The Supreme Court last week overturned an appeals court ruling that shielded Republican state legislators in North Dakota from having to comply with subpoenas in a voting rights lawsuit.
The new decision quashes a ruling by the U.S. Court of Appeals for the Eighth Circuit that put state lawmakers’ legislative privilege against being subpoenaed on an equal footing with that of federal lawmakers.
The circuit court previously held that legislative privilege is needed so public servants can do their jobs without worrying about personal liability or constant litigation and that precedent holds that state lawmakers are entitled to the same protection as lawmakers in the United States Congress.
The Supreme Court ruled in 1975 that federal lawmakers and their aides could not be subpoenaed regarding activities within the “legitimate legislative sphere.”
The Supreme Court’s new decision came after a divided Eighth Circuit ruled on June 6, 2023, that the state lawmakers were immune from subpoenas issued as part of evidence-gathering efforts in a challenge to a 2021 state-legislative redistricting plan.
A Native American tribe had sued seeking communications among six current and former Republican legislators and outside parties during a contentious redistricting process in the Republican-led state Legislature.
The only current legislator in that group is North Dakota Rep. Michael Nathe. The former lawmakers include former state Rep. Terry B. Jones and former state House Speaker William Devlin. Also in the group are former state Sens. Ray Holmberg, Nicole Poolman, and Richard Wardner. Former legislative counsel Claire Ness, who is now the state’s deputy attorney general, was also sued.
The tribe said it needed the communications to prove that some lawmakers had an “illicit motive” in developing the redistricting plan. The plan, they argued in a lawsuit filed against North Dakota Secretary of State Michael Howe, unlawfully watered down the voting power of Native Americans living on two Indian reservations in north-central North Dakota.
The argument was that the plan violated Section 2 of the federal Voting Rights Act, which prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a large language minority group.
While the Eighth Circuit’s ruling was on its way to the Supreme Court for review, a federal district court ruled in favor of the tribe on its Voting Rights Act claim.
“Vacatur is warranted here because the dispute became moot by no fault of the parties, and because the ruling ... is legally consequential, and will have significant impacts beyond this dispute,” the petition stated.
Vacatur, meaning “it is vacated,” refers to a court order that sets aside a judgment.
In an unsigned order on July 2, the Supreme Court granted the petition for certiorari, or review, in Turtle Mountain Band of Chippewa Indians v. North Dakota State Legislative Assembly.
At the same time, the nation’s highest court vacated the Eighth Circuit’s decision and returned the case to that court “with instructions to dismiss the case as moot.”
The Supreme Court did not provide reasons for its ruling, but Justice Ketanji Brown Jackson dissented, writing that the tribe had not shown it was entitled to an order to vacate.
Native American Rights Fund staff attorney Michael Carter, a co-counsel for the tribe, hailed the new ruling.
The Epoch Times reached out for comment to the Legislature’s attorney, Scott Porsborg of Bismarck, North Dakota, but received no reply by press time.
The Turtle Mountain Band case is one of two voting rights cases from the Roughrider State to come before the Supreme Court this year.
The other is a related case called Walen v. Burgum. The lead petitioner is Chuck Walen, who won the Republican primary election for North Dakota State Senate District 4 on June 11. The general election is Nov. 5.
The redistricting plan approved by a lower court allows the state to carve two new minority-majority state legislative subdistricts out of two two-member districts to help elect local Native Americans.
In the state’s eyes, the problem with the case it won is that a three-member panel of federal district judges assumed that attempting to comply with the Voting Rights Act justifies racial discrimination in validating the new subdistricts.
In other words, North Dakota Gov. Doug Burgum argues that the panel arrived at the correct result but for the wrong reasons. Mr. Burgum sought the 2024 Republican presidential nomination but dropped out months ago and became an adviser to former President Donald Trump’s campaign. He is said to be on the short list of prospective running mates for the former president.
Mr. Burgum said in a brief that “as a matter of first principles, the State is unable to defend the basis” for the judgment, specifically, the district court’s assumption that attempting to comply with the Voting Rights Act makes racial discrimination acceptable.
The case found its way to the nation’s highest court after Mr. Walen and another Republican-affiliated voter sued to challenge the redistricting plan. They claim that the plan unconstitutionally favors Native Americans at the expense of members of all other races.
On June 10, the Supreme Court asked U.S. Solicitor General Elizabeth Prelogar to file a brief expressing the federal government’s views on the case. The court did not provide a deadline.
