North Dakota voters have a rare contest for a state Supreme Court seat this fall, one that raises questions about Republican politics in the nonpartisan race. 

Judicial races are nonpartisan by state law. Justice Jerod Tufte is seeking a second 10-year term, challenged by Watford City attorney Ariston Johnson. Each says his campaign is nonpartisan. They have attended or appeared at events put on by Republicans, including a fundraiser held by prominent party members for Tufte. Various Republicans also have endorsed a candidate in the race.

Tufte said his campaign committee has handled fundraising and endorsements because he cannot. Johnson said part of his campaign platform is that he is “genuinely nonpartisan,” and he is uncomfortable accepting politicians’ endorsements and asking for support. 

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Longtime attorneys affiliated with the Republican Party said they would avoid partisan mingling because the judiciary’s integrity is crucial to uphold.

Bob Wefald, a former state district judge and long-ago attorney general, said he “avoided any kind of political contact whatsoever” as a judicial candidate and a judge — even removing his name from GOP programs alongside his wife Susan’s when she was a Republican member of the Public Service Commission.

“A lot of people felt we were divorced because everybody else would have their spouse listed, and Susan would be all by herself,” Wefald said. “I just avoided it. I think it’s the proper thing to avoid it.” 

Rules

North Dakota has a sprawling judicial code of conduct that includes rules for campaign activities. Those rules begin with: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary.” 

Judicial candidates cannot directly or personally seek campaign contributions, or know the names of donors, but they can ask groups of 25 people or more for donations.

They are barred from participating in a variety of political activities, such as accepting political groups’ endorsements and attending political organizations’ events. But judicial candidates may speak on behalf of their candidacy “through any medium,” whether or not they are at a gathering sponsored by a political organization, according to the rules.

Judges or judicial candidates appearing at political events or with partisan officeholders gives an impression “you are going to be favorable toward people in that political party,” said Richard Painter, who was chief ethics lawyer to President George W. Bush, White House employees and other officials. 

“Impartiality is a critically important factor in the effectiveness of the courts, the fairness of the courts and public confidence in the courts,” said Painter, who is now a professor of corporate law at the University of Minnesota Law School. 

Judicial candidates shouldn’t attend partisan political events because courts handle state, federal and presidential election disputes, he said.

“When they do things like show up at a partisan fundraiser or political events, they give ammunition to the extremists of the far left and the far right who say that judging is nothing more than an exercise in partisan politics,” Painter said.

Fundraisers

Last month, Sandi and Brent Sanford — a former NDGOP chair and former lieutenant governor, respectively — hosted a fundraiser for Tufte at their Bismarck home. Other hosts included U.S. Sens. Kevin Cramer and John Hoeven and U.S. Rep. Julie Fedorchak — all Republicans. 

Tufte’s campaign wanted “some elected officers with stature” to be a part of the fundraiser, and the federal officeholders are less likely to appear before the state Supreme Court, campaign co-chair Shane Goettle said. 

“There just aren’t any Democratic officeholders here to turn to and ask them to be part of it,” said Goettle, who ran for NDGOP chair last year.

The invitation included a disclaimer that Tufte cannot know who does and does not give to his campaign, and people shouldn’t hand him contributions or say they have given. 

“This rule protects the very thing he’s asking your help to preserve: a court where everyone stands equal, contributor or not,” the message said. 

The invitation also listed a suggested individual donation of $200, which Goettle said was not required of attendees.

The fundraiser had a sign at the entry explaining the rules about judicial campaign donations, Tufte said. He also said he sought advice from the Judicial Ethics Advisory Committee, “and I was advised that I was going above and beyond in what I had to do to make sure that we were taking reasonable efforts to shield me from donations, specific knowledge of donations.”

Wefald said he would not have attended the fundraiser, as Tufte did. 

“I myself would want to avoid that appearance. I think we need to keep partisan politics out of judicial races, and that’s all I’ll say about that,” Wefald said. 

Johnson said his campaign has held a few meet-the-candidate and fundraising events conducted “within the judicial code of conduct.” 

