Emergency Application — Turtle Mountain Band of Chippewa Indians, et al., Applicants v. Michael Howe, Secretary of State of North Dakota
Supreme Court briefJul 15, 2025
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No. 25A-__________
In the Supreme Court of the United States
TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS, et al.,
Applicants,
v.
MICHAEL HOWE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF NORTH
DAKOTA,
Respondent.
EMERGENCY APPLICATION TO STAY THE EIGHTH CIRCUIT’S
MANDATE PENDING PETITION FOR WRIT OF CERTIORARI
Mark P. Gaber
Anna M. Baldwin
Melissa Neal
CAMPAIGN LEGAL CENTER
1101 14th Street NW, Ste. 400
Washington, DC 20005
(202) 736-2200
Timothy Q. Purdon*
ROBINS KAPLAN, LLP
1207 West Divide Avenue, Suite 200
Bismarck, ND 58501
(701) 255-3000
Bryan L. Sells
THE LAW OFFICE OF
BRYAN L. SELLS, LLC
PO Box 5493
Atlanta, GA 31107
(404) 480-4212
John E. Echohawk
Counsel of Record
Matthew Campbell
Allison Neswood
Jacqueline De León
NATIVE AMERICAN RIGHTS FUND
250 Arapahoe Avenue
Boulder, CO 80302
(303) 447-8760
Leonard R. Powell
Samantha Blencke
NATIVE AMERICAN RIGHTS FUND
950 F Street NW, Suite 1050
Washington, DC 20004
(202) 785-4166
Counsel for Applicants
*Counsel for Applicants Turtle Mountain Band of Chippewa Indians and Spirit
Lake Nation
PARTIES TO THE PROCEEDING
The applicants in this Court are Turtle Mountain Band of Chippewa Indians,
Spirit Lake Tribe, Wesley Davis, Zachery S. King, and Collette Brown.
The respondent in this Court is Michael Howe, in his official capacity as
Secretary of State of North Dakota.
The North Dakota Legislative Assembly was a movant in the Eighth Circuit
but is not a party in this Court.
i
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1
FACTUAL BACKGROUND AND PROCEEDINGS BELOW ..................................... 5
I.
The 2021 redistricting process ............................................................................ 5
II. District Court proceedings .................................................................................. 8
III. Eighth Circuit proceedings................................................................................ 12
A. Eighth Circuit holds that Section 2 contains no implied private right of
action in Arkansas NAACP. ....................................................................... 13
B. The Eighth Circuit forecloses Section 1983 enforcement of Section 2 in
Turtle Mountain.......................................................................................... 15
JURISDICTION........................................................................................................... 18
REASONS FOR GRANTING A STAY OF THE MANDATE..................................... 19
I.
There is a reasonable probability that four Justices will vote to grant
review. ................................................................................................................ 19
A. The Eighth Circuit has created a stark circuit split. ................................ 20
B. This issue is exceptionally important and will be recurring until this
Court resolves the circuit split. .................................................................. 24
II. There is a fair prospect that this Court will reverse the judgment below. ..... 26
A. Section 2 of the Voting Rights Act creates individual rights that are
enforceable through Section 1983. ............................................................. 26
B. Section 2 is enforceable through its own right of action, as Congress
intended and has ratified. .......................................................................... 33
III. The irreparable harm Plaintiffs face and the balance of the equities favor a
stay of the mandate. .......................................................................................... 34
CONCLUSION............................................................................................................. 38
ii
TABLE OF AUTHORITIES
Cases
Alabama State Conference of NAACP v. Alabama,
949 F.3d 647 (11th Cir. 2020) .......................................................................... 21, 22
Allen v. Milligan, 599 U.S. 1 (2023) ................................................ 4, 10, 20, 24, 33, 34
Allen v. State Board of Elections, 393 U.S. 544 (1969)............................................... 33
Arkansas State Conference NAACP v. Arkansas State Legislature,
86 F.4th 1204 (8th Cir. 2023) ........................................................................... 13, 28
Arkansas State Conference of NAACP v. Arkansas Board of Apportionment,
91 F.4th 967 (8th Cir. 2024) ................................................................. 13, 14, 15, 33
Bethune-Hill v. Virginia State Board of Elections, 580 U.S. 178 (2017) ................... 37
Brnovich v. Democratic National Committee, 594 U.S. 647 (2021) ........................... 20
California v. American Stores Co., 492 U.S. 1301 (1989)........................................... 20
Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994) .............................................. 21
Chisom v. Roemer, 501 U.S. 380 (1991) ...................................................................... 27
Clerveaux v. East Ramapo Central School District,
984 F.3d 213 (2d Cir. 2021) .................................................................................... 20
Forest Grove School District v. T.A., 557 U.S. 230 (2009) .......................................... 34
Georgia State Conference of NAACP v. Georgia, No. 1:21-CV-5338-ELB-SCJ-SDG,
2022 WL 18780945 (N.D. Ga. Sept. 6, 2022) ................................................... 21, 23
Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir. 1988) ..................................... 21
Gonzaga University v. Doe, 536 U.S. 273 (2002) .......................................................... 8
Growe v. Emison, 507 U.S. 25 (1993) .......................................................................... 20
Harvell v. Blytheville School District No. 5, 71 F.3d 1382 (8th Cir. 1995) ........... 20-21
Health & Hospital Corp. of Marion County v. Talevski,
599 U.S. 166 (2023) ........................................................................ 14, 26, 27, 28, 30
Holder v. Hall, 512 U.S. 874 (1994) ............................................................................ 20
Hollingsworth v. Perry, 558 U.S. 183 (2010) ........................................................ 19, 35
Johnson v. De Grandy, 512 U.S. 997 (1994) ............................................................... 20
Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984)....................................................... 21
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ........... 20, 27
League of United Latin American Citizens v. Abbott, No. EP-21-CV-00529-DCGJES-JVB, 2021 WL 5762035 (W.D. Tex. Dec. 3, 2021) ......................................... 21
iii
Medina v. Planned Parenthood South Atlantic, 606 U.S. __; No. 23-1275, 2025 WL
1758505 (U.S. June 26, 2025) .................................................................... 18, 26, 31
Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999)......................................................... 21, 22
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)................................ 14, 33
Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................................................................ 36
Robinson v. Ardoin, 86 F.4th 574 (5th Cir. 2023)................................................. 21, 22
Rural West Tennessee African-American Affairs Council v. Sundquist,
209 F.3d 835 (6th Cir. 2000) .................................................................................. 20
Sanchez v. Colorado, 97 F.3d 1303 (10th Cir. 1996) .................................................. 20
Shady Grove Orthopedic Associates P.A. v. Allstate Insurance Co.,
559 U.S. 393 (2010) ................................................................................................ 29
Shelby County v. Holder, 570 U.S. 529 (2013) ............................................................ 24
Singleton v. Allen, 691 F. Supp. 3d 1343 (N.D. Ala. 2023) .................................. 35, 36
Singleton v. Allen, No. 2:21-cv-01291-AMM,
2025 WL 1342947 (N.D. Ala. May 8, 2025) ...................... 21, 22, 23, 24, 25, 28, 34
Thornburg v. Gingles, 478 U.S. 30 (1986)................................................................... 20
Turtle Mountain Band of Chippewa Indians v. Howe,
137 F.4th 710 (8th Cir. 2025) .......................... 1-2, 15, 16, 17, 18, 25, 28, 29, 30, 32
Voinovich v. Quilter, 507 U.S. 146 (1993) ................................................................... 20
Westwego Citizens for Better Government v. City of Westwego,
946 F.2d 1109 (5th Cir. 1991) ................................................................................ 21
Wright v. Sumter County Board of Elections & Registration,
979 F.3d 1282 (11th Cir. 2020) .............................................................................. 20
Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685 (2022).................................................. 27
Constitutional Provisions and Statutes
U.S. Const. amend I. .................................................................................................... 30
U.S. Const. amend XIV ................................................................................................ 30
U.S. Const. amend XV ................................................................................................. 31
N.D. Const. art. IV, § 5 .................................................................................................. 4
28 U.S.C. § 1291 ........................................................................................................... 18
28 U.S.C. § 1331 ........................................................................................................... 18
28 U.S.C. § 1343(a)(3) .................................................................................................. 18
28 U.S.C. § 1343(a)(4) .................................................................................................. 18
28 U.S.C. § 2101(f) ................................................................................................. 18, 19
iv
42 U.S.C. § 1396r(c)(1)(A) ............................................................................................ 29
42 U.S.C. § 1396r(c)(2)(A) ............................................................................................ 29
42 U.S.C. § 1983 ................................................................................................. 2, 27, 30
52 U.S.C. § 10301 ......................................................................................................... 31
52 U.S.C. § 10301(a) .................................................................................. 27, 28, 30, 32
52 U.S.C. § 10301(b) .................................................................................................... 28
52 U.S.C. § 10302(a) .................................................................................................... 21
52 U.S.C. § 10302(b) .................................................................................................... 21
52 U.S.C. § 10302(c) ..................................................................................................... 21
52 U.S.C. § 10308(a) .................................................................................................... 27
52 U.S.C. § 10308(c) ..................................................................................................... 27
N.D. Cent. Code § 16.1-11-06 ...................................................................................... 35
N.D. Cent. Code § 16.1-11-15 ...................................................................................... 35
Rules
S. Ct. Rule 18(3) ........................................................................................................... 25
S. Ct. Rule 22 ................................................................................................................. 1
S. Ct. Rule 23 ................................................................................................................. 1
Fed. R. App. P. 41(b) ...................................................................................................... 1
Other Authorities
Ellen D. Katz, Curbing Private Enforcement of the Voting Rights Act: Thoughts on
Recent Developments, 123 MICH. L. REV. ONLINE 23 (2024) ................................. 24
Pub. L. No. 89-110, 79 Stat. 437 (1965) ...................................................................... 31
N.D. Sec’y of State, Districts 9 and 15 2022 Election Results,
https://results.sos.nd.gov/Default.aspx?map=Cty&eid=vxUYQ0lrpP4 .................. 7
N.D. Sec’y of State, District 9 2024 Election Results,
https://results.sos.nd.gov/resultsSW.aspx?text=Race&type=LG&map=DIST .... 13
v
EMERGENCY APPLICATION TO STAY THE EIGHTH CIRCUIT’S
MANDATE PENDING PETITION FOR CERTIORARI
TO: The Honorable Brett M. Kavanaugh, Circuit Justice for the Eighth Circuit
Pursuant to Supreme Court Rules 22 and 23, Applicants respectfully request
a stay of the Eighth Circuit’s mandate pending this Court’s disposition of Applicants’
forthcoming petition for certiorari. The Eighth Circuit, over the dissent of Chief Judge
Colloton, denied Applicants’ motion to stay the issuance of the mandate on July 10,
2025, and thus absent action by this Court the mandate will issue on July 17, 2025.
