Walen et al v. Burgum et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Charles Walen and Paul Henderson,
Plaintiffs,
vs.
Doug Burgum, in his official capacity as
Governor of the State of North Dakota, and
Michael Howe, in his official capacity as
Secretary of State of the State of North Dakota,
Defendants,
and
The Mandan, Hidatsa and Arikara Nation,
Lisa DeVille, and Cesareo Alvarez, Jr.,
Defendants-Intervenors.
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ORDER ON MOTIONS FOR
SUMMARY JUDGMENT
Case No. 1:22-cv-31
Before WELTE, Chief District Judge, ERICKSON, Circuit Judge, and HOVLAND,
District Judge.
Plaintiffs Charles Walen and Paul Henderson move for summary judgment (Doc. 98) on
their Equal Protection claim under the Fourteenth Amendment. They assert the subdivision of two
North Dakota legislative districts are unconstitutional racial gerrymanders. Defendants North
Dakota Governor Doug Burgum and Secretary of State Michael Howe (together, the “State”) and
Defendants-Intervenors the Mandan, Hidatsa, and Arikara (“MHA”) Nation, and individual voters
Lisa Finley-DeVille and Cesareo Alvarez, Jr. (collectively, “the MHA Tribe”), cross move for
summary judgment. Doc. 101; Doc. 107. Walen and Henderson oppose the State’s and the MHA
Tribe’s motions. Doc. 114; Doc. 115. The State and the MHA Tribe oppose Walen’s and
Henderson’s motion. Doc. 111; Doc. 113. Because we find that the State’s actions to draw the
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subdistricts in districts 4 and 9 satisfy strict scrutiny, we grant the State’s and MHA Tribe’s motion
and deny Walen’s and Henderson’s motion.
I. 	FACTS
Walen and Henderson are North Dakota residents and voters in districts 4 and 9,
respectively. Doc. 1. They assert that the subdistricts drawn in districts 4 and 9 as a part of the
State’s 2021 redistricting plan are unlawful racial gerrymanders that violate the Equal Protection
Clause of the Fourteenth Amendment. Id. The boundary of subdistrict 4A generally tracks the
boundaries of the Fort Berthold Indian Reservation, and the boundary of subdistrict 9A contains
the entirety of the Turtle Mountain Indian Reservation. Id. Walen and Henderson initially moved
for a preliminary injunction. Doc. 12. That motion was denied. Doc. 37. All parties now move for
summary judgment on the sole Equal Protection claim.
A. 	History of the State of North Dakota’s 2021 Redistricting Plan
Article IV, Section 2 of the North Dakota Constitution requires the state legislature (the
“Legislative Assembly”) to redraw the district boundaries of each legislative district following the
census. Each district must be represented by one senator and two representatives. N.D. Const. art.
IV, § 2. A reapportionment plan “may provide for the election of senators at large and
representatives at large or from subdistricts from those districts.” Id.; N.D. Cent. Code § 54-03-
01.5(2). Since 2001, the ratified plans have divided the state into 47 legislative districts, with one
senator and two representatives elected at-large from each district. See Doc. 21-1 at 13-14.
On April 21, 2021, Governor Burgum signed House Bill 1397, which created a legislative
management redistricting committee (the “Redistricting Committee”), which was tasked with
developing and submitting a redistricting plan and legislation to implement the plan. Members of
the Redistricting Committee included eight House of Representative members, including the
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Chairman, Representative William Devlin, and eight Senators, including the Vice Chairman,
Senator Raymon Holmberg. H.B. 1397, 67th Leg., Reg. Sess. (N.D. 2021).
B. 	The Work of the Redistricting Committee
On October 29, 2021, after the release of the 2020 census data,1 Governor Burgum issued
Executive Order 2021-17. Doc. 19-2. That Executive Order convened a special session of the
Legislative Assembly for the purposes of “redistricting of government.” Id. The Redistricting
Committee held its first meeting in late July 2021 and began substantive meetings two weeks after
receiving the census data. Docs. 20-1, 20-2. The Tribal and State Relations Committee also began
having meetings related to redistricting. Doc. 109-13.
