By: Mary Steurer (ND Monitor)
A federal appeals court on Wednesday found that the Turtle Mountain Band of Chippewa and Spirit Lake Nation don’t have standing to bring a voting discrimination claim against the state of North Dakota.
The 8th Circuit Court of Appeals in a 2-1 decision overturned a 2023 decision by a North Dakota federal judge that found the state’s 2021 redistricting plan unlawfully diluted the tribes’ voting power. The ruling will have implications for North Dakota’s legislative districts.
Attorneys representing the tribes say the appellate court’s ruling eliminates voters’ ability to challenge racial discrimination under the Voting Rights Act in North Dakota and the six other 8th Circuit states.
The Campaign Legal Center in a Wednesday statement called the decision a “stunningly antidemocratic move.”
“This decision severely undermines the Voting Rights Act and is contrary to both the intent of Congress in enacting the law and to decades of Supreme Court precedent affirming voters’ power to enforce the law in court,” said Mark Gaber, senior director for redistricting at the Campaign Legal Center.
The appellate court already limited voters’ ability to challenge potential violations of the Voting Rights Act in 2023, when it decided private citizens cannot bring lawsuits under Section 2 of the law, which protects voters against racial discrimination. Only the U.S. attorney general can file such claims, the court ruled.
For a time, the question remained open as to whether voters have the right to bring those same allegations under a separate federal civil rights law: Section 1983 of Title 42 of the United States Code.
On Wednesday, a panel of 8th Circuit judges decided the answer is no. The language of the Voting Rights Act does not authorize citizens to file race discrimination claims through Section 1983, Judge Raymond Gruender wrote in the majority opinion.
Chief Judge Steven Colloton dissented. He noted that Section 1983 says people may sue for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
“The reference to ‘and laws’ encompasses any law of the United States,” Colloton wrote.
His dissent also criticizes the court’s 2023 decision, writing that Section 2 of the Voting Rights Act “expressly forbids ‘a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.’” Since 1982, private plaintiffs have brought more than 400 actions based under Section 2, he wrote.
The lawsuit originated 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 a federal lawsuit against the North Dakota Secretary of State’s Office over the map, arguing the plan was discriminatory because it weakened the power of Native voters. The lawsuit was brought under both Section 1983 and Section 2 of the Voting Rights Act.
U.S. District Judge Peter Welte in 2023 ruled in favor of the tribes and in January 2024 ordered the map be substituted with one that placed the reservations in the same voting district.
The Secretary of State’s Office appealed the ruling, asking the 8th Circuit to overturn Welte’s decision on the basis that the tribes don’t have standing to sue and that the redistricting plan was not discriminatory. The parties presented oral arguments to the 8th Circuit in October.
In October, North Dakota Solicitor General Philip Axt argued on behalf of the Secretary of State’s Office. He told the judges that the plaintiffs want “to go back to an ancient regime where private rights were inferred from congressional silence.”
The 8th Circuit in its Wednesday order sent the case back to Welte and directed him to dismiss the lawsuit.
Emily Thompson, legal division director for North Dakota Legislative Council, said Wednesday that if the judges’ decision is allowed to stand, it will result in the 2021 redistricting plan being reinstated.
“Practically speaking, the ruling makes it as though the case never existed,” Thompson said in an email.
She added the ruling will not go into effect immediately, and that the plaintiffs may file additional motions seeking to halt the decision.
Under the 2021 map, three state lawmakers would represent different districts. Rep. Colette 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. They would all have to seek reelection in 2026.
“The Office of the Secretary of State will now begin to work forward with the 2021 Legislative District Map in place for the 2026 election cycle, pending any further actions,” Secretary of State Michael Howe said in a Wednesday statement.
Attorney General Drew Wrigley declined to comment, referring the North Dakota Monitor to Howe’s statement.
The appellate court’s opinion does not speak to the validity of the redistricting plan itself, only that the plaintiffs lack the right to sue in the first place.
“Today’s ruling wrongly forecloses voters disenfranchised by a gerrymandered redistricting map, as Native voters in North Dakota have been, from challenging that map under the Voting Rights Act,” Native American Rights Funds Staff Attorney Lenny Powell said in a Wednesday statement published by the Campaign Legal Center.
Turtle Mountain Band of Chippewa Chairman Jamie Azure and Spirit Lake Nation Chairperson Lonna Jackson-Street did not respond to requests for comment Tuesday.
The court’s decision is only binding in the 8th Circuit, which includes North Dakota, South Dakota, Arkansas, Iowa, Minnesota, Missouri and Nebraska.