See Fed. R. App. P. 41(b). Applicants (“Plaintiffs”) also respectfully ask this Court to
administratively stay issuance of the mandate pending disposition of this Application
because the North Dakota Legislative Council has published a memorandum
questioning whether Plaintiff Collette Brown, who is an elected state representative,
is eligible to remain in office once the Eighth Circuit’s mandate issues vacating the
district court’s judgment, which had enjoined the 2021 enacted North Dakota
legislative map as violating Section 2 of the Voting Rights Act. Appendix (“App.”) 101.
An administrative stay is warranted to maintain the status quo while the Court
considers this stay application. Finally, to the extent the mandate is issued before
this Application is granted, Applicants ask that the mandate be both recalled and
stayed.
INTRODUCTION
“Since 1982, private plaintiffs have brought more than 400 actions based on
§ 2 [of the Voting Rights Act] that have resulted in judicial decisions.” Turtle
Mountain Band of Chippewa Indians v. Howe, 137 F.4th 710, 721 (8th Cir. 2025)
1
(Colloton, C.J., dissenting). But as a result of the decision below, private plaintiffs
can no longer enforce Section 2 of the Voting Rights Act (VRA) in the Eighth Circuit.
The divided panel did not overturn the district court’s conclusion in this case
that the challenged legislative map denies Native American voters an equal
opportunity to elect their candidates of choice. Instead, the panel majority held that
private plaintiffs cannot rely on 42 U.S.C. § 1983 to file suit under the Voting Rights
Act to stop such unlawful voting discrimination. The decision below follows another
divided decision of the Eighth Circuit in which it found that Section 2 itself provides
no implied right of action. Together, these decisions make the Eighth Circuit the only
Circuit in which private plaintiffs cannot enforce Section 2.
The Eighth Circuit has now held that the VRA neither provides a right of
action for Section 2, nor does Section 2 create individual rights that can be enforced
through Section 1983. Indeed, the Eighth Circuit has held that Section 2 does not
unambiguously confer any individual rights at all. This is so, the majority below
reasoned, because the VRA also identifies states and political subdivisions as the
entities that are prohibited from denying or abridging a citizen’s right to vote. The
divided panel thus held that a statute that confers rights and identifies those
prohibited from violating those rights is, in fact, not one that protects against “the
deprivation of any rights . . . secured by the Constitution and laws.” 42 U.S.C. § 1983.
A stay is appropriate because there is a reasonable probability that this Court
will grant certiorari and a fair prospect that it will reverse the Eighth Circuit’s
judgment. These decisions starkly split from those of the Fifth, Sixth, and Eleventh
2
Circuits as well as every three-judge district court to consider the question. They
directly contravene this Court’s Section 1983 and Section 2 precedents. They turn the
statutory text of both Section 2 and Section 1983 on their heads. They upend sixty
years of practice. And they knee-cap Congress’s most important civil rights statute.
That blow is especially harmful to Native Americans and these Plaintiffs in
particular. North Dakota—like many states—has a long and sad history of official
discrimination against Native Americans that persists to this day. Tribal Nations and
individual Native American voters have successfully fought for decades to vindicate
their voting rights under Section 2.
Take this case. 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. The district court found in Plaintiffs’ favor
and imposed a remedial map—one the Secretary neither objected to nor appealed—
correcting the violation and resulting in the election of three Native American
legislators in 2024, including Plaintiff Representative Collette Brown.
Plaintiffs face potentially urgent harm in the absence of a stay. In a
memorandum posted on its website after the Eighth Circuit denied Plaintiffs’ stay
motion, the North Dakota Legislative Council contends that it is questionable
whether legislators elected pursuant to the district court’s remedial map may
continue to serve once the Eighth Circuit’s mandate issues if they do not reside in the
2021 legislatively adopted map’s version of their district. App. 101. 1 Plaintiff Collete
1 Plaintiffs do not agree with the Legislative Council’s questioning of Representative Brown’s legal
status to retain her position. The North Dakota Constitution provides that “[a]n individual may not
3
Brown resides on the Spirit Lake Reservation and was elected in 2024 as a state
representative for district 9. She does not reside in the 2021 map’s version of district
9 that the district court enjoined. The specter that she becomes potentially ineligible
to serve the moment the Eighth Circuit’s mandate issues warrants entry of an
administrative stay to maintain the status quo while the Court considers the stay
application.
Moreover, apart from this urgent issue, the Secretary has contended that a
map must be in place by December 31 to accommodate election procedures that
commence in January for the 2026 election. But this Court likely cannot adjudicate
Plaintiffs’ certiorari petition (or subsequent merits case) by that date. Plaintiffs thus
face irreparable harm if a decidedly unlawful map governs the 2026 election while
similarly situated plaintiffs in other circuits retain their Section 2-compliant
districts. And the Secretary is unharmed by maintaining the status quo—i.e.,
implementing a map the imposition of which he declined to oppose or appeal.
This case “is not about the law as it exists.” Allen v. Milligan, 599 U.S. 1, 23
(2023). It is about North Dakota’s attempt to remake both Section 2 and Section 1983
jurisprudence anew. The Court should stay the Eighth Circuit’s mandate while it
considers this case.
serve in the legislative assembly unless the individual lives in the district from which selected.” N.D.
Const. art. IV, § 5. Representative Brown indeed lives in the district from which she was selected—
district 9 in the map that governed the 2024 election. The Eighth Circuit’s vacatur does not reach back
in history to undo factual events that occurred. Regardless, however, the Legislative Council’s
memorandum warrants an administrative stay to maintain the status quo while the Court considers
this stay application.
4
FACTUAL BACKGROUND AND PROCEEDINGS BELOW
I.
The 2021 redistricting process
From 1990 to 2022, Native American voters in northeastern North Dakota
were able to elect their candidates of choice from state legislative district 9—one state
senator and two state representatives. 2 PX P001 at 44; PX P042 at 6.3 As of the 2020
Census, district 9 was wholly contained within Rolette County and had a Native
American voting age population (“NVAP”) of roughly 74%. App. 50. But the 2020
Census reported that district 9 was underpopulated, and thus it needed to expand to
satisfy population equality requirements. App. 54. Because the district’s northern
boundary is the Canadian border, there were three options for its expansion—south,
west, or east. App. 54. In late September 2021, the North Dakota legislative
management redistricting committee (“redistricting committee”) released a proposed
map that added parts of two counties to the east—Towner and Cavalier Counties.
