Turtle Mountain Band of Chippewa Indians et al v. Jaeger

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Turtle Mountain Band of Chippewa Indians,
Spirit Lake Tribe, Wesley Davis,
Zachery S. King, and Collette Brown,
Plaintiffs,
vs.
Alvin Jaeger, in his official capacity as
Secretary of State of North Dakota,
Defendant.
ORDER DENYING
MOTION TO DISMISS
Case No. 3:22-cv-22
Before the Court is the Defendant Secretary of State of North Dakota Alvin Jaeger’s (the
“Secretary”) motion to dismiss for lack of jurisdiction and for failure to state a claim filed on April
15, 2022. Doc. No. 17. Plaintiffs Turtle Mountain Band of Chippewa Indians (“Turtle Mountain”),
Spirit Lake Tribe (“Spirit Lake”), Wesley Davis, Zachery S. King, and Collette Brown (together,
the “Plaintiffs”) responded in opposition on May 13, 2022. Doc. No. 24. The Secretary filed his
reply on May 27, 2022. Doc. No. 26. The United States also filed a Statement of Interest. Doc. No.
25. For the reasons below, the motion to dismiss is denied.
I. FACTUAL BACKGROUND
Article IV, Section 2 of the North Dakota Constitution requires the state legislature to
redraw the district boundaries of each legislative district following the census, which takes place
at the end of each decade. Following the release of the 2020 Census results, North Dakota
Governor Doug Burgum issued Executive Order 2021-171 on October 29, 2021. This Executive
Order convened a special session of the Legislative Assembly for the purposes of “redistricting of
1 N.D. Exec. Order No. 2021-17 (Oct. 29, 2021), available at:
https://www.governor.nd.gov/executive-orders.
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government.” N.D. Exec. Order No. 2021-17 (Oct. 29, 2021). On November 10, 2021, the
Legislative Assembly passed House Bill 1504, which provided for a redistricting of North
Dakota’s legislative districts. H.B. 1504, 67th Leg., Spec. Sess. (N.D. 2021). House Bill 1504 was
signed into law by North Dakota Governor Doug Burgum on November 11, 2021. Id.
In this action, the Plaintiffs challenge the above redistricting plan passed by the North
Dakota Legislative Assembly (i.e., House Bill 1504), and signed by the North Dakota Governor,
under Section 2 of the Voting Rights Act (“VRA”) (“Section 2”), 52 U.S.C. § 10301. Doc. No. 1.
More specifically, the Plaintiffs bring a voter dilution claim and allege that the newly adopted
redistricting plan dilutes the voting strength of Native Americans on the Turtle Mountain and Spirit
Lake reservations, and in surrounding areas, in violation of Section 2 of the VRA. Id. at 29-31. In
addition to the Section 2 challenge, the Plaintiffs also bring a claim under 42 U.S.C. § 1983 (“§
1983”). Id. at 3. The Plaintiffs seek declaratory and injunctive relief prohibiting the Secretary from
conducting elections under the allegedly dilutive redistricting plan and seek remedial relief from
the State of North Dakota’s failure to conduct elections under a plan that complies with the
requirements of the VRA. Id. at 31. In lieu of an answer, the Secretary filed this motion to dismiss.
Doc. No. 17.
II. LEGAL DISCUSSION
The Secretary’s motion asks for dismissal on three grounds—first, that Turtle Mountain
and Spirit Lake (together, the “Tribal Plaintiffs”) lack standing to bring claims under the VRA. Id.
at 8-13. Second, the Tribal Plaintiffs cannot allege a VRA claim because they are not “citizens” of
the United States. Id. at 7-8. Finally, the Secretary argues that Section 2 of the Voting Rights Act
does not provide a private right of action. Id. at 4-7. The Plaintiffs, for their part, argue the Tribal
Plaintiffs have standing and that the citizenship requirement to bring a claim under the VRA has
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been satisfied. Additionally, as to the private right of action, the Plaintiffs argue that when read
and considered together, § 1983 provides a private remedy to enforce Section 2 of the VRA, and
alternatively, Section 2 implies its own private right of action. The United States, in its Statement
of Interest, similarly argues that Section 2 contains a private right of action, and alternatively, §
1983 provides a remedy that can be used to enforce Section 2 of the VRA. Doc. No. 25.
Standing
Turning first to the issue of standing, the Secretary argues that the Tribal Plaintiffs should
be dismissed for lack of standing. The Tribal Plaintiffs respond that standing can be established
through the individual Plaintiffs, the diversion of the Tribal Plaintiffs’ resources, or the principles
of organizational standing. The Court agrees that the Tribal Plaintiffs have standing.
Applicable Law
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
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‘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 v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992)).
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
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).