On August 26, 2021, the Redistricting Committee heard several presentations addressing
compliance with the Voting Rights Act of 1965, 42 U.S.C. § 1973 (the “VRA”), and the role that
subdistricts can play in complying with the VRA. Doc. 100-1. In one presentation, there was
discussion that the State could face VRA litigation if it did not create subdistricts for certain Native
American reservations, including the Fort Berthold Indian Reservation and MHA Tribe (as to
district 4) and the Turtle Mountain Band of Chippewa Indians Reservation (as to district 9). Id. at
31-34, 38-40, 127-128. Subdistricts were also discussed at the September 8, 2021, Redistricting
Committee meeting. Doc. 100-2. A significant part of that meeting was dedicated to discussion of
potential subdistricts around the Native American Reservations. Id. at 94-113.
At the next Redistricting Committee meeting on September 15, 2021, it was emphasized
by Senator Holmberg, as Vice Chairman of the Redistricting Committee, that the Legislative
Assembly is “very sensitive to our duties under the Voting Rights Act.” Doc. 100-3 at 64-65. A
1 The results were delayed over four months due to the COVID-19 pandemic. See 13 U.S.C. §
141(c).
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few days later, there was another Redistricting Committee meeting. Doc. 100-4. At this meeting,
Claire Ness, who was at the time an attorney with the North Dakota Legislative Counsel, gave a
presentation regarding compliance with the VRA; she noted that it was acceptable to use race as a
predominant factor in redistricting when doing so satisfies strict scrutiny. Id. at 9-12. There was
considerable discussion at this meeting as to how the Legislative Assembly could comply with the
VRA in drawing districts that would contain Native American Reservations. Id. at 14-32. 	The
next day, at another Redistricting Committee meeting, Senator Holmberg noted his preference to
create subdistricts for Native American Reservations, assuming the appropriate population
thresholds were met. Doc. 100-5 at 47-49.
In addition to receiving testimony as to the VRA and compliance with the VRA, over the
course of its meetings the Redistricting Committee also received testimony encouraging the
Legislative Assembly to consider communities of interest, protection of incumbents, respect for
political boundaries of the tribes, compactness, and division of counties in its redistricting plan.
See Docs. 20-5, 20-6, 20-8, 20-13, 20-14, 20-15, 20-16, 20-20, 20-26.
C. 	The Redistricting Committee’s Decision to Draw Subdistricts
At the September 28, 2021, meeting (Doc. 100-6), the Redistricting Committee engaged in
lengthy discussion and analysis about drawing subdistricts in districts 4 and 9. Senator Holmberg
noted that, in years past, the low Native American population could not support subdistricts, but
the recent census numbers showed the two Native American populations now met the required
threshold. Id. at 21-22. To comply with the VRA and avoid a Section 2 voter dilution claim from
Native American voters, Senator Holmberg moved that the Redistricting Committee draw
subdistricts around the Turtle Mountain and Fort Berthold Reservations. Id. at 22. The
Redistricting Committee held their final substantive meeting the next day (Doc. 100-7), and the
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meeting concluded with the Redistricting Committee approving the subdistricts in districts 4 and
9. Visually, House District 4A tracks the boundaries of the Fort Berthold Indian Reservation:
Doc. 106-4 at 2. House District 9A contains the entirety of the Turtle Mountain Indian Reservation:
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Doc. 106-4 at 4.
D. 	Passage of the 2021 Redistricting Plan
On November 9, 2021, a special House of Representatives session convened to consider
the Redistricting Committee’s final redistricting plan and report. Doc. 100-8. At this session,
Representative Devlin, as Chairman of the Committee, explained to the House that the subdistricts
were required by the VRA. Id. at 17-18. After further discussion, the House voted to approve the
subdistricts (id. at 62) and the redistricting plan (id. at 81-82) and moved the redistricting plan to
the Senate. The Senate debated passage of the redistricting plan on November 10, 2021. Doc. 100-
9. The redistricting plan passed (id. at 50), and Governor Burgum signed the plan into law. H.B.
1504, 67th Leg., Spec. Sess. (N.D. 2021).
III. 	LAW AND ANALYSIS
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue is ‘genuine’ if the
evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party.”
Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “A fact is material if it ‘might affect the outcome of the suit.’”
Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Anderson, 477 U.S.
at 248).
At summary judgment, the non-movant bears an affirmative burden “to go beyond the
pleadings and ‘by affidavit or otherwise’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992) (quoting
Robinson v. Monaghan, 864 F.2d 622, 624 (8th Cir. 1989)). “The evidence of the non-movant is
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to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255.
