Court ruling backs tribes’ effort to force lawmakers to redraw North Dakota legislative boundaries

A federal appeals court denied a request on Friday to delay a judge's decision that North Dakota's legislative map violates the Voting Rights Act in diluting the voting strength of two Native American tribes.

The 8th U.S. Circuit Court of Appeals' decision comes a week before the deadline set by the judge for the state to adopt a new map of legislative districts.

Last month, U.S. District Chief Judge Peter Welte ruled that the map violated the Voting Rights Act of 1965 in that it “prevents Native American voters from having an equal opportunity to elect candidates of their choice.” He gave North Dakota Republican Secretary of State Michael Howe and the GOP-controlled Legislature until Dec. 22 “to adopt a plan to remedy the violation.”

The Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe brought the lawsuit early last year. They alleged the 2021 redistricting map “simultaneously packs Turtle Mountain Band of Chippewa Indians members into one house district, and cracks Spirit Lake Tribe members out of any majority Native house district.”

Days after Welte's Nov. 17 ruling, Howe announced plans to appeal, citing a recent 8th U.S. Circuit Court of Appeals decision that private individuals and groups such as the NAACP can’t sue under a major section of the landmark civil rights law.

Welte on Tuesday rejected Howe's motion to stay his judgment. Howe then asked the 8th Circuit for a stay pending appeal and through the 2024 elections. The court on Friday denied his request in a brief order. Two phone messages were left for Howe seeking comment. His appeal remains pending before the 8th Circuit.

Plaintiffs' attorney Tim Purdon welcomed Friday's decision as a “swift denial” and “good news” for the two tribes and the Voting Rights Act.

“Given that the Secretary of State’s motion to stay did not argue that the current North Dakota map is legal under the VRA, we are hopeful that the Legislature will reconsider its position here, adopt the Voting Rights Act compliant map that has been proposed by the Tribes and approved by the Court, and stop the spend of taxpayer dollars on this litigation,” Purdon said by email.

Republican House Majority Leader Mike Lefor said the Legislature won't be able to satisfy the judge's Dec. 22 deadline for a new map, given the time that would be needed.

“If we did everything today ... no, there's no way,” Lefor said.

What happens if the deadline passes without a new map is up to the judge, Lefor and Purdon said. The Legislature is not part of the lawsuit, which was filed against the secretary of state.

North Dakota Attorney General Drew Wrigley said the days ahead will be eventful and consequential as to “what the Legislature decides is their best option, whether it's just to allow the lines to be imposed by the court, or does the Legislature choose to call themselves in and adopt different lines.”

Crafting a new map wouldn't be as complicated as starting from scratch because three or four districts at most would be affected, plaintiffs' attorney Mark Gaber said. North Dakota got 35 days to redraw its map; courts usually give legislatures two weeks, he said. After the deadline, the tribes would probably ask the judge to implement one of their proposed maps, Gaber said.

The Legislature this week restarted its redistricting panel to begin to address Welte's ruling. The Redistricting Committee plans to meet again next week.

The two tribes unsuccessfully proposed to the Legislature a single legislative district encompassing the two reservations, which are roughly 60 miles (97 kilometers) apart.

North Dakota has 47 legislative districts, each with one senator and two representatives. Republicans control the House 82-12 and the Senate 43-4. At least two lawmakers, both House Democrats, are members of tribes.

The Legislature created four subdistricts in the House, including one each for the Fort Berthold and Turtle Mountain Indian reservations.

Lawmakers who were involved in the 2021 redistricting process have previously cited 2020 census numbers meeting population requirements of the Voting Rights Act for creating those subdistricts.