# Title 44 — Offices and Officers

## Chapter 44-02 — Vacancies in Office

### § 44-02-01. Vacancies - Causes thereof.

An office becomes vacant if the incumbent shall:
1. Die in office;
2. Be adjudged mentally ill;
3. Resign from office;
4. Be removed from office;
5. Fail to discharge the duties of office, when the failure has continued for sixty
consecutive days, except when prevented from discharging the duties by reason of the
person's service in the armed forces of the United States, by sickness, or by other
unavoidable cause. However, as to any office which under the law the vacancy must
be filled by the governor, the governor for good cause shown may extend the period,
which the incumbent may be absent, for an additional period of sixty days. No
remuneration on account of such office may be paid to an absentee officeholder during
that person's absence, and the office in all cases becomes vacant upon the
termination of the term for which the person was elected or appointed;
6. Fail to qualify as provided by law, which includes taking the designated oath of office
prescribed by law;
7. Cease to be a resident of the state, district, county, or other political subdivision in
which the duties of the office are to be discharged, or for which the person may have
been elected;
8. Be convicted of a felony or any offense involving moral turpitude or a violation of the
person's official oath;
9. Cease to possess any of the qualifications of office prescribed by law; or
10. Have the person's election or appointment declared void by a competent tribunal.
### § 44-02-02. Resignations of officers - To whom made.

The resignation of an officer must be in writing and must be made as follows:
1. The governor and lieutenant governor, to the legislative assembly, if it is in session,
and if not, to the secretary of state.
2. Any other state or district officer, to the governor.
3. A member of the legislative assembly, to the presiding officer of the branch of which
the individual is a member, when in session, and when not in session, to the chairman
of the legislative management. When made to the presiding officer, the presiding
officer at once shall notify the chairman of the legislative management of the
resignation.
4. An officer of the legislative assembly, to the branch of which the individual is an officer.
5. An elective county officer, by filing or depositing the resignation in the office of the
county auditor, except that the resignation of the county auditor must be filed or
deposited with the board of county commissioners. Any resignation under this
subsection, unless a different time is fixed therein, takes effect upon the filing or
deposit.
6. An officer of a civil township, to the board of supervisors of the township, except that a
member of the board shall submit the member's resignation to the township clerk, and
the township clerk forthwith shall give to the county auditor notice of the resignation of
all officers whose bonds are filed with that officer.
7. A member of a school board, to the business manager of the district.
8. Any officer holding office by appointment, to the body, board, court, or officer which
appointed the officer.
### § 44-02-03. Vacancy in state or district office - How filled.

Any vacancy in a state or district office, except in the office of a member of the legislative
assembly, must be filled by appointment by the governor. The governor may not fill a vacancy in

the office of a member of the legislative assembly. A vacancy in the office of a supreme court
justice or district court judge must be filled as provided in chapter 27-25. If during a vacancy in
the office of governor, the lieutenant governor and the secretary of state are impeached,
displaced, resign, or die, or from mental or physical disease or otherwise become incapable of
performing the duties of the office of governor as provided by sections 2 and 7 of article V of the
Constitution of North Dakota, then the succession to the office of governor is the speaker of the
house, president pro tempore of the senate, attorney general, in the order named. Each
succeeding person named shall hold the office of governor until the vacancy is filled by election
or until any disability of the preceding person in the line of succession is removed.
### § 44-02-03.1. Vacancy in legislative assembly.

1. If a vacancy in the office of a member of the legislative assembly occurs, the secretary
of state shall notify the chairman of the legislative management of the vacancy. The
secretary of state need not notify the chairman of the legislative management of the
resignation of a member of the legislative assembly when the resignation was made
under section 44-02-02.
2. Upon receiving notification of a vacancy, the chairman of the legislative management
shall notify the district committee of the political party the former member represented,
or the member-elect or deceased or disqualified candidate would have represented, in
the district in which the vacancy exists. The district committee shall hold a meeting
within twenty-one days after receiving the notification and select an individual to fill the
vacancy. If the former member, member-elect, or deceased or disqualified candidate
was elected as an independent candidate or if the district committee does not make an
appointment within twenty-one days after receiving the notice from the chairman of the
legislative management, the chairman of the legislative management shall appoint a
resident of the district to fill the vacancy.
3. If a vacancy occurs because a member-elect died or became disqualified, or a
candidate who died or became disqualified received a sufficient number of votes to be
elected except for the death or disqualification, the term of an individual appointed to
fill the vacancy begins on the first day of December of the year in which the vacancy
occurs.
4. Except as provided in subsection 6:
a. If the office with the vacancy would not have been placed on the next general
election ballot after the vacancy occurs had the member, member-elect, or
candidate whose death, disqualification, or resignation created the vacancy been
able and qualified to fulfill the term, the individual appointed to fill the vacancy
shall serve until a successor is elected at and qualified following the next general
election that is at least ninety-four days after the vacancy occurs.
b. If the office with the vacancy would have been placed on the next general
election ballot after the vacancy occurs had the member, member-elect, or
candidate whose death, disqualification, or resignation created the vacancy been
able and qualified to fulfill the term and:
(1) The next general election is scheduled to take place less than ninety-four
days after the vacancy occurs:
(a) The individual appointed to fill the vacancy shall serve until a
successor is elected at and qualified following the next general
election that is at least ninety-four days after the vacancy occurs; and
(b) The elected successor shall serve through November thirtieth of the
following even-numbered year.
(2) The next general election is scheduled to take place at least ninety-four
days after the vacancy occurs, the individual appointed shall serve until a
successor is elected at and qualified following the next general election.
5. If a special election to fill the vacancy is called by the governor according to
subsection 6, the individual elected at the special election shall serve for the remainder
of the term of office which would have been served by the individual whose death,
disqualification, or resignation created the vacancy.

