Lawyers for Tribes on Suit Against North Dakota Over Political Boundaries

By: Jeannie Kopstein

WASHINGTON, D.C. (KVRR) — Two Native American tribes are suing North Dakota over newly drawn political boundaries they argue illegally dilute votes from indigenous communities.

North Dakota’s Turtle Mountain and Spirit Lake tribes filed a lawsuit in U.S. District Court last month.

It alleges that the map does not comply with section two of the Voting Rights Act.

It was approved by North Dakota’s Republican-dominated legislature and signed into law by Governor Doug Burgum in November.

The Native American Rights Fund is providing legal assistance to the tribes in this case as part of a redistricting project launched last spring.

Samantha Kelty is an attorney at the organization who works on many of these cases.

“Ways that jurisdictions will dilute the native vote is either by cracking, for example, or packing native communities. So cracking is where the jurisdiction intentionally cracks the Native community so that they’re not a majority in any one community, they’re a minority, and then they can’t elect their representative of choice. And packing, just the opposite of that, is where they could have been a majority in maybe two or three districts when instead, the jurisdiction packed them into one so that they only have power in that one district instead of the two or three.”

The North Dakota lawsuit alleges that the map packs some indigenous voters into one house subdistrict while putting other nearby Native American voters into two other districts dominated by white voters who they claim ‘bloc vote against Native Americans’ preferred candidates.

Kelty said, “It’s like the essence of a section two claim, the racially polarized voting. And when it’s that high it’s very clear that unless you draw lines in a way to enable the Native population to vote, that the white majority will continue to vote as a bloc to defeat the native candidate of choice. I mean it’s just, like it’s racism. Like this shows the level, this is the level of racism really in the jurisdiction. That’s always shocking to me. It’s like racism in a graph, you know?”

Michael Carter, an attorney at the Native American Rights Fund who worked directly on the lawsuit says this is a case in which the native vote has been cracked.

“This map specifically creates the sub-districts for district nine, one of the sub-districts is heavily Native American. So they’ve been packed into one of the sub-districts. And then the other sub-district contains over 20% Native American voters who have been cracked away from the rest of the tribal members and their full district so that their vote is diluted.

Former historian for the U.S. Department of Justice, Peyton McCrary says that section two of the Voting Rights Act was established to help minority communities prove discrimination in election practices.

“Section two was an unimportant provision of the Act until 1982 when Congress revised it to create a way of challenging discriminatory election practices without having to prove discriminatory intent. After that was done, it was possible for minority plaintiffs to win voting rights cases at a reasonable rate of success. So section two continues to be effective, even in 2022, 40 years later. And so the likelihood of the plaintiffs prevailing is reasonable.”

Indigenous people in the United States, and specifically in North Dakota, have faced generations of discriminatory voting restrictions.

McCrary said, “There is, of course, a history of racial discrimination affecting Native American voters in North Dakota. It wasn’t until 1924 that Congress passed a law making all American Indians citizens of the United States.”

Kelty said, “There’s obstacle after obstacle after obstacle specifically in North Dakota. These are places where Native Americans have historically completely been left out of the process. There are decades and decades of different attempts to keep them out of the process. So once you’re left out of the process due to census undercounts or being cracked or packed, on top of that you don’t have an ID that’s compliant to register to vote, you don’t have a car to take you to the polling place, it just becomes too difficult. So the registration rates among Native American communities are very low, the turnout rates are very low. And those are things that you have to take into consideration in the redistricting process.”

Carter said, “Whenever a population has been discriminated against so much that they don’t feel like they even have a voice, or that their voice doesn’t matter, and won’t be listened to anyway – which was somewhat backed up by you know, the redistricting process itself as an example, then you create a system where more people just aren’t engaged in the election process and don’t feel like they have a dog in the fight.”

The lawyers say that they feel confident about the case because they have the law on their side.

Carter said, “We feel really good about the case, you know, just strictly under applying the precedents under the Voting Rights Act. We feel that the map approved by the state legislature should be struck down. And that it will be if that precedence is followed.”

Kelty said, “The voting rights cases that the Native American communities have brought are 90% successful, which is unheard of in litigation. Generally, litigation has like a, you know, 49, 50% at best success rate, but that shows just how bad the voting violations are in Indian country.”

The deadline for the chief election official of the state of North Dakota, Secretary of State Al Jaeger, is quickly approaching

Carter said, “We filed a complaint a few weeks ago, the state has until April 15 to file an answer. So right now, we’re just waiting on the state’s response. We’re just asking for a fair map that follows the law. And that’s all we’ve asked for, we’ve asked for a fair and open process. And it’s unfortunate that it’s gotten to the point of litigation, but this is where we are. And hopefully, in the future, this type of action won’t be necessary.”

We asked for reaction from Governor Burgum and Secretary of State Jaeger.

They told us the Governor’s office as well as the Secretary of State do not comment on pending litigation.

The state’s case will be presented in the briefs filed with the court. Plus these are not boundaries drawn and approved by the Secretary of State and the Governor’s office. The districts were adopted by the legislature in its Special Session in November.