North Dakota redistricting battle with tribes advances

(CN) — A federal judge on Monday denied summary judgment in a case regarding the redrawing of legislative districts involving two North Dakota Indian tribes.

This case arises from whether certain redistricting changes violated Section 2 of the Voting Rights Act. U.S. District Judge Peter Welte ruled that defendant Michael Howe, the secretary of state in North Dakota, failed to prove his argument under existing case law.

The state Constitution requires that district boundaries be redrawn after the census. After the federal government released its 2020 census, a special session of the North Dakota Legislative Assembly was convened to start the redistricting process. It passed House Bill 1504, and it was signed by Governor Doug Burgum on Nov. 11, 2021.

According to court records, prior to the 2021 redistricting, plaintiff Turtle Mountain Band of Chippewa Indians had its own state legislative district, known as District 9, as did plaintiff Spirit Lake Tribe, District 23. From 1990 until the 2021 redistricting, District 9 elected a Native American candidate to the North Dakota Senate and two Native American candidates to the state House of Representatives.

The 2021 redistricting legislation changed those districts by dividing District 9 into two single representative subdistricts, 9A and 9B. Turtle Mountain and Spirit Lake argue the changes dilute the voting strength of both tribes, in violation of Section 2 of the Voting Rights Act.

Both the plaintiffs and defendant relied on their own expert testimony and reports.

North Dakota secretary of state Michael Howe based his argument on the work of M.V. Hood III, a political science professor at the University of Georgia, while the tribes stood behind their expert Loren Collingwood, a political science professor at the University of New Mexico. Both experts offered contradictory findings — which doomed Howe's request for summary judgment.

“What the court is left with is conflicting expert testimony as to whether districts 9B and 15 allow Native Americans an opportunity to elect preferred candidates and whether these candidates are usually defeated by a white voting bloc. Weighing expert testimony and reports and making fact decisions are fact issues to be resolved at trial,” the judge wrote in a summary judgment order.

Welte based much of his ruling on the U.S. Supreme Court's holding in Thornburg v. Gingles. It identified three preconditions, also known as the Gingles factors, that must be initially satisfied to proceed with a Section 2 voter dilution claim.

While Howe challenged the first and third preconditions, the judge ruled that “factual disputes” could not be resolved at this stage in the case.

Similarly, Welte rejected Howe's argument that the remedial districts proposed by the plaintiffs are impermissible under the Voting Rights Act, and are racial gerrymanders in violation of the Equal Protection Clause of the 14th Amendment of the Constitution. The judge concluded the argument was “flawed and premature.”

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