Individual Standing
The Secretary does not dispute that the individual Plaintiffs in this matter have standing to
bring this claim under Section 2. Instead, the Secretary’s argument is focused on the Tribal
Plaintiffs’ lack of standing. When there are multiple plaintiffs, at least one of the plaintiffs must
demonstrate standing for each claim and each form of relief being sought. Spirit Lake Tribe v.
Jaeger, No. 1:18-CV-222, 2020 WL 625279, at *3 (D.N.D. Feb. 10, 2020). One plaintiff having
standing to bring a specific claim generally confers standing to all plaintiffs on that claim. See
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 (1977); see also
Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006). Here, the individual Plaintiffs’ right to sue has
not been challenged, and even if it had been, the argument would fail, as individuals residing in an
allegedly aggrieved voting district have standing to bring a claim under the VRA. See Gill v.
Whitford, 138 S. Ct. 1916 (2018); see also Roberts v. Wamser, No. 88-1138, 1989 WL 94513 (8th
Cir. Aug. 21, 1989). Because the individual Plaintiffs have standing, there is no authority to
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dismiss the Tribal Plaintiffs from the action due to lack of standing.
Diversion of Resources
Moreover, even without the individual Plaintiffs, the Tribal Plaintiffs have standing to
bring a Section 2 claim. As this Court noted in Spirit Lake, “[t]he Court can see no reason why a
federally recognized Indian Tribe would not have standing to sue to protect the voting rights of its
members when private organizations like the NAACP and political parties are permitted to do so.”
2020 WL 625279, at *5. Here, just as in Spirit Lake, the Tribal Plaintiffs assert they have been
forced to divert resources in response to the North Dakota Legislative Assembly’s actions.
Doc. No 1, ¶¶ 43-44. This is sufficient to establish standing. See Spirit Lake Tribe, 2020 WL
625279, at *4. Further, and consistent with Spirit Lake, because standing has been established in
alternative ways, the Court need not examine the merits of associational standing or standing under
parens patriae. Id.
Citizenship
The Secretary goes on to argue that the Tribal Plaintiffs cannot advance a VRA claim
because they are not “citizens” of the United States. In Spirit Lake, this Court held that this
argument is a challenge to standing. 2020 WL 625279, at *4. As discussed above, because the
individual Plaintiffs have standing, there is no standing issue as to the Tribal Plaintiffs.
Nevertheless, this Court held in Spirit Lake that the Indian Tribes do have standing to protect the
voting rights of its members. Id. The same analysis applies here, and the Secretary’s argument is
without merit.
Private Right of Action
With the standing issues resolved, the Court turns to the Secretary’s argument that Section
2 of the VRA does not provide a private right of action, and as a result, the complaint fails to state
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a claim (due to lack of subject matter jurisdiction) and the case must be dismissed. The Plaintiffs
counter that their § 1983 claim provides the remedy necessary to enforce Section 2 of the VRA,
and alternatively, the plain language of Section 2 implies a private right of action. The Court finds
that § 1983 provides a private remedy for violations of Section 2 of the VRA, and therefore, it is
not necessary for the Court to decide whether Section 2, standing alone, contains a private right of
action.
Relevant Legal Background
The question of whether Section 2 of the VRA contains a private right of action presents a
novel legal question. In a recent United States Supreme Court decision involving a Section 2 case,
Justice Gorsuch (joined by Justice Thomas) concurred with the majority opinion but wrote
separately to “flag” an issue that was not before the Court. Brnovich v. Democratic Nat’l Comm.,
141 S. Ct. 2321, 2350, 210 L. Ed. 2d 753 (2021). His concurrence stated, in relevant part:
I join the Court’s opinion in full, but flag one thing it does not decide. Our cases
have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an
implied cause of action under § 2. Lower courts have treated this issue as an open
question.
Id. Following Brnovich, the United States District Court for the Eastern District of Arkansas took
notice of Justice Gorsuch’s concurrence, and when presented with a case alleging voter dilution
among African American voters, examined whether Section 2, standing alone, contains a private
right of action. See generally Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment,
No. 4:21-CV-01239-LPR, 2022 WL 496908 (E.D. Ark. Feb. 17, 2022). In what can only be
described a thorough and well-reasoned—though admittedly, controversial—order, the district
court found that Section 2 of the VRA, standing alone, does not provide a private right of action.2
2 Notably, the district court explicitly states it did not consider whether Section 2 contains rights-
creating language and that its decision was premised on the lack of a private remedy. Arkansas
State Conf. NAACP, WL 496908, at *10.
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Id. at 10. This lack of remedy inevitably led the district court to conclude that private individuals
do not have a private right of action to enforce Section 2, and the case was dismissed for lack of
subject matter jurisdiction after the Attorney General of the United States declined to join the
lawsuit. Id. at 23. Here, the Secretary encourages this Court to follow Arkansas State Conf.
