10/17/2012 06:08 pm ET

North Dakota Election: National Group Sues To Overturn Election Day Campaigning Ban

In this photo taken Saturday, Aug. 11, 2012, Heidi Heitkamp, left, the North Dakota Democratic candidate for the U.S. Senate,
In this photo taken Saturday, Aug. 11, 2012, Heidi Heitkamp, left, the North Dakota Democratic candidate for the U.S. Senate, speaks during the opening of a North Dakota Democratic campaign office in Dickinson, N.D. At right is Ryan Taylor, with hat, the North Dakota Democratic candidate for governor, and Ryan Nagle, a Democratic campaign staffer. Heitkamp is locked in a tight race with Republican Rick Berg to succeed retiring Democratic U.S. Sen. Kent Conrad, and the race's outcome is considered crucial to GOP chances of winning Senate control. (AP Photo/Dale Wetzel)

A conservative group that helped lead the legal battle that would eventually allow for the creation of super PACs is now working to overturn North Dakota's ban on election day campaigning, arguing it violates the First Amendment.

The Center for Competitive Politics is representing former North Dakota Republican Party Chairman Gary Emineth in a lawsuit Emineth filed in federal court Tuesday to overturn the state law.

"We think the law is unconstitutional and it should be invalidated," Allen Dickerson, the center's legal director, told The Huffington Post.

The suit has garnered opposition from Democrats -- including the campaign of Democratic U.S. Senate candidate Heidi Heitkamp -- who believe the suit is intended to help Republican Senate nominee Rep. Rick Berg win the seat.

In the court filing, Dickerson wrote that Emineth wants to engage in "speech on election day" and that the law, which has been on the books since at least 1981, blocks this. The activities Emineth indicated he would like to engage in include displaying lawn signs, handing out political material and talking to friends about the election. The lawsuit says that all of these could be illegal under the current law. The suit also says Emineth "reasonably fears" being targeted for violation of the law by Secretary of State Al Jaeger (R), Attorney General Wayne Stenehjem (R) or Burleigh County State's Attorney Richard Riha.

"This fear has chilled his constitutionally protected speech," Dickerson wrote in the suit.

Emineth could not be reached for comment.

The Center for Competitive Politics, based in the suburbs of Washington, D.C., was founded by former Federal Election Commission Chairman Bradley Smith.

Jaeger, the secretary of state, told The Huffington Post on Wednesday that he doesn't know the origins of the law, but said it has been in the North Dakota Century Code since at least 1981, the last time a major overhaul of the state's election code was conducted. He said many prosecutors have said the law is likely unconstitutional, but that voters like the law. He also noted that there have been no prosecutions under the law since then, as residents and campaigns know not to engage in campaigning.

"You can have hundreds and hundreds of yard signs up during the campaign -- and on Election Day, there are no more signs," Jaeger said.

Jaeger said he and Attorney General Stenehjam have yet to meet to discuss the state's legal strategy in the suit, which is the first one to challenge the constitutionality of the law.

The Fargo Forum previously raised questions about Facebook ads for Heitkamp, Republican congressional candidate Kevin Cramer, and a state schools superintendent candidate that ran on the day of the June primary election. At the time, Jaeger's office said enforcement was up to county prosecutors.

State Democratic Party spokeswoman Rania Batrice described Emineth's lawsuit as "insulting" and said that state residents "appreciate privacy on election day." She also said the suit is "not the North Dakota way," borrowing Berg's campaign slogan. Heitkamp's campaign released a letter praising the fact that North Dakotans "do things differently" and saying it hoped Berg would not campaign on election day.

North Dakota Democrats and Heitkamp's campaign have also questioned whether Berg is behind the suit, noting that Emineth is backing the Republican's Senate campaign.

But Dickerson said the center is non-partisan and there is no coordination with Berg's campaign, saying that suit is based on the law's constitutional grounds.

Berg campaign spokesman Chris Van Guilder told HuffPost that the campaign plans to stop campaigning on election day.

"In accordance with North Dakota election law, our campaign has already made arrangements to have all advertising pulled on Election Day," Van Guilder said. "We encourage voters to exercise their right to vote and thank North Dakota election officials for their preparation and work toward another successful Election Day."



2012 Senate Race Polls