By: Mary Steurer
BISMARCK, N.D. (North Dakota Monitor) – An unusual clause in the North Dakota Constitution that limits the power of the courts kept the state’s near-total abortion ban from being struck down last month.
Most state Supreme Courts require a majority vote to declare a law unconstitutional. But in North Dakota, it takes a supermajority — a vote of at least four justices — for the Supreme Court to strike down a law. That’s why the state’s 2023 abortion law remains on the books even though three of five justices on the high court found it unconstitutionally vague under the North Dakota Constitution.
The only other state that requires a judicial supermajority to find a state law unconstitutional is Nebraska.
North Dakota voters adopted the rule into the state constitution in 1918 as a way to temper the power of the courts. It was established through a constitutional amendment put on the ballot by lawmakers affiliated with the nascent North Dakota Nonpartisan League.
The party pushed for the supermajority amendment out of fear that the Supreme Court would undermine its legal reforms, according to a 2015 academic article published in the University of Toledo Law Review. The Nonpartisan League spearheaded several Progressive Era changes to state government, including the creation of the Bank of North Dakota and the North Dakota Mill and Elevator.
North Dakota Supreme Court Chief Justice Jon Jensen in a January dissenting opinion called the five-justice rule an important part of the court’s duty to be deferential to decisions made by the legislative branch.
Douglas Keith, a legal expert at the Brennan Center for Justice, said while courts in some other countries also have supermajority requirements, it’s practically unheard of in the United States.
“Likely, it stems from how odd it looks to the public,” said Keith, who researches state courts.
The rule enables minority views to decide the outcome of cases, which some could view as undemocratic, Keith said.
“It creates this strange imbalance where you need a much smaller number of justices to uphold a law,” he said.
On the other hand, some have criticized simple majority requirements as vulnerable to political polarization.
“Judicial decisions should take into account the full range of considerations, not just one side or the other,” said David Orentlicher, a professor at the University of Nevada Las Vegas School of Law and a Democratic member of the Nevada Legislature.
Orentlicher authored a 2022 academic article arguing for the U.S. Supreme Court to decide all of its cases unanimously. He said that this would force it to make fairer decisions that balance the viewpoints of all justices.
North Dakota’s supermajority rule doesn’t impact most of the court’s business. It only applies when it reviews a constitutional challenge to a state law.
“Until this particular ruling, I hadn’t even heard of it,” said Bradley Myers, interim dean of the University of North Dakota School of Law.
The North Dakota Supreme Court handed down another split decision on another state abortion policy about a decade ago.
The lawsuit challenged part of the law that regulates medication abortion. It survived a constitutional challenge in 2014 despite three justices voting that it violated the federal Constitution. The three justices concluded that the law places an undue burden on women’s ability to obtain an abortion before the point of fetal viability, which at the time was a federally recognized right.
In that case, two justices declared that the law violates the North Dakota Constitution, two found it does not and the fifth justice found that the law should only be analyzed under the federal Constitution and declined to take a position.
When the U.S. Supreme Court overturned Roe v. Wade in 2022, control over abortion access was handed back to state governments.
The North Dakota Supreme Court also handed down a split ruling on the state’s K-12 funding formula in 1994. Three of five justices found the formula violated the state constitution by funding school districts unequally.
If North Dakotans wanted to change the supermajority rule, voters could circulate a petition to put a constitutional amendment on the election ballot.
The Legislature could also vote to refer the matter to the ballot.
North Dakota’s abortion law makes abortion illegal in all cases except rape or incest if the mother has been pregnant less than six weeks, or when the pregnancy presents a serious physical health threat. The law was passed by overwhelming support by both chambers of the Legislature. A North Dakota News Cooperative poll from late 2024 found that 55% of North Dakotans surveyed opposed the ban.
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