II. Meandering into the Twentieth Century
. . .
G. The NPL’s Constitutional Legacy
Still, the Nonpartisan League left an even more significant heritage for the Court. The League sponsored a constitutional amendment that still confines the Court's traditional power to declare legislation unconstitutional.
The amendment came from a raft of constitutional changes in a single resolution introduced in the 1917 House of Representatives that was controlled by the Nonpartisan League. The League feared a Supreme Court, dominated by justices linked to its opponents, might invalidate important parts of its measures to aid farmers against business interests seen as antithetical.(193) Among the organic changes introduced by the League, one was designed to prevent any legislation from being declared unconstitutional "unless at least four of the judges shall so decide."(194) The omnibus resolution passed the House by a vote of 81 to 28.(195)
While the League controlled the House, the League's opponents controlled the Senate. The Senate killed the House's omnibus proposal three days later by a vote of twenty-nine to twenty, although four non-League senators voted for it.(196) But non-League senators soon offered individual resolutions for a number of the proposed changes.(197)
Among the separate amendments submitted to voters was the one controlling how the Court could declare a law unconstitutional.(198) At the general election in November 1918, the people approved the amendment prohibiting any "legislative enactment or law of the state of North Dakota be[ing] declared unconstitutional unless at least four of the judges shall so decide."(199) Despite later revision of the judicial article in other details, this limitation remains in the Constitution.(200)
In some instances, this limitation has saved a law that a majority of the Court believed unconstitutional although two of the five justices did not. In a recent case, a majority of the Court ruled: "Because only three members of this Court have joined in this opinion, the statutory method for distributing funding for primary and secondary education in North Dakota is not declared unconstitutional by a sufficient majority."(201)
193. See Morlan, supra note 161, at 101-08.
194. See Morlan, supra note 161, at 103.
195. See Morlan, supra note 161, at 104.
196. See Morlan, supra note 161, at 104.
197. See Morlan, supra note 161, at 105.
198. See 1917 N.D. Laws ch. 93, at 103. Another memorable change, woman suffrage, also grew out of the omnibus resolution in the 1917 session:
Success came after the Nonpartisan League put woman suffrage in its platform. In 1917 the legislature gave women the right to vote in local and presidential elections, and in 1919 the legislature ratified the federal woman-suffrage amendment. On November 2, 1920, the women of North Dakota had the full right to vote for the first time.
Robinson, supra note 9, at 259; see also 1917 N.D. Laws ch. 254, at 405 (women's suffrage amendment).
199. N.D. Const. art. IV, § 89 (repealed 1976); 1919 N.D. Laws art. XXV, at 503; 1917 N.D. Laws ch. 93, at 103.
200. See N.D. Const. art. VI, § 4.
201. Bismarck Pub. Sch. Dist. v. North Dakota, 511 N.W.2d 247, 250 (N.D. 1994). Query, though, whether this state constitutional constraint would apply to an adjudication that a law contravenes the United States Constitution, since the Supremacy Clause makes it superior to any state constitution?