App. 52. The added territory was almost entirely composed of white residents, with
the Towner County portion having just a 2.7% NVAP and the Cavalier County portion
having a 1.8% NVAP. App. 54. Overall, the addition of this nearly 100% white
population dropped district 9’s NVAP by 20 points. PX P042 at 3.
Additionally, the redistricting committee proposed subdividing district 9 into
two single-member house districts, districts 9A and 9B. App. 52. With an NVAP of
roughly 80%, district 9A was overwhelmingly packed with Native Americans and
2 Most North Dakota legislative districts are multimember.
3 “PX” refers to Plaintiffs’ trial exhibits.
5
contained the Turtle Mountain Band of Chippewa Indians (“Turtle Mountain”)
reservation and part of its off-reservation trust lands. App. 54. District 9B had an
NVAP of 32.2% and contained the remainder of the Turtle Mountain off-reservation
trust lands as well as the portions of Towner and Cavalier Counties appended to
district 9. App. 54.
Meanwhile, just to the south in Benson County is the Spirit Lake Tribe (“Spirit
Lake”). It was assigned to district 15, which has an NVAP of 23.1%. App. 54. The
configuration is shown below:
App. 54.
Following release of this proposed plan, the chairmen of Turtle Mountain and
Spirit Lake requested that the redistricting committee revise the proposal to unify
Turtle Mountain and Spirit Lake in district 9 by extending the district south from
Rolette County into Benson County rather than eastward from Rolette County into
Towner and Cavalier Counties. App. 52-53. The two Tribal Chairman highlighted
6
how nonracial interests favored the unification of Benson and Rolette Counties,
thereby bringing together the two Tribal Nations. They also showed how voting in
the region was racially polarized and emphasized that the redistricting committee’s
proposal would reduce the opportunity for Native American voters to elect their
preferred candidates. App. 52-53. The committee rejected the Tribal Nations’
proposal, instead voting to advance House Bill 1504, which contained the original
proposed configuration for districts 9, 9A, 9B, and 15. App. 53. The legislative
assembly enacted the Bill and the Governor signed it into law. App. 53.
The results of the November 2022 election played out as the Tribal Chairmen
had warned. The incumbent preferred by Native American voters in district 9, Native
American Senator Richard Marcellais, lost to his white opponent. PX P001 at 21.
Plaintiff Collette Brown—a Native American who was also preferred by Native
American voters—lost her bid for district 15 senator. PX P001 at 27. Native American
voters elected their preferred candidate, Representative Jayme Davis, in district 9A,
PX P001 at 21, while the incumbent Native American preferred candidate lost in
district 9B, PX P001 at 21.4
For the first time since 1990, there were no Native Americans serving in the
North Dakota Senate following the 2022 election, and districts in which Native
Americans had the opportunity to elect candidates of their choice in the region shrunk
from three seats to just one.
See
N.D.
Sec’y
of
State,
Districts
9
and
15
2022
Election
Results,
https://results.sos.nd.gov/ResultsSW.aspx?text=Race&type=LG&map=DIST&eid=vxUYQ0lrpP4.;
[https://perma.cc/4DLM-A3WD].
4
7
II.
District Court proceedings
In February 2022, Plaintiffs filed suit against the North Dakota Secretary of
State (“the Secretary”) under 42 U.S.C. § 1983 and Section 2 of the Voting Rights Act
(“VRA”). ECF No. 1 at 1. The suit alleged that the configuration of districts 9, 9A, 9B,
and 15 diluted Native American voting strength in northeastern North Dakota by
reducing from three to one the number of legislators Native American voters had an
equal opportunity to elect.
The Secretary moved to dismiss, arguing, inter alia, that there is no implied
right of action to enforce Section 2 of the Voting Rights Act. App. 90-91. The district
court did not reach this question because Plaintiffs also plead their claim under 42
U.S.C. § 1983, which the court held provided Plaintiffs a cause of action to enforce
Section 2. App. 91. Applying the test articulated in Gonzaga University v. Doe, 536
U.S. 273 (2002), the district court first concluded that Section 2 creates individual
rights, observing that “[i]t is difficult to imagine more explicit or clear rights creating
language” than the text of Section 2. App. 95 (referencing 52 U.S.C. § 10301(a)).
Second, the district court concluded that “nothing in [Section 2’s enforcement
provisions are] incompatible with private enforcement[.]” App. 96. Accordingly, the
district court ruled that “the Secretary has not rebutted the presumption that § 1983
may provide a remedy for the Plaintiffs in this case.” App. 97.
The district court held a four-day bench trial in June 2023 and on November
17, 2023, ruled in Plaintiffs’ favor. The court ruled that Plaintiffs had proved each of
the three Gingles preconditions. Regarding the first, the court reasoned that
8
Plaintiffs proffered two demonstrative districts in which Native Americans would be
a majority of eligible voters, with NVAPs of 66-69%. App. 64. Plaintiffs’ demonstrative
plan 1 is shown below, with district 9—which connects Rolette and Benson
Counties—identified by an arrow.
Plaintiffs’ Demonstrative Plan 1
App. 55.
The court determined that “[t]he evidence at trial shows that the Tribes’
proposed plans comport with traditional redistricting principles, including
compactness, contiguity, respect for political boundaries, and keeping together
communities of interest.” App. 64-65. Citing the trial evidence, the court observed
that the demonstrative districts “did not appear more oddly shaped than other
districts” and were “reasonably compact.” App. 65. Indeed, the Secretary’s expert
9
conceded as much, testifying that Plaintiffs’ proposed districts were compact and that
demonstrative district 9 in Plaintiffs’ Plan 1 split the same number of counties as the
enacted version of district 15 while resolving the enacted plan’s split of Towner
County. ECF No. 117 at 115, 122-23. Moreover, the Secretary’s expert testified that
Plaintiffs’ Plan 2 split fewer counties in the region than the enacted plan and had the
same number of statewide county splits. ECF No. 117 at 124; see Allen v. Milligan,
599 U.S. 1, 44 n.2 (2023) (Kavanaugh, J., concurring) (“In this case, for example, it is
important that at least some of plaintiffs’ proposed alternative maps respect county
lines at least as well as Alabama’s redistricting plan.”).
The Secretary’s expert likewise testified that Plaintiffs’ demonstrative plans
better respected communities of interest than did the enacted plan. ECF No. 117 at
130. Ultimately, the Secretary’s expert conceded that a reasonably configured district
in which Native American voters constitute the majority of eligible voters could be
drawn in the region, such that an evaluation of Plaintiffs’ demonstrative districts was
“more of a remedial question than it is necessarily a Gingles 1 question.” ECF No.
117 at 110-11.
The district court also found, based on the testimony of the Tribal Nations’
current and former Chairmen, that nonracial interests motivated the unification of
Benson and Rolette Counties (and thus the two Tribal Nations), including “shared
representational interests, socioeconomic statuses, and cultural values.” App. 65. In
particular, the court credited testimony of the Chairmen that “the Tribes often
collaborate to lobby the Legislative Assembly on their shared issues, including
10
gaming, law enforcement, child welfare, taxation, and road maintenance, among
others.” App. 65.
Although the Secretary’s counsel attempted to suggest that including two
Tribal Nations in the same legislative district was per se a racial gerrymander, his
expert testified to the contrary. He agreed that “Native American [T]ribes can have
shared interests other than the race of their members,” and that he had no basis to
dispute the testimony of the Tribal Chairmen regarding the Tribes’ nonracial shared
interests. He conceded that he “ha[d] no evidence that plaintiffs’ demonstrative plans
are a racial gerrymander.” ECF No. 117 at 167-68.
With respect to the second Gingles precondition, the district court observed
that “[t]he parties and their experts agree that voting in district 9 and 15 (when
voting at large) is racially polarized, with Native American voters cohesively
supporting the same candidates.” App. 66. Reviewing the electoral, demographic, and
qualitative evidence, the district court likewise concluded that Plaintiffs had shown
by a preponderance of the evidence that Native Americans within subdistricts 9A and
9B were politically cohesive, App. 67, a view shared by the Secretary’s expert, ECF
No. 117 at 140-42.
The district court also considered at length the electoral evidence and
concluded that Plaintiffs had proved the third Gingles precondition, i.e., whether
white voters usually defeat the preferred candidates of Native American voters. App.
67-80.
11
Finally, the district court assessed the totality of circumstances evidence and
concluded that Plaintiffs had shown a violation of Section 2. App. 84. The court
enjoined further implementation of the affected districts and provided more than a
month for the legislative assembly to adopt a remedial map. App. 84-85.
