Reply Brief — Turtle Mountain Band of Chippewa Indians, et al., Applicants v. Michael Howe, Secretary of State of North Dakota
Supreme Court briefJul 23, 2025
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No. 25A62
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.
REPLY IN SUPPORT OF 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
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1
REASONS FOR GRANTING A STAY OF THE MANDATE....................................... 2
I.
There is a reasonable probability that this Court will review the clear
circuit split that the Eighth Circuit has created on an issue of exceptional
importance. .......................................................................................................... 2
II. There is a fair prospect that the Court will reverse the judgment below. ........ 6
A. There is a fair prospect that the Court will agree that Section 2 of the
Voting Rights Act creates individual rights enforceable through
Section 1983. ................................................................................................. 6
B. There is a fair prospect that the Court will uphold its precedent that
Section 2 implies a private right of action. ................................................ 15
III. The irreparable harm Plaintiffs face and the balance of equities favor a
stay of the mandate. .......................................................................................... 19
CONCLUSION............................................................................................................. 25
i
TABLE OF AUTHORITIES
Cases
Alabama State Conference of NAACP v. Alabama,
949 F.3d 647 (11th Cir. 2020) .................................................................................. 5
Alexander v. Sandoval, 532 U.S. 275 (2001) .............................................................. 15
Allen v. Milligan, 599 U.S. 1 (2023) .................................................................. 9, 13, 24
Allen v. State Board of Elections, 393 U.S. 544 (1969)............................... 2, 14, 16, 18
Arkansas State Conference NAACP v. Arkansas Board of Apportionment,
86 F.4th 1204 (8th Cir. 2023) ............................................................................... 3, 4
Arkansas State Conference NAACP v. Arkansas Board of Apportionment,
91 F.4th 967 (8th Cir. 2024) ..................................................................................... 3
Bethune-Hill v. Virginia State Board of Elections, 580 U.S. 178 (2017) ............. 24, 25
City of Mobile v. Bolden, 446 U.S. 55 (1980) .............................................................. 17
Ford v. Strange, 580 F. App’x 701 (11th Cir. 2014) ...................................................... 5
Forest Grove School District v. T.A., 557 U.S. 230 (2009) .......................................... 17
Gonzaga University v. Doe, 536 U.S. 273 (2002) ...................................................... 4, 9
Health & Hospital Corporation of Marion County v. Talevski,
599 U.S. 166 (2023) ................................................................................ 8, 10, 11, 13
Holder v. Hall, 512 U.S. 874 (1994) ............................................................................ 10
Hollingsworth v. Perry, 558 U.S. 183 (2010) ................................................................ 2
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ................. 10
Maine v. Thiboutot, 448 U.S. 1 (1980) ........................................................................ 10
Medina v. Planned Parenthood South Atlantic, 145 S. Ct. 2219 (2025)...................... 7
Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999)................................................................. 5
Morse v. Republican Party of Va., 517 U.S. 186 (1996) ................................ 2, 3, 14, 17
Robinson v. Ardoin, 86 F.4th 574 (5th Cir. 2023)......................................................... 5
Shaw v. Hunt, 517 U.S. 899 (1996) ............................................................................ 11
Shelby County v. Holder, 570 U.S. 529 (2013) .............................................................. 6
Thornburg v. Gingles, 478 U.S. 30 (1986)............................................................. 11, 17
Turtle Mountain Band of Chippewa Indians v. Howe,
137 F.4th 710 (8th Cir. 2025) ....................................................... 6, 7, 10, 14, 24, 25
United States v. Raines, 362 U.S. 17 (1960) ............................................................... 16
United States v. Utsick, 45 F.4th 1325 (11th Cir. 2022) .............................................. 5
ii
Virginia House of Delegates v. Bethune-Hill, 587 U.S. 658 (2019) ............................ 21
Walen v. Burgum, 700 F. Supp. 3d 759 (D.N.D. 2023) ......................................... 14, 15
Walen v. Burgum, 145 S. Ct. 1041 (2025) ................................................................... 15
