The Spirit Lake Nation (Mni Wakan Oyate), Turtle Mountain Band of Chippewa Indians and individual voters filed a lawsuit in federal court to challenge North Dakota’s discriminatory state legislative maps. The lawsuit alleges that the state of North Dakota violated Section 2 of the Voting Rights Act (VRA) by failing to draw a majority Native legislative district containing the Spirit Lake Reservation and Turtle Mountain Reservation, which would allow citizens of the Tribal Nations to elect a candidate of their choice to two State House seats and a State Senate seat.

Ignoring the requests and testimony of the two tribal chairmen and tribal citizens, the legislature drew the Turtle Mountain Reservation and surrounding trust lands into District 9, while drawing the Spirit Lake Reservation into District 15. The legislature also packed a substantial supermajority of Turtle Mountain citizens into House Subdistrict 9A, which contains the Turtle Mountain Reservation, and cracked the remainder of the Turtle Mountain population into House Subdistrict 9B, which includes Turtle Mountain Trust Lands. Because voting in North Dakota is racially polarized, the current map prevents Native Americans from electing a candidate of choice to the State House in both District 9B and District 15.

Campaign Legal Center (CLC), Native American Rights Fund (NARF) and the Law Offices of Bryan Sells represent the plaintiffs in their suit. Robins Kaplan LLP represents the Spirit Lake Tribe.

On Nov. 11, 2021, North Dakota adopted new state legislative maps to account for the population changes captured by the 2020 Census. The map redraws the state’s 47 legislative districts, which are used for elections in the State Senate and House of Representatives. Each district is represented by one state senator and two members of the State House who are elected at large within the district, except for two districts that are divided into two House Subdistricts that each elect one house candidate.

Tribal Nations were largely excluded from the 2021 redistricting process in North Dakota. Even after repeated requests from tribal leaders, the North Dakota Redistricting Committee failed to hold a single meeting on tribal land. Despite the barriers to participation, Tribal Nations and individual Native voters worked to make their voices heard. After the North Dakota Legislative Redistricting Committee released the draft map that packs and cracks Spirit Lake and Turtle Mountain citizens, Spirit Lake Chairman Douglas Yankton and Turtle Mountain Chairman Jamie Azure issued a joint letter to North Dakota Gov. Doug Burgum and leaders of the State Legislature detailing their Tribal Nations’ request to be placed into a single at large legislative district and a finding that the legislature’s proposed map would likely violate Section 2 of the VRA. Both chairmen testified in support of the Tribal Nations being drawn into a single district before the Legislative Redistricting Committee. The complaint alleges that the legislature ignored the Tribes’ requests and adopted an illegal map, depriving Native voters in northern North Dakota of a second representative in the State House.

Persistent Discrimination in North Dakota

The discriminatory state legislative map is only a part of North Dakota’s long and troubled history of discrimination against Native Americans, including in voting. North Dakota expressly barred most Native people from voting until 1922. Even after Native Americans officially won the right to vote in North Dakota, state and local officials continued to enact laws and policies that diminished Native political power.

During the past decade, the State Legislature enacted a series of discriminatory voter validation laws that disenfranchised Native American voters by requiring voters to present photo ID listing their street address in order to vote. These laws made voting in nontribal elections burdensome or even impossible for the many Native voters living on reservations who had not been assigned street addresses and therefore did not have the requisite ID. After challenging the law in federal court, the Spirit Lake Nation, Standing Rock Sioux Tribe and individual Native voters, represented by  CLC and NARF, obtained a court-ordered consent decree with the Secretary of State, requiring North Dakota to implement certain safeguards for voters without qualifying identification.

The effects of the state’s discriminatory voting laws and practices are reflected the in lack of Native representation in the State Legislature. Even though Native people make up approximately 7% of the state’s population according to the 2020 U.S. Census, only 3 of the North Dakota’s 141 state legislators are tribal citizens — accounting for only 2% of the Legislative Assembly.

Native American voters have a right to maps that will allow them to make their voiced heard and have an equal say in the future of North Dakota. If left unchallenged, the new map would continue to dilute Native American voting power in violation of the VRA.

