High Court decision could affect North Dakota

A decision handed down by the US Supreme Court last week could have an unexpected impact in North Dakota.

In a 6-3 split decision, the Court ruled that the long-standing practice of gerrymandering congressional districts in order to virtually ensure the election of members of a racial minority is unconstitutional. Although commonly used, particularly in states with large minority populations, the Court essentially said what most fair, unbiased observations of the practice would have concluded — that the practice was if not racist, itself, certainly unconstitutional.

Although justified as a remedy to the racism which characterized much of the nation — particularly southern states — decades ago, in the so-called “Jim Crow” era, it suffered an abrupt, unceremonious, if predictable, end.

This week, the Court went a step further, denying a request by some plaintiffs to recall its decision and leaving it in place.  The Court, in finalizing its ruling, made it clear that lower courts and states could act quickly in response to its decision rather than waiting the usual period of time during which parties may request a rehearing.

Media and scholarly reactions were mostly predictable although, at times, surprising.

The Seattle Times predictably announced “The Supreme Court just neutered the Voting Rights Act”.

Yale constitutional law professor Jeb Rubenfeld, reporting on the landmark decision, trumpeted that “a majority of the justices declared that dividing voters by race is ‘odious to a free people’”

Even the Baltimore Sun’s Staff Commentary headline read “Why the Supreme Court’s ruling on Voting Rights Act should be encouraging”.

The expected outrage and handwringing was certainly there, but those offering a fair analysis realized that what the Court actually held is that the Voting Rights Act neither permits, nor requires, states to draw congressional district maps primarily based upon race.

The April 29 emergency decision came in a case involving Louisiana. The decision resulted in Gov. Jeff Landry putting that state’s May primary election on hold. That could mean that new maps will be drawn prior to it eventually being held.

States throughout the nation are evaluating the impact which they may experience and attempting to prepare for it. 

What does this all mean to North Dakota?

Initial reactions to the news in North Dakota may be subdued. After all, our state has only one congressional district, so it can’t be accused of gerrymandering that district, for racial or other reasons.

That’s true, but the impact could be surprisingly unexpected and far reaching here.

You see, North Dakota has state legislative districts, two of which have recently, essentially, been gerrymandered for primarily racial reasons.

Federal doctrines and court decisions often also carry great weight in redistricting of states’ legislative districts.

When the North Dakota Legislature redistricted in late 2022, following the 2020 Census (a required practice every decade, to ensure that populations are evenly divided and, therefore, people are fairly represented in the state’s legislative districts), it did something new — It created two “sub districts” in the House of Representatives in areas of the state with concentrations of Native American population — namely, those involving reservations.

The theory was based largely upon the judicial reasoning which had allowed (some would say encouraged) the very racially drawn congressional districts, such as in Louisiana, which the Supreme Court has now struck down. It held that, without such gerrymandering, those minority citizens were unable to elect legislators who represented them and their interests.

The problem is, that wasn’t the case in North Dakota.

One of the districts in question has long had representation in the Senate by a Native American Democrat. The other had elected a Native American Republican in the House. Legislators of both parties representing those districts who were not Native Americans, themselves, strenuously emphasized that they worked very hard to meet with, listen to and faithfully represent their Native American constituents.

It was all about fear

The essential reason for dividing the two districts to create four ”sub districts”, often stressed by the Joint Redistricting Committee Co-Chairmen, former Sen. Ray Holmberg and former Rep. Bill Devlin (strongly reportedly warned by Legislative Council attorneys) was their fear that the state would almost certainly be sued if it failed to do so.

That fear was rooted in a court case which had previously required South Dakota to do something similar. 

During the North Dakota Redistricting Session, focus, awareness, opinion and votes began to shift as the bill made its way through the two chambers of the Legislature. Opposition was growing and support waned but the bill’s leading proponents staunchly supported it, warned of impending pain and legal costs, if it failed, and eventually secured its passage. Former Rep. Terry Jones, who represented one of the districts involved and was rapidly gathering information and legal opinions to fuel the opposition, noted that, had he had just a little more time to make the case for its defeat before the final votes, he believed the bill would have been defeated.

No one will know, of course, whether legal action would have ensued and taxpayer funds expended to defend against it, had the state rebuffed the pressure to racially gerrymander, because the Legislature gave into it. Ironically, the state was then sued, more than once, not over refusing to engage in the gerrymandering, but as a result of doing so.

One case is ongoing. The state prevailed in the other, but the Court’s decision could invite its reopening.

The other problem: disenfranchisement

Disenfranchising one group or another is a term often thrown around, but rarely is it as clearly demonstrated than by North Dakota’s gerrymandering in the two legislative districts mentioned.

You see, every North Dakota citizen has three people representing him or her, at any given time, in the Legislature — two members of the House of Representatives and one member of the Senate … except now in the two districts which were split. 

Those citizens have only two people representing them — one Representative and one Senator. 

One might be hard pressed to find a clearer example of being disenfranchised than to be robbed of legislative representation in a representative form of government.

The point of unequal representation was made in some of the court cases which were waged, but it was overcome. Even appeals courts’ hands were tied because of Court precedent which then upheld and even advocated gerrymandering for racial purposes.  

All of that has now been turned on its head by the United States Supreme Court.

Will that have an impact on North Dakota’s legislative maps? Only time and, perhaps, more legal action will tell.