BISMARCK, N.D. – A federal appeals court that already has said private individuals and groups cannot sue under a key part of the federal Voting Rights Act went even further Wednesday toward blocking lawsuits over alleged racial bias in voting in seven Midwest states.
But its decisions may not be the last word, because another appeals court has ruled differently, and the U.S. Supreme Court might have to resolve the conflict. The latest ruling reversed a legal victory for two tribal nations in North Dakota that challenged a legislative redistricting plan.
The ruling shuts off a route to Section 2 of the Voting Rights Act through a federal civil rights law known as Section 1983, which allows people to sue state officials to vindicate their federal or constitutional rights, said Jonathan Topaz, staff attorney for the American Civil Liberties Union Voting Rights Project. Section 1983 provides a legal vehicle to bring a lawsuit, he said.
Private individuals in past decades brought lawsuits under Section 2, but a 2023 8th Circuit ruling in an Arkansas redistricting case held that Section 2 doesn’t allow for private claims. That ruling and Wednesday’s ruling only apply to the 8th U.S. Circuit Court of Appeals, which encompasses Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
“These decisions together at the moment mean that no one can sue under the Voting Rights Act in the seven states that comprise the 8th Circuit, other than the U.S. Attorney General,” said Mark Gaber, senior director for redistricting at Campaign Legal Center and an attorney for the Spirit Lake Tribe and Turtle Mountain Band of Chippewa Indians.
The majority opinion Wednesday said that in order to use Section 1983 to file lawsuits over voting rights, including how redistricting affects them, a private person or group must “unambiguously” have the right to sue under Section 2 of the Voting Rights Act.
Appeals Judge Raymond Gruender, appointed by George W. Bush and writing for the majority, said that while the tribes “are within the general zone of interest” of the Voting Rights Act, it is “without the statute having unambiguously conferred an individual right.”
In a dissent, Circuit Chief Judge Steven Colloton, another Bush appointee, said Section 2 of the Voting Rights Act does confer a right to sue and he would have upheld the tribes’ legal victory on redistricting.
Wednesday’s decision and the Arkansas ruling “create circuit splits” on the Section 2 and Section 1983 issues because the 8th Circuit is the only court to rule in such a way in both instances, Gaber said. The tribes and their attorneys are discussing and considering appeal options, he said.
The 2-1 ruling is a reversal for the two tribes, who had successfully challenged North Dakota’s 2021 redistricting map, alleging it dilutes their voting strength.
The tribes wanted to share a single legislative district, electing a state senator and two House members, making it more likely that all three would be Native American. The 2021 plan split them into different districts. The court-ordered plan gave the tribes what they wanted.
Spirit Lake, Turtle Mountain and several tribal citizens alleged that the 2021 map drew the lines so that while Turtle Mountain members still could elect a House member, the Spirit Lake members could not.
In late 2023, U.S. District Court Chief Judge Peter Welte ruled after a trial, saying the Legislature’s map “prevents Native American voters from having an equal opportunity to elect candidates of their choice” in violation of the Voting Rights Act’s Section 2.
In early 2024, the judge ordered a new map into place with a joint district for the two tribes. Their reservations near the Canadian border and in northeastern North Dakota, respectively, are about 60 miles (97 kilometers) apart. Later that year, voters elected three Native Americans, all Democrats, to the district’s seats.
Republican Senate Majority Leader David Hogue said the 2021 boundaries the Legislature drew “will be the boundaries.” Somehow officials will have to address the seats of incumbents affected by the boundaries at question, potentially by special election, he said.
“I think the Legislature was very comfortable with the fairness of the boundaries that they drew in 2021, and I think we should endeavor to uphold those boundaries,” Hogue said.
In a statement, Secretary of State Michael Howe’s office said it will now work with the 2021 map in place for the 2026 elections, “pending any further actions.”
Republicans control North Dakota’s Legislature by 83-11 in the House and 42-5 in the Senate. The state’s biennial legislative session concluded earlier this month.
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Associated Press reporter John Hanna contributed from Topeka, Kansas.
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