Constitutional Provisions and Statutes
42 U.S.C. § 1983 ............................................................................................. 7, 9, 10, 12
52 U.S.C. § 10301(a) ................................................................................ 6, 7, 11, 12, 15
52 U.S.C. § 10302(a) .................................................................................................... 14
52 U.S.C. § 10302 ........................................................................................................ 18
52 U.S.C. § 10308(a) .......................................................................................... 7, 12, 14
52 U.S.C. § 10308(c) ....................................................................................................... 7
52 U.S.C. § 10308(f) ............................................................................................... 14, 18
52 U.S.C. § 10310(e)............................................................................................... 14, 19
N.D. Cent. Code § 54-12-01(3) ..................................................................................... 21
Other Authorities
Ellen D. Katz, Curbing Private Enforcement of the Voting Rights Act: Thoughts on
Recent Developments, 123 Mich. L. Rev. Online 23 (2024) ................................... 16
H.R. Rep. No. 97-227 (1981) ............................................................................ 17, 18, 19
Pub. L. No. 89-110, 79 Stat. 437 (1965) ...................................................................... 18
Pub. L. No. 94-73, 89 Stat. 404 (1975) ........................................................................ 19
S. Rep. No. 94-295 (1975) ............................................................................................ 19
S. Rep. No. 97-417 (1982) ...................................................................................... 17, 18
iii
INTRODUCTION
This case easily meets the standard for a stay of the mandate. The Secretary
of State (“the Secretary”) does not dispute that there is a reasonable probability that
certiorari will be granted. He suggests more percolation, but this issue is arriving on
this Court’s mandatory appellate docket this coming Term, as Alabama’s amicus brief
makes clear. Moreover, there is plainly a “fair prospect” of reversal. The decisions
below directly contravene multiple precedents of this Court, are irreconcilable with
the plain text of both Section 2 and Section 1983, and turn Section 1983 jurisprudence
on its head. They likewise contradict every circuit court and three-judge district
court—all unanimous unlike the divided decision below—ever to have considered the
question of private enforcement of Section 2. Any one of those standing alone would
suffice to create a “fair prospect” of reversal.
The Secretary fares no better on the equities. He declined to seek a stay of the
district court’s Section 2 liability finding in either the district court or the Eighth
Circuit, and he declined to oppose or appeal the district court’s remedial map. The
appellate process has thus proceeded to date with North Dakota’s elections governed
by the district court’s remedial map. And now, the North Dakota Legislative Council
has upped the temperature by questioning whether issuance of the mandate
immediately renders Plaintiff Collette Brown’s service as a duly elected state
representative unlawful.
Plaintiffs and the public would be irreparably harmed by a sudden reversion
to a map found to violate federal law—a decision that Chief Judge Colloton has opined
should be affirmed—under these circumstances. The Court should maintain the
1
status quo as this case proceeds and grant the requested stay of the Eighth Circuit’s
mandate.
REASONS FOR GRANTING A STAY OF THE MANDATE
I.
There is a reasonable probability that this Court will review the clear
circuit split that the Eighth Circuit has created on an issue of
exceptional importance.
The first stay factor that applicants must meet is that there is a “reasonable
probability” that four Justices will vote to grant certiorari. Hollingsworth v. Perry,
558 U.S. 183, 190 (2010). The Secretary cannot seriously contest that there is not a
reasonable probability of certiorari here given the clear circuit split on an issue of
exceptional importance. The Secretary argues only (at 34) that the purely legal issues
presented here are “premature” for this Court’s consideration and may benefit from
further percolation.
Not so. Further percolation may be warranted in cases where this Court has
not already spoken. But that is not the case here. In Morse v. Republican Party of
Virginia, 517 U.S. 186, 233 (1996), 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.’” Id. at 232 (opinion
of Stevens, J., joined by Ginsburg, J.); accord id. at 240 (opinion of Breyer, J.,
concurring in the judgment, joined by O’Connor & Souter, JJ.).
Decades earlier, this Court had 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).