A. 	Subject Matter Jurisdiction and Standing
To start, we address the jurisdictional issue raised by the State and the MHA Tribe—
whether Walen and Henderson have standing to challenge subdistricts. Walen and Henderson
argue they have standing because they each reside in an allegedly racially gerrymandered voting
district.
Article III of the United States Constitution limits the subject matter jurisdiction of federal
courts to “cases” and “controversies.” U.S. Const. art. III, § 2. This jurisdictional limitation
requires every plaintiff to demonstrate it has standing when bringing an action in federal court.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “It is the responsibility of the
complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial
resolution of the dispute and the exercise of the court’s remedial powers.” Warth v. Seldin, 422
U.S. 490, 518 (1975). The essence of standing is whether the party invoking federal jurisdiction is
entitled to have the court decide the merits of the dispute. Id. at 498.
“[T]he irreducible constitutional minimum of standing contains three elements: First, the
plaintiff must have suffered an ‘injury in fact’ . . . Second, there must be a causal connection
between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to
the challenged action of the defendant’ . . . Third, it must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Sierra Club v. Robertson,
28 F.3d 753, 757-58 (8th Cir. 1994) (quoting Lujan, 504 U.S. at 560-61).
To show an injury-in-fact, a plaintiff must show “an invasion of a legally-protected interest
which is (a) concrete and particularized and (b) actual and imminent, not conjectural or
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hypothetical.” Id. Merely alleging an injury related to some cognizable interest is not enough;
rather, a plaintiff “must make an adequate showing that the injury is actual or certain to ensue.”
Id. If a plaintiff lacks Article III standing, a federal court has no subject-matter jurisdiction over
the claim and the action must be dismissed. Higgins Elec., Inc. v. O’Fallon Fire Prot. Dist., 813
F.3d 1124, 1128 (8th Cir. 2016).
1. 	Walen and Subdistrict 4A
Standing is easily resolved as to Walen. While the State and MHA Tribe argue neither
Walen nor Henderson has an injury in fact as to subdistrict 4A, it is well-settled law that a plaintiff
residing in an allegedly aggrieved voting district “has standing to challenge the legislation which
created that district.” Shaw v. Hunt, 517 U.S. 899, 904 (1996); see also United States v. Hays, 515
U.S. 737, 745-47 (1995). It is undisputed that Walen lives in subdistrict 4A of district 4. That is
sufficient to have standing to challenge the creation of the district (or subdistrict) as a racial
gerrymander. The injury in fact for an individual residing in a racially gerrymandered district is
the denial of equal treatment because of the legislature’s reliance on racial criteria. Hays, 515 U.S.
at 745. Here, that harm is fairly (and directly) traceable to the State.
The harm is also redressable. Although the State suggests the relief requested (elimination
of the subdistricts at issue) cannot be granted, we disagree. When a plaintiff’s injury is being placed
in a racially gerrymandered district, a district court’s remedy is ensuring these plaintiffs are
prevented from “voting in racially gerrymandered legislative districts.” North Carolina v.
Covington, 138 S. Ct. 2548, 2554, (2018) (finding an equal protection violation and not allowing
the State of North Carolina an opportunity to redraw its electoral map). It is within this Court’s
power to remedy an Equal Protection violation. Walen has standing to challenge subdistrict 4A.
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2. 	Henderson and Subdistrict 9A
Standing is a closer call as to Henderson and subdistrict 9A. Henderson resides in district
92 and subdistrict 9B—but subdistrict 9A is the subdistrict alleged to have been racially drawn to
favor Native American voters (and the Turtle Mountain Band of Chippewa Indians specifically).
The State argues this is fatal to Henderson’s claim.
The Supreme Court has consistently rejected standing to bring equal protection claims by
individuals who do not reside in the alleged racially gerrymandered district. Sinkfield v. Kelley,
531 U.S. 28, 30-31 (2000). Generally, “a voter has standing to bring a racial-gerrymandering claim
only if he votes in a gerrymandered district, or if specific evidence demonstrates that he has
suffered the special harms that attend racial gerrymandering.” Alabama Legislative Black Caucus
v. Alabama, 575 U.S. 254, 283 (2015) (Scalia, J., dissenting) (citing Hays, 515 U.S. at 744-745).
But “[a]ny citizen able to demonstrate that he or she, personally, has been injured by [race-based
redistricting] has standing to challenge the classification in federal court.” Hays, 515 U.S. at 744.
