The ruling stems from a federal lawsuit brought by the Turtle Mountain Band of Chippewa Indians, Spirit Lake Tribe and individual Native American voters that went to trial in June. The tribal plaintiffs alleged that certain North Dakota legislative districts deprive Native American voters of an equal opportunity to elect their candidates of choice in violation of Section 2.
According to the lawsuit, the legislative redistricting plan unlawfully packed House Subdistrict 9A with a supermajority of Native Americans and cracked the remaining Native American voters in the region into other districts, including the 15th Legislative District. In total, North Dakota has 47 legislative districts, each of which elects one senator and two House members.
During the 2021 redistricting process, the North Dakota Legislature split the 9th Legislative District in half for the first time in the state’s history, with each subdistrict electing a separate state House member. The state maintained that Subdistricts 9A and 9B were created in order to give tribal nations the opportunity to elect their candidates of choice. Under the 2021 plan, residents of the 9th Legislative District elected one senator to represent the district at-large.
While voters residing in the Turtle Mountain Indian Reservation could elect their candidate of choice in House Subdistrict 9A under the 2021 plan, members of the Spirit Lake Tribe could not elect their preferred candidates in the 15th Legislative District. Native voters were also typically unable to elect their preferred candidate for senator in the at-large 9th Legislative District and their preferred candidate for the House in Subdistrict 9B.
In support of their Section 2 claim, the tribal plaintiffs contended that the Native American population in northeast North Dakota is “sufficiently large and geographically compact to constitute an effective majority in a single multimember district.”
In today’s opinion, Judge Peter Welte — a Trump appointee serving on the U.S. District Court for the District of North Dakota — concluded that the plaintiffs met the requisite factors to prove their Section 2 claim. Welte’s opinion referenced the fact that voting in the northeastern area of the state is racially polarized, with Native American voters preferring different candidates than their white counterparts. As the opinion explained, a bloc of white voters usually defeats Native American preferred candidates in the challenged districts.
Welte also cited testimony pointing to historical discrimination in voting and socioeconomic disparities faced by Native voters in order to conclude that the 9th and 15th Legislative districts — along with House subdistricts 9A and 9B — fail to comply with Section 2. The opinion noted that while the state “believed that creating the subdistricts in district 9 and changing the boundaries of districts 9 and 15 would comply with the VRA,” it “unfortunately…did not go far enough to comply with Section 2.”
The North Dakota secretary of state and the Legislative Assembly have until Dec. 22 to adopt a new legislative redistricting plan to remedy the state’s Section 2 violation, after which the tribes may file objections. “The first election for the state legislative positions in the remedial district shall occur in the November 2024 election,” the opinion states.
Today’s voting rights victory follows a three-judge panel’s recent rejection of a separate federal lawsuit brought by local Republican Party officials alleging that House Subdistricts 4A, 4B, 9A and 9B were unconstitutionally drawn using race as the predominant factor.
Since the U.S. Supreme Court’s June 2023 decision in Allen v. Milligan — which preserved the current application of Section 2 of the VRA — voters in Alabama, Georgia, Louisiana, Texas, Washington and now North Dakota are all benefitting from Section 2’s protections against racially discriminatory redistricting plans.
As the most litigated part of the VRA, Section 2 is currently the basis for at least 30 federal lawsuits challenging redistricting plans throughout the country. Today’s decision represents the first post-Allen Section 2 ruling that applies to Native America voters.