North Dakota urged the Supreme Court on July 22 to leave a federal appeals court ruling in place that upholds an electoral map a judge approved in 2024.
The ruling by the U.S. Court of Appeals for the Eighth Circuit also prevents voters in the seven states it covers from suing over alleged discrimination under the federal Voting Rights Act. The states within the circuit’s geographical boundaries are North Dakota, South Dakota, Arkansas, Iowa, Minnesota, Missouri, and Nebraska.
The new filing by North Dakota came after Justice Brett Kavanaugh issued an emergency order on July 16 in Turtle Mountain Band of Chippewa Indians v. Howe. Kavanaugh did not explain his decision, which temporarily puts the Eighth Circuit’s ruling on hold. The order Kavanaugh issued, known as an administrative stay, gives the nine justices more time to consider to case.
The applicants who sought the order from the Supreme Court are the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and three Native American voters. The respondent is Michael Howe, North Dakota’s secretary of state.
The Indian tribes had argued in their lawsuit that an electoral map the North Dakota Legislature approved in 2021 violated the nondiscrimination provisions of the Voting Rights Act. Section 2 of the statute prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a large language minority group.
They filed what’s called a private enforcement lawsuit against the secretary of state to enforce Section 2. They brought their lawsuit under 42 U.S.C. Section 1983, a federal law that allows individuals to sue the government for civil rights violations.
They argued that the Legislature placed electoral district boundary lines for state-level elections in a way that illegally diluted the voting strength of Native Americans.
A federal district court sided with the tribes in January 2024 and adopted a map they proposed that was used in elections that year.
In May, the Eighth Circuit ruled that the tribes had no right to sue under Section 1983 to privately enforce Section 2 and ordered that the 2021 map be reinstated.
The Supreme Court’s July 16 ruling froze the Eighth Circuit’s judgment and left the 2024 map in place for now.
Howe said in the July 22 brief that the applicants’ arguments fall short of what is required for the Supreme Court to permanently block the Eighth Circuit’s ruling.
The applicants hope that blocking the ruling “would have the extraordinary effect of requiring North Dakota to hold two consecutive elections using a court-imposed map that the Eighth Circuit … determined should never have been imposed to begin with,” the brief reads.
Several courts “have uncritically assumed” that private plaintiffs may sue over vote-dilution claims, but “assumptions” are not court rulings, Howe said.
“And the fact that Section 2’s private enforceability was not previously challenged does not mean Congress spoke with the clarity needed to create a privately enforceable right,” he said.
In fact, the Eighth Circuit has issued two “deliberately and thoroughly reasoned” opinions on that legal issue, Howe said.
Instead of halting the circuit court ruling, the Supreme Court “should follow the normal course.”
This means it should “allow the Eighth Circuit’s judgment to take effect” before the Supreme Court formally grants review “and has had the opportunity to fully consider the merits of the Circuit Court’s rigorous analysis,” Howe said.
The tribes said in their July 15 application to the Supreme Court that North Dakota “reduced from three to one the number of legislative seats in which Native American voters in northeastern North Dakota could elect representatives of their choice.”
They said that the Eighth Circuit’s ruling and other courts’ similar rulings “knee-cap Congress’s most important civil rights statute” and are “especially harmful to Native Americans.”
“North Dakota—like many states—has a long and sad history of official discrimination against Native Americans that persists to this day,” their application reads.
The Eighth Circuit’s ruling means that it is “the only Circuit in which private plaintiffs cannot enforce Section 2,” the application said.
The Supreme Court could rule on the application at any time.
This article by Matthew Vadum appeared July 22, 2025, in The Epoch Times. It was updated July 23, 2025.
Photo: Supreme Court Justice Brett Kavanaugh