The district court denied the Secretary’s motion for a stay pending appeal,
rejecting his argument that Section 1983 did not provide Plaintiffs a cause of action
to enforce Section 2. App. 41-46. The legislative assembly failed to adopt a proposed
remedial map during the time allotted by the district court. After the chair of the
redistricting
committee
publicly
commented
that
he
preferred
Plaintiffs’
demonstrative Plan 2 over Plaintiffs’ demonstrative Plan 1, ECF No. 160 at 3-5,
Plaintiffs requested that their Plan 2 be imposed as the remedial map. The Secretary
filed no opposition, which the district court determined, pursuant to its local rules, to
mean the Secretary viewed the motion as well-taken. App. 39. The district court
granted the motion, imposing Plaintiffs’ Plan 2 as the remedial map. App. 39.
III.
Eighth Circuit proceedings
The Secretary appealed the district court’s liability order, but not its order
imposing the remedial map. After the district court denied the Secretary’s motion for
a stay of the district court’s liability finding, the Secretary renewed that motion in
the Eighth Circuit, contending, inter alia, that private plaintiffs cannot sue under
Section 2 using Section 1983’s cause of action. See Sec’y’s Mot. for Stay at 4, Turtle
Mountain Band of Chippewa Indians v. Howe, No. 23-3655 (8th Cir. Dec. 13, 2023)
(Doc. 5344314). On December 15, 2023, the Eighth Circuit denied the Secretary’s
12
motion for a stay in an order by Judges Colloton, Benton, and Kelly. App. 40. As a
result, the 2024 elections were held under the district court’s remedial map, and
Native American candidates won all three legislative positions for district 9, with
Senator Marcellais returning to office, Representative Davis winning reelection, and
Plaintiff Collette Brown winning the second state house seat. 5
A.
Eighth Circuit holds that Section 2 contains no implied private
right of action in Arkansas NAACP.
The Secretary’s argument for a stay was premised on an Eighth Circuit
decision that was published one business day after the district court issued its
liability decision in this case. In Arkansas State Conference NAACP v. Arkansas State
Legislature, a divided panel of the Eighth Circuit held that Section 2 does not contain
an implied private right of action.6 86 F.4th 1204, 1207 (8th Cir. 2023) (“Arkansas
NAACP”). The Arkansas NAACP majority first observed that it was “unclear whether
§ 2 creates an individual right.” Id. at 1209. On the one hand, the majority reasoned,
Section 2 “unmistakably focuses on the benefited class.” Id. (cleaned up) (quoting 52
U.S.C. § 10301(a)’s “right of any citizen . . . to vote” language). On the other hand, the
majority noted that the text of Section 2 also identifies those prohibited from violating
those rights: “states and political subdivisions.” Id. The majority noted that “[i]t is
unclear what to do when a statute focuses on both.” Id. at 1210. Notably, the majority
N.D.
Sec’y
of
State,
District
9
2024
Election
Results,
https://results.sos.nd.gov/resultsSW.aspx?text=Race&type=LG&map=DIST [https://perma.cc/9U8C22HD].
5
6 The court did not decide whether 42 U.S.C. § 1983 would allow for private enforcement of Section 2
because the Arkansas NAACP plaintiffs did not plead that cause of action. Arkansas State Conference
of NAACP v. Arkansas Bd. of Apportionment, 91 F.4th 967, 967 (8th Cir. 2024) (Stras, J. concurring).
13
did not cite or discuss this Court’s decision in Health & Hospital Corp. of Marion
County v. Talevski, in which this Court expressly answered that question. 599 U.S.
166, 185 (2023) (“[I]t would be strange to hold that a statutory provision fails to secure
rights simply because it considers, alongside the rights bearers, the actors that might
threaten those rights (and we have never so held).”).
Unsure of how to decide the first step of the implied-private-right analysis, the
Arkansas NAACP majority held that under the second step of the analysis, Congress
had intended only the Attorney General, and not private plaintiffs, to enforce Section
2, notwithstanding Supreme Court precedent, decades of practice, and statutory
references to “aggrieved person[s]” other than the U.S. Attorney General in the Act.
Arkansas NAACP, 86 F.4th at 1211. Then-Chief Judge Smith dissented, concluding
that five Justices in Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), had
found Section 2 to imply a private right of action. 86 F.4th at 1223 (“the simple fact
is that a majority of the justices explicitly recognized a private right of action under
Section 2 in Morse.” (cleaned up)).
The Arkansas NAACP plaintiffs petitioned for en banc review, which the court
denied—with Judge Smith, now Chief Judge Colloton, and Judge Kelly voting to
grant rehearing. Dissenting from the denial of rehearing en banc, Chief Judge
Colloton wrote that the panel majority “rendered an ambitious and unprecedented
ruling” that contravened “controlling precedent for an inferior court” from the
Supreme Court in Morse. Arkansas State Conference of NAACP v. Arkansas Bd. of
Apportionment, 91 F.4th 967, 969-70 (8th Cir. 2024) (“Arkansas NAACP II”)
14
(Colloton, C.J., dissenting). In denying rehearing en banc, Chief Judge Colloton
observed that the Eighth Circuit “regrettably misses an opportunity to reaffirm its
role as a dispassionate arbiter of issues that are properly presented by the parties.”
Id. at 974.
B.
The Eighth Circuit forecloses Section 1983 enforcement of
Section 2 in Turtle Mountain.
After the Eighth Circuit denied the Secretary’s motion for a stay in this case,
a different panel (Colloton, C.J, Gruender, J., and Kobes, J.) heard the merits. The
merits panel held that Section 2 is not privately enforceable under Section 1983 and
vacated the district court’s judgment, with Chief Judge Colloton dissenting. Turtle
Mountain, 137 F.4th 710.7
The majority concluded that its prior decision in Arkansas NAACP (which did
not present a Section 1983 claim) controlled the outcome in this case (which does
include a Section 1983 claim). The majority started by addressing the Gonzaga test,
which this Court fashioned to limit the overextension of Section 1983 claims to
spending power statutes. In that discussion, the majority held that Arkansas NAACP
had already decided that Section 2 was not a rights-creating statute: “It is thus
unnecessary to undertake an independent analysis of Gonzaga’s first step given that
Arkansas [NAACP] has already decided the issue.” Id. at 718. The majority treated
the issue as already-decided even as the Secretary conceded that the court’s prior
7 In light of Arkansas NAACP, Plaintiffs focused on their Section 1983 argument while preserving for
further appellate proceedings their argument that Section 2 also creates an implied private right of
action. See Brief of Plaintiff-Appellees at 21, n.2, Turtle Mountain Band of Chippewa Indians v. Howe,
No. 23-3655 (8th Cir. Mar. 18, 2024) (Doc: 5374180).
15
statements regarding whether Section 2 is rights-creating were nonbinding dicta. See
Oral
Arg.
at
7:53,
Case
No.
oa.ca8.uscourts.gov/OAaudio/2024/10/233655.MP3
23-3655,
http://media-
[https://perma.cc/7QZV-K22A]
(Counsel for Secretary: “[I]t was not the holding of the court, so it’s not controlling.”);
see also Turtle Mountain, 137 F.4th at 724 (Colloton, C.J., dissenting) (noting the
dicta).
The majority reasoned that Arkansas NAACP explained that Section 2 “focuses
on both the individuals protected and the entities regulated.” Id. at 719 (cleaned up).
Because Section 2 identifies both, the majority reasoned that Congress did not “speak
with a ‘clear voice’ that manifests an ‘unambiguous’ intent to confer individual
rights.” Id. (quoting Gonzaga, 536 U.S. at 280). “Accordingly, we conclude that the
plaintiffs are within the general zone of interest that the statute is intended to
protect, without the statute having unambiguously conferred an individual right.” Id.
The majority rejected Plaintiffs’ contention that Talevski compelled a contrary
conclusion given this Court’s instruction that “it would be strange to hold that a
statutory provision fails to secure rights simply because it considers, alongside the
rights bearers, the actors that might threaten those rights.” Id. at 720 (quoting
Talevski, 599 U.S. at 185). The majority reasoned that the Federal Nursing Home
Reform Act (“FNHRA”) has a “reference to regulated parties” whereas Section 2 has
a joint “focus” on both the rights-bearers and rights-violators. Id. To support the
majority’s “focus/reference” distinction, it observed that the statutory text first
mentions “any State or political subdivision” before it says “the right of any citizen .
16
. . to vote.” Id. (citing 52 U.S.C. § 10301(a)). The majority also rejected Plaintiffs’
argument that Gonzaga’s “unambiguous conferral” statutory construction standard
does not apply to Reconstruction Amendment enforcement statutes—which by their
nature enforce Amendments that expressly create rights. Id. at 721.