NAACP and find that the Plaintiffs do not have a private right of action under Section 2 of the
VRA—leading to dismissal of the complaint for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted.
Applicable Law
“Subject matter jurisdiction refers to the court’s power to decide a certain class of cases.”
LeMay v. United States Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006) (citing Continental
Cablevision of St. Paul, Inc. v. United States Postal Serv., 945 F.2d 1434, 1437 (8th Cir. 1991)).
“It is axiomatic that the federal courts lack plenary jurisdiction.” Southwestern Bell Tel. Co. v.
Connect Communications Corp., 225 F.3d 942, 945 (8th Cir. 2000). Rather, “[t]he inferior federal
courts may only exercise jurisdiction where Congress sees fit to allow it.” Id. Put simply, federal
courts cannot hear cases that fall outside of the limited jurisdiction granted to them. Bhd. of Maint.
of Way Emps. Div. of Int'l Bhd. of Teamsters v. Union Pac. R. Co., 475 F. Supp. 2d 819, 831
(N.D. Iowa 2007).
Federal Rule of Civil Procedure 8(a) requires a pleading only to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Nevertheless, a complaint
may be dismissed for “failure to state a claim upon which relief can be granted,” and a party may
raise that defense by motion. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a
complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is
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plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must show that
success on the merits is more than a “sheer possibility.” Id.
Section 1983
Whether the VRA contains a private right of action is significant because, without it, the
Court does not have subject matter jurisdiction to decide a Section 2 claim that is not joined by the
United States Attorney General. At first blush, the Secretary’s argument, and the decision in
Arkansas State Conf. NAACP, are compelling. However, unlike the complaint in Arkansas State
Conf. NAACP, the Plaintiffs here seek relief under § 1983 and Section 2 of the VRA. So, the
Plaintiffs argue they have a private right of action to support their Section 2 claim because the
complaint seeks to enforce Section 2 in conjunction with § 1983. The Secretary, for his part, argues
that Congress effectively shut the door to a § 1983 remedy. However, the Court is not persuaded.
Section 1983 provides a remedy for violations of federal rights committed by state actors.
Gonzaga Univ. v. Doe, 536 U.S. 273, 284, 122 S. Ct. 2268, 2276 (2002). Rights are enforceable
through § 1983 only if it is clear that Congress intended to establish an individual right. Gonzaga
Univ., 536 U.S. 273, at 284. “Once a plaintiff demonstrates that a statute confers an individual
right, the right is presumptively enforceable by § 1983.” Id. This presumption of enforceability is
only overcome in cases where Congress intended to foreclose any § 1983 remedy. Middlesex Cnty.
Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19–20, 101 S.Ct. 2615, 69 L.Ed.2d 435
(1981); see also Alexander v. Sandoval, 532 U.S. 275, 290, 121 S. Ct. 1511, 1521, 149 L. Ed. 2d
517 (2001).
Prior to Gonzaga University, the United States Supreme Court’s case law regarding what
rights are enforceable through § 1983, in the Court’s words, “may not [have been] models of
clarity.” Gonzaga Univ., 536 U.S. 273, at 278. As such, the Gonzaga University Court sought to
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clarify the test for what rights can be enforced through § 1983. The Supreme Court held that the
initial inquiry—determining whether a statute confers any right at all—is no different from the
initial inquiry in an implied right of action case, the express purpose of which is to determine
whether or not a statute confers a right on a particular class of person. Id. at 258. Accordingly:
A court’s role in discerning whether personal rights exist in the § 1983 context
should therefore not differ from its role in discerning whether personal rights exist
in the implied right of action context. Both inquiries simply require a determination
as to whether or not Congress intended to confer individual rights upon a class of
beneficiaries.
Id. at 285 (cleaned up). In sum, § 1983 can create a remedy for a plaintiff when one does not
already exist. When a statute does not provide an explicit right of action, the analysis of whether a
plaintiff may bring a § 1983 claim is dependent on whether the statute sought to be enforced
through § 1983 confers rights on a particular class of people.
Importantly (and likely not coincidentally), Arkansas State Conf. NAACP, which is the
only factually similar case cited by the Secretary in support of his motion, specifically notes that
§ 1983 was not alleged in the complaint at issue in that case, and that because Section 2 lacked a
private right of action, there was no need to consider whether the text of the statute conferred a
right. 2022 WL 496908, at *10. Stated another way, the analysis in Arkansas State Conf. NAACP
ended because there was no private remedy available, and no other claims were alleged. However,
here, because a § 1983 claim was alleged, there is a presumption of a private remedy, should
Section 2 create a right. This fact is significant and undoubtably distinguishes Arkansas State Conf.
NAACP. So, the questions this Court is left with, then, is whether Section 2 confers rights on a
particular class of people, and if so, whether the Secretary can rebut the presumption that § 1983
provides a remedy.
