sending illegal material and we would hope that the people who have put up illegal material in their yards would take them down,” Adair said.

Eric Wohlschlegel, a spokesman for API, said via email that a forwarded copy of Adair’s complaint was “the first I’ve heard of this … and frankly it doesn’t make much sense.”

North Dakotans for Clean Water, Wildlife and Parks is asking Jaeger to issue a cease-and-desist order directing API to stop distributing the campaign materials and to refer the matter to the Burleigh County state’s attorney’s office for further investigation and possible prosecution.

Deputy Secretary of State Jim Silrum said he had received the complaint and reached out to Jaeger, who was out of the office for travel to attend the commissioning of the USS North Dakota submarine on Saturday in Connecticut.

“I am not going to do anything until I’ve had a chance to speak with him,” Silrum said.

Campaign ads are increasingly being scrutinized in the battle over Measure 5, a constitutional amendment that would funnel 5 percent of the state’s oil extraction tax revenue into a fund and trust for the next 25 years to enhance conservation efforts and outdoor recreation. The state budget office projects the fund and trust would collect $308 million by July 2017.

The campaigns also have increasingly accused each other of being driven by out-of-state interests. Memphis, Tenn.-based Ducks Unlimited, which is spearheading the pro-Measure 5 campaign and has a regional office in Bismarck, has spent nearly $2.4 million on the campaign, while Washington, D.C.-based API has spent more than $1 million fighting the measure, according to disclosure reports.

Last week, measure opponents slammed supporters for using images of the South Dakota Badlands in a campaign mailer. Adair said the photos were incorrectly labeled by a stock photo vendor.

Supporters responded Thursday to what they called “false and personal attacks” against Amy Walker, who referred to herself in a pro-Measure 5 TV spot as “a teacher from Mandan” and is listed as a “High School Teacher, Mandan” in a campaign mailer.

Political blogger Rob Port called Walker a “fake Mandan teacher” in a post on his Say Anything Blog, noting she currently isn’t employed as a teacher in Mandan. He also pointed out that her husband is a Ducks Unlimited employee whose job would benefit from Measure 5’s passage. Johann Walker is director of conservation programs for Ducks Unlimited for North Dakota, South Dakota and Montana.

In a phone interview Thursday, Amy Walker said she taught at Mandan High School for at least eight years – a district official said she was hired in 2005 – and worked the first week or so of the 2013-14 school year before going on maternity leave. She resigned later that fall so she could stay home with her baby, she said, adding she recently signed up to be a substitute teacher in Mandan.

“That hurt, because I really felt like I am a teacher, and just because I’m at home taking care of my daughter right now … doesn’t mean than I’m any less of a teacher,” said Walker, whose North Dakota educator license is valid through 2016.

Walker also took offense at the suggestion that she was only appearing in the ad because her husband works for Ducks Unlimited, “as if I do not have an autonomous voice and opinion of my own.

“I found those comments to be very sexist,” she said.

Meanwhile, results of a DFM Research poll commissioned by Valley News Live and Say Anything Blog showed 55 percent of respondents opposed to Measure 5, 34 percent in favor of it and 11 percent undecided. The poll of 430 certain or very likely voters between Oct. 13 and 16 had a margin of error of plus or minus 4.7 percent.

Adair said internal and external polling has shown measure supporters ahead and behind, and he still considers it “a very tight race.”

Reach Nowatzki at (701) 255-5607 or by email at

Group of 60 doctors: ‘Measure 1 is good for North Dakota’

Patricia Laqua (behind the podium) discusses why a group of North Dakota physicians support Measure 1 on Wednesday, Oct. 22, 2014 in Fargo. If approved by voters next month, the measure would add a “right to life” amendment to the state constitution. Ryan Johnson/The Forum

By Ryan Johnson

Forum News Service

FARGO – A group of 60 physicians in the state offered a “second opinion” to North Dakota’s “right to life” amendment Wednesday, saying they support the ballot measure and don’t fear it will lead to the wide-ranging unintended consequences its opponents have discussed.

During a news conference at Rosewood on Broadway, Fargo family medicine physician Patricia Laqua and 10 other doctors offered their support for Measure 1. They were speaking on behalf of the 60 physicians who have signed on in support of the amendment.