Henderson alleges he is being deprived of a preferred representative because of the
unlawful racial gerrymander eliminating the at-large election of House Representatives in district
9. Doc. 1 at 7. Being denied a preferred state representative as the result of a subdistrict would not
be a redressable injury because it is a purely political question. See Petteway v. Galveston Cnty.,
No. 3:22-cv-57, 2023 WL 2782704, at *3 (S.D. Tex. Mar. 30, 2023). But being denied a preferred
state representative because of an unlawful racial gerrymander, as Henderson alleges, is a concrete
and particularized harm sufficient to establish standing to challenge the drawing of the subdistrict
in district 9. Henderson has standing to challenge subdistrict 9A.
2 Walen and Henderson do challenge subdistricts 4A, 4B, 9A, and 9B. Doc. 1 at 9.
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B. 	Equal Protection Claim
With standing resolved, we turn to the merits of Walen’s and Henderson’s single claim—
the Equal Protection violation. The Equal Protection Clause of the Fourteenth Amendment limits
racial gerrymanders in legislative districting plans. It prevents a state, in the absence of “sufficient
justification,” from “separating its citizens into different voting districts on the basis of race.”
Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. 178, 187 (2017). To show an equal
protection violation in the context of redistricting, a plaintiff must satisfy a two-prong test. First,
the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision
to place a significant number of voters within or without a particular district.” Miller v. Johnson,
515 U.S. 900, 916 (1995). That requires demonstrating that the legislature “subordinated” other
factors—compactness, 	respect 	for 	political 	subdivisions, 	partisan 	advantage—to 	“racial
considerations.” Cooper v. Harris, 581 U.S. 285, 291 (2017). That can be shown through “direct
evidence” of legislative intent, “circumstantial evidence of a district’s shape and demographics,”
or a mix of both. Id. Second, if racial considerations predominated, the design of the district must
withstand strict scrutiny. Id. at 292. The burden then shifts to the state to prove that its race-based
sorting of voters serves a “compelling interest” and is “narrowly tailored” to that end. Id. The
Supreme Court has long held that compliance with the VRA is a compelling interest. See Shaw,
517 U.S. at 915.
1. 	Prong 1—Whether Race Predominated
Walen and Henderson argue that race was the predominant factor motivating the
Legislative Assembly’s decision to draw subdistricts in districts 4 and 9. More specifically, their
position is that the sole motivating factor for drawing the subdistricts was compliance with the
VRA as to Native American voters. The State and the MHA Tribe disagree and point to evidence
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in the record that race, while an important factor for assessing VRA compliance, was not the
predominant factor motivating the decision to draw the subdistricts.
To succeed on a racial gerrymandering claim, a plaintiff must establish that race was not
“simply . . . ‘a motivation for the drawing of a majority-minority district,’ but ‘the predominant
factor.’” Easley v. Cromartie, 532 U.S. 234, 241 (2001) (quoting Bush v. Vera, 517 U.S. 952, 959
(1996). That burden is a heavy one, and a plaintiff must show that race is the only explanation for
why the offending districts were drawn. Id. at 241-42 (the creation of the challenged district(s)
must be unexplainable on grounds other than race); Miller, 515 U.S. at 916 (the legislature must
have “subordinated traditional race-neutral districting principles, including but not limited to
compactness, contiguity, and respect for political subdivisions or communities defined by actual
shared interests, to racial considerations.”).
The record contains ample evidence that VRA compliance and avoiding litigation from
Native American voters was a motivating factor in the decision to draw the subdistricts. During
the floor debate in the Senate on the final redistricting plan, Senator Holmberg explained, “We
followed the best we could with the Voting Rights Act.” Doc. 100-9 at 6. Indeed, VRA compliance
as to Native American vote and population was discussed at nearly every Redistricting Committee
meeting. See Doc.103-5; Doc. 103-15; Doc. 104-8; Doc. 104-16. The Redistricting Committee
also reviewed a redistricting memorandum from North Dakota Legislative Council that provided
guidance on redistricting and VRA compliance. Doc. 109-1.
That said, while VRA compliance and race were important factors in the decision to draw
the subdistricts, the record also shows the Redistricting Committee considered traditional race-
neutral districting principles. For example, Executive Director of North Dakota Native Vote Nicole
Donaghy offered written testimony as to the importance of preserving communities of interest.
