Non-minority voters in North Dakota are asking the justices to look at their equal protection challenge to a redistricting plan.
The U.S. Supreme Court said it will decide on Jan. 10, 2025, whether to hear an unusual racial gerrymandering appeal from North Dakota.
The court made the announcement about the case known as Walen v. Burgum in a docket entry on Dec. 24.
The lead appellee is former North Dakota Gov. Doug Burgum, a Republican, who is being sued in his official capacity. Burgum’s term ended on Dec. 15.
President-elect Donald Trump, who will be inaugurated on Jan. 20, has nominated Burgum to be U.S. Secretary of the Interior.
Burgum will likely be replaced as a litigant with the new Republican governor, Kelly Armstrong, which is the usual practice when a government official leaves office midway through a lawsuit.
The case is atypical for that Republican-dominated North Dakota is asking the nation’s highest court to review a redistricting lawsuit it won because state leaders believe that a lower court ruled in favor of the state for the wrong reason.
The North Dakota House of Representatives currently consists of 83 Republicans and 11 Democrats. The North Dakota State Senate has 42 Republicans and five Democrats.
Two Republican-affiliated voters sued to challenge a redistricting plan passed by the state legislature.
The redistricting plan approved by a lower court allows the state to create two new minority-majority state legislative subdistricts in the state House to help elect local Native Americans.
In the state’s eyes, the problem with the case it won is that a three-member panel of federal district judges assumed that attempting to comply with the federal Voting Rights Act (VRA) justifies racial discrimination in validating the new subdistricts.
The VRA, enacted in 1965, prohibits racial discrimination in voting and was intended to enforce the 15th Amendment, which forbids the federal government from denying or abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.”
The plan that is the subject of the case passed the state legislature in 2021 and bisected two existing two-member districts in the state House of Representatives to create two new Native American-majority subdistricts that would each be represented by a single member.
The new political subdivisions include Indian reservations.
Supporters of the plan said putting tribal members in the new subdistricts improves the chances of electing tribal members.The lead appellant, Charles Walen, a Republican, became a state senator representing North Dakota Senate District 4 on Dec. 1.
The other appellant, Paul Henderson, is active in the state GOP.
The two filed their lawsuit as voters, alleging that the plan amounted to unconstitutional racial gerrymandering that discriminates against non-minority voters.
At trial, they argued the newly drawn subdistricts violated the Equal Protection Clause of the 14th Amendment, while the state argued it had reason to believe the subdistricts were required by Section 2 of the VRA.
That section prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a large language minority group.
In November 2023, a three-judge panel of the U.S. District Court for the District of North Dakota dismissed the lawsuit at the behest of North Dakota and the Mandan, Hidatsa, and Arikara Nation.
The so-called MHA Nation, also known as the Three Affiliated Tribes, is located on the Fort Berthold Indian Reservation, near New Town, North Dakota.
The panel granted summary judgment to the state and the tribe, finding “that the state’s actions to draw the subdistricts in districts 4 and 9 satisfy strict scrutiny.”
Courts use the strict scrutiny test when reviewing legislative or executive branch enactments that infringe on constitutional rights.
A government interest is deemed compelling, and therefore in satisfaction of the test, when it is essential or necessary, as opposed to a matter of preference, choice, or discretion.
The panel wrote that the state “had good reasons and strong evidence to believe the subdistricts were required by the VRA.”
The voters filed a jurisdictional statement with the Supreme Court on March 4, asking the justices to reverse the panel’s decision.
Whenever a case involving compliance with Section 2 as a defense to racial gerrymandering has come before the High Court, the justices have struck down the plan in dispute, the voters argued in the statement.
On May 6, Burgum filed a reply brief arguing the panel arrived at the correct result but for the wrong reasons.
“As a matter of first principles, the state is unable to defend the basis” for the summary judgment, specifically, the district court’s assumption that attempting to comply with the VRA justifies racial discrimination,” the brief stated.
If complying with a federal statute requires the state to engage in racial discrimination, “the proper conclusion is not that the statute excuses the state’s discrimination, but that the statute is invalid,” the brief stated, quoting Justice Clarence Thomas’s dissent in Allen v. Milligan (2023).
In that opinion, the U.S. Supreme Court decided 5–4 that Alabama’s map for congressional elections was racially discriminatory.
Alabama had asked the Supreme Court to weaken Section 2, arguing the U.S. Constitution required such remedial action, and the court refused.
Burgum urged the Supreme Court to “reexamine the foundation” of the district court ruling’s “assumption.”
He asked the Supreme Court to vacate the panel’s decision and “make clear that a state’s attempted compliance with Section 2 of the VRA cannot provide a compelling justification for making race the predominate consideration in the design of an election map.”
On Dec. 10, U.S. Solicitor General Elizabeth Prelogar urged the Supreme Court not to take up the case.
Prelogar said in a brief that the voters challenging the redistricting do not live in an affected subdistrict so they lack legal standing.
Standing refers to the right of someone to sue in court. The parties must show a strong enough connection to the claim to justify their participation in a lawsuit.
She also said the district court was correct when it upheld the use of race to create the subdistrict.
The Epoch Times reached out to Walen’s attorney, Bryan Paul Tyson of Clark Hill in Atlanta, Georgia, the office of North Dakota Attorney General Drew Wrigley, and the U.S. Department of Justice for comment.
No replies were received by publication time.