The U.S. Supreme Court issued an order Thursday pausing a lower court mandate in a closely watched North Dakota redistricting case, temporarily preserving the state’s current legislative map while the legal process continues.
The intervention in the North Dakota redistricting case is tightly bound to the future of the Voting Rights Act (VRA), particularly Section 2, which prohibits practices that dilute minority voting strength.
The Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe, along with individual voters, brought a lawsuit against North Dakota, arguing the state’s 2021 legislative map unlawfully diluted Native voting strength in violation of Section 2. A federal district court agreed, finding the map did, in fact, prevent Native American voters from having an equal opportunity to elect candidates of their choice, and ordered the state to redraw the districts.
North Dakota state officials appealed, and the Eighth Circuit Court of Appeals decided the U.S. Department of Justice, not private parties, could sue to enforce Section 2 in its jurisdiction (which covers seven states, including North Dakota). This ruling, if left in place, would prevent Native American and other minority communities from bringing their own lawsuits to defend their voting rights under the VRA.
In Turtle Mountain Band, et al. v. Howe, Sec. of State of ND, the application for a stay was presented to Justice Brett Kavanaugh, who referred the matter to the full Court. The Supreme Court granted the stay, which blocks the Eighth Circuit Court of Appeals from enforcing its recent order in case No. 23-3655. This stay will remain in effect until the filing and resolution of a petition for a writ of certiorari, essentially a formal request for the Supreme Court to review the case.
If the petition is denied, the stay will automatically expire. Should the Supreme Court grant full review of the case, the stay will last until the justices issue their final judgment.
With the stay in place, the status quo is preserved while appeals continue. This means Native voters can still challenge redistricting plans under the Voting Rights Act, at least for now.
If the Eighth Circuit’s ruling were to take effect, it would represent a “gutting” of the Voting Rights Act: millions would lose the most common and effective path to challenge discriminatory election practices, as private litigants would be shut out of federal court.
This is particularly significant for Native communities, who have a long history of using Section 2 to protect their right to fair representation and to fight back against attempts to dilute their power in state legislatures. Without the ability to sue under Section 2, their practical access to justice for voting discrimination would be severely curtailed.
Notably, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated they would have denied the stay, signaling disagreement within the conservative bloc on how to handle the emergency application at this stage.
