Mandan, Hidatsa and Arikara Nation Chair Mark Fox speaks during an event at the Capitol on March 22, 2024. (Michael Achterling/North Dakota Monitor)
BY: JEFF BEACH AND MARY STEURER
BISMARCK, N.D. (North Dakota Monitor) – Attorneys for the state of North Dakota have taken the unusual step of asking the U.S. Supreme Court to vacate a ruling in a case the state had actually won.
It’s a change of position the Mandan, Hidatsa and Arikara Nation chairman calls “unconscionable” after the tribe and state had previously been aligned.
North Dakota Attorney General Drew Wrigley said the state is trying to gain clarity on how legislative district lines can be drawn to comply with both the U.S. Constitution and the federal Voting Rights Act.
“We’re inviting them to … decide that well-intentioned racial discrimination is still discrimination,” Wrigley said.
The case goes back to 2021, when the Republican-dominated North Dakota Legislature redrew legislative district lines based on the 2020 census results.
The legislation created subdistricts in districts 4 and 9 for two reservations. District 4A follows the borders of the Fort Berthold Reservation, home to the Mandan, Hidatsa and Arikara Nation.
A lawsuit filed by Republicans in February 2022 challenged the constitutionality of the new subdistrict citing the Equal Protection Clause of the Constitution. The Equal Protection Clause is outlined in the 14th Amendment, requiring that laws apply to all people equally.
Robert Harms is one of the attorneys representing Charles Walen and Paul Henderson, who challenged the constitutionality of the district lines. In depositions quoted in a court filing, Walen and Henderson said they are not Native American. Harms and Walen are running as Republicans for the state Legislature this year. Henderson is a former Republican Party chair candidate for District 9.
Lisa Finley-DeVille, a Democrat and member of the MHA Nation, currently represents District 4A.
The state and attorneys for the MHA Nation were on the same side fighting the lawsuit and won.
In a 2023 court filing, attorneys for the state argued the case should be dismissed because the plaintiffs failed to prove that race was a predominant factor for establishing the subdistrict. The state said the Legislature considered other factors, including drawing district lines around political subdivisions. Attorneys for the state further argued that even if race was determined to be a predominant factor, the state had a “compelling interest” in complying with the Voting Rights Act.
Federal judges Peter Welte, Ralph Erickson and Daniel Hovland sided with the state and the MHA Nation, which intervened in the case.
In their ruling, the judges agreed with North Dakota, stating that regardless of whether race was a factor, “we find that the State’s decision to draw subdistricts in districts 4 and 9 is narrowly tailored to the compelling interest of compliance with the (Voting Rights Act).”
But Monday, the state filed a motion asking the U.S. Supreme Court to reconsider that decision. The motion was filed after plaintiffs Walen and Henderson appealed the ruling. The state now seeks to vacate the ruling of the three-judge panel and send it back for further proceedings.
“In short, attempted compliance with the (Voting Rights Act) cannot justify violating the Equal Protection Clause when drawing an election map,” the state said in its court filing.
Mark Fox, chair of the MHA Nation, called the state’s motion to vacate “extremely disappointing.” The tribe is seeking to have the appeal dismissed.
“We opposed this unconscionable change of position when the Attorney General raised it with us, and we oppose it now,” Fox said in a statement. “MHA Nation was right to intervene in this suit, as, once again, it becomes apparent that our Tribe must forcefully act to protect our own interests.”
Michael Carter of the Native American Rights Fund, part of the MHA legal team, called the state’s move “very perplexing.”
“It is undisputed that subdistrict 4A is necessary to comply with the Voting Rights Act,” the attorneys for the tribe said in its motion to dismiss.
North Dakota “just took a 180 on its own legal argument with no explanation, and really to its own detriment,” Carter said.
Wrigley’s explanation is that the Supreme Court has not ruled on whether a state’s attempt to satisfy a federal law, the Voting Rights Act, satisfies the Equal Protection Clause.
“All they’ve done in this regard is repeatedly assumed, and they’ve never decided whether a state’s attempt to satisfy the requirements of a federal statute is sufficient to meet the requirements of the Constitution’s Equal Protection Clause,” he said.
The state’s filing draws heavily from Justice Clarence Thomas’ dissenting opinion on a case the Supreme Court ruled on in June 2023.
In that case, Allen v. Milligan, the court ruled 5-4 that Alabama had violated the Voting Rights Act by creating only one majority-Black district, thereby weakening the power of Black voters in the state.
In his dissenting opinion, Thomas stated the court’s decision would require Alabama to engage in unconstitutional racial gerrymandering. Thomas also wrote that he does not feel the Voting Rights Act applies to redistricting at all.
Wrigley said in light of the Supreme Court’s narrow ruling on Milligan, it may have an appetite for North Dakota’s case.
“I believe there’s a real possibility,” Wrigley said.
The court could also decide not to take up the case, could ask for more information, or make a ruling with the information it has.
Harms said legislators were trying to satisfy what they think their obligation is in the Voting Rights Act.
“In the process, they’re stomping on the Equal Protection Clause,” Harms said.
“They discriminated based upon race in creating these subdistricts. That’s why it’s so important. Nobody wants any citizen in America to be discriminated against based upon the color of their skin, whether it’s how they get treated at work, or whether they have a legitimate means of exercising their right to vote,” Harms said.
He predicts that the case will come back to the same three-judge panel. But instead of a summary judgment, there could be a trial that could include expert witnesses and data analysis that he said could be useful.
The case involving District 4A is separate from another redistricting court case involving North Dakota tribes.
The Turtle Mountain Band of Chippewa and Spirit Lake Nation successfully sued the state to have their reservations included in the same legislative district – District 9. That case eliminated a subdistrict for the Turtle Mountain reservation.
The state has appealed that decision to the 8th Circuit Court of Appeals.
Those two tribes are represented by attorney Tim Purdon, but he is just an observer in the case involving MHA Nation.
“This is unprecedented,” Purdon said of the tactic by North Dakota. “Imagine you hired a lawyer. That lawyer won your case. The other side appeals, and on appeal, your lawyer said, ‘Yeah, please vacate the judgment in my clients’ favor and send this back down for trial.’ You probably wouldn’t be very happy with that lawyer.”
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