The Court in Morse recognized that Congress had likewise intended to create a
private right of action to enforce the prohibition on poll taxes in Section 10 of the
2
VRA. See 517 U.S. at 232-234 (opinion of Stevens, J.). The holding in Morse is
predicated on the understanding that it would be anomalous for Congress not to have
intended a right of action for Section 10 when Congress had authorized one to enforce
both Section 5 and Section 2. Id. at 232; 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 State Conference NAACP v. Arkansas Bd. of
Apportionment, 91 F.4th 967, 970 (8th Cir. 2024) (“Arkansas NAACP II”) (Colloton,
C.J., dissenting).
In his response, the Secretary merely quotes at length the panel majority’s
reasoning in Arkansas State Conference NAACP v. Arkansas Bd. of Apportionment,
86 F.4th 1204 (8th Cir. 2023) (“Arkansas NAACP”) for rejecting Morse. Resp. at 3031 (quoting Arkansas NAACP, 86 F.4th at 1215-16). But contrary to the majority’s
conclusion there, Morse’s key reasoning regarding the private enforceability of
Section 2 is not a mere “background assumption[].” 86 F.4th 1215-16. Morse holds
that private plaintiffs must be able to enforce Section 10 because “[i]t would be
anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private
action but § 10 is not, when all lack the same express authorizing language.” 517 U.S.
at 232 (opinion of Stevens, J.); accord id. at 240 (Breyer, J., concurring) (stating that
Allen’s rationale “applies with similar force not only to § 2 but also to § 10”). That
reasoning is not dicta. It is central to the resolution of the case. Thus, the linchpin of
the Court’s holding in Morse is that private plaintiffs can enforce Section 2.
3
The Secretary also suggests (at 34) that further percolation is warranted
because most other courts that have explicitly addressed the private enforceability of
Section 2 have done so under its implied right of action, rather than through Section
1983. But this does not weigh against resolution of the petition in this case.
The Eighth Circuit only had reason to reach the issue of enforcing Section 2
through Section 1983 in this case because it had already rejected the uniform
consensus of all other courts of appeals and three-judge district courts that Section 2
is privately enforceable through an implied right of action. See Application at 20-23.
This does not mean that the circuit split here is “shallow.” Resp. at 36. Instead, it
means that the Eighth Circuit is a dramatic outlier.
Moreover, the Secretary’s assertion (at 34-35) that a Section 1983 split is
underdeveloped misses the point. There is a circuit split as to private enforceability
of Section 2 of the VRA. There are two pathways to private enforcement of Section 2,
both of which the Eighth Circuit has rejected—through an implied right and through
Section 1983. While the complete analysis for both pathways is distinct, it overlaps
at the first step. At the outset, both inquiries ask “whether Congress intended to
create a federal right.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (emphasis in
original). The Eighth Circuit got this critical question wrong, stating in Arkansas
NAACP that it is “unclear whether § 2 creates an individual right.” 86 F.4th at 1209.
No other court of appeals or three-judge district court has considered that issue—
common to both the implied right and Section 1983 analysis as applied below—to be
unclear. See Application at 20-22.
4
Contrary to the Secretary’s claims (at 35), there is a sharp and fully articulated
split that must be addressed now. Indeed, every Section 2 case that this Court has
decided was brought by private plaintiffs. Application at 20 (citing cases). Private
plaintiffs have likewise litigated successful Section 2 cases in courts of appeals
throughout the country. Application at 20-21 (citing cases). The Fifth, Sixth, and
Eleventh Circuits have each directly held that Section 2 is privately enforceable,
contrary to the conclusion reached by the Eighth Circuit. 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).1 And the same is true of every three-judge district
decision on the question of private enforceability, both before and after the precedent
shattering decision in Arkansas NAACP. See Application at 21. Because plaintiffs in
this case have preserved their arguments as to both pathways for private
enforcement, this Court will be able to decide whether it wishes to resolve this case
on one or both grounds.