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Text of Section 2
Turning to the first question, it is undisputed that Section 2 of the VRA does not explicitly
contain a private right of action, making the Plaintiffs’ claim contingent on the existence of an
implied private right of action. As alluded to in Gonzaga University, to enforce a statute under an
implied private right of action, the Plaintiffs must satisfy two requirements: (1) the statute’s text
must contain language that confers a right, and (2) the party must demonstrate the availability of a
private remedy. Sandoval, 532 U.S. at 286–88, 121 S.Ct. 1511. As noted above, § 1983 provides
a private remedy. The Court now turns to whether the text of Section 2 confers a right. As relevant
here, Section 2 states:
No voting qualification or prerequisite to voting or standard, practice, or procedure
shall be imposed or applied by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any citizen of the United States to
vote on account of race or color . . ..
52 U.S.C. § 10301(a). The plain language of Section 2 mandates that no government may restrict
a citizen’s right to vote based on an individual’s race or color. It is difficult to imagine more explicit
or clear rights creating language. It cannot be seriously questioned that Section 2 confers a right
on a particular class of people. And indeed, the Secretary does not argue that Section 2 does not
contain rights creating language. When this right is taken collectively with the remedy available
through § 1983, an implied private right of action is present, and the motion to dismiss must be
denied, unless the Secretary can show that the VRA’s enforcement scheme demonstrates
congressional intent to preclude a § 1983 remedy. See generally Gonzaga Univ., 536 U.S. 273.
The VRA’s Enforcement Scheme
To that end, a party can rebut the presumption that a federal right is enforceable through
§ 1983 by demonstrating congressional intent to foreclose a § 1983 remedy. See id. at 284 n.4.
Congressional intent may be found directly in the statute creating the right or inferred from the
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statute’s creation of a “comprehensive enforcement scheme that is incompatible with individual
enforcement.” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005). An
express, private means of redress in the statute itself is ordinarily an indication that Congress did
not intend to leave open a remedy under § 1983. Blessing v. Freestone, 520 U.S. 329, 341 (1997).
Section 2 does not contain any language creating a private remedy distinct from § 1983. In
fact, Section 2 proscribes no remedy at all. As a result, the Court cannot conclude that anything in
Section 2 indicates congressional intent to specifically prevent enforcement through § 1983 by
providing a separate private remedy.
Now to the enforcement scheme. The Secretary argues Section 12 of the VRA (“Section
12”), 52 U.S.C. § 10308, provides a comprehensive scheme to enforce Section 2 that is
incompatible with private enforcement. Admittedly, Section 12 contains no express, private
remedies and provides the right to the Attorney General to seek an injunction and potential fines
and imprisonment for violations of the VRA. See 52 U.S.C. § 10308. Critically, though, there is
also nothing in Section 12 that is incompatible with private enforcement, as there can be collective
and private remedies available for the same federal statute. See Cannon v. Univ. of Chicago, 441
U.S. 677, 717 (1979) (collective and private remedies available for violation of Title IX). Tellingly,
the VRA itself seems to anticipate private litigation, as it contains a provision allowing for court-
ordered attorneys’ fees for “the prevailing party, other than the United States.” 52 U.S.C. §
10310(e).
Further, there has been private enforcement of Section 2 since the VRA’s inception. See
Allen v. State Bd. of Elections, 393 U.S. 544, 555 (1969); Ala. State Conf. of NAACP v. Alabama,
949 F.3d 647, 652 (11th Cir. 2020); Mixon v. Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999);
Singleton v. Merrill, No. 2:21-cv-1530-AMM, 2022 WL 265001, at *79 (N.D. Ala. Jan. 24, 2022).
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These private enforcement actions have co-existed with collective enforcement brought by the
United States for decades. See, e.g., Allen, 393 U.S. 544, at 555.
Given the lack of evidence that Congress intended to provide an explicit private remedy,
and the robust history of the private and collective rights co-existing, the Court cannot conclude
that private enforcement of Section 2 is incompatible with the enforcement scheme in Section 12.
As a result, the Secretary has not rebutted the presumption that § 1983 may provide a remedy for
the Plaintiffs in this case, the Court has subject matter jurisdiction to entertain this private claim,
and the complaint does not fail to state a claim upon which relief can be granted. Accordingly, the
motion to dismiss is denied. Because this Court finds that Section 2 may be enforced through
§ 1983, the Court need not decide whether Section 2 of the VRA, standing alone, contains an
implied private right of action.
III. CONCLUSION
The Court has carefully reviewed the record, the parties’ filings, and the relevant legal
authority. For the reasons above, the Secretary’s motion to dismiss for lack of jurisdiction and
failure to state a claim (Doc. No. 17) is DENIED.
IT IS SO ORDERED.
Dated this 7th day of July, 2022.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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