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Doc. 20-3. North Dakota Farmers Union Representative Matt Perdue provided written testimony
about the importance of following traditional redistricting criteria, including division of counties,
and encouraged subdistricts for mixed urban and rural representation. Doc. 20-7. Mark Fox,
Chairman of the Tribal Business Council of the MHA Tribe, also gave written testimony about the
need to preserve communities of interest and the political subdivision of the MHA Tribe. Doc. 20-
18. The record confirms that the Redistricting Committee considered communities of interest,
protection of incumbents, respect for political boundaries of the tribes, compactness, and division
of counties. See generally Docs. 20-5, 20-6, 20-8, 20-13, 20-14, 20-15, 20-16, 20-20, and 20-26.
So, while there is evidence that the Legislative Assembly drew the subdistricts to avoid a VRA
lawsuit from Native American voters, there is also evidence that other factors were considered.
The conflicting views of the evidence present a fact question as to whether race was the
predominant motivating factor for the Legislative Assembly’s decision to draw subdistricts in
districts 4 and 9. Accepting each nonmovants factual allegations as true, see TCF Nat’l Bank, 812
F.3d at 707, there is a genuine issue of material fact as to whether race was the predominate
motivating factor in the Legislative Assembly’s decision to draw the subdistricts.
2. 	Prong 2—Strict Scrutiny
That does not end our analysis though. Assuming without deciding that race was the
predominate motivating factor for the decision to draw the subdistricts, the second prong of the
analysis requires the State to show its actions satisfy strict scrutiny. Walen and Henderson argue
the State’s actions cannot meet strict scrutiny because the Legislative Assembly did not “prove”
the Gingles preconditions before deciding to draw the subdistricts, so the Legislative Assembly
could not have known the subdistricts were required to comply with the VRA. The State and the
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MHA Tribe argue the State had good reasons and a strong basis in evidence to believe the
subdistricts were demanded by the VRA.
If race is found to have predominated the creation of a district, the burden shifts to the state
to prove that its race-based sorting of voters serves a “compelling interest” and is “narrowly
tailored” to that end. Cooper, 581 U.S. at 292. As stated earlier, one compelling interest is
complying with the VRA. See id.; see also Shaw, 517 U.S. at 915; Wisconsin Legislature v.
Wisconsin Elections Comm’n, 142 S. Ct. 1245, 1250 (2022). But when a state invokes the VRA
to justify race-based districting (as the State has here):
[I]t must show (to meet the “narrow tailoring” requirement) that it had “a strong
basis in evidence” for concluding that the statute required its action. Or said
otherwise, the State must establish that it had “good reasons” to think that it would
transgress the Act if it did not draw race-based district lines. That “strong basis” (or
“good reasons”) standard gives States “breathing room” to adopt reasonable
compliance measures that may prove, in perfect hindsight, not to have been needed.
Cooper, 581 U.S. at 292 (cleaned up). This means the State can satisfy strict scrutiny by showing
it had good reasons and a strong basis in evidence to believe the subdistricts were required under
the VRA.
a. 	Whether the State had good reasons and a strong basis to believe
the subdistricts were required by the VRA
Turning to that question, Walen’s and Henderson’s position is that the State cannot show
it had good reasons and a strong basis in evidence to believe the subdistricts were required by the
VRA because the Legislative Assembly did not conduct a pre-enactment Gingles analysis to
determine if Native American voters would have a viable Section 2 claim under the VRA without
the subdistricts. The State and the MHA Tribe disagree and argue there was much evidence before
the Legislative Assembly that the subdistricts were needed to satisfy the VRA and avoid voter
dilution claims. We agree with the State and the MHA Tribe.
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We start with Walen’s and Henderson’s position that the State was required to “prove” the
Gingles preconditions to have a strong basis in evidence to believe the VRA required the
subdistricts. In support, they rely on Cooper, 581 at 285, and Wisconsin Legislature, 142 S.Ct. at
1245. They cite this quotation from Cooper: “To have a strong basis in evidence to conclude that
§ 2 demands such race-based steps, the State must carefully evaluate whether a plaintiff could
establish the Gingles preconditions—including effective white bloc-voting—in a new district
created without those measures.” 581 U.S. at 304. In Thornburg v. Gingles, 487 U.S. 30 (1986),
the United States Supreme Court articulated the three preconditions a plaintiff must satisfy before
proceeding with a voter dilution claim under Section 2 of the VRA. Those preconditions are:
1. 	The minority group . . . is sufficiently large and geographically compact to
constitute a majority in a single-member district;
2. 	The minority group . . . is politically cohesive; and,
3. 	The white majority votes sufficiently as a bloc to enable it—in the absence
of special circumstances . . . to defeat the minority’s preferred candidate.