6. The qualified electors of a legislative district in which a vacancy in the office of a
member of the legislative assembly occurs due to the death, disqualification, or
resignation of a member of the legislative assembly during the member's term of office
may petition for a special election to be called by the governor to fill the vacancy. The
petition must include the signatures of qualified electors equal in number to at least
four percent of the resident population of the legislative district as determined by the
last federal decennial census and must be presented to the secretary of state within
thirty days following an appointment being made according to subsection 2. If the
secretary of state determines the petition contains the required number of signatures
of qualified electors of the affected legislative district, the secretary of state shall notify
the governor that a special election is required to be called to fill the vacancy. Upon
receiving the notice, the governor shall issue a writ of election directed to the secretary
of state commanding the secretary of state to hold a special election to fill the vacancy
at a time designated by the governor. A special election under this section must
conform to the applicable election deadlines found in title 16.1 and may be called to
coincide with a regularly scheduled primary or general election provided the special
election is called by the fifteenth day before the deadline for candidates to file for office
before a regularly scheduled primary or general election. A special election under this
section may not be scheduled to occur during the time from a general election through
eighty days following the adjournment of the next ensuing regular session of the
legislative assembly.
7. The secretary of state must be notified of an appointment made by a district committee
or the chairman of the legislative management according to this section. Upon
notification, the secretary of state shall issue the appointee a certificate of appointment
and an oath of office for the appointee to complete and file with the secretary of state.
8. For purposes of addressing vacancies in offices of members of the legislative
assembly, an individual is disqualified for an office if the individual fails to meet the
qualifications under law for the office.
### § 44-02-04. Vacancy in county office - Appointment.

A vacancy in any county office, other than that of county commissioner, must be filled by the
board of county commissioners, with the exception that if a vacancy has occurred in the office of
state's attorney by reason of removal under section 44-11-01, the appointment must be made by
the board of county commissioners by and with the advice and consent of the governor. The
board of county commissioners may declare a county office to be vacant whenever the
officeholder is unable to perform the duties of the office for six months or more. However, if
within one year the officeholder should become able to perform the officeholder's duties, the
county commissioners may, for good cause shown, reinstate the officeholder.
### § 44-02-05. Vacancy in board of county commissioners - How filled.

When a vacancy occurs in the board of county commissioners, the remaining members of
the board immediately shall appoint some suitable person to fill the vacancy from the district in
which the vacancy occurred. If a majority of the officers fails to agree upon a person to fill the
vacancy, the county treasurer or, if the county does not have an elected treasurer, another
elective county officer must be called in and shall act as an additional member of the board to fill
the vacancy. The appointee holds office until the appointee's successor is elected at the next
general election that occurs at least ninety-five days after the vacancy and the successor has
qualified.
### § 44-02-06. Vacancy in township office - How filled.

Repealed by S.L. 1955, ch. 342, § 2.
### § 44-02-07. Brief vacancy not to be filled - Exception.

If a vacancy occurs within ninety-five days previous to an election at which it may be filled,
no appointment may be made unless it is necessary to carry out such election and the canvass

of the same according to law. In such case an appointment may be made at any time previous
to such election to hold until after such election or until the appointee's successor is elected and
qualified.
### § 44-02-08. Appointment to be made in writing - Term.

Any appointment to fill a vacancy under this chapter must be made in writing, and, except
as otherwise expressly provided by law, continues in force until the first general election that
occurs at least ninety-five days after the vacancy, when the vacancy will be filled by election,
and thereafter until the appointee's successor by election is qualified.
### § 44-02-09. Appointment - How qualified.

A person appointed to office as provided in this chapter shall qualify within the time and in
the manner required of a person elected or appointed to such office for a full term.
### § 44-02-10. Vacancy due to military service - How office is filled.

When the incumbent of any elective office in this state is unable to discharge the duties of
the incumbent's office by reason of service in the armed forces of the United States, an acting
official who shall have the powers of the incumbent must be appointed in the same manner that
an appointment would be made in case of a vacancy in office, the appointment being made from
a list of three names which must be submitted by the incumbent to the appointing body or officer
within thirty days after leaving for the service. Provided, however, in the office of state's attorney
the names of practicing attorneys residing in adjoining counties may be included if there are less
than three practicing attorneys residing in such county in which the appointment is to be made.
If the incumbent has already entered the military service the incumbent shall, within ten days
after the passage and approval of this section, file a list of three names with the appointing body
or officer. If the incumbent fails to submit a list of names, the appointing body or officer shall
make the appointment of the acting official without regard to the incumbent's wishes; provided,
however, that in the filling of such vacancy in the office of state's attorney, a practicing attorney
from an adjoining county may be named to fill such vacancy if there are less than three
practicing attorneys residing in the county where such vacancy is to be filled. Provided, further,
the acting official shall serve, and the acting official's tenure of office must be terminated
immediately upon the incumbent filing a "notice of return" with the secretary of state in instances
in which it is a state official, or with the county auditor when the incumbent is an official of the
county or any of its subdivisions. This section is hereby declared to be retroactive and all
appointments to vacancies heretofore made in the manner herein provided are hereby
validated.
