Legislators attending a Redistricting Committee meeting Dec. 13, 2023, look at maps of different proposals. (Kyle Martin/For the North Dakota Monitor)
By: Mary Steurer
BISMARCK, N.D. (North Dakota Monitor) – An appeals court will not reconsider its decision finding that the Turtle Mountain Band of Chippewa, Spirit Lake Nation and three tribal citizens lack standing to bring a voting discrimination case against the state of North Dakota, a ruling that could impact the makeup of the state Legislature.
The Native American Rights Fund, one of the legal groups representing the plaintiffs in the case, in a statement called the decision “a loss for Native American voters in North Dakota.”
The plaintiffs could still file a petition asking the U.S. Supreme Court to review the case.
In the lawsuit, filed in 2022, two North Dakota tribes and three Indigenous North Dakotans argued that a redistricting plan adopted by the state in 2021 diluted the power of Native voters, thereby violating the Voting Rights Act.
North Dakota U.S. District Court Judge Peter Welte in 2023 sided with the plaintiffs and ordered the state to adopt a different map.
In a 2-1 decision in May, a panel of three judges on the 8th Circuit Court of Appeals reversed that finding on the basis that private parties cannot bring lawsuits alleging racial discrimination under the Voting Rights Act.
The plaintiffs requested that the case go before all 11 judges on the 8th Circuit for a rehearing, noting that the panel’s decision is at odds with how other federal appellate circuits have interpreted the law.
A total of 19 state attorneys general, a handful of advocacy groups and former Department of Justice attorneys filed briefs in support of an en banc hearing.
North Dakota opposed the rehearing request. While they didn’t file anything on the en banc petition, 15 other Republican-led states had previously submitted briefs to the 8th Circuit in support of North Dakota’s position.
The 8th Circuit includes North Dakota, South Dakota, Minnesota, Iowa, Illinois, Missouri, Nebraska and Arkansas.
It’s the only circuit to rule that private individuals cannot bring lawsuits under Section 2 of the Voting Rights Act, which outlaws racially discriminatory voting practices. The court in a 2023 ruling in a separate case declared that it is the role of the U.S. attorney general to enforce compliance with Section 2.
In the North Dakota lawsuit, the plaintiffs had attempted to use a separate civil rights law as a vehicle to file their Voting Rights Act claim. That law, Section 1983 of Title 42 of the United States Code, says people may sue for “the deprivation of any rights, privileges, or immunities” granted by the Constitution and federal law.
They noted in briefs that for decades, the bulk of lawsuits enforcing Section 2 have been brought by private individuals. The plaintiffs reasoned that even if the court found that they can’t bring a lawsuit directly under Section 2 of the Voting Rights Act, they still have a right to file their lawsuit through Section 1983.
The 8th Circuit panel in its May ruling said this was not a viable path either.
“The fair map we secured led to a historic first – a Spirit Lake Nation member elected to the North Dakota legislature,” Spirit Lake Nation Chairperson Lonna Jackson-Street previously said in a statement about the ruling. “This decision threatens that progress and weakens our voice in state government.”
Last week, the full 8th Circuit decided 7-3 not to give the case another look. The three judges who wanted an en banc hearing were Chief Judge Steven Colloton, former Chief Judge Lavenski Smith and Judge Jane Kelly. One judge didn’t participate in the decision.
In 2024, after Welte’s ruling, three Native American lawmakers were elected to the state Legislature from District 9, drawn to include two reservations: Sen. Richard Marcellais and Rep. Jayme Davis — both citizens of the Turtle Mountain Band of Chippewa — and Rep. Collette Brown, a citizen of the Spirit Lake Nation and plaintiff in the lawsuit. All three are Democrats.
Brown is a freshman lawmaker. Marcellais had previously served 15 years in the statehouse until he lost his bid for reelection in 2022, after district lines were redrawn in 2021. Davis was first elected in 2022, then reelected last year.
The 8th Circuit did not weigh in on the underlying question of whether North Dakota’s original 2021 map is discriminatory; it only found that the plaintiffs do not have the right to file the suit in the first place. The May opinion indicated the appellate court would send the case back to Welte and direct him to dismiss the lawsuit.
The state is still waiting to see what, if anything, will happen next in the case. The plaintiffs have about a three-month window to ask the U.S. Supreme Court to review the lawsuit if they choose. They have not announced whether they intend to go that route.
If the 8th Circuit’s decision takes effect, North Dakota would revert back to the 2021 map. Three state lawmakers would represent different districts in that scenario. Brown, D-Warwick, would go from representing District 9 to District 15. Rep. Donna Henderson, R-Calvin, would switch from District 15 to District 9B, while Sen. Kent Weston, R-Sarles, would switch from District 15 to District 9.
The state would have to decide whether the ruling disqualifies those lawmakers from finishing out their terms, according to a June memo from Legislative Council.
Traditionally, when redistricting has shifted state lawmakers into different legislative districts, they have been allowed to serve until the next election cycle, the memo states. However, under the state constitution, state lawmakers are forbidden to live outside the district they represent.
All three lawmakers who would change districts are up for reelection in 2026.
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