Id. at 50-51.
Nothing in the case law from the United States Supreme Court requires a state legislative
body to prove the Gingles preconditions in order to have good reasons and a strong basis in
evidence to believe the VRA required a particular district. To be sure, the case law does require a
state legislative body to consider more than population numbers or election returns in isolation.
See Abbott v. Perez, 138 S. Ct. 2305, 2321-32, 2334 (2018). As Cooper explicitly instructs, states
must “carefully evaluate” whether the Gingles preconditions could be met by a challenging
plaintiff—but that is not the same as requiring a state legislative body to preemptively prove (as
Walen and Henderson argue) the preconditions as to a new district. Indeed, Cooper also states, “If
a State has good reason to think that all the Gingles preconditions are met, then so too it has good
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reason to believe [the VRA] requires” the new district. 581 U.S. at 301 (emphasis added).
Application of the standard articulated in Cooper is much different from requiring proof. Requiring
proof of the Gingles preconditions pre-enactment would seem to eliminate the “breathing room”
given to states in adopting VRA compliance measures.
We find Abbott, 138 S.Ct. at 2305, particularly instructive on that point. Abbott followed
Cooper, and the decision provides the framework for assessing what pre-enactment evidence a
state must consider in order to have good reasons and a strong basis in evidence to draw race-based
district lines in compliance with the VRA. In Abbott, the Supreme Court determined that
consideration of election returns standing alone, while suggestive, is not sufficient to establish
good reasons. 138 S.Ct. at 2334. It also noted that, in Cooper, expert reports on voting patterns
throughout North Carolina were insufficient to establish good reasons. Id. at 2335. Then it
reviewed its decision in Bethune-Hill, where it accepted the state’s good reasons for drawing race-
based district lines. In that case, the state established it considered turnout rates, population
numbers, and results of recent elections in deciding to draw certain district lines. Id. Abbott
explains, “[W]here we have accepted a State’s ‘good reasons’ for using race in drawing district
lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions.”
Id. Said another way, while a state is not required to prove the Gingles preconditions, it must
carefully engage in a pre-enactment analysis of the same to show it had good reasons and a strong
basis in evidence to believe the district was required by the VRA.
Wisconsin Legislature, 142 S.Ct. at 1245, supports that standard. In that case, the
Wisconsin Supreme Court chose the Governor’s proposed legislative redistricting map over maps
drawn by the Wisconsin Legislature. Id. at 1247. The Legislature objected to the inclusion of a
seventh majority-minority district and sought emergency relief from the Supreme Court, alleging
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that the Governor’s plan violated the Equal Protection Clause because it drew race-based maps
without sufficient justification. Id.
The Supreme Court decided the Wisconsin Supreme Court’s analysis was flawed because
it had only examined whether there were good reasons to believe the VRA may support the district,
instead of whether there were good reasons to believe the VRA demanded the district. Id. at 1249.
The Supreme Court explained that, when a state invokes the VRA to justify race-based districting,
“it must show that is had a strong basis in evidence for concluding that the statute required its
action.” Id. at 1250 (citing Cooper, 581 U.S. at 301). It also emphasized that the “breathing room”
for reasonable mistakes “does not allow a State to adopt a racial gerrymander that the State does
not, at the time of imposition, ‘judge necessary under a proper interpretation of the VRA.’” Id.
To the extent the decision addresses the Gingles preconditions directly, the decision noted a lack
of evidence and analysis to support drawing the at-issue district. Id. Nothing in Wisconsin
Legislature demands that a state legislative body prove the Gingles preconditions prior to drawing
legislative districts—rather, it confirms that a state must carefully engage in a pre-enactment
analysis of the preconditions to show it had good reasons and a strong basis in evidence to believe
the district was required by the VRA.
With that standard in mind, we turn to the undisputed legislative record to assess the State’s
pre-enactment analysis. While the Redistricting Committee was meeting, many Native Americans
advocated for the subdistricts. Executive Director of North Dakota Native Vote Nicole Donaghy
submitted written testimony on the growth of the Native American population in North Dakota
and noted the failure of Native American candidates of choice around her district and statewide.
Doc. 104-1. She also discussed the potential of a voter dilution claim without a subdistrict. Id.