Laqua said the group strongly believes government shouldn’t interfere with the physician-patient relationship, and members also support the ability to make one’s own end-of-life decisions and get infertility treatment.

“We all care deeply about our patients and we care about what’s good for North Dakota, and we all believe that Measure 1 is good for North Dakota,” she said.

If approved by voters, the measure would add to the state constitution: “The inalienable right to life of every human being at any stage of development must be recognized and protected.” It was put on the 2014 ballot with legislators’ approval of a resolution during the 2013 session.

The state needs this, Laqua said, because supporters of unlimited abortion rights are now targeting states “to try and overturn common sense laws” regulating abortion.

She said these proponents had a victory here in a 2013 ruling by Judge Wickham Corwin that found a 2011 law approved by legislators banning one of two drugs used in nonsurgical abortions violated the state and U.S. constitutions.

That ruling, which has since been appealed to the state Supreme Court, found “an overt right to abortion without restriction under any circumstances,” Laqua said – an interpretation that “paves the way” to overturning the state’s other abortion regulations.

“Measure 1 would give clear language in the constitution to legislators and the judges that the default interpretation of our laws is to protect life,” she said.

Laqua brought up common concerns raised by Measure 1’s opponents and said these fears are “completely without merit.” She said she’s troubled by the main coalition calling for its defeat, North Dakotans Against Measure 1, getting the majority of its contributions from out of  state.

Most of the coalition’s funding has come from groups across the country affiliated with Planned Parenthood, “a group that has a vital interest in promoting unlimited abortion on demand and has absolutely no interest in end-of-life care or fertility treatment,” Laqua said.

She said Missouri and Arkansas have had similar legislation to Measure 1 on the books for years, yet the fertility clinics in those states continue to be able to offer in vitro fertilization – a point opponents have disputed because those laws differ from the language Measure 1 would add to the North Dakota Constitution.

The three physicians now offering IVF in North Dakota, who all practice at the Sanford Reproductive Medicine Clinic in Fargo, have said Measure 1 would make it “impossible” to continue offering the treatment here.

In a Wednesday email statement, Cindy Morrison, executive vice president of marketing and public policy, said Sanford Health will neither encourage nor discourage dissent to this measure.

“There is uncertainty with Measure 1 that raises questions regarding how this would impact IVF,” she wrote, adding that Sanford Health hopes those on both sides of the debate “will remember the individuals involved in every case and consider them as important as any ideology.”

Opponents also have said the measure’s “vague” language could affect several aspects of health care, including end-of-life care and treating pregnancies with complications endangering the mother.

But Paul Carson, an infectious disease specialist in Fargo, said it was drafted in a “very deliberate” manner to not be self-executing, meaning it wouldn’t on its own make, overturn or change laws.

“The language is meant to give a guiding principle for our legislators and our judges to interpret laws that our Legislature passes,” he said.

In an Oct. 8 letter to its members, the North Dakota Medical Association said it opposes Measure 1 because of its “unknown effects on the patient-physician relationship,” adding the “vaguely written” and “unclear” language is open to interpretation.

Walter Johnson, an internal medicine physician in Fargo, said the association never polled its members before arriving at that opposition, and many believed the group would remain neutral.

“When the poll came out that Measure 1 was actually doing well, suddenly the decision appeared, the process by which that occurred we don’t know,” he said.

Report advocates keeping N.D. pharmacy law

By Dave Olson

Forum News Service

FARGO – A nonprofit research organization has released a report that concludes North Dakota’s pharmacy ownership law is good for pharmacy care in the state.

“North Dakota’s superior pharmacy care is no accident but rather the result of a smart, forward-thinking policy choice,” said Stacy Mitchell, a co-author of the report issued by the Institute for Local Self-Reliance, which has offices in the Twin Cities.

The report, an update to a similar paper released in 2009, reinforces arguments made by groups opposed to Measure 7, an initiated measure on the Nov. 4 ballot in North Dakota.

Measure 7 seeks to eliminate a state law that requires pharmacies to be majority owned by pharmacists licensed in North Dakota.

North Dakotans for Lower Pharmacy Prices, which supports Measure 7, unveiled a study last week that was paid for by Measure 7 supporters that predicts competition would increase and prescription drug prices would fall if North Dakota drops its pharmacy ownership law.

That report was authored by professors from the University of North Dakota and the University of Michigan.

