Unless North Dakota lawmakers get an 11th-hour reprieve, they will miss the deadline to redraw a legislative map that, according to a federal judge, violated the rights of Native American voters.
The North Dakota Legislature on Thursday filed an emergency motion that asked North Dakota U.S. District Court Judge Peter Welte to push back the Friday deadline to finish redistricting. Welte had not filed an answer as of noon Friday.
The federal judge ruled on Nov. 17 that a 2021 map approved by the Legislature violated the Voting Rights Act because it “prevents Native American voters from having an equal opportunity to elect candidates of their choice.” The Turtle Mountain Band of Chippewa and the Spirit Lake Tribe brought the lawsuit in February 2022.
Welte agreed that lawmakers put the two tribes into separate legislative districts that gave them less of a chance to elect candidates they preferred. Turtle Mountain, which was previously in District 9, was packed into District 9A, while other Native American voters were put in 9B with a disproportionate majority of white voters, the tribes argued.
Spirit Lake also was cracked into District 15, the tribes claimed.
Secretary of State Michael Howe, who is named as a defendant in the case since he oversees elections in North Dakota, has appealed the case to the 8th Circuit Court of Appeals. Arguments have not been heard in the case.
The appeals court decision likely won’t come before the primary election on June 7, said Tim Purdon, who represented Spirit Lake and Turtle Mountain in the case with the Campaign Legal Center.
Welte and the appeals court previously denied motions from Howe and the state Legislature to delay the Dec. 22 deadline. The Legislature is not named as a party in the case.
Without an extension, Welte is slated to pick one of two maps proposed by the tribes. Attorneys for the Spirit Lake and Turtle Mountain tribes have proposed putting the two nations in the same district.
It’s unknown when Welte could make that decision, but more than likely, whatever map he chooses will have to be used in the 2024 elections, Purdon said.
“Judge Welte will either be affirmed or reversed, but that’s going to take many, many months into 2024 to get that resolved,” he said.
What’s next
North Dakota House Majority Leader Mike Lefor, R-Dickinson, anticipated lawmakers wouldn’t have enough time to approve a new map. Legislative Management, which can make some decisions on behalf of the full Legislature between sessions, voted Dec. 5 to join the lawsuit and form a redistricting committee.
Lefor said it was important to pursue legal action to reverse or delay Welte’s decision while acting in good faith to redraw the map. He said he is respectful of Welte’s order, but the Legislature also wants to defend their work.
He said he wouldn’t change anything he and his colleagues did in creating the 2021 map, calling the work “high quality.”
“We believe that the 2021 redistricting committee did its job and did it the right way,” he said. “That’s why we continue to pursue all legal avenues.”
That redistricting committee met Wednesday to discuss potential maps but did not make a final proposal. Even if they had, it would take a week for attorneys to write legal descriptions of the map. Then, the full Legislature would have to come back for a special session.
Attorneys in the Thursday filing argued the Legislature has “taken extensive action to develop a plan,” including filing motions for extensions and meetings to redraw the map.
“The (Legislative) Assembly wants to propose a remedy,” the filing said, adding it is necessary to give it at least until Feb. 9 to redraw the map.
The redistricting committee is not scheduled to come back until the new year. Lefor said there is more work to be done, but he doesn’t expect a special session.
“We have to focus on what we can control, and that is to continue to fight in the courts and move the redistricting committee,” he said. “The rest of it is out of our hands.”
Howe said in court filings that he needs a map by Dec. 31. Candidates can begin to collect signatures on Jan. 1 to appear on the ballot for the primary election, he noted in his filings.
“Where we are right now, the Legislature wants more time, and the secretary of state wants a map,” Purdon said.
Howe’s office has declined to comment on the case since it is pending in the appeals court.
“However, we continue to be in constant contact with our county partners, and our team will administer the election like we always have, by following the election laws set by the North Dakota legislature or as directed by any final decisions by the courts,” Deputy Secretary of State Sandy McMerty said in an email.
Purdon dismissed claims that the North Dakota Legislature didn’t have enough time to redraw the map. He noted federal courts have determined that as little as two weeks is adequate.
“Federal courts routinely give state legislatures less time than the 35 days here,” he said.
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