No further percolation is needed, nor is it likely to occur given the currently
binding decision in Morse. The Secretary does not contest that Section 2 is, and
always has been, enforced primarily by private litigants. This Court has likewise
1 The Eleventh Circuit’s decision in Alabama NAACP is not less relevant because it was vacated as
moot. The vacatur was “unrelated to its [right-of-action] holding” and its substantive analysis remains
“persuasive.” United States v. Utsick, 45 F.4th 1325, 1335 (11th Cir. 2022). Moreover, the Eleventh
Circuit has recognized that Morse is controlling, contrary to the Eighth Circuit. See Ford v. Strange,
580 Fed. App’x 701, 705 n.6 (11th Cir. 2014) (“A majority of the Supreme Court has indicated that
section 2 of the Voting Rights Act contains an implied private right of action.”) (citing Morse, 517 U.S.
at 232 (two justices); id. at 240 (three justices).
5
emphasized that Section 2 is and will remain an essential backstop against racial
discrimination in voting. Shelby County v. Holder, 570 U.S. 529, 557 (2013) (“Our
decision in no way affects the permanent, nationwide ban on racial discrimination in
voting found in § 2.”); id. at 537 (“Both the Federal Government and individuals have
sued to enforce § 2 . . . .”). Section 2 cannot serve that vital role unless this Court
addresses the Eighth Circuit’s error. Plaintiffs have shown a reasonable probability
that certiorari will be granted in this case.
II.
There is a fair prospect that the Court will reverse the judgment
below.
A.
There is a fair prospect that the Court will agree that Section 2
of the Voting Rights Act creates individual rights enforceable
through Section 1983.
There is a fair prospect that the Court will agree that Section 2 confers an
individual right enforceable through Section 1983. The law secures “the right of any
citizen of the United States to vote” from being “denied or abridged . . . on account of
race or color.” 52 U.S.C. § 10301(a). The Eighth Circuit itself concluded that this
language in Section 2’s “very first sentence” “unmistakably focuses on the benefited
class.” Turtle Mountain Band of Chippewa Indians v. Howe, 137 F.4th 710, 718 (8th
Cir. 2025). That should have ended the Secretary’s appeal. The majority below went
seriously awry by concluding otherwise.
First, the Secretary contends (at 15-16) that Gonzaga’s “unambiguous
conferral” standard for determining whether spending power statutes are privately
enforceable under Section 1983 should extend to Reconstruction Amendment
enforcement statutes. 536 at 283. The Court need not decide that question for
6
purposes of this stay application because as Chief Judge Colloton explained, “even
applying the unambiguous conferral rule of Gonzaga, it is clear that Congress in § 2
of the Voting Rights Act intended to confer a voting right.” Turtle Mountain, 137 F.4th
at 722 (Colloton, C.J., dissenting). But the Secretary is incorrect. This Court has
never applied Gonzaga’s “unambiguous conferral” standard to a Reconstruction
Amendment enforcement statute. And doing so would make no sense. The Fifteenth
Amendment, and the laws Congress enacts to enforce it, are not “in the nature of a
contract” such that States must knowingly “consent” to liability for racial vote
dilution in exchange for accepting federal funds. Medina v. Planned Parenthood
South Atlantic, 145 S. Ct. 2219, 2234 (2025) (internal quotations omitted). In this
context, it is surely enough that Section 2 expressly secures “the right of any citizen
. . . to vote,” 52 U.S.C. § 10301(a), for the Court to determine that it is a “law” that
secures a “right.” 42 U.S.C. § 1983. Venturing further thwarts the purpose of the
Reconstruction Amendments and the laws—Section 1983 and Section 2—enacted to
enforce those Amendments.
Second, the Secretary invites (at 17-18) the Court to ignore Congress’s use of
the word “right” in the law’s name (Voting Rights Act), Chapter 103’s title
(“Enforcement of Voting Rights”), Section 2’s title (“Denial or abridgement of right to
vote . . . .”), Section 2’s text (“right of any citizen . . . to vote”), 52 U.S.C. § 10301(a),
and other VRA sections that refer to Section 2 (“right secured by section 10301”), 52
U.S.C. § 10308(a), (c). That directly contravenes Medina, decided just weeks ago. 145
S. Ct. at 2235 (emphasizing in bold and italics the statutory references to “rights” in
7
the Federal Nursing Home Reform Act (“FNHRA”)). Instead, the Secretary asks the
Court (at 18) to be confused about whether Section 2 confers rights because it
purportedly has a “‘dual focus’ between ‘the individuals protected and the entities
regulated.’” But that directly contravenes Health & Hospital Corp. of Marion County
v. Talevski, 599 U.S. 166 (2023).
