SCOTUS Won’t Hear GOP Challenge to North Dakota Tribal Legislative Districts

The U.S. Supreme Court today declined to take up a Republican lawsuit alleging that North Dakota engaged in unconstitutional racial gerrymandering when it created two majority-Native American legislative districts following the 2020 census.
The Court’s move effectively leaves in place a unanimous November 2023 ruling rejecting two local GOP officials’ bid to strike down North Dakota House Subdistricts 4A and 9A, which respectively encompassed the Fort Berthold and Turtle Mountain Indian Reservations.
Today’s order from the high court specifically affirmed the panel’s rejection of the Republicans’ claims against Subdistrict 4A, and dismissed their challenge to Subdistrict 9A altogether. As the U.S. Department of Justice and tribal nations that were involved in the case pointed out, none of the GOP plaintiffs ever resided in Subdistrict 9A, meaning they lacked standing to contest its boundaries.
In the 2023 ruling at issue, a federal three-judge panel agreed with state officials who argued at the time that the North Dakota Legislative Assembly drew the Native American subdistricts in order to comply with the Voting Rights Act (VRA) — a federal statute that protects minority voters from discrimination. According to the GOP plaintiffs however, the districts were impermissibly drawn using race as the predominant factor in violation of the 14th Amendment’s Equal Protection Clause.
But once the Republican plaintiffs appealed the dismissal of their racial gerrymandering case to the Supreme Court, North Dakota officials — who previously prevailed in tossing out the GOP challenge — asserted that the justices should reconsider the state’s own victory.
Largely arguing in lockstep with the Republican plaintiffs who appealed the case, state officials urged the justices to utilize the case as an opportunity to revisit the Supreme Court’s VRA precedent — a stark departure from their prior defense of the Native American districts as being drawn to comply with the VRA.
Both the state and the GOP plaintiffs asserted in Supreme Court filings that the lawsuit showcases what they view as an ongoing tension between racial gerrymandering claims and VRA claims. The former are used to assert that race cannot be a predominant factor in the redistricting process, while the latter allow mapdrawers to consider race in certain circumstances to afford electoral power to minority voters.
The Court should “make clear that a state’s attempted compliance with Section 2 of the VRA cannot provide a compelling justification for making race the predominate consideration in the design of an election map,” the state maintained in a legal brief.
Although some have viewed the state’s about-face as peculiar, legal experts say that the move was part of a broader GOP legal strategy to weaken minority protections under Section 2 of the VRA in favor of purportedly “race neutral” redistricting principles.
North Dakota officials — again in alignment with the GOP plaintiffs — also requested that the Court either reverse or vacate the panel’s decision and send the case back down to the district court for a trial to determine whether race predominated in the state’s creation of the Native American subdistricts.
A collection of tribal nations that intervened in the litigation to defend the districts called the state’s reversal of its original position on appeal “extremely disappointing,” writing in a Supreme Court brief that the “undisputed record showed that the legislature had good reasons to believe the subdistricts were required by Section 2 of the Voting Rights Act.”
On the other hand, 14 Republican-led states submitted an amicus brief in support of the GOP plaintiffs urging the Court to reopen the case — an action that highlights Republicans’ coordinated legal offensive against the VRA. “If [Section 2] requires States in 2024 to gerrymander their maps according to race… then [Section 2] is no longer constitutional,” the Republican states’ amicus brief reads.
Further complicating the matter was a November 2023 ruling from a single district court judge who — just over a week after the three-judge panel’s ruling in the racial gerrymandering case — struck down House Subdistrict 9A as well as the state’s 15th Legislative District in a separate lawsuit brought under the VRA.
In that case — which was filed by tribal nations and individual voters — the judge ultimately imposed a new legislative map for the 2024 election that united the Turtle Mountain Band of Chippewa Indians and Spirit Lake Tribe into a single district. North Dakota’s top election official and legislative assembly both appealed that decision to the 8th U.S. Circuit Court of Appeals, where they are arguing that a recent 8th Circuit decision precludes private parties from bringing claims under Section 2 of the VRA.
Although the Supreme Court declined to take up the Republicans’ racial gerrymandering appeal today, the legal battle over North Dakota’s legislative districts is far from over, as litigation remains ongoing in the VRA case that is currently on appeal in the 8th Circuit, where a decision remains pending.