By contrast, the report released by the Institute for Local Self-Reliance maintains that North Dakota’s pharmacy ownership law keeps drug prices in North Dakota relatively low compared to other states.

It also states that if the law is changed, North Dakota stands to lose about 70 independent pharmacies, which the report said contribute to tens of millions of dollars in economic activity and tax revenue.

A shift from locally owned pharmacies to chains and mail order firms, the Institute for Local Self-Reliance report said, would lead to direct economic losses in the state of at least $17 million a year and possibly as much as $29 million.

Measure 4 aims to limit initiated ballot measures

By Mike Nowatzki

Forum News Service

BISMARCK – If someone wants to know why North Dakota Republican lawmakers put Measure 4 on the November ballot, Sen. David Hogue tells them to look no further than Measure 5.

Measure 5 is the constitutional amendment that would direct 5 percent of the state’s oil extraction tax revenue into a trust and a fund for projects benefiting clean water, wildlife and parks.

Such measures won’t be eligible for future ballots if voters approve Measure 4. It would ban constitutional amendments that make a direct appropriation of public funds for a specific purpose or require the Legislature to do the same.

Voters could still initiate statutory measures – those that affect state law, not the state constitution – that would require the Legislature to appropriate money to a specific cause.

But Measure 4 would require that statutory measures estimated to have a “significant fiscal impact” be placed on the general election ballot, as opposed to the June primary ballot, which tends to draw lower voter turnout.

Hogue, a Minot attorney and Republican, said GOP lawmakers put Measure 4 on the ballot because of a combination of concerns about embedding spending mandates into the constitution and outside groups wanting to dip into oil-rich North Dakota’s tax revenue.

“With our newfound prosperity, we think there are a lot of organizations like (Measure 5 proponent) Ducks Unlimited who see our surplus as an opportunity to divert money for their special purposes,” he said.

Senate Minority Leader Mac Schneider, a Grand Forks Democrat and also an attorney, sees Measure 4 differently.

“I think it’s an attempted power grab by the Legislature that’s completely unjustified,” he said.

Dustin Gawrylow, a conservative activist who manages the North Dakota Watchdog Network website, said he agrees with Measure 4 supporters that appropriations shouldn’t be put into the constitution. But he said the problem is that Measure 4 could also prevent future constitutional measures that seek to abolish the income tax or property tax or limit the state sales tax, if they would force the Legislature to use other revenue sources.

“We agree that it’s bad in principle to use ballot measures to spend money and grow government. But we also think the genuine purpose of ballot measures is to be able to limit and restrain the Legislature, and this measure takes away the people’s ability” to do that, he said.

Republican legislators, who hold two-thirds majorities in both the House and Senate, voted in April 2013 to approve House Concurrent Resolution 3011, resulting in Measure 4 on the Nov. 4 ballot.

The House passed the resolution 54-35, with Republicans accounting for all of the yes votes and 14 of the no votes. The Senate approved it 29-18, with GOP lawmakers again casting all of the yes votes and four of the no votes.

Hogue and House Majority Leader Al Carlson of Fargo, the resolution’s lead sponsor in the House, both point to California as a cautionary tale of how voter-initiated spending and tax mandates can plunge a state into major debt.

“I would say that it’s probably good management of the taxpayers’ dollars,” Carlson said of Measure 4. “It’s not a power grab.”

Schneider said North Dakota isn’t California.

“The people have consistently time and time again used the power of the initiated measure responsibly, and they have time and time again rejected ill-conceived ballot measures,” he said.

According to the secretary of state’s office, North Dakota voters have decided more than 480 ballot measures since statehood in 1889. The Nov. 4 ballot contains eight measures, the most since the June 1996 election.

Initiated statutory measures require 13,452 signatures from eligible voters to get on the ballot, while initiated constitutional amendments such as Measure 5 need 26,904 signatures.

When Carlson first introduced the resolution last year, it required that any citizen-initiated measure that would potentially cost more than $20 million be placed on a general election ballot. The $20 million figure was scrapped and replaced in the final version with the broader term “significant fiscal impact,” leaving it up to lawmakers to determine what that is.

Carlson said defining “significant” is “in the eyes of the beholder,” but in his opinion, it would have to be a measure with an impact of $30 million to $50 million or greater.