Chief Judge Colloton vigorously dissented. He observed that Gonzaga’s test
was an ill-fit for determining whether Reconstruction Amendment enforcement
statutes can be the subject of Section 1983 suits. “[T]he federalism concerns that
animated the Court’s decisions on § 1983 and the Spending Clause do not have the
same force here, because the Reconstruction Amendments already altered the
constitutional balance by limiting the power of the States and enlarging the power of
Congress.” Id. at 722 (Colloton, C.J., dissenting). “There is thus reason to question
whether courts should apply a substantive canon requiring unmistakable clarity
when interpreting laws enacted under the Fourteenth and Fifteenth Amendments.
Why not simply implement the statute as written based on traditional tools of
statutory interpretation?” Id.
But Chief Judge Colloton noted that it was unnecessary to decide that
question, because under Gonzaga “it is clear that Congress in § 2 of the Voting Rights
Act intended to confer a voting right.” Id. He reasoned that Talevski foreclosed the
Secretary’s argument that Section 2’s consideration of both rights-bearers and
potential rights-violators was relevant. Id. at 723. And he highlighted the uniform
view (in favor of Plaintiffs) of every circuit court to consider the question. Id. at 723.
Chief Judge Colloton rejected the majority’s view that Arkansas NAACP bound it,
17
characterizing that case’s discussion of the issue as “indeterminate dicta . . . . and illconsidered dicta at that.” Id. at 724.
Next, Chief Judge Colloton concluded that the Secretary did not overcome the
presumption that Section 1983 applied because there is no “indicia of congressional
intent to preclude private enforcement of the Voting Rights Act under § 1983.” Id. at
725.
On the merits, Chief Judge Colloton explained that “[t]he district court’s
decision is adequately supported by the record and should be affirmed.” Id.
Plaintiffs timely filed a petition for rehearing en banc on May 28, 2025, and on
June 27, 2025, filed a notice of supplemental authority regarding this Court’s decision
in Medina v. Planned Parenthood South Atlantic, 606 U.S. __; No. 23-1275, 2025 WL
1758505 (U.S. June 26, 2025). On July 3, 2025, the court denied Plaintiffs’ petition
for rehearing en banc, with Chief Judge Colloton, Judge Smith, and Judge Kelly
noting that they would have granted the petition, and with Judge Erickson not
participating. App. 2.
Plaintiffs moved to stay the issuance of the mandate on July 9, 2025, but the
court denied that motion on July 10, 2025, with Chief Judge Colloton noting he would
grant the stay motion. App. 1.
JURISDICTION
The district court had jurisdiction over Plaintiffs’ suit pursuant to 28 U.S.C.
§§ 1331 and 1343(a)(3) & (4). The Eighth Circuit had jurisdiction pursuant to 28
U.S.C. § 1291. This Court has jurisdiction to grant a stay pursuant to 28 U.S.C.
§ 2101(f).
18
REASONS FOR GRANTING A STAY OF THE MANDATE
This Court may stay a lower court’s issuance of the mandate in order “to enable
the party aggrieved to obtain a writ of certiorari.” 28 U.S.C. § 2101(f). “To obtain a
stay pending the filing and disposition of a petition for a writ of certiorari, an
applicant must show (1) a reasonable probability that four Justices will consider the
issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of
the Court will vote to reverse the judgment below; and (3) a likelihood that
irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558
U.S. 183, 190 (2010) (per curiam); see id. (“In close cases the Circuit Justice or the
Court will balance the equities and weigh the relative harms to the applicant and to
the respondent.”). Each requirement is readily met here.
I.
There is a reasonable probability that four Justices will vote to grant
review.
There is a reasonable probability that four Justices will vote to grant review,
given the split of authorities on this issue of exceptional importance. Everywhere else
in the country, private plaintiffs can rely on an unbroken line of Supreme Court and
circuit precedent to enforce the individual rights given to them by Congress in the
Voting Rights Act. But the decision below extinguished the only remaining pathway
for private enforcement of Section 2 of the VRA in the Eighth Circuit.
The Eighth Circuit’s pronouncement that Section 2 is not privately enforceable
contravenes this Court’s precedents and undermines the guarantee of uniformity in
federal law. Citizens in the Eighth Circuit now have fewer enforceable rights and
protections against racial discrimination in voting than citizens elsewhere in the
19
nation. There is a reasonable probability this Court will grant review of the Eighth
Circuit’s decision to ensure uniform application of the law.
A.
The Eighth Circuit has created a stark circuit split.
A “conflict among the lower courts on [an] important and recurring issue” in
the enforcement of federal law is a strong indicator that Supreme Court review is
warranted. California v. Am. Stores Co., 492 U.S. 1301, 1306 (1989) (O’Connor, J., in
chambers). The Eighth Circuit has created a stark circuit split with the holdings of
the Fifth, Sixth, and Eleventh Circuits, multiple three-judge district courts, and the
practice of every other court of appeals.
For decades, private plaintiffs have vindicated their rights in Section 2 cases
filed in every circuit, litigating many of those cases to the Supreme Court. Every case
that this Court has decided under the current version of Section 2 was brought by
private plaintiffs. See, e.g., Milligan, 599 U.S. at 1; Brnovich v. Democratic Nat’l
Comm., 594 U.S. 647 (2021); League of United Latin Am. Citizens v. Perry, 548 U.S.
399 (2006); Holder v. Hall, 512 U.S. 874 (1994); Johnson v. De Grandy, 512 U.S. 997
(1994); Growe v. Emison, 507 U.S. 25 (1993); Voinovich v. Quilter, 507 U.S. 146 (1993);
Thornburg v. Gingles, 478 U.S. 30 (1986). And private plaintiffs have successfully
vindicated their rights in Section 2 cases in circuits throughout the country. See, e.g.,
Clerveaux v. East Ramapo Cent. Sch. Dist., 984 F.3d 213 (2d Cir. 2021); Wright v.
Sumter Cnty. Bd. of Elections & Registration, 979 F.3d 1282 (11th Cir. 2020); Rural
W. Tenn. African-Am. Affs. Council v. Sundquist, 209 F.3d 835 (6th Cir. 2000), cert.
denied, 531 U.S. 944 (2000); Sanchez v. Colorado, 97 F.3d 1303 (10th Cir. 1996), cert.
denied, 520 U.S. 1229 (1997); Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382 (8th
20
Cir. 1995) (en banc), cert. denied, 517 U.S. 1233 (1996); Cane v. Worcester County, 35
F.3d 921 (4th Cir. 1994), cert. denied, 513 U.S. 1148 (1995); Westwego Citizens for
Better Gov’t v. City of Westwego, 946 F.2d 1109 (5th Cir. 1991); Gomez v. City of
Watsonville, 863 F.2d 1407 (9th Cir. 1988), cert. denied, 489 U.S. 1080 (1989);
Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert. denied, 471 U.S. 1135 (1985).
In contrast to the Eighth Circuit, the Fifth, Sixth, and Eleventh Circuits have
each held that Section 2 is privately enforceable, as has every three-judge court to
consider the issue. See Robinson v. Ardoin, 86 F.4th 574, 587-88 (5th Cir. 2023); Ala.
State Conf. of NAACP v. Alabama, 949 F.3d 647, 651-54 (11th Cir. 2020), vacated as
moot, 141 S. Ct. 2618 (2021); Mixon v. Ohio, 193 F.3d 389, 406 (6th Cir. 1999); see
also Singleton v. Allen, No. 2:21-cv-01291-AMM, 2025 WL 1342947 (N.D. Ala. May 8,
2025) (three-judge court); League of United Latin Am. Citizens v. Abbott, No. EP-21CV-00529-DCG-JES-JVB, 2021 WL 5762035, at *1 (W.D. Tex. Dec. 3, 2021) (threejudge court); Ga. State Conf. of NAACP v. Georgia, No. 1:21-CV-5338-ELB-SCJ-SDG,
2022 WL 18780945, at *7 (N.D. Ga. Sept. 26, 2022) (three-judge court).
In Robinson, the Fifth Circuit squarely held that “Section 2 provides for a
private right of action.” 86 F.4th at 587-88. Robinson explains that another section of
the VRA—Section 3—explicitly anticipates private enforcement of the Act. See id. at
588. Section 3 states in three separate subsections that proceedings to enforce the
voting guarantees provided under the Act can be brought by the Attorney General or
by an “aggrieved person.” 52 U.S.C. § 10302(a), (b), and (c). Robinson concluded that
private plaintiffs are “aggrieved person[s]” under the text of the VRA and that
21
Congress intended private enforcement of Section 2. 86 F.4th at 588. And Robinson
further noted that this conclusion followed directly from an earlier Fifth Circuit
decision holding that the VRA validly abrogates States’ sovereign immunity, the
purpose of which is to allow private plaintiffs to sue to vindicate their rights under
the VRA. See id. (citing OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir.
