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Congressional age limits ballot measure could cost state $1M to defend in court


Congressional age limits ballot measure could cost state $1M to defend in court

Apr 03, 2024 | 3:38 pm ET
By Mary Steurer
Congressional age limits ballot measure could cost state $1M to defend in court
Scott Tillman, Jeff Tillman and Jared Hendrix watch as staff count packets full of signed petition packets to put a measure setting an age limit on North Dakota congressional delegates on the election ballot in the Secretary of State's Office in Bismarck on Feb. 9. 2024. Lawmakers estimate it may cost $1 million to defend the measure in court if it's approved. (Mary Steurer/North Dakota Monitor)

A group of lawmakers estimates that a proposed constitutional amendment to set an age limit for North Dakota’s members of Congress could cost the state around $1 million in legal fees if passed by voters.

The figure will appear with the proposed amendment on the June primary ballot.

Members of Legislative Management arrived at that number after hearing testimony from Deputy Chief Attorney General Claire Ness and Secretary of State Michael Howe at a Wednesday morning meeting.

North Dakota voters to decide on congressional age limits

Since other states that have tried to set their own eligibility requirements for members of Congress have had the laws successfully challenged in federal court as unconstitutional, North Dakota should be prepared for a lawsuit should the amendment pass, Ness said.

“The federal courts have said that any way that you want to change the qualifications for somebody sitting in Congress would have to be done through an amendment to the U.S. Constitution,” she said.

But there are a lot of different ways such a challenge could play out — which means it’s difficult to ballpark how much such money it’d take to defend the measure, Ness added.

The state would probably need to hire a special assistant attorney general to represent North Dakota in the suit, she said, which can be expensive.

“Firms in North Dakota charge several hundred dollars an hour — anywhere from $300 an hour and above,” Ness said. “To get a national firm to defend on something like a very complex constitutional issue can be up to $2,000 an hour for an attorney.”

At minimum, it would probably cost at least a few hundred thousand to defend the amendment in court, Ness said, while $1 million would likely be closer to the upper range of potential legal fees.

The deputy chief attorney general also brought the committee’s attention to a provision in the measure that says individuals and the state could have a role enforcing compliance with the amendment, which could hypothetically result in additional expenses to the Attorney General’s Office.

“It’s unclear what role, if any, our office would have in that scenario,” Ness said.

Officials didn’t anticipate any other costs to implement the measure. Howe said it wouldn’t cost his office any money to comply with the proposed amendment.

Legislative Management is required by law to submit financial impact statements for voter-initiated ballot measures to the Secretary of State’s Office so that the information can be made available to voters.

Signatures submitted for congressional age limits ballot measure

The proposed measure seeks to add a constitutional amendment barring North Dakotans from being elected or appointed to Congress if they would turn 81 years old before the end of their term.

The Secretary of State’s Office in March gave it the greenlight to appear on the ballot after it cleared the hurdle of receiving at least 31,164 valid signatures from North Dakota voters.

The movement to put the proposal on the ballot is spearheaded by Jared Hendrix, chair of Retire Congress North Dakota.

Hendrix and other supporters of the measure argue age limits are needed to ensure officials elected to represent North Dakota in Congress can meet the physical and mental demands of the job, and are in touch with the needs of their constituents. The oldest member of North Dakota’s congressional delegation is Sen. John Hoeven at age 67. The measure also would not affect congressional candidates who are running this election cycle.

“If state legislators are claiming our measure may cost taxpayers upwards of $1 million dollars in legal fees, we believe that number is quite inflated,” Hendrix wrote in a statement to the North Dakota Monitor. “However, even if it’s not, let’s put it in context. The last biennium state budget was $19.6 billion. How much was in that budget that most voters don’t care about?”

He also pointed to high public support for age limits on elected officials.

“The people of North Dakota want age limits, and we’re going to pass it in June,” Hendrix said in the statement. “And yes, the state should then vigorously defend the laws the people have passed.”

Hendrix is also party to a lawsuit challenging North Dakota over a provision in the state constitution that says only North Dakota residents can circulate petitions for voter-initiated ballot measures.

Additionally, he helped lead the charge for a measure setting term limits for the governor and state legislators that passed on the ballot in 2022.