Schneider called Measure 4 “a solution in search of a problem” and said regardless of how one feels about Measure 5, it has inspired vigorous debate about an important issue.

“The people are going to have their say on Measure 5. And so to conclude out of hand that the people of North Dakota are going to always make the wrong decision when it comes to changing the constitution, I think, is selling the voters of North Dakota short,” he said.

Sinner wants to ban lying in political ads: Cramer says Sinner should just defend his record himself

By Tu-Uyen Tran

Forum News Service

FARGO – George B. Sinner, North Dakota’s Democratic candidate for U.S. House, hopes to outlaw dishonest political ads.

Tuesday, he said if he is elected Nov. 4 to the state’s sole House seat, he would work on legislation to have the Federal Election Commission require candidates to remove ads that are proven to be false and levy fines if they don’t.

“People are tired of these campaigns and the negative, dishonest ads that politicians run,” Sinner said. “We need something different. We need to change this process a little bit. I think there would be a groundswell of public support as well as many people in Congress today.”

He said he was inspired by attack ads put out by political action committees supporting the Republican incumbent, Kevin Cramer.

Cramer said Sinner’s proposal is “not a good idea.”

“When initial reaction to the scrutiny of your position is to want to regulate it, it violates the most fundamental principle of our free democratic society; that is, he wants to regulate political speech,” he said. “What he ought to do is defend his record rather than look to the government to somehow fine whoever it is that’s attacking his record.”

Sinner has in mind something resembling what the Federal Trade Commission now does with ads for products and services. He even calls it his “Truth in Politics” initiative, echoing the FTC’s “Truth in Advertising” program, under which the agency can sue companies for making false claims about their products or services.

The ads Sinner is taking Cramer to task for show it would be difficult to regulate political advertising.

In one ad, Cramer said he helped pass the farm bill, but Sinner and some farmers say that Cramer voted to split the bill into two components, one with agriculture programs and one with other programs, including food stamps, which delayed passage of the bill. The two components had always gone together because they give both rural and urban lawmakers what they want.

“Kevin Cramer’s vote on the farm bill delayed final passage for nearly eight months, leaving farmers and ranchers with uncertainty,” John Skogen, an Epping farmer wrote in a recent letter to The Forum of Fargo-Moorhead.

Cramer said many House Republicans wanted more time to debate the food stamps and splitting the bill made that easier. After each component was voted on, the House voted to stitch them together in one bill, he said.

There weren’t enough votes in the House to move the farm bill forward without that legislative maneuver, he said.

Nevertheless, this ad no longer appears on Cramer’s YouTube channel.

In another ad, Cramer said he supports an all-of-the-above energy policy. Sinner said Cramer actually opposes production tax credits for wind energy.

Cramer said that’s because he wants all energy sources to be treated equally and the wind industry is mature enough to survive without subsidies.

Sinner’s initiative to rein in political ads is just the latest of many around the nation. The North Dakota Century Code, for example, says anyone running a false ad is guilty of a Class A misdemeanor.

But experts say these laws are difficult to enforce and courts have weakened them over the years.

Just last month, a federal district judge struck down Ohio’s law and an appeals court struck down Minnesota’s law.

“The citizenry, not the government, should be the monitor of falseness in the political arena,” Judge C. Arlen Beam of the U.S. Court of Appeals for the 8th Circuit wrote in his ruling against the Minnesota law. “Citizens can digest and question writings or broadcasts in favor or against ballot initiatives just as they are equally poised to weigh counterpoints.”

Conservation fund backers accuse oil lobbyist of ‘dirty tricks’

By Patrick Springer

Forum News Service

FARGO – North Dakotans for Clean Water, Wildlife & Parks accused an oil lobbying group of using “lies and dirty tricks” to try to defeat Measure 5 on the Nov. 4 ballot.

Conservation proponents singled out the American Petroleum Institute, a Washington, D.C., lobbying group that has pumped more than $1 million into the campaign to defeat Measure 5, which would set aside 5 percent of the state oil and gas extraction tax.

Budget officials project the measure, if passed, would allocate $259 million in the next two-year state budget, with almost $10 billion, in addition to a $1.6 billion budget surplus, available for other needs, said Steve Adair, chairman of the Measure 5 sponsoring committee.