2017)).
The Eleventh Circuit has likewise held that the VRA is “enforceable by private
parties.” Ala. State Conf. of NAACP, 949 F.3d at 652. Like the Fifth Circuit, the
Eleventh Circuit carefully examined the text of the VRA, reading the rights created
under Sections 2 alongside the remedies provided under Section 3, and concluded that
the statute “explicitly provides remedies to private parties to address violations” of
the Act. Id. (citing 52 U.S.C. 10302(a)-(c)). The Sixth Circuit too has held that “an
individual may bring a private cause of action under Section 2[.]” See Mixon, 193 F.3d
at 406.
Well-reasoned decisions by three-judge district courts have also repeatedly and
uniformly held that Section 2 is privately enforceable. The decision granting a
permanent injunction in Singleton v. Allen was decided after Arkansas NAACP and
explicitly rejected the Eighth Circuit’s reasoning. 2025 WL 1342947, at *171. Like
the plaintiffs in this case, the plaintiffs in Singleton “availed themselves of Section
1983” in pressing their Section 2 claims. 2025 WL 1342947, at *172. Unlike the
Eighth Circuit, Judges Marcus, Moorer, and Manasco concluded that Section 2 is
enforceable through Section 1983 as it contains “rights-creating, individual-centric
22
language with an unmistakable focus on the benefited class.” Id. (citing Talevski, 599
U.S. at 183). Singleton emphasized that Section 2 is plainly a rights-creating statute:
“every sentence of Section [2] either refers to rights of the benefited class, contains
rights-creating language that creates new rights for that specific class, or expressly
focuses on the benefited class.” Id. at *173.
All other three-judge district courts to reach the issue agree. For example, a
three-judge court per curiam decision issued by Judges Branch, Jones, and Grimberg
explained that “[w]e think it obvious that, by its clear terms, Section 2 guarantees a
particular individual right to all citizens.” Georgia State Conf. of the NAACP, 2022
WL 18780945, at *4. Section 2 identifies a specific right in “explicit terms” and
“expressly defines the particular class of persons that holds the right.” Id. (citations
and internal quotation omitted); see also id. (“If that is not rights-creating language,
we are not sure what is.”).
This Court need not wait for any further developments on this issue before
acting on the clear circuit split. The Eighth Circuit’s pronouncement that Section 2
of the VRA is not privately enforceable is already subverting the guarantee of
uniformity in federal law. Citizens in the Eighth Circuit’s seven states now have
fewer enforceable rights and protections against racial discrimination in voting than
citizens in the rest of the nation. That result is unjust, untenable, and requires action
by this Court.
23
B.
This issue is exceptionally important and will be recurring
until this Court resolves the circuit split.
This Court has recognized that many consider the VRA to be “the most
successful civil rights statute in the history of the Nation.” Milligan, 599 U.S. at 10
(citation omitted). As such, there is no question that the private enforceability of
Section 2 is a question of exceptional importance. In Shelby County v. Holder, this
Court assured the nation that Section 2 would remain an essential and effective
backstop against discrimination in voting throughout the country. 570 U.S. 529, 537
(2013) (“Both the Federal Government and individuals have sued to enforce § 2 . . .
.”); id. at 557 (“Our decision in no way affects the permanent, nationwide ban on racial
discrimination in voting found in § 2.”).
Section 2 is, and always has been, enforced primarily by private litigants. From
1982 through August 2024, “private plaintiffs have been party to 96.4% of Section 2
claims that produced published opinions . . . and the sole litigants in 86.7% of these
decisions.” See Ellen D. Katz, Curbing Private Enforcement of the Voting Rights Act:
Thoughts on Recent Developments, 123 MICH. L. REV. ONLINE 23, 34 (2024); see also
Singleton, 2025 WL 1342947, *179 n.68 (noting that “the Department of Justice has
previously observed that private plaintiffs have brought over 400 Section [2] cases
resulting in judicial decisions since 1982, while the Department of Justice itself has
brought just 44 cases”) (citing Br. U.S. as Amicus Curie, Turtle Mountain Band of
Chippewa Indians v. Howe, No. 23-3655, 2024 WL 1417744 (8th Cir. Mar. 25, 2024)).
This issue will recur until this Court addresses the split that the Eighth Circuit has
created.
24
Indeed, the question of whether Section 2 is privately enforceable—either
through an implied right in Section 2 itself or through Section 1983—is likely to be
raised on this Court’s mandatory appellate docket in the upcoming Term. The
Milligan case has now reached final judgment in the plaintiffs’ favor. See Singleton,
2025 WL 1342947. Alabama contended that Section 2 is not privately enforceable
under either an implied right or Section 1983, and the district court thoroughly
analyzed and rejected its argument. Id. at *171-81. Alabama filed its notice of appeal
on June 6, 2025, see Notice of Appeal, Singleton v. Allen, No. 2:21-cv-01291-AMM
(N.D. Ala. June 6, 2025), ECF No. 329, and its jurisdictional statement is due in this
Court on August 5, 2025, see S. Ct. R. 18(3). That this Court will likely be presented
this issue on its mandatory appellate docket amplifies the probability that it will
grant certiorari in this case to ensure a uniform application of the Court’s decision.
Both this case and the Alabama case should stand on the same footing while
this Court adjudicates the private enforcement question. In Alabama, the remedial
district is in effect and scheduled to govern the 2026 election. In this case, the Eighth
Circuit’s denial of Plaintiffs’ motion to stay issuance of the mandate means that,
absent a stay from this Court, a legislative map with an adjudicated violation of
Section 2—which Chief Judge Colloton opined should be affirmed—would be allowed
to spring back to life. See Turtle Mountain, 137 F.4th at 725 (Colloton, J., dissenting).
That would be highly inequitable. That is particularly so given that North Dakota’s
Legislative Council has asserted that, should the prior (and unlawful) map spring
back into place, one of the plaintiffs in this case may no longer be able to serve, citing
25
a North Dakota constitutional provision requiring legislators to reside in the district
from which they were selected. App. 101. That possibility strongly favors a stay here.
Both Alabama’s and North Dakota’s remedial maps should govern the 2026 election
while this Court adjudicates the private enforcement question.
II.
There is a fair prospect that this Court will reverse the judgment
below.
There is a fair prospect that this Court will reverse the Eighth Circuit’s
judgment. That judgment conflicts with this Court’s precedents under Section 1983,
as well as its prior decisions regarding implied rights of action under the VRA itself.
It is also inconsistent with Congress’s ratification of the long-standing private
enforceability of Section 2.
A.
Section 2 of the Voting Rights Act creates individual rights
that are enforceable through Section 1983.
This Court’s precedents compel the conclusion that Section 2 creates rights
that are enforceable through Section 1983. A statute is presumptively enforceable
through Section 1983 when “the provision in question is phrased in terms of the
persons benefited and contains rights-creating, individual-centric language with an
unmistakable focus on the benefited class.” Talevski, 599 U.S. at 183 (citation and
internal quotation marks omitted). In Talevski, this Court held that the Federal
Nursing Home Reform Act (“FNHRA”)—a statute enacted under Congress’s Spending
Clause power—created rights enforceable under Section 1983. Id. at 192. This Court’s
decisions in both Talevski and Medina v. Planned Parenthood South Atlantic, No. 231275, 606 U.S. __ (2025), demonstrate that there is a fair prospect for reversal.
26
Section 2 contains distinctly rights-creating language. It protects the “right of
any citizen . . . to vote” free from racial discrimination. 52 U.S.C. § 10301(a); see also
Chisom v. Roemer, 501 U.S. 380, 392 (1991) (recognizing that Section 2 “grants
[individual citizens] a right to be free from” voting discrimination). Section 2 explicitly
refers to a citizen’s “right” and is “phrased in terms of the persons benefitted”—the
main criteria for whether a statute contains rights-creating language. Talevski, 599
U.S. at 183.
Indeed, parroting the very language of Section 1983, the VRA creates public
remedies against “[w]hoever shall deprive or attempt to deprive any person of any
right secured by [Section 2] . . . .” 52 U.S.C. § 10308(a) & (c) (referencing 52 U.S.C.
