At the outset, it should be stated that every member of the Legislature is aware of the constitutional authority of the Board of Higher Education in regard to the state's colleges and universities. Even though this is openly admitted among legislators, the Legislature has continued to invade the constitutional jurisdiction of the board.
This breach is most obvious in the bill mandating that the athletic logo at the University of North Dakota continue to be the Fighting Sioux. Last week, in defiance of the constitution, 65 members of the House of Representatives voted for this unconstitutional measure and sent it to the Senate.
Before legislators can claim their seats, Section 4, Article XI of the constitution requires them to sign this oath of office: "I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of North Dakota...so help me God."
By voting for HB 1263, 65 legislators willfully and knowingly violated their oaths of office. In this vote, they did not support the constitution. Instead, they placed other temporal considerations ahead of the constitution, denigrating the fundamental law of the state.
Let's be clear. The issue is not the logo. It is a constitutional issue of jurisdiction, plain and simple.
There is reason to predict that a sufficient number of senators will violate their oaths to pass this measure. A steamroller is moving through the Legislature. But passage in the Senate will not be the end of the story. There are a number of options after the Senate vote.
To protect the state from a runaway assembly, the state constitution gives the governor the authority to veto legislation he believes inappropriate. Since the governor took the same oath to support the Constitution of North Dakota, he may not be willing to violate his oath so casually.
The Board of Higher Education could disregard the law. The pro-logo legislators would be hard-pressed to get a mandatory injunction from a court to enforce an unconstitutional law.
The National Collegiate Athletic Association is still the elephant in the room and may decide that enough is enough, regardless of threats of legal action being made in the legislation. This raises the question of whether or not state money can be used for legal action to defend an unconstitutional act of the Legislature.
But there's still another option. Anticipating the day when both the Legislature and the governor demonstrate questionable judgment, the people of North Dakota placed the referendum in the constitution, a process designed to give the people an opportunity to override the Legislature and the governor. You can bet that there are enough logo opponents to refer the measure to the people for a statewide vote.
The dynamics of a statewide campaign on the issue indicate that the logo supporters may have the advantage. They will have organization and money. Without equal resources, the logo opponents will have the depend on folks who understand the constitutional issue and feel that it is time to put the logo issue to rest. I suspect that the people are getting fed up with this never-ending brawl so they may not respond favorably to a high pressure advertising campaign. North Dakota history is full of cases when the voters pulled the Legislature up short through the referral process. It could happen again.