“They are using the tried and true D.C. lobby tactic – scare people into a ‘no’ vote,” said Joe Herbst of Fargo, who has worked as a teacher and is getting his master’s to return to the classroom. “The fact is Measure 5 is not going to take funding away from the schools.”

Opponents of Measure 5, including the North Dakota Chamber and many agricultural groups, have unfairly portrayed the measure’s backers as out-of-state interests, supporters said. Ducks Unlimited, Adair’s organization, alone has more than 7,000 North Dakota members, a regional office in Bismarck, and has been supporting conservation projects in the state for half a century.

“We need to set the record straight,” Adair said. “This is enough.”

Meanwhile, a “toolkit” provided by the American Petroleum Institute to oil companies, urging them to have employees drum up pledges to vote “no” on Measure 5 and offering free lunches as an incentive. Questions can be directed to a Houston contact, Adair said.

“We find that appalling,” he said, in light of criticisms that Measure 5 is backed by out-of-state interests. Adair called the opponents’ efforts “lies and dirty tricks.”

A spokesman for the American Petroleum Institute defended its campaign against Measure 5, reasserting its arguments that money would be obligated under the proposed constitutional amendment.

“API’s member companies located in North Dakota share the concerns of the North Dakota Association of Builders, School Boards Association, Farmers Union, and many other North Dakota employers who view Measure 5 as a disservice to the state’s economy and its residents,” said Carlton Carroll the API.

“Enshrining inflexible spending into the state constitution would take $300 million off the table every two years for road building, human services, education and other priorities that are critical to the state’s long-term economic success.”

Rep. Ron Guggisberg, D-Fargo, said it is hypocritical for the oil industry lobby to sound the alarm about Measure 5’s budget impacts when oil companies were pushing for a 30 percent reduction in oil and gas taxes in the last legislative session.

“North Dakota has bent over backwards for the oil industry,” he said, adding that the state has spent millions of dollars on roads and other infrastructure.

Setting aside 5 percent of the existing oil and gas extraction tax “leaves 97 percent of oil taxes for other purposes,” Guggisberg said, including both production and extraction taxes.

Opponents also have claimed that Measure 5 would inevitably drive up farmland prices through land purchases and take land out of farming.

Any land purchases would go through a screening committee with agricultural representation, and ultimately must be approved by the governor.

“The land acquisition thing is totally baseless,” Adair said, adding large land purchases are “absolutely inconceivable. It’s not going to happen.”

Similarly, all spending by the conservation fund must be approved by the North Dakota Industrial Commission, comprised of the governor, agriculture commissioner and attorney general.

Spending cannot interfere with mineral extraction, litigation or lobbying. Funding must go toward flood control projects, restoration projects to protect clean water, wildlife habitat, parks, natural areas or recreation areas. Grants would be available to local governments, tribes, school districts, nonprofit organizations and state agencies, Measure 5 proponents said.

Contrary to opponents’ claims that 75 percent of the fund must be spent every year, the Industrial Commission could decide to “bank” money in a trust fund, similar to a savings account, Adair said.

On the other hand, a state version of the federal Conservation Reserve Program, which pays farmers to idle marginal land for habitat, easily could mean spending $100 million a year, he said. Farmers have complained in recent years that CRP payments can’t compete with cash crops.

The Measure 5 proponents challenged Stacy Linden, vice president and general counsel of the American Petroleum Institute, to come to North Dakota to debate the issues. Carroll’s statement did not indicate whether she would accept the invitation, conveyed in a letter sent Tuesday by Adair.

Realtor’s group spends $900K on advertisements urging voters to ‘Vote yes on Measure 2’

By Angie Wieck

Forum News Service

FARGO – Although there is no organized opposition to a measure that would prevent local and state governments from imposing a tax on real estate transactions, the North Dakota Association of Realtors has used nearly $900,000 in Realtor donations for advertisements urging voters to “Vote yes on Measure 2.”

Campaign coordinator Nancy R. Willis said it is necessary because of how the measure is worded.

Realtor and state Rep. Scott Louser, R-Minot, sponsored the measure that states, “The state and any county, township, city or any other political subdivision of the state may not impose any mortgage taxes or any sales or transfer taxes on the mortgage or transfer of real property.”

Willis said an early poll suggested many voters did not understand that a “yes” vote was not an approval of the tax but rather an approval to ban the tax.