“I speak. If it’s a large enough group, I uncomfortably, because of my nature, ask for support. If it’s a smaller group, I am very cautious to not ask for financial or other material support,” Johnson said. 

Endorsements

Tufte’s campaign website touts endorsements of prominent Republicans including Cramer, former governors Jack Dalrymple and Ed Schafer and state Sen. Janne Myrdal. 

Endorsements come from people his campaign committee has sought out from those who “would have a perspective and that the public would be interested in their views on this judicial race,” Tufte said. 

“It’s basically unavoidable that some of the public officials are going to be partisan people who have opinions on these races,” he said. 

Republican endorsement of Tufte “goes down that path of creating a partisan theme to the judiciary when historically that has been not commonplace,” said attorney Bob Harms, a former NDGOP chair. But he said he isn’t sure it should factor into voters’ decisions.

Johnson said he would be uncomfortable accepting a politician’s endorsement in the nonpartisan race. The less there’s an appearance of impropriety for a judge, the better, he said. 

Sen. Dale Patten, R-Watford City, recently offered his endorsement at a Johnson meet-and-greet. He said he’s known Johnson since he was born, respects his broad background and agriculture and energy expertise, and wanted to offer his endorsement as “the local guy.” Johnson did not know he would endorse him, Patten said. 

Judicial candidates cannot seek, accept or use endorsements or letters of support from political organizations. 

Events

Both Johnson and Tufte attended a North Dakota Federation of Republican Women event and separate Fedorchak events earlier this year.

Tufte appeared in social media photos with multiple Republican statewide officeholders running for office this year.

Johnson said he was “a guest of a guest” at the Republican Women and Fedorchak events, and did not seek or receive support at those gatherings.

Tufte said the code of judicial conduct “expressly permits candidates for judicial office to speak on their own behalf at events like that,” including those that are party-sponsored, private or run by organizations.  

“I think those rules recognize that judicial candidates need to have opportunities to make their case for why they are a good candidate,” he said. 

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Tufte noted he went to state and district conventions of both parties during his first campaign in 2016, which he said the rules allow. He said he did not do the same this year because he had no opponent until the last day for candidates to file, at which point the convention season was over. 

Tufte said he has good relationships with Republicans and Democrats in the Legislature and state government, and has spoken at events of both parties in the past. 

“I go where I’m invited to speak to any group that’s interested in hearing about my campaign,” he said. 

Johnson said he has not appeared at any party conventions. Before he considered running, he did appear by request as a parliamentarian at a district GOP meeting in Watford City, he added.

Patten said it’s almost impossible to run a race in North Dakota and do meet-and-greets without doing it at a Republican event or events with a significant Republican showing. 

How should voters decide? 

Johnson and Tufte say their individual records and experiences are key for voters.

Tufte’s campaign is somewhat educational as he reintroduces himself to voters after 10 years. He cites more than 400 opinions he has written that voters can read. “They don’t have to guess at what kind of a judge I’ll be because I have that record that they can trust,” he said.

He said his varied background gives him a unique perspective on the separation of powers and roles of the three branches of government. Tufte has been a state district judge, general counsel to the governor, a judge advocate in the North Dakota Army National Guard, a prosecutor and a solo civil attorney. He also cites his computer engineer background as crucial to understanding a changing technology landscape for courts and lawyers.

Johnson said his perspective as an attorney representing clients in mineral rights and civil rights cases is missing from the court. He’s spent two decades seeing how the law affects people in their lives and businesses. 

He cites his experience and relationships from having appeared in cases in every one of the state’s eight judicial districts. He also points to his technology background, having a computer science degree and working on the user end of court technology. 

In the last year, the Supreme Court has handled such high-profile decisions as the constitutionality of North Dakota’s abortion ban and transgender care for minors and a ballot measure from the Legislature to change term limits. 

No sitting justice has lost an election since 1992.

Justice Douglas Bahr, appointed in 2023 by then-Gov. Doug Burgum, is running unopposed for an eight-year term. He is not campaigning.

Reach North Dakota Monitor reporter Jack Dura at jdura@northdakotamonitor.com. 

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