Spirit Lake Tribal member and Gaming Commission Executive Director Collette Brown also
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offered written testimony to the Redistricting Committee. Doc. 104-2. She urged the Legislative
Assembly to move away from at-large districts around reservations because of their “dilutive
effect.” Id. Brown also testified that Native American voters and white voters in North Dakota
tend to vote for different candidates. Id.
The Redistricting Committee heard from the leaders of the MHA Nation, Standing Rock
Tribe, and Spirit Lake Tribe. Mark Fox, Chairman of the Tribal Business Council of the MHA
Tribe, offered written testimony as to the subdistrict in district 4. Doc. 109-14. Among many
things, he testified as to each of the Gingles preconditions and how the preconditions for a Native
American voter dilution claim would be met in district 4 without the subdistrict. Id. Mike Faith,
Chairman of the Standing Rock Sioux Tribe, provided written testimony about Native American
population growth, the need to move away from at-large districts to satisfy the VRA, and the
differences in voter preference between Native Americans and white voters. Doc. 104-3. Charles
Walker, a Councilman for the Standing Rock Sioux Tribe, also discussed the significant Native
American population growth in North Dakota, the need for subdistricts, and the divide regarding
candidates of choice for Native Americans and white voters. Doc. 104-4.
Also relevant is the Redistricting Committee’s final report to the Legislative Assembly.
Doc. 104-14 at 19-30. This report detailed the requirements of the VRA and described the Gingles
preconditions for Section 2 claims. Id. at 27. The report also discussed the population growth of
Native American tribes, the prevalence of racially polarized voting, the lack of success of Native
American preferred candidates, as well as the need for subdistricts in districts 4 and 9 to comply
with the VRA. Id. at 29. It also notes that the Redistricting Committee received updates from the
Tribal and State Relations Committee. Id. We find the following paragraphs important:
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The committee reviewed the 2020 Census data for tribal reservations, including the
total population, total voting-age population, American Indian population, and
American Indian voting-age population for each of the five reservations in North
Dakota. 	(“American 	Indian” 	is 	the 	official 	United 	States 	Census 	Bureau
designation for Native Americans.) Committee members noted the American
Indian 	populations 	on 	the 	Fort 	Berthold 	Reservation 	and 	Turtle 	Mountain
Reservation exceeded 4,145, the number required to constitute a majority of a
House subdistrict with the ideal population size of 8,288. According to the Census
Bureau, 5,537 American Indians live on the Fort Berthold Reservation, and 4,767
American Indians live on the Turtle Mountain Reservation. The numbers of
American Indians on the Spirit Lake Reservation and the North Dakota portions of
the Lake Traverse Reservation and Standing Rock Reservation are 3,134,56, and
3,332, respectively.
The committee received information from the Legislative Council staff and
testimony from others on constitutional and statutory provisions regarding the use
of race in redistricting. In particular, the committee received detailed testimony and
information regarding the 14th Amendment, the federal Voting Rights Act, and
caselaw applying them to multimember and single-member districts. The testimony
and information included in-depth discussions of the Gingles preconditions and the
circumstances under which majority-minority districts or subdistricts are required
under federal law. The committee also received information regarding Grinnell v.
Sinner, a case in which Native Americans sued Governor George Sinner and other
officials alleging the Voting Rights Act required North Dakota’s 1991 redistricting
plan to include a subdistrict for Native Americans in District 4. The plaintiffs lost
the case because they were unable to meet the first Gingles precondition based on
the Native American population in District 4 in the 1990 Census. According to the
Census Bureau, 2,999 Native Americans lived on the Fort Berthold Reservation in
1990. The ideal district population for North Dakota based on the 1990 Census was
13,037, and the ideal subdistrict population was 6,518. The committee also received
information regarding the creation of two Native American-majority subdistricts in
South Dakota and the litigation concerning the subdistricts.
The committee engaged in several discussions regarding subdistricts. Some
committee members expressed discomfort with drawing subdistrict boundaries
based on race, a preference for court-directed subdistricts over legislatively initiated
subdistricts, and concerns about having most citizens vote for two members of the
House of Representatives while citizens residing in subdistricts vote for only one
representative. Other committee members noted the creation of subdistricts might
prevent a possible dilution of Native Americans’ votes, provide communities of
interest an opportunity to select their candidates of choice, and potentially stave off
a court challenge to the redistricting map for which the committee had worked in
an 	honest 	and 	transparent 	manner. 	Some 	committee 	members 	expressed 	a
preference for legislatively drawn district boundaries over court-drawn boundaries
that may result from litigation.