She said the bill was introduced in response to discussions about lowering property taxes during the 2012 legislative session.

“There was a concern by Realtors that because the Legislature was talking about appropriating dollars to reduce property taxes, that political subdivisions and local municipalities would be looking at replacing some of that revenue in other ways,” Willis said.

Minnesota and South Dakota are among 35 states and the District of Columbia that collect real estate transfer taxes. In Minnesota, a 0.33 percent deed tax is assessed to the seller as part of the real estate closing process and a 0.23 percent mortgage registration tax is assessed to the buyer when a mortgage is recorded.


Sen. Judy Lee, R-West Fargo, said there is no organized opposition to the measure because many of those opposed are members of the Legislature and are prohibited from spending tax dollars to lobby.

She believes the measure is unnecessary and calls the ads “deceptive.”

“The ads are really quite deceptive in my view because the ads say ‘stop the tax,’ ” Lee said. “You can’t stop something that hasn’t started.”

She said in her 20 years in the Legislature, lawmakers have never discussed a real estate transfer tax and there is no reason to have a law against something just because it may happen in the future.

Her main concern is that, if passed, the measure will become part of the constitution.

“I’m a purist about the constitution because it should be the basic principles of the laws of the state that allows the Legislature to respond in ways that are appropriate depending on circumstances,” Lee said.

She said it would be different if North Dakota did not have initiative referendum. If the Legislature did impose such a tax, unhappy voters could gather signatures on a petition to get it on the next ballot for a repeal vote.

Lee, who worked in the real estate industry for 35 years, said the bill will have little effect if passed and that it is unfortunate so much money was spent.

“If this passes, the world won’t stop turning,” Lee said. “It’s just unnecessary in my view because it’s not even on the radar. If it’s not going to happen, why bother to spend the money to do this?

“I’m not beating up on my friends. We just have a difference of opinion on this one,” Lee said.

A closer look at ‘right to life’ amendment: Opponents claim ‘vague’ wording could cause unintended consequences; supporters say Measure 1 needed to protect state’s current abortion restrictions

By Ryan Johnson

Forum News Service

FARGO – It’s only 19 words.

But the 19 words in North Dakota’s “right to life” Measure 1 could have a far-reaching impact on a range of health issues, including end-of-life care, infertility treatment and pregnancies with complications endangering the mother’s life, according to its opponents.

Still, supporters say it has a limited purpose: to protect the abortion restrictions already on the books in North Dakota.

Now, the matter is in the hands of voters who will decide if this measure will be approved Nov. 4.

Original intent

Measure 1 got its start in 2013, when Sen. Margaret Sitte, R-Bismarck, and co-sponsors brought Senate Concurrent Resolution 4009 to the Legislature for consideration to be put on the 2014 ballot. If approved, the amendment would add to the state’s constitution: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”

It was originally intended to be a “human life amendment,” Sitte said, and it still is. But that intention shifted following Judge Wickham Corwin’s 2013 ruling that a 2011 law approved by legislators that would have outlawed one of two drugs used in nonsurgical abortions violated the state and U.S. constitutions. The state has since appealed that ruling to the North Dakota Supreme Court.

“As other people started looking at Measure 1, they started realizing this could be a vehicle to stand up to judicial activism, and that whole argument really carried weight in getting it passed in the Legislature,” Sitte said.

Legislators approved four new restrictions on abortion during the 2013 session, including a ban on getting the procedure 20 or more weeks into pregnancy and a ban on abortions based on gender or genetic defects. Several previously passed regulations also remain in effect.

The resolution that put Measure 1 on the ballot was approved by a 26-21 vote in the Senate 26-21 in February 2013, and passed the House 57-35 the following month.

Sen. Judy Lee, R-West Fargo, said she voted against the resolution then – and opposes the measure now – because its “ambiguous” wording could cause consequences in areas far beyond abortion, including access to in vitro fertilization (IVF) and being able to dictate one’s own end-of-life health care decisions.

“Both of those are two different ends of the life spectrum, but they’re both very important ones,” she said. “If the measure fails, the strong restrictions that we already have on abortion will remain in place, the ones that have been passed that have been challenged in court and overturned will still be overturned, and everything will be the way it is right now.”

