Voting Rights Act weighs heavily in North Dakota’s attempt to revisit redistricting decision it won

BISMARCK, N.D. (AP) — Months after it won a lawsuit over legislative boundaries, North Dakota is asking the U.S. Supreme Court to revisit its victory, baffling others involved in the state’s redistricting fights and prompting some legal experts to call the state’s action a potential assault on the Voting Rights Act.

At issue is a ruling by a federal panel over a lawsuit filed by Republicans challenging the constitutionality of a redistricting map that created House subdistricts encompassing two American Indian reservations. Proponents of the subdistricts said they gave tribal nations better chances to elect their own members. Last fall, a federal three-judge panel tossed out the lawsuit at the request of the state and the Mandan, Hidatsa and Arikara Nation. The judges wrote that “assuming without deciding” that race was the main factor for the subdistricts, “the State had good reasons and strong evidence to believe the subdistricts were required by the VRA.”

The plaintiffs appealed.

North Dakota Attorney General Drew Wrigley said the three-judge panel decided the matter correctly under existing case law — but for the wrong reason. The state argues in a filing made Monday that it “cannot defend this Court’s ‘assumption’ that attempted compliance with the VRA (or any statute) would justify racial discrimination in violation of the Fourteenth Amendment.”

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“We’re not seeking to reverse” the panel’s decision, Wrigley said. “We’re seeking to have it upheld but for the reason that race was not the predominant factor, and we think that we should prevail.”

But critics bashed the move as a questionable legal maneuver as well as an attempt to assault the Voting Rights Act.

“Imagine if you hired a lawyer, and that lawyer won the case for you, and then the other side appealed, and on appeal your lawyer argued that the judgment in your favor should be vacated and the matter should be sent back for a trial so that your lawyer could make some different arguments. Imagine that. I think in that scenario, you’d probably want your money back from your lawyer,” said Tim Purdon, who represents the Spirit Lake Tribe and Turtle Mountain Band of Chippewa Indians in their separate, successful lawsuit for a joint legislative district.

David Schultz, a Hamline University professor and a visiting professor of law at the University of Minnesota, said he thinks the action is part of a broader assault on the Voting Rights Act “to say that racial considerations cannot be used for any circumstances” when district lines are drawn.

Meanwhile, more than a dozen Republican-led states — most of which have engaged in legal fights over election maps — want the decision reversed. Last month, Alabama’s attorney general and the other states filed their brief with the court, saying they “have an interest in being able to accurately predict whether their redistricting laws will comply with federal law.”

Schultz also said he thinks the states see an opportunity now that the U.S. Supreme Court has a conservative majority.

Kareem Crayton, senior director of voting rights and representation at the Brennan Center for Justice, said, “This is sort of, to my mind, a question as to whether or not states are really learning the lessons that the Voting Rights Act was intended to help them embrace, which is you’ve got to treat communities of color as everyone else. They’re entitled to an opportunity to elect candidates.”

Key in the North Dakota case is Section 2 of the Voting Rights Act, which forbids discriminatory voting practices based on race or color. Crayton said “these continued assaults on it raise questions as to whether or not these states actually want any fair consideration of election systems for people of color who are citizens of their states.”

In a statement, MHA Nation Tribal Chairman Mark Fox called it “extremely disappointing” to see Wrigley’s office now arguing “for this winning judgment to be vacated and this matter sent back down for a trial. We opposed this unconscionable change of position when the Attorney General raised it with us, and we oppose it now.”

Plaintiff attorney Bob Harms welcomed the state’s filing.

“I know the attorney general’s getting some criticism from people who feel like they won at the district level, but I do think that we have to step above that, about not just winning and losing but looking at constitutional principles and how they’re applied,” he said.

Wrigley said the Supreme Court will decide whether to have oral arguments and further briefing.