North Dakota Secretary of State Michael Howe's office made the announcement late Tuesday morning, Nov. 21, citing a Monday ruling from the Eighth Circuit Court of Appeals that threw out an Arkansas racial gerrymandering case after the appellate court ruled 2-1 that private parties could not sue under a key provision of the Voting Rights Act.
On Friday, U.S. District Chief Judge Peter Welte ruled in favor of the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe in their claim that Native residents' voting power had been diluted by North Dakota's 2021 redistricting plan.
Welte found that the impact of the redistricting on Native voting power violated Section 2 of the Voting Rights Act, the provision now placed in jeopardy by the Eighth Circuit ruling.
"It was expected," Turtle Mountain Band Chairman Jamie Azure told the Herald in response to the news Tuesday afternoon.
The federal Eighth Circuit has appellate jurisdiction over 10 district courts and seven states in the south central and Midwestern United States, including Arkansas and North Dakota.
The Arkansas racial gerrymandering case is expected to go before the Supreme Court.
North Dakota members of both major political parties released statements in response to the appeal.
Republican leadership backed Howe's decision to file an appeal.
"We were honestly surprised by Judge Welte's decision," House Majority Leader Mike Lefor, R- Dickinson, said in a statement. "We worked diligently for months to come up with a plan supported by both parties and carefully crafted to ensure fair representation for our tribal communities."
The release noted the 2021 redistricting plan had passed by overwhelming majorities in both houses of the Legislature with Democratic support.
Welte's decision found the secretary of state and Legislature were "intensely concerned with the VRA" when they passed the 2021 redistricting plan and found no evidence the secretary used the redistricting plan to enable discrimination against Natives.
Senate Majority Leader David Hogue, R- Minot, implied the plaintiffs were "far-left firms ... disguised as public-spirited, not-for-profit organizations."
Democratic leaders implored the state to accept Welte's decision.
"It's a mistake to appeal this decision," said House Minority Leader Zachary Ista, D- Grand Forks. "The ruling gives the Legislature a second chance to do the right thing: draw a legislative district map that ensures Native American representation and abides by the Voting Rights Act."
Based on their share of the voting-age population, Native Americans should hold three House seats and six Senate seats, according to Welte's decision.
Welte's ruling noted the 2021 redistricting plan led to Native North Dakotans holding two House seats and zero Senate seats, while the maps proposed by the Turtle Mountain Band and Spirit Lake Tribe would yield three House seats and one Senate seat.
Senate Minority Leader Kathy Hogan, D- Fargo, attacked the appeal as a waste of money and energy.
"The state should accept this ruling and work without delay and without incurring additional costs to the taxpayers to adopt new districts that conform to the Voting Rights Act," Hogan's remarks read. "Instead, the state is using a legally dubious new Eighth Circuit opinion as cover for its misguided decision to appeal."
Critics of the Eighth Circuit's ruling in the Arkansas case argue it goes against decades of precedent and note the vast majority of lawsuits filed under Section 2 have been brought by private parties.
That includes the Alabama redistricting case brought before the Supreme Court last year that successfully argued the state's congressional districts discriminated against African American voters.
Native American Rights Fund attorney Michael Carter, who is representing Turtle Mountain Band and the Spirit Lake Tribe in the North Dakota lawsuit, previously told the Herald that the tribes' right to sue was based on broader legal grounds than Section 2 of the VRA, meaning the Arkansas ruling would not affect the outcome of his case.
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