Legal questions

The two main coalitions working on Measure 1 – proponents ND Choose Life and opponents North Dakotans Against Measure 1 – released papers in recent weeks signed by experts, advocates and others taking on the legal questions about what the measure would do if approved by voters.

Christopher Dodson, executive director and general counsel for the North Dakota Catholic Conference and a member of ND Choose Life, said it would clarify that the right to life clause already in the state’s constitution applies to all stages of development, allowing the Legislature to pass laws to “protect human life” to the extent possible under the U.S. Constitution.

There are many reasons voters shouldn’t be concerned about Measure 1 affecting end-of-life decisions, Dodson said, including it’s a constitutional amendment, not a statute, and such amendments are “rarely” considered self-executing by the state Supreme Court.

“That is, they cannot create new crimes or new statutes to be enforced, and they can’t mandate the Legislature to do something, nor can they repeal by implication an existing statute unless there’s a direct conflict which cannot be resolved,” he said. “This doesn’t meet those criteria.”

It’s instead considered to set “general objectives,” similar to an amendment in 2000 protecting the right to hunt, he said, and would allow existing statutes governing end-of-life care, infertility treatment and abortion to continue to be the law of the land.

Concerns about its impact on access to infertility treatment or abortion are unwarranted, Dodson said, because the amendment would need to define life as beginning at conception to be enforceable on those issues – something he said it doesn’t do.

“It can’t ban abortion because of the federal rules anyway, so abortion is not the issue,” he said. “The issue of Measure 1 are those laws that affect abortion, such as parental consent, waiting periods and things that the U.S. Supreme Court has said are constitutional.”

But Steven Morrison, an assistant professor of constitutional law at the University of North Dakota’s School of Law who researched the issues for a report released by North Dakotans Against Measure 1, said it’s an “abject failure” of writing the original intent into legislation.

“I perfectly understand that they have a moral position and that protecting life is important to them, and indeed it’s important to me as well,” he said. “What they don’t understand is you have to translate that interest in protecting life into legal language which can be measured and fair and won’t harm people, and Measure 1 is anything but nuanced.”

Morrison said the “vague” language will affect far more than abortion restrictions. Unlike most amendments that specify what the government cannot do, such as enter a home without a warrant, Measure 1 would set a positive constitutional right, he said – meaning it requires the government to do something.

In this case, he said that requirement is to protect the right to life, which could open the door to the government needing to ensure residents’ access to things like clean air and water and treatment for cancer and other diseases. No other state constitution imposes this “positive duty” to protect life, he said.

“Measure 1 has the potential for altering that relationship between the government and citizens, and requiring the government to do a whole lot to protect people’s right to life,” he said.

He said it’s also arguable Measure 1 actually is self-executing and could override current laws without additional legislation because it doesn’t contain “as provided by law” language making it clear it’s in the realm of legislators.

Either way, he said it doesn’t matter what proponents intend for Measure 1 to do because the interpretation would ultimately be up to potential court action and rulings.

“We readily admit that this is up in the air,” Morrison said. “I’m busy saying the measure could do this, the measure could do that, here’s my legal analysis why, and that’s the fundamental problem with the measure. The proponents are simply saying it won’t have any bad effect, period.”

The three physicians now offering IVF in North Dakota, who all practice at the Sanford Reproductive Medicine Clinic in Fargo, have said Measure 1 would make it “impossible” to continue offering the treatment here.

Several national reproductive health organizations have released statements opposing Measure 1 because of these concerns, while the North Dakota Medical Association told its members Oct. 8 that it is against the amendment because of its “unknown effects on the patient-physician relationship.”

Roe v. Wade challenge?

Measure 1 has earned national attention since legislators approved the resolution last year because it would be the first of its kind if approved.

North Dakotans Against Measure 1 reported more than $1.4 million of contributions as of Friday. The vast majority, $1.3 million, came from Planned Parenthood groups across the country, including nearly $750,000 from the organization’s action fund for Minnesota, North Dakota and South Dakota.

Planned Parenthood doesn’t operate a clinic in North Dakota.

ND Choose Life, meanwhile, reported more than $825,000 in contributions as of Friday, with the biggest contribution of $286,000 from the North Dakota Catholic Conference.