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Id. at 29-30. The report shows the Redistricting Committee considered possible voter dilution
claims under Section 2 by Native American voters and whether Native American voters would be
able to satisfy the Gingles preconditions without the subdistricts. This is sufficient pre-enactment
analysis to establish it had good reasons to believe the subdistricts were required by the VRA.
Beyond the Redistricting Committee’s final report, the Legislative Assembly also heard
evidence from individual Representatives, who testified about why the VRA required subdistricts.
House Representative Chet Pollert, a member of the Tribal and State Relations Committee,
encouraged the passage of the redistricting plan and noted the subdistricts were needed because,
“[W]e have that population base in those two districts and those two districts to have the
subdistricts. So I would ask the House chambers to vote in favor of what the committee chairman
brought forward and what the redistricting did. And let’s move on.” Doc. 100-8 at 53-54.
Representative Devlin also testified about the need for the subdistricts in a floor debate. Doc. 100-
8 at 18-20. He specifically explained that districts 4 and 9 now have sufficient population to
successfully bring a Section 2 claim if the subdistricts were not drawn. Id. House Representative
Austen Shauer also encouraged passage of the redistricting bill with the subdistricts to comply
with the VRA. Id. at 10-11. Others testified about the polarization and lack of success for Native
American preferred candidates. House Representative Mike Nathe stated the House had received
“plenty of testimony” about Native American candidates not having an opportunity to win at-large
districts. Doc. 100-8 at 45-46.
During the Senate debate, Senator Holmberg stressed that the changes in population meant
the subdistricts were necessary to comply with the VRA. Doc. 100-9 at 3-7. Senator Jordan
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Kannianen3 also discussed racial polarization and the fact that the Native Americans and white
voters tend to vote for different candidates. Doc. 100-9 at 29-30.
The undisputed record shows the Legislative Assembly did perform a contemplative and
thorough pre-enactment analysis as to whether the subdistricts were required by the VRA and
whether Native American voters would have a viable Section 2 claim without the subdistricts.
While the State did not “prove” the Gingles preconditions as to the subdistricts, it was not required
to do so. But the State did “carefully examine” potential Section 2 claims and conducted a pre-
enactment analysis of the same. That included reviewing testimony and presentations as to the
Gingles preconditions. The record is undisputed, and there are no genuine issues of material fact.
So, as a matter of law, even assuming race was the predominate motivating factor, we find that the
State’s decision to draw subdistricts in districts 4 and 9 is narrowly tailored to the compelling
interest of compliance with the VRA.
While not necessarily dispositive of the Equal Protection claim, the State and the MHA
Tribe also offer compelling and unrefuted evidence that as to district 4, without the subdistrict,
Native American voters would in fact have a viable Section 2 voter dilution claim under the VRA.4
Taking that unopposed evidence as true, granting Walen and Henderson the relief they seek as to
district 4—eliminating the subdistrict—would be itself a violation of the VRA and federal law.
This is further evidence that, at least as to district 4, drawing the subdistrict is narrowly tailored to
the State’s compelling interest in complying with the VRA.
3 Senator Kannianen opposed the subdistricts.
4 There is an active Section 2 claim against the State as to district 9. See Turtle Mountain Band of
Chippewa Indians, et al. v. Howe, Case No. 3:22-cv-22 (D.N.D.).
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To conclude, assuming without deciding that race was the predominate motivating factor
in the Legislative Assembly’s decision to draw the subdistricts in districts 4 and 9, the State had
good reasons and strong evidence to believe the subdistricts were required by the VRA. Thus, we
conclude the subdistricts are narrowly tailored to the State’s compelling interest in complying with
the VRA.
V. 	CONCLUSION
We have reviewed the record, the parties’ filings, and the relevant legal authority. For the
reasons above, Walen’s and Henderson’s motion for summary judgment (Doc. 98) is DENIED,
and the State’s (Doc. 101) and the MHA Tribe’s (Doc. 107) motions for summary judgment are
GRANTED. Given the extensive briefing and undisputed legislative record, Walen’s and
Henderson’s motion for oral argument (Doc. 120) is also DENIED.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 2nd day of November, 2023.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
/s/ Ralph R. Erickson
Ralph R. Erickson, Circuit Judge
Eighth Circuit Court of Appeals
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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