§ 10301). Congress’s express recognition that someone could “deprive any person of
any right secured by [Section 2],” id., is a surefire indication that Section 2 guards
against the “deprivation of any rights . . . secured by the Constitution and laws,” 42
U.S.C. § 1983. In characterizing Section 2 as securing rights, Congress certainly
detected none of the ambiguity that the majority below did. And if the decision below
was correct, then Congress’s express reference in § 10308(a) and (c) to Section 2 as
securing rights would be a nullity. See, e.g., Ysleta Del Sur Pueblo v. Texas, 596 U.S.
685, 699 (2022) (rejecting interpretation that renders statutory provision a “nullity”
or leaves “whole provisions without work to perform”).
Like Congress, this Court has had no difficulty concluding that Section 2
confers individual rights. See League of United Latin Am. Citizens v. Perry, 548 U.S.
at 437 (holding that the protected “right . . . does not belong to the ‘minority as a
27
group,’ but rather to ‘its individual members.’”) (quoting Shaw v. Hunt, 517 U.S. 899,
917 (1996)). In addition to focusing on the individual rights-holder, Section 2 also
identifies the “class of beneficiaries,” Talevski, 599 U.S. at 183, to which Plaintiffs
belong—individuals denied the right to vote “on account of race or color.” 52 U.S.C.
§ 10301(a). Section 2 provides that a violation is established if political processes are
not equally open to “members of a class of citizens” so protected. 52 U.S.C. § 10301(b).
“If all of this is not rights-creating language with an unmistakable focus on the
benefitted class, it is difficult to imagine what is.” Singleton, 2025 WL 1342947 at
*174 (three-judge court) (internal quotations and citations omitted).
In both the Arkansas NAACP decision and the decision below, the Eighth
Circuit reasoned that it is ambiguous whether Section 2 confers individual right
because the language of the statute “focuses on both” the right holders and those
prohibited from violating the rights. Arkansas NAACP, 86 F.4th at 1210; Turtle
Mountain, 137 F.4th at 719 (“Given this dual focus on the individuals protected and
the entitles regulated, we concluded that ‘[i]t is unclear whether Section 2 creates an
individual right.’”).
This directly contravenes Talevski. As Talevski explains, “it would be strange
to hold that a statutory provision fails to secure rights simply because it considers,
alongside the rights bearers, the actors that might threaten those rights,” 599 U.S.
at 185. Yet the Eighth Circuit failed to mention or consider Talevski at all in its
Arkansas NAACP decision. And its attempt to distinguish Talevski in its decision
below is unpersuasive.
28
The majority below reasoned that FNHRA merely includes “reference” to the
regulated entities, i.e., nursing homes, while “Section 2 focuses on both the entities
regulated and ‘any citizen.’” Turtle Mountain, 137 F.4th at 720 (quoting 52 U.S.C.
§ 10301(a)). Both this reasoning and its premise are wrong.
First, nothing in the text of Section 1983 supports the conclusion that a rightscreating statute is unenforceable when it does more than create rights. So long as one
of the focuses of a “dual focused statute” is the conferral of rights, that is enough for
Section 1983 to apply. Statutory rights do not disappear by the inclusion of something
else in the statute.
Second, the majority relied on an unconvincing distinction between a
“reference” (FNHRA) and a “focus” (Section 2) on the regulated entities that was
“entirely artificial . . . . a sure sign that [the] distinction is made-to-order.” Shady
Grove Orthopedic Assocs. P.A. v. Allstate Ins. Co., 559 U.S. 393, 399 (2010). The
relevant FNHRA provisions start by saying either “[a] nursing facility must protect
and promote the rights of each resident, including each of the following rights,” 42
U.S.C. § 1396r(c)(1)(A), or “[a] nursing facility must permit each resident to remain
in the facility . . . .,” id. § 1396r(c)(2)(A). The statutes first identify the regulated entity
before the rights they cannot violate.
Section 2 is no different. It says:
[n]o voting qualification or prerequisite to voting or standard, practice,
or procedure shall be imposed 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 . . . .
29
52 U.S.C. § 10301(a). The majority below sought to distinguish Section 2 by reasoning
that “the subject of § 2’s prohibition is ‘any State or political subdivision,’ rather than
on the conferral of a right to ‘any citizen.’” Turtle Mountain, 137 F.4th at 720 (quoting
52 U.SC. § 10301(a)). This is hardly telling; of course it is the States and political
subdivisions that are the subject of Section 2’s “prohibition.” So too are the nursing
homes the subject of FNHRA’s “prohibition.” The individual right will never be the
subject of a statute’s “prohibition,” the regulated entity must be. Rather, the question
is whether the statute identifies rights that are prohibited from being violated. Both
FNHRA and Section 2 do.
Returning to the text of Section 1983, nowhere does it indicate that whether a
provision of the “Constitution and laws,” 42 U.S.C. § 1983, is enforceable depends
upon whether the rights are conferred in the beginning, middle, or end of the
statutory sentence. Under the Eighth Circuit’s reasoning, a statute would be
enforceable under Section 1983 if it says a “right shall not be violated by any State or
political subdivision” but would be unenforceable if it says “no State or political
subdivision shall violate a right.” Taking this logic to its next step would lead to the
absurd result that the First and Fourteenth Amendments are unenforceable under
Section 1983. See U.S. Const. amend I (“Congress shall make no law . . .”); U.S. Const.
amend XIV (“No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”). But of course, “[t]he Fourteenth Amendment hardly fails to
secure § 1983-enforceable rights because it directs state actors not to deny equal
protection.” Talevski, 599 U.S. at 185 n.12.
30
This Court’s decision in Medina (issued after the decision below, but before the
Eighth Circuit denied en banc rehearing and denied a motion to stay the mandate),
further supports the conclusion that there is a fair prospect that this Court will
reverse. Medina emphasized that Congress’s use of the word “right” in statutory
language and title headings carries great weight. Medina, 2025 WL 1758505 at **1011 (“[A] title may underscore that the statutory text creates a right[.]”); Id. at **13.
This reasoning applies with greater strength to Section 2. Start with the law’s
title, i.e., the “Voting Rights Act.” That Congress made “Rights” one of just three
words in the law’s title “underscore[s] that the statutory text creates a right.” Id.
Section 2 thus starts at a stronger rights-creating posture than FNHRA.
Moreover, Congress explained that the Voting Rights Act was “[a]n Act . . . [t]o
enforce the fifteenth amendment to the Constitution of the United States . . . .” Pub.
L. No. 89-110, 79 Stat. 437, 437 (1965). Section 2 thus enforces the Fifteenth
Amendment’s guarantee that “[t]he right of citizens of the United States to vote shall
not be denied or abridged . . . on account of race, color, or previous condition of
servitude.” U.S. Const. amend. XV (emphasis added).
There are more statutory titles to consider as well, each brightly flashing
“rights-creating” signals. Section 2 is contained in Chapter 103 of Title 52. See 52
U.S.C. § 10301. Chapter 103’s title is “Enforcement of Voting Rights.” Section 2 is
codified at Section 10301 of Chapter 103. Section 10301’s title is “Denial or
abridgement of right to vote on account of race or color through voting qualifications
or prerequisites; establishment of violation.” Id. (emphasis added). And again, from
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there, Section 2’s text explicitly confers a “right of any citizen of the United States to
vote” that cannot be denied or abridged “on account of race.” id. § 10301(a) (emphasis
added).
Although certainly not necessary for Plaintiffs to prevail, given the decision in
Medina, there is also a fair prospect that this Court will hold that the Gonzaga test’s
“unambiguous conferral” requirement—developed in the context of a spending power
statute—does not apply to statutes enacted to enforce Reconstruction Amendments.
As the Supreme Court explained in Medina, “‘Gonzaga sets forth our established
method’ for determining whether a spending-power statute confers individual rights.”
Medina, 2025 WL 1758505, at **10 (quoting Talevski, 599 U.S. at 183); id. at 15
(explaining that the Gonzaga test “measure[s] whether spending-power legislation
confers a privately enforceable right”); id. at **9 (same).
As Chief Judge Colloton explained in dissent below, “the federalism concerns
that animated” the development of the unambiguous conferral requirement under
Section 1983 and the spending power “do not have the same force here, because the
Reconstruction Amendments already altered the constitutional balance by limiting
the power of the States and enlarging the power of Congress.” Turtle Mountain, 137
F.4th at 722 (Colloton, C.J., dissenting). There is thus a fair prospect that this Court
will decline to extend Gonzaga’s judicially-created rule of construction to
Reconstruction Amendment enforcement statutes like the VRA.
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B.
Section 2 is enforceable through its own right of action, as
Congress intended and has ratified.
