North Dakota Considers the Private Right to Action in Redistricting Litigation
November 25, 2022
By Jackson Cherner
The North Dakota legislature, which approved a new legislative map in November of 2021, is facing pushback from Native American tribes over the dilution of their voting rights. In February 2022, members of the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe (as well as individual Native American voters) sued North Dakota’s Secretary of State, Alvin Jaeger, in the U.S. District Court of North Dakota over the state’s map. The tribes claim that the state violated Section 2 of the Voting Rights Act (“VRA”), which protects voters from discrimination on the basis of race, color, or other designation promulgated by law. In its complaint, the tribes stated that the new map “packs” members of the Turtle Mountain Band of Chippewa Indians into subdivided Senate District 9, while it “cracks” members of the Spirit Lake Tribe by placing the majority of their population in Senate District 15. As a remedy, the tribes propose creating a single district compromising a geographic majority of their communities.
Secretary of State Jaeger filed a memorandum in April of 2021, which challenges multiple responses to the tribes ability to raise claims under Section 2. Jaeger questioned the validity of the tribes standing to bring the claims in front of the federal court without particularized injury and in uncertainty regarding tribe members’ status as U.S. citizens. Additionally, Jaeger questioned the tribes’ right to private action under the VRA itself. Jaeger’s memo claims that a private right to action is not recognized by federal courts. In Brnovich v. Democratic Nat’l Comm., Justice Gorsuch’s concurring opinion finds that the Supreme Court has not decided on the issue, and instead defers to the decisions of lower courts to decide the right to action under Section 2. Based on this concurrence, the state believes an order issued by the Eastern District of Arkansas in Ark. State Conf. NAACP v. Ark. Bd. of Apportionment resolves the issue. This court found that Section 2 was silent on the right to action, and other sections of the VRA required claims to be brought by the Attorney General of the United States. This court also reflected on a string of recent Supreme Court precedent that rejected any implied right to action in challenging federal law.
The tribes have issued their own response to Jaeger’s claims, which has been mirrored in part by the U.S. Department of Justice’s amicus brief in support of the tribes and their private right to action under Section 2. The tribes’ response recognizes an alternative solution available to plaintiffs—Section 1983 of the Civil Rights Act of 1871. This section allows individuals to seek recovery against state actors for violating federal civil rights. Since Section 2 does not explicitly or implicitly prohibit private enforcement under this federal statute, the state would bear the burden of proving an exclusionary principle.
Additionally, both the tribes and the Justice Department recognize that binding Supreme Court precedent protects the rights of private plaintiffs under Section 2. Specifically, in Morse v. Republican Party of Virginia, the court held that a private individual has the right to raise claims without the Attorney General under Section 2 of the VRA, relying on precedent in Allen v. State Board of Elections, which authorized enforcement of private claims under other sections of the law. The Court in Morsefound that private individuals could challenge a state’s requirement for candidates to pay a registration fee under Section 10, based on Congress’s intent to effectively protect the right to vote as well as reduce the litigation burden on the Attorney General. This intent extended to Section 2, which carries an implied right to action against discriminatory activities. This implied right is also supported by an Eighth Circuit case, which binds lower courts in North Dakota.
The parties did not receive relief in the June election and are not expected to receive relief in the upcoming November election. However, in July, the tribes won a necessary decision in the District Court when a North Dakota federal judge denied Secretary Jaeger’s motion to dismiss the suit, stating that the tribes can bring claims under Section 2 of the VRA. Chief U.S. District Judge Peter D. Welte, in his ruling, referenced the ability of private organizations, such as the NAACP, to sue on behalf of its members, and does not see any difference concerning tribes recognized by the federal government. Now, the stage is set for the court to rule on the constitutionality of North Dakota’s redistricting, and whether the tribes were deprived of their right to choose their preferred candidates.