The Secretary’s effort to explain the panel majority’s conflict with Talevski is
unavailing. The Secretary contends (at 19) that “Talevski provides that a secondary
focus on regulated parties does not undermine a statute’s primary focus on individual
rights.” Here is what this Court said in Talevski: “[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).” Talevski, 599 U.S. at 185 (emphasis added). “Consider[ing], alongside” sounds
a lot like “dual focus,” illustrating a made-to-order distinction without a difference.
The Secretary contends (at 19-20) that his position does not jeopardize Section
1983 enforcement of the First and Fourteenth Amendments. But this Court observed
otherwise with respect to the Fourteenth Amendment. See Talevski, 599 U.S. at 185
n.12 (“The Fourteenth Amendment hardly fails to secure § 1983-enforceable rights
because it directs state actors not to deny equal protection.”). That the Secretary’s
“dual focus” argument seemingly applies to only one particular provision of the
“Constitution and laws,” i.e., Section 2 of the VRA, suggests that the Secretary’s
preferred outcome has driven the test he articulates.
8
Moreover, the Secretary’s observation (at 19-20) that “constitutional provisions
are not parsed the same way statutory provisions are,”—and thus the Court should
ignore his “dual focus” argument when reading constitutional provisions—only
undermines his case. The Secretary contends (at 18) that Section 2’s “right of any
citizen” language is “parroted from the Fifteenth Amendment.” But it makes no
interpretive sense to label language that appears in both the “Constitution and laws,”
42 U.S.C. § 1983, as rights-conferring in one (the Constitution) but not the other
(Section 2). That Congress exercised its power to enforce the Fifteenth Amendment
by guarding against discriminatory effects in addition to discriminatory intent
likewise does not somehow eliminate the individual rights. Contra Resp. at 26-27; see
also Allen v. Milligan, 599 U.S. 1, 41 (2023) (“The VRA’s ban on electoral changes
that are discriminatory in effect . . . is an appropriate method of promoting the
purposes of the Fifteenth Amendment.”) (citation modified).
Relatedly, Alabama contends that Section 2 cannot be enforced under Section
1983 because it created a new remedy not a new right. Alabama Amicus at 5-6.
Because the right Section 2 enforces through its remedy is not “new,” Alabama
observes, Section 1983 is inapplicable. Section 1983’s text has no “newness”
requirement—that derives instead from the obvious observation that congressional
spending power statutory rights will necessarily be “new.” Gonzaga, 536 U.S. at 287.
Moreover, Alabama’s rights/remedies argument turns the text and purpose of Section
1983 on its head. As Chief Judge Colloton noted in rejecting this argument, “potential
overlap with the Fifteenth Amendment does not remove rights conferred by § 2 from
9
the scope of ‘any rights . . . secured by the Constitution and laws.’” Turtle Mountain,
137 F.4th at 724-25 (Colloton, C.J., dissenting) (quoting 42 U.S.C. § 1983). If
Alabama’s position were correct, no Reconstruction Amendment enforcement statute
would be enforceable under Section 1983. But as this Court has recognized, creating
a cause of action for those statutes was Congress’s “principal purpose” in adding “and
laws” to Section 1983. Maine v. Thiboutot, 448 U.S. 1, 7 (1980); id. at 13 n.1 (Powell,
J., dissenting) (noting that the strictest interpretation of Section 1983 would limit it
to Reconstruction Amendment enforcement statutes because they secure rights via
both the Constitution and—as opposed to “or”—laws); Talevski, 599 U.S. at 225, n.12
(Thomas, J., dissenting) (reasoning that “statutory § 1983 actions [should be] confined
to laws enacted under Congress’ Reconstruction Amendment enforcement powers”);
Holder v. Hall, 512 