Tribes, state argue redistricting case to federal appeals court

Attorneys representing the tribes counter that a ruling in favor of the agency would take away voters’ ability to challenge potential violations of the Voting Rights Act in elections in North Dakota and the other six states in the 8th Circuit.

“Instead of complying with the law and protecting the freedom to vote in their state, North Dakota has gone so far as to challenge a citizen’s right to sue under the Voting Rights Act when their rights are violated,” Jacqueline De León, senior attorney for the Native American Rights Fund, said in a statement to the North Dakota Monitor.

The Secretary of State’s Office says it’s only asking the court to interpret federal law how Congress intended.

The case stems from a legislative redistricting plan approved by the North Dakota Legislature in 2021 following the 2020 Census that put the Turtle Mountain and Spirit Lake reservations in new districts.

The Turtle Mountain Band of Chippewa, Spirit Lake Nation and three Native North Dakota voters in 2022 filed suit against the North Dakota Secretary of State’s Office in federal court, claiming the new map violated their voting rights by diluting the power of Native voters.

U.S. District Judge Peter Welte last year ruled in favor of the tribes and in January ordered the map be replaced with one that put the reservations in the same district.

The Secretary of State’s Office appealed the decision to the 8th Circuit, asking the court to find both that the tribes lack standing to sue and that the 2021 redistricting plan did not violate the Voting Rights Act.

“The basis for Plaintiffs’ ‘dilution’ allegation is a preference for racially gerrymandering the election map to join two distinct Native American tribal reservations in a single elongated district,” court records filed by the Secretary of State’s Office say. The agency also argues that the plaintiffs’ allegation of vote dilution doesn’t actually count as a rights violation under federal law.

The 8th Circuit in a controversial 2023 rulingfound individual voters and private groups cannot bring lawsuits under Section 2 of the Voting Rights Act, which protects voters from racial discrimination. The court instead declared only the U.S. attorney general can bring such claims.

The decision is only binding in the 8th Circuit, which includes North Dakota, South Dakota, Arkansas, Iowa, Minnesota, Missouri and Nebraska.

Private groups and individuals have brought the majority of race discrimination lawsuits under Section 2 of the Voting Rights Act over the past 40 years, then-Chief Circuit Judge Lavenski Smith noted in his dissent of the decision.

The tribes say even if they can no longer bring their case under the Voting Rights Act, they still have the right to claim a Voting Rights Act allegation and sue under a separate federal civil rights law: Section 1983 of Title 42 of the United States Code.

The plaintiffs argue that the Voting Rights Act protects voters from having their votes diluted on the basis of their race, and that they’ve already lost representation in the state legislature because of the 2021 legislative map.

“For the first time in over 30 years, there are zero Native Americans serving in the North Dakota state Senate today because of the way the 2020 redistricting lines were configured,” said Mark Gaber, an attorney from the Campaign Legal Center representing the plaintiffs in the case.

The U.S. Department of Justice also sent an attorney to argue in support of the tribes Tuesday, agreeing that Section 1983 allows for lawsuits brought by private individuals and groups.

The Secretary of State’s Office argues that if Congress wanted the statute to be used this way, it could have made it clear in the law.

The plaintiffs are asking the court “to go back to an ancient regime where private rights were inferred from congressional silence,” North Dakota Solicitor General Philip Axt said during the hearing.

Tim Purdon, an attorney representing the Turtle Mountain Band of Chippewa and Spirit Lake Nation, said the case could have far-reaching implications for elections.

“The issue of whether an individual voter has the right to sue to challenge unfair redistricting maps matters, because in a democratic system, voters must have the right to choose their elected leaders, not the other way around,” Purdon said in a statement to the North Dakota Monitor.

Turtle Mountain Band of Chippewa Chairman Jamie Azure and Spirit Lake Nation Chairperson Lonna Jackson-Street could not be reached for comment Tuesday.

In a separate but related hearing Tuesday morning, the North Dakota Legislature asked the same three-judge panel to reverse Welte’s decision denying the Legislature’s request to intervene in the redistricting case and his decision declaring the 2021 map unlawful, to find that Welte should have given the Legislature more time to craft another map and to declare that the map Welte picked as a replacement an act of racial gerrymandering.

Legislative Council Director John Bjornson and Legal Division Director Emily Thompson both attended the oral arguments in St. Paul.

In his November order siding with the tribes, Welte gave the Legislature roughly a month to propose an alternate district map that complied with the Voting Rights Act.

The Legislature motioned to intervene in the case in early December, and ultimately missed the Dec. 22 deadline.

“This is a case where the district court declared a law void and imposed its own piece of legislation on the state of North Dakota,” attorney Scott Porsborg said on behalf of the Legislature on Tuesday.

The Legislature is not asking the 8th Circuit to change the map before the upcoming election, Porsborg said.

Judges asked during the hearing why the Legislature could not just adopt a new map during the 2025 legislative session.

Porsborg said the Legislature is trying to avoid legal action against future redistricting plans.

North Dakota earlier this year asked the U.S. Supreme Court to get involved in another voting rights case challenging the state’s 2021 redistricting plan, Walen v. Burgum. In that case, two North Dakota voters filed suit against the state, accusing it of unconstitutionally drawing district lines that benefited Native North Dakotans at the expense of non-Native voters. The state has argued that race was not a predominant factor in redrawing the districts. The Mandan, Hidatsa and Arikara Nation intervened in the case.

A three-judge panel that included Welte ruled in favor of the state and MHA Nation in that suit, finding that even if the state had taken race into consideration when drawing legislative lines, it would be permissible if its intent was to comply with the Voting Rights Act.

The Attorney General’s Office took issue with this stance, and in an unusual move filed a memo asking the Supreme Court to vacate the decision that sided with the state and send the case back down to the lower court for further proceedings.