Since 1965, Congress and the Supreme Court have repeatedly made clear that
private actors can enforce the VRA generally, and Section 2 specifically. In Morse,
five Justices recognized that although Section 2 “provides no right to sue on its face,
‘the existence of the private right of action under Section 2 . . . has been clearly
intended by Congress since 1965.’” 517 U.S. at 232 (opinion of Stevens, J., joined by
Ginsburg, J.) (omission in original) (quoting S. Rep. 97-417, at 30 (1982)); accord id.
at 240 (Breyer, J., concurring in the judgment, joined by O’Connor & Souter, JJ.).
Decades earlier, this Court found a private right of action to enforce Section 5
of the VRA. See Allen v. State Bd. of Elections, 393 U.S. 544, 556-557 (1969). Given
Allen, the Court in Morse recognized that Congress had likewise intended to create
private rights of action to enforce Section 2, as well as the prohibition on poll taxes in
Section 10 of the VRA. See 517 U.S. at 232-234 (opinion of Stevens, J.); id. at 240
(Breyer, J., concurring).
As Chief Judge Colloton explained, “[t]he Morse majority . . . necessarily
decided that § 2 is privately enforceable as an essential analytical step in its decision
that § 10 is privately enforceable.” Arkansas NAACP II, 91 F.4th at 970 (Colloton,
C.J., dissenting). Moreover, “Congress is undoubtedly aware of [this Court]
construing § 2 to [be privately enforceable]. It can change that if it likes. But until
and unless it does, statutory stare decisis counsels [this Court] staying the course.”
Milligan, 599 U.S. at 39. Congress has never questioned the view that Section 2 is
privately enforceable. Since Morse, Congress has twice amended Section 2 and made
33
no attempt to cabin private enforcement. “Congress is presumed to . . . adopt” preexisting judicial interpretations “when it re-enacts a statute without change.” Forest
Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-240 (2009) (citation omitted). “[T]he stare
decisis standard for this Court to overrule a statutory precedent, as distinct from a
constitutional precedent, is comparatively strict.” Milligan, 599 U.S. at 42
(Kavanaugh, J., concurring).
As the three-judge district court adjudicating the Alabama congressional
Section 2 case just reasoned, “[i]t is difficult in the extreme for us to believe that for
nearly sixty years, federal courts have consistently misunderstood one of the most
important sections of one of the most important civil rights statutes in American
history, and that Congress has steadfastly refused to correct our apparent error.”
Singleton, 2025 WL 1342947, at *181. A strict rule of stare decisis in favor of affirming
Morse’s conclusion with respect to Section 2’s private enforceability far exceeds the
“fair prospect” standard necessary to warrant a stay of the Eighth Circuit’s contrary
decision.
Given the rupture that the Eighth Circuit has created as to previously uniform
precedent and congressional intent, there is a fair prospect of reversal.
III.
The irreparable harm Plaintiffs face and the balance of the equities
favor a stay of the mandate.
Finally, there is eminently good cause for a stay because Plaintiffs will suffer
irreparable harm without one and the balance of equities further favors a stay. After
Plaintiffs in this case proved at trial that North Dakota’s legislative districts
unlawfully dilute Native American voting strength in violation of Section 2 of the
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VRA, this Court denied the Secretary’s motion for a stay of the district court’s
judgment while the Secretary’s appeal moved forward. App. 40. Thereafter, on
January 8, 2024, the district court ordered into place the current remedial map—an
order the Secretary neither opposed nor appealed. App. 37-39. The district court’s
remedial map was used in the 2024 election cycle and resulted in Plaintiff Collette
Brown’s election to the North Dakota Legislature for District 9. Plaintiffs would
suffer significant harm if the remedial map were discarded, especially given that the
only judges to consider the merits of Plaintiffs’ suit have either found in their favor
or concluded that finding should be affirmed. Indeed, plaintiff Collette Brown faces
the threat of being ejected from her seat should the prior, unlawful map be reinstated.
See supra at 3-4, n.1.
This is not one of the “close cases” requiring the Court to balance the equities
in adjudicating Plaintiffs’ motion for a stay, given the reasonable probability of
Supreme Court review and the fair prospect of reversal. Hollingsworth, 558 U.S. at
190. But the equities favor granting a stay. There will be minimal harm to the
Secretary if the mandate does not issue and the status quo is maintained, See id.
“‘[O]nce the election occurs, there can be no do-over and no redress’ for voters whose
rights were violated.” Singleton v. Allen, 691 F. Supp. 3d 1343, 1355 (N.D. Ala. 2023)
(three-judge court) (quoting League of Women Voters of N.C. v. North Carolina, 769
F.3d 224, 247 (4th Cir. 2014)).
The candidate qualifying period for the 2026 election will begin in January
2026. N.D. Cent. Code §§ 16.1-11-06, 16.1-11-15. The Secretary has previously
35
contended, citing Purcell v. Gonzalez, 549 U.S. 1 (2006), that the legislative map
should be set by December 31 of the year proceeding an election. See Sec’y’s Mot. for
Stay, Turtle Mountain Band of Chippewa Indians v. Howe, No. 23-3655 (8th Cir. Dec.
13, 2023) (Doc. 5344314). Given this Court’s calendar and practice, it is highly
unlikely it will resolve Plaintiffs’ petition and issue a merits decision before that time.
Absent a stay from this Court, North Dakota will proceed to conduct elections using
the 2021 legislative map that a federal court has found unlawfully dilutes the voting
strength of Native American voters. Absent a stay from this Court, Collette Brown
may lose her seat in the legislature—all without any court ever disagreeing with the
merits of Section 2 violation below. Prematurely altering the legislative districts
before the disposition of Plaintiffs’ certiorari petition further harms the public by
causing unnecessary voter confusion and waste of government resources when the
current remedial maps are likely to be upheld following this Court’s review.
In contrast, the Secretary will merely see a delay in the adoption of the State’s
preferred legislative map if a stay is granted and Plaintiffs are not meritorious in this
Court. To the extent that the Secretary asserts that the State will suffer irreparable
harm if it is unable to enforce its preferred map, the State has no cognizable interest
in enforcing an unlawful map. Singleton, 691 F. Supp. at 1356 n.1. In this case, the
district court found that the map unlawfully diluted the voting power of Native
American citizens and the Secretary did not effectively dispute this finding on appeal.
App. 30-35; ECF No. 123 at 27 (The Secretary’s proposed legal conclusions stating
that the first Gingles precondition was satisfied); ECF No. 158-3 at 13-16 (The North
36
Dakota Legislative Council confirming that “[t]he compactness [of Plaintiffs’ maps]
meets the standards used by the committee when drawing the existing district map”);
ECF No. 117 at 140-42 (The Secretary’s expert testifying that the second Gingles
precondition was satisfied); Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178,
190 (2017) (“[T]his Court to date has not . . . remanded a case for a determination of
[racial] predominance, without evidence that some district lines deviated from
traditional principles.”). Staying the mandate and maintaining the current map until
certiorari proceedings resolve will avoid any risk of irreparable harm to Plaintiffs and
will not unfairly prejudice the Secretary.
A stay will also place North Dakota voters on equal footing to Alabama voters
while this Court considers the question of private enforcement of the Voting Rights
Act in cases arising from both states. It is inequitable for a remedial map to govern
the 2026 election in one state but not the other while the Court considers whether it
will adhere to sixty years of precedent.
37
CONCLUSION
For the foregoing reasons, the Court should grant a stay of the Eighth Circuit’s
mandate.
July 15, 2025
Respectfully submitted,
Mark P. Gaber
Anna M. Baldwin
Melissa Neal
CAMPAIGN LEGAL CENTER
1101 14th Street NW, Ste. 400
Washington, DC 20005
(202) 736-2200
Timothy Q. Purdon
ROBINS KAPLAN, LLP
1207 West Divide Avenue, Suite 200
Bismarck, ND 58501
(701) 255-3000
Bryan L. Sells
THE LAW OFFICE OF
BRYAN L. SELLS, LLC
PO Box 5493
Atlanta, GA 31107
(404) 480-4212
/s/ John E. Echohawk
John E. Echohawk
Counsel of Record
Matthew Campbell
Allison Neswood
Jacqueline De León
NATIVE AMERICAN RIGHTS FUND
250 Arapahoe Avenue
Boulder, CO 80302
(303) 447-8760
Leonard R. Powell
Samantha Blencke
NATIVE AMERICAN RIGHTS FUND
950 F Street NW, Suite 1050
Washington, DC 20004
(202) 785-4166
Counsel for Applicants
*Counsel for Applicants Turtle Mountain Band of Chippewa Indians and Spirit
Lake Nation
38
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.