Supreme Court to Determine on January 10 Whether to Hear Unconventional Redistricting Appeal

The U.S. Supreme Court announced it will determine on January 10, 2025, whether to take on an unusual racial gerrymandering case from North Dakota.

The leading appellee in the case is former North Dakota Governor Doug Burgum, a Republican, who is being sued in his official role. Burgum’s term concluded on December 15.

President-elect Donald Trump has nominated Burgum to serve as U.S. Secretary of the Interior, with his inauguration set for January 20.

Burgum is expected to be replaced in the lawsuit by the new Republican governor, Kelly Armstrong, following the typical protocol when a government official resigns during ongoing litigation.

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Two voters aligned with the Republican Party have initiated a lawsuit contesting a redistricting plan that was enacted by the state legislature.

The redistricting plan, which was upheld by a lower court, enables the state to establish two new minority-majority state legislative subdistricts to enhance the electoral chances of local Native Americans.

In the state’s view, the challenge to the case it previously won is based on a three-judge panel of federal district judges assuming that compliance with the federal Voting Rights Act (VRA) justifies racial discrimination in affirming the new subdistricts.

Established in 1965, the VRA prohibits racial discrimination in voting and aims to uphold the 15th Amendment, which disallows denying or abridging a citizen’s voting rights “on account of race, color, or previous condition of servitude.”

The redistricting scheme at the center of this case was approved by the state legislature in 2021, dividing two existing two-member districts in the state House of Representatives into two new Native American-majority subdistricts, each represented by a single member.

These new political subdivisions encompass Indian reservations.

Advocates for the plan argued that by placing tribal members in the new subdistricts, the likelihood of electing tribal members is increased.

Claims of Discrimination by Non-Minority Voters

The leading appellant, Charles Walen, a Republican, took office as a state senator representing North Dakota Senate District 4 on December 1.

The co-appellant, Paul Henderson, is active within the state GOP.

The two filed their lawsuit as voters, claiming that the redistricting plan constituted unconstitutional racial gerrymandering that discriminates against non-minority voters.

During the trial, they contended that the newly drawn subdistricts breached the Equal Protection Clause of the 14th Amendment, while the state maintained that it had reason to believe the subdistricts were mandated by Section 2 of the VRA.

This section forbids voting methods or procedures that discriminate based on race, color, or membership in a major language minority group.

In November 2023, a three-judge panel from the U.S. District Court for the District of North Dakota dismissed the lawsuit at the request of North Dakota and the Mandan, Hidatsa, and Arikara Nation.

The MHA Nation, recognized as the Three Affiliated Tribes, is situated on the Fort Berthold Indian Reservation near New Town, North Dakota.

The panel granted summary judgment in favor of the state and the tribe, concluding that “the state’s actions to draw the subdistricts in districts 4 and 9 meet strict scrutiny.”

Courts apply the strict scrutiny test when reviewing legislative or executive actions that violate constitutional rights.

A government interest is considered compelling, and thus meets the test when it is necessary or essential, rather than a matter of preference, choice, or discretion.

Whenever a case involving compliance with Section 2 as a defense against racial gerrymandering has reached the Supreme Court, the justices have nullified the disputed plan, the voters asserted in their statement.

“From a fundamental standpoint, the state cannot justify the basis” for the summary judgment, particularly regarding the district court’s presumption that efforts to comply with the VRA justify racial discrimination,” the brief indicated.

If adherence to a federal law necessitates the state engaging in racial discrimination, “the appropriate conclusion is not that the law excuses the state’s discrimination, but that the law is invalid,” as stated in the brief, referencing Justice Clarence Thomas’s dissent in Allen v. Milligan (2023).

Alabama had requested the Supreme Court to dilute Section 2, contending that the U.S. Constitution required such remedial steps, to which the court denied.

Burgum urged the Supreme Court to “reassess the foundation” of the district court’s ruling “presumption.”

He implored the Supreme Court to vacate the panel’s decision and clarify that a state’s efforts to comply with Section 2 of the VRA cannot serve as a compelling justification for making race the predominant factor in an election map’s design.

Prelogar stated in a brief that the voters contesting the redistricting do not reside in an affected subdistrict, which undermines their legal standing.

Legal standing refers to the entitlement of an individual to initiate a lawsuit in court, requiring the parties involved to demonstrate a sufficiently strong connection to the claim to justify their participation.

She added that the district court rightly upheld the use of race in forming the subdistricts.

The Epoch Times reached out to Walen’s legal representative, Bryan Paul Tyson of Clark Hill in Atlanta, the office of North Dakota Attorney General Drew Wrigley, and the U.S. Department of Justice for comments.

No responses were received before publication.