The U.S. Supreme Court settled a North Dakota voting rights case Monday, leaving in place two majority-Native American subdistricts challenged as unconstitutional.

“I’m glad that it’s finally been resolved,” said Rep. Lisa Finley-DeVille, a citizen of the Mandan, Hidatsa and Arikara Nation who represents one of the subdistricts. “It’s very important that we’re able to represent our needs at the table.”

The lawsuit, brought by two non-Native North Dakota residents, alleged that the subdistricts are racial gerrymanders — meaning the Legislature established them based predominantly on the racial makeup of their communities, rather than looking at other criteria like geography, population size or the political interests of residents. The plaintiffs argued the Legislature relied heavily on anecdotal evidence, not legitimate research, when it created the districts.

The plaintiffs claimed the subdistricts violate the Equal Protection Clause of the 14th Amendment by strengthening the voting power of Native American residents at the expense of constituents who aren’t Native American.

Native Americans gain representation in North Dakota Legislature as Republicans keep supermajority

The Legislature established the two subdistricts in 2021. District 4A follows the boundaries of the Fort Berthold Reservation, while District 9A includes the Turtle Mountain Reservation and some surrounding communities.

A three-judge district court panel found in 2023 that the map was constitutional.

The panel wrote that even if the Legislature did look to race when making the map, federal courts have previously found that states may consider race in a “narrowly tailored” capacity when drawing district lines to comply with the Voting Rights Act. 

Unsatisfied with that decision, the plaintiffs asked the U.S. Supreme Court to send the lawsuit back to a lower court for further proceedings, or to accept the case.

The high court on Monday dismissed the appeal of District 9A and affirmed the district court’s decision on District 4A. The court did not explain its reasoning.

Robert Harms, an attorney representing the plaintiffs, called the decision disappointing.

“The troubling aspect of this whole case is that the North Dakota Legislature didn’t have in front of it any statistical analysis,” he said Monday.

The lawsuit was filed by Charles Walen and Paul Henderson, both of whom are former district chairs for the North Dakota Republican Party, Harms said. Walen last year successfully ran as a Republican for a District 4 state Senate seat. 

The boundaries of District 9A and District 9B changed for the 2024 election after a federal judge imposed a new map following a separate voting rights lawsuit brought by the Turtle Mountain Band of Chippewa. 

The MHA Nation, Finley-DeVille and MHA citizen Cesar Alvarez joined Walen and Henderson’s lawsuit on the side of the state, arguing that the Legislature had gathered sufficient evidence to warrant the creation of the subdistricts.

That included testimony from tribal representatives, information about the use of subdistricts for Native American reservations in South Dakota and previous redistricting litigation, according to a brief filed by the MHA Nation, Finley-DeVille and Alvarez.

MHA Chairman Mark Fox testified during the redistricting process that candidates favored by Native residents of District 4 had been repeatedly defeated by the district’s white majority.

The plaintiffs disagreed. In one response, they argued that even before the subdistricts were created, voters in District 4 and District 9 were able to elect Native lawmakers to the Legislature, and that therefore the subdistricts are not necessary. The brief cites Rep. Dawn Charging and Sen. Richard Marcellais as two Indigenous lawmakers elected in District 4 and District 9, respectively.

The U.S. Department of Justice in a December brief advised the Supreme Court against considering the case.

In an unusual move, North Dakota came out against the district court’s ruling, despite that the court had ruled in the state’s favor. In a memo filed this spring, the state said that the Legislature did not rely on race as a predominant factor in the redistricting process, and that the district court was wrong to rule that such behavior would be permissible in any circumstance. The state asked the Supreme Court to send the case back to district court for further proceedings.

“We said before and we maintain now that race was not the predominant motivator for the redistricting,” North Dakota Attorney General Drew Wrigley said Monday.

The Supreme Court has taken up two other voting rights cases challenging a majority-Black district in Louisiana as racial gerrymandering.

In a 2023 voting rights case, Allen v. Milligan, the U.S. Supreme Court ruled 5-4 that Alabama had violated the Voting Rights Act when it created only one majority-Black district, finding that this unlawfully weakened the power of Black voters in the state.