Janne Myrdal, chairwoman of ND Choose Life, said the opposition’s finances show Planned Parenthood is afraid of North Dakota becoming a “leader” on abortion restrictions following Planned Parenthood v. Casey, a 1992 Supreme Court decision that upheld Roe v. Wade but also allowed states to regulate abortions to protect the mother’s health and life of the fetus.

More than 200 regulations or restrictions have been passed in the states since then, something she said has made Planned Parenthood “scared” of what Measure 1 might mean in the future.

“They’re concerned about other states taking up that mandate from the Supreme Court and saying, ‘Ok, we are going to limit this, we are going to regulate and we are going to protect our women and children,’ ” she said, adding it’s “not just North Dakota” they’re worried about.

But Dina Butcher, chairwoman for North Dakotans Against Measure 1, said Planned Parenthood’s investment instead shows concern about what could become the nation’s first personhood amendment.

“When you talk about personhood, the whole country is looking at this because if it passes in North Dakota, it will cost the taxpayers huge amounts of money to take it all the way to the Supreme Court,” she said. “It’s a foothold, and they’re trying to get a foothold in one state that they can leverage into the whole Roe v. Wade repeal.”

Sitte said Measure 1 is a human life amendment, not a personhood amendment that would instead explicitly define life as beginning at conception.

Still, Personhood USA, the Colorado-based group pushing for such amendments, testified in favor of the resolution during the 2013 legislative session, and refers to it as the first personhood amendment approved by a legislative body on its website.

Previous personhood amendments were defeated by voters in Mississippi and Colorado in recent years, and a new amendment will be on the Colorado ballot this November.

Measure 1 wouldn’t ban abortion entirely on its own, Sitte said. But during testimony on Jan. 29, 2013, before the resolution putting it on the ballot was approved, she told lawmakers the measure was meant to take on the 1973 U.S. Supreme Court ruling that found the 14th Amendment’s right to privacy under the due process clause included a woman’s decision to have an abortion.

“This amendment is intended to present a direct challenge to Roe v. Wade,” she said during that 2013 testimony, a statement she told The Forum on Thursday she no longer supports.

“That was probably a misstatement,” she said. “I don’t think that’s going to happen. I don’t see it that way anymore. But it’s going to be interesting to see how it plays out. I don’t know if anybody really knows specifically. All I do know is it is a broad guarantee of the inalienable right to life that goes to the North Dakota Constitution.”

Poll: Most are for Measure 8: 60 percent of respondents want school to begin after Labor Day

By Jennifer Johnson

Forum News Service

GRAND FORKS, N.D. — Even as opposition picks up against a later start date for schools, a new poll suggests Measure 8 will pass without a hitch.

The poll, commissioned by Forum Communications Co. and conducted by the University of North Dakota College of Business and Public Administration, found 60 percent of respondents planned to vote in favor of Measure 8. Less than one-third, or 26 percent, said they would vote “no,” and 14 percent were undecided.

If the measure is approved, all public school classes in the state would begin after Labor Day. Supporters initiated the measure to prevent students from sitting in hot classrooms at the end of summer, which has caused districts to cancel school.

The new poll has a margin of error of plus or minus 5 percent, with 95 percent confidence, and is based on landline and cellphone interviews of 505 randomly selected North Dakotans 18 and older who said they were likely to vote. The surveys were conducted between Sept. 26 and Oct. 3.


More favor the measure

Poll results show Measure 8 is one of the most clearly decided among all measures on the ballot this year.

Regardless of age, education, party, gender or region, poll results show more voters in support of the measure than against. Even with a greater margin of error among subgroups, voters can still get an indication of the direction it will take, said Robert Wood, an associate professor of political science at UND who helped conduct the poll.

Of all the measures, this one also has the lowest percentage of undecided voters, according to poll results.

“It’s rare for me to see it this one-sided,” he said. “If there was any demographic group against the measure, it’s not showing up in the data. From what we can see, it looks like this measure is leading and is likely to pass, absent any kind of major changes.”

Currently, individual districts decide when to start the school year. School districts in Grand Forks and Bismarck are among those in the state that have approved a later start date.

Opponents say the measure means a loss of local control and could push the school year to mid-June. Sports activities could be disrupted, leaving athletes less time to prepare for games, and student participation might decrease, they’ve said.

Supporters say the measure has “nothing to do with sports” and focuses only on the start date of school, according to the Start ND School After Labor Day website.