The Supreme Court on Thursday preserved the status quo in most of the country, guaranteeing voters, at least for now, the ability to sue to enforce rights guaranteed under the 1965 Voting Rights Act.
At issue in the North Dakota case is Section 2 of the Voting Rights Act, which makes race-based voting discrimination illegal. The act, signed into law by President Lyndon B. Johnson in 1965, prohibited discriminatory practices such as literacy tests and poll taxes that disqualified many African Americans from voting in the post-Civil War era South.
The court's action in the North Dakota case comes weeks after the justices decided to rehear a similar case from Louisiana next term. In ordering the Louisiana case restored to the docket for reargument, however, the court said that when it schedules the date for reargument it will specify "any additional questions to be addressed in a supplemental briefing."
The translation of that is that the court may ask for additional briefing addressing the question of whether Section 2 of the Voting Rights act is itself unconstitutional because it results in the consideration of race in addressing how the Louisiana legislature drew the lines for congressional districts. In drawing the map, the legislature sought to to both assure a second majority-minority district and at the same time maintain safe districts for high ranking Republican members of the U.S. House, including the Speaker of the House, Mike Johnson.
The North Dakota case is quite different. It began in 2021, when the Republican-dominated state legislature implemented a revised redistricting plan. It was promptly challenged by two Native American tribes. They contended that the redistricting map "diluted Native American voting strength," and thus violated Section 2 of the Voting Rights Act.
The tribes noted that the result of the redistricting was that for the first time in 35 years, no Native American candidate was serving in the North Dakota Senate.
A federal district court sided with the tribes, blocking enforcement of the map, and setting a deadline for the North Dakota Legislative Assembly to create a new and fairer map. When North Dakota's legislature did not adopt a new map in time, the district court required the state to implement a map endorsed by the Native American tribes for the 2024 election cycle, and which resulted in the election of one Native American state senator and two members of the state house of representatives.
North Dakota's Republican Secretary of State appealed the district court's decision, arguing that individuals don't have the right to sue government officials over alleged violations of the Voting Rights Act.
The Eighth Circuit Court of Appeals agreed, citing its own previous ruling in 2023. But both those decisions are outliers nationally, and the Eighth Circuit remains the only federal appellate court to read the law so narrowly. The tribes then went to the Supreme Court, asking it to block the appeals court decision, and contending that if the court did not intervene, the state could kick out of office the duly elected tribe members.
The Supreme Court, without specifying its reason, did intervene on Thursday, upholding, at least temporarily the rights of individual voters to bring vote dilution and other enforcement challenges. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have denied the request.
The victory for the tribes may be short lived, as the high court, after wrestling with the Louisiana case last term, scheduled it for reargument, presumably because the justices were unable to reach a majority conclusion in the case before it recessed in late June.
Justice Thomas has long argued that the Voting Rights Act is unconstitutional, and Justices Alito, Gorsuch, and Amy Coney Barrett have all, at one time or another, pressed for a race neutral approach to redistricting. If the court were to conclude in the Louisiana case that section 2 of the Voting Rights act does not permit individuals or groups to bring enforcement challenges, that would at the same time moot the North Dakota case, meaning that nobody could win such a suit.
With only rare exceptions, the Supreme Court's conservative majority has continued in recent years to limit the enforcement teeth of the Voting Rights Act. In 2013, it invalidated a key section of the act, which required states with a long history of discrimination, to get pre-clearance from the Justice Department prior to making changes in state or local voting laws. And more recently, it has made enforcement under section 2 more difficult.
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