Fed up with partisan gerrymandering in Michigan’s state legislative and congressional districts, Voters Not Politicians (VNP) proposed a ballot initiative in Michigan that would create an independent redistricting commission (IRC), passing it overwhelmingly in November 2018. After volunteers collected over 425,000 signatures from Michigan voters in every one of the state’s counties, submitted the initiative to be put on the general election ballot in November and survived several legal challenges, Proposal 2 was put on the ballot in the midterm election. On Nov. 6, 2018, 61% (over 2.5 million) of Michigan voters passed Proposal 2, amending the Michigan Constitution to establish an IRC. Michigan voters of both major political parties supported the amendment, including voters in 67 of Michigan’s 83 counties.

IRCs take the power of redistricting out of the hands of partisan legislators, who have proven that they will use the process to gain power when given the opportunity to do so. IRCs instead give the power to the citizens to choose their representatives and create a more fair and transparent process for redrawing districts. After receiving the results of the 2020 Census, Michigan’s IRC drew new congressional districts, following the criteria established by the amendment. On Jan. 20, 2022, a group of plaintiffs filed suit against the commissioners and Michigan Secretary of State Jocelyn Benson challenging the map, arguing that the congressional map adopted by the commission violates the “one person, one vote” requirement and that the IRC failed to comply with the guidelines prescribed by the Michigan Constitution. The plaintiffs are also seeking a preliminary injunction to prevent the congressional maps from being used in future elections and requiring new maps to be drawn.

Campaign Legal Center (CLC) represents VNP as a proposed intervenor-defendant in this case. VNP moved to intervene in the lawsuit shortly after it was filed, in order to offer its expertise and insights as the drafter and sponsor of the constitutional amendment at issue and defend the commission’s work to draw fair maps for the state of Michigan.  

On August 20, 2021, the Office of the Attorney General of Texas sent CLC and its partner organizations a letter stating that Secretary Scott had identified 11,197 registered voters as potential non-U.S. citizens using data from the Texas Department of Public Safety. The letter also stated that Secretary Scott’s office would send the identified registrants’ information to county election administrators to either verify their citizenship status or cancel their voter registration. 

In August and October 2021, plaintiffs submitted records requests under the 1993 National Voter Registration Act (NVRA) to Secretary Scott for records of every individual identified under the new voter purge program as a potential non-U.S. citizen and the data the Secretary of State relied on to determine each voter’s citizenship status. 

The state has failed to produce any records responsive to CLC and its partner organizations’ records requests under the NVRA, therefore the groups are asking the United States District Court for the Western District of Texas to order Secretary Scott to produce these records as required by federal law.  

After CLC sued Texas’ former Secretary of State in 2019 for inaccurately flagging tens of thousands of naturalized U.S. citizen registered voters as non-citizens, the state entered into a settlement agreement with CLC and its partners to completely reform Texas’ flawed voter purge program.  

Applying the procedures outlined in that 2019 Settlement Agreement, the state has now allegedly identified over 11,000 potential non-U.S. citizen registrants. Yet, Secretary Scott’s refusal to turn over information responsive to the records requests has prevented CLC and its partners from confirming that Texas is complying with the settlement agreement and not improperly purging eligible voters. 

Early indicators show that the state may not be following the procedure outlined in the Settlement Agreement, leading to the inaccurate flagging of eligible U.S. Citizen voters as non-U.S. Citizens. According to public statements from the Texas Secretary of State’s office, 2,327 of the over 11,000 registered voters flagged as being potential non-U.S. citizens have had their voter registrations canceled. Yet, the state has only confirmed that 278 – approximately 2% - of the voters flagged are non-U.S. citizens.  

The court should step in to ensure that Texas produces lists of every registered voter identified under its new voter purge program as a potential non-U.S. citizen and the data the Secretary of State relied on to flag individuals as potential non-U.S. citizens, as Texas is required to do under the NVRA. Texas’ Secretary of State must produce these records so that CLC and its partner organizations can continue to effectively protect the voting rights of Texas citizens.