Tribes, state discuss redistricting case to federal appeals court – InForum

BISMARCK — The North Dakota Secretary of State’s Office asked the 8th Circuit Court of Appeals on Tuesday, Oct. 22, to dismiss a voting rights case brought by the Turtle Mountain Band of Chippewa and Spirit Lake Nation, arguing that tribes do not have the authority to initiate action.

Lawyers representing the tribes counter that a ruling in favor of the agency would strip voters of the 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 its state, North Dakota has gone so far as to challenge the right of citizens to sue under the Voting Rights Act when their rights are violated,” Jacqueline De León , senior attorney at the Native American Rights Fund, said in a statement to the North Dakota Monitor.

The Secretary of State’s Office says it is simply asking the court to interpret federal law as Congress intended.

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

The Turtle Mountain Band of Chippewa, Spirit Lake Nation and three North Dakota native 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 dilute the power of native voters.

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

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

“The basis for Plaintiffs’ ‘dilution’ claim is a preference to racially manipulate the electoral map to unite two distinct Native American tribal reservations into a single elongated district,” state court records filed by the Secretary of State’s Office. The agency also argues that the plaintiffs’ claim of vote dilution does not actually count as a rights violation under federal law.

The 8th Circuit, in a controversial 2023 ruling, concluded that individual voters and private groups cannot bring lawsuits under Section 2 of the Voting Rights Act, which protects voters from racial discrimination. Instead, the court stated that 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 racial 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 ruling.

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

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

“For the first time in more than 30 years, today there are no Native Americans serving in the North Dakota State Senate due to the way the 2020 redistricting lines were set up,” said Mark Gaber, an attorney with the Campaign Legal Center who represents the plaintiffs in the case.

The U.S. Department of Justice also sent a lawyer to defend the tribes on Tuesday, agreeing that Section 1983 allows lawsuits brought by private individuals and groups.

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

The plaintiffs are asking the court “to return to an old regime where private rights were inferred from Congress’s silence,” North Dakota Attorney 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 question of whether an individual voter has the right to sue to challenge unfair redistricting maps is an important one, because in a democratic system, voters should have the right to choose their elected leaders, not the other way around,” he said in a reported to the North Dakota Monitor.

Turtle Mountain Band of Chippewa President Jamie Azure and Spirit Lake Nation President 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 its decision to declare the 2021 map illegal, to find that Welte should have given the Legislature more time to draft another map and declare that the map Welte chose as a replacement is an act of racial gerrymandering.

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

In his November order siding with the tribes, Welte gave the Legislature about a month to propose an alternative district map that would comply with the Voting Rights Act.

The Legislature signaled to intervene in the case in early December and ended up missing the December 22nd deadline.

“This is a case where the district court declared a law void and imposed its own 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 next election, he said.

The justices asked during the hearing why the Legislature couldn’t simply 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. North Dakota. In that case, two North Dakota voters filed a lawsuit against the state, accusing it of unconstitutionally drawing district lines that benefited native North Dakotans at the expense of non-Native voters. The state argued that race was not a predominant factor in redrawing 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 case, concluding that even if the state had taken race into consideration when drawing legislative lines, it would have been permissible if its intention had been to comply with the vote. Law of Rights.

The Attorney General’s Office challenged this position and, in an unusual move, submitted a memorandum asking the Supreme Court to overturn the decision supporting the State and send the case back to the trial court for further proceedings.

This story was originally published on NorthDakotaMonitor.com