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Costly legal challenges could accompany congressional age limit

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(The Center Square) – Lawmakers anticipate at least $1 million in legal challenges if a proposed ballot measure setting an age limit for North Dakota congressional candidates passes.

The North Dakota Legislative Management Committee discussed the fiscal impact of the proposed constitutional measure on Wednesday.

The measure would prohibit an individual from appearing on a ballot, being nominated, appointed, or elected to serve a full or partial term in North Dakota if they are 81 years old on or before Dec. 31 of the year immediately preceding the end of a term as a U.S. senator or representative, according to legislative council staff. Voters will decide on the measure during the primary election on June 11.

The measure itself would not have any fiscal impact, Secretary of State Michael Howe told the committee, but any legal challenges could accrue costs.

“If this were to pass, there’s nothing that has a fiscal impact to prohibit anyone over the age of 81 from being allowed to be on the ballot,” said Howe. “If it’s challenged in court there’s other provisions of this measure that say we would have to print the age of the candidate on the ballot. Again, that wouldn’t have a fiscal impact from the Office of the Secretary of State.”

The rule would become effective on the date of its passage and comes at a time when multiple political figures across the U.S., including the sitting president, are in their eighties. President Joe Biden is 81 years old. Former House Speaker Nancy Pelosi of California is 84. Senate Minority Leader Mitch McConnell of Kentucky is 82.

The ballot measure would only apply to North Dakota candidates, which would be the first state to set age limits if the measure passes.

“I absolutely foresee this being appealed all the way to the U.S. Supreme Court,” said Sen. Brad Bekkedahl, R-Williston.

Chief Deputy Attorney General Claire Ness said it’s “hard to peg the dollar amount” that a legal challenge would cost.

“We could have a couple of different challenges to this lawsuit,” said Ness. ”We could have a facial challenge, so you could have somebody just challenge the statute as being unconstitutional on its face.”

Ness said there is already precedent from the U.S. Supreme Court on the issue that the secretary of state’s office would need to “overcome” if defending the case.

“If there’s a loss in the district court level, so in the trial court, we would then need to appeal. In that case it’s difficult to assess the cost,” Ness said. “Most likely we would need to hire a special assistant attorney general, a SAG as you may have heard them called, and those costs could vary significantly depending on the issues that are raised, the legal issues that are raised by the other side, and the hourly rate of the SAG as well as whether or not it goes to appeals. So it would not be unforeseen to have this case, to defend a facial challenge, in the hundreds of thousands of dollars.”

Similar costs would apply if a candidate over the age limit wanted to challenge the measure in court, Ness said.

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