Eighth Circuit ruling on Voting Rights Act claim leaves North Dakota districts in legal limbo

Legislative Management heard a briefing on June 26 about an Eighth Circuit Court of Appeals ruling that could return North Dakota to its 2021 legislative district boundaries and leave members in an uncertain residency status.

Austin Gunderson of Legislative Council summarized the Eighth Circuits May 14 ruling in Turtle Mountain Band of Chippewa Indians v. Howe, which held private plaintiffs may not maintain a private cause of action to enforce Section 2 of the Voting Rights Act through 42 U.S.C. 1983. The panel vacated the district courts judgment imposing a plaintiff-drawn map and remanded with instructions to dismiss. Gunderson said the ruling is not yet effective because appellees filed a petition for rehearing en banc and the circuit has not issued its mandate.

Why it matters: if the Eighth Circuit judgment becomes final and the mandate issues, district boundaries would revert to the lines enacted by the Legislative Assembly during the 2021 special session. That reversion could leave some sitting legislators residing outside the districts they were elected to represent, and members asked staff whether that disability would force immediate replacement or whether past practice allowing members to serve until the next general election would continue.

Gunderson explained procedural next steps: the appellees have petitioned for rehearing en banc; if the petition is denied, the court must issue its mandate seven days after denial. A subsequent petition for certiorari to the U.S. Supreme Court could follow; the Supreme Court has 90 days from the final judgment to consider such a petition. Gunderson said historical practice has generally allowed legislators elected under a prior map to complete their terms, but he flagged legal uncertainty and noted that the Legislature and the Secretary of State face timing questions if finality arrives near candidate filing deadlines.

Committee members asked whether political-party reorganizing and appointment procedures would be affected in districts where a member no longer resides, and Gunderson said state party rules govern district reorganization and that a 4% petition threshold can trigger special-election avenues in certain circumstances. Gunderson recommended monitoring the petition-for-rehearing and any Supreme Court filings; he also said the mandate has not issued and that the district court judgment remains stayed while the appellate petition is pending.

The committee did not adopt formal actions but asked staff to continue monitoring developments and to advise legislative leaders and the Secretary of State about timing implications for candidate filing and primary schedules.