BISMARCK (North Dakota Monitor) – The Turtle Mountain Band of Chippewa, Spirit Lake Nation and three tribal citizens this week asked the full 8th Circuit Court of Appeals to review a three-judge panel’s finding that they lack standing to bring a voting discrimination case against the state of North Dakota.
In a 2-1 decision earlier this month, the panel overruled a North Dakota federal district court’s decision that a redistricting plan adopted by the state in 2021 diluted the voting power of Native voters.
“Turtle Mountain fought hard for a fair and legal map. When the state draws unlawful districts, Courts must step in to protect voters — not pave the way for injustice,” Turtle Mountain Band of Chippewa Chairman Jamie Azure said in a statement published by the Campaign Legal Center, one of the organizations representing the plaintiffs in the suit. “We will continue to fight for fair representation.”
The panel’s decision didn’t speak to whether the map itself was discriminatory; instead, the judges found that private individuals cannot use a key federal civil rights law as a vehicle to file cases under Section 2 of the Voting Rights Act, which outlaws race-based voting discrimination.
The panel in its ruling sent the case back to North Dakota U.S. District Judge Peter Welte with instructions to dismiss the lawsuit. If its ruling stands, North Dakota would revert back to the 2021 map.
But if the plaintiffs’ request for an en banc rehearing is granted, the case would go before all 11 judges on the 8th Circuit for review.
“Section 2 is the foundational statute that Congress enacted to fight the scourge of racial discrimination in voting, but citizens in this circuit can no longer enforce the right it provides them,” the plaintiffs argue in a brief urging the full appellate court to consider the case.
Private individuals and groups previously could file discrimination lawsuits against governments under just Section 2 of the Voting Rights Act without having to invoke Section 1983, a separate civil rights statute.
Then, the 8th Circuit in a controversial 2023 ruling on an Arkansas voting rights case found that Section 2 alone doesn’t give private parties the right to sue. Instead, the circuit declared that it is the responsibility of the U.S. Attorney General to file Section 2 discrimination cases.
For more than a year, the question remained open as to whether Section 1983 offered a viable alternative for bringing such Voting Rights Act claims. In a May 14 ruling, the three-judge panel decided it does not.
In a majority opinion, the panel wrote that the language of the Voting Rights Act indicates that Congress didn’t intend for citizens to file race discrimination claims through Section 1983.
The lone dissenting judge on the panel — Chief Judge Steven Colloton — noted in his opinion that private plaintiffs have brought more than 400 actions under Section 2 since 1982.
The plaintiffs in their brief point out that the 8th Circuit is the only appellate circuit in the country to rule that Section 2 cannot be enforced through lawsuits brought by private citizens. The circuit includes North Dakota, South Dakota, Minnesota, Iowa, Illinois, Missouri, Nebraska and Arkansas.
“Outside of this circuit, every American citizen can rely on an unbroken line of Supreme Court and circuit precedent to enforce the individual rights given to them by Congress in the Voting Rights Act,” their filing states. “But as a result of the panel decision here, and the prior decision in Arkansas, American citizens in this circuit are denied that right.”
The lawsuit was triggered by a redistricting plan adopted by the North Dakota Legislature in 2021 that placed the Turtle Mountain and Spirit Lake reservations in new districts.
Lonna Jackson-Street, chair of the Spirit Lake Nation, speaks during a summit between state and tribal leaders on June 25, 2024. (Mary Steurer/North Dakota Monitor)
U.S. District Court Judge Peter Welte in 2023 ruled that the new map was discriminatory and ordered the Legislature to implement a new map that placed the reservations in the same voting district.
Three Native American lawmakers from that district were elected in 2024: Sen. Richard Marcellais and Rep. Jayme Davis — both citizens of the Turtle Mountain Band of Chippewa — and Rep. Collette Brown, a citizen of the Spirit Lake Nation and plaintiff in the lawsuit.
“The fair map we secured led to a historic first — a Spirit Lake Nation member elected to the North Dakota Legislature,” Spirit Lake Nation Chairperson Lonna Jackson-Street said in a Wednesday statement published by the Campaign Legal Center, one of the organizations representing the plaintiffs in the case. “This decision threatens that progress and weakens our voice in state government.”
Marcellais had previously served 15 years in the statehouse until he lost his bid for reelection in 2022. He was reelected in 2024.
Davis was first elected in 2022, then reelected last year.
If the 2021 map is reinstated, three state lawmakers would move to different districts, according to the North Dakota Secretary of State’s Office. Rep. Colette Brown, D-Warwick, would go from representing District 9 to District 15. Rep. Donna Henderson, R-Calvin, would switch from District 15 to District 9B, while Sen. Kent Weston, R-Sarles, would switch from District 15 to District 9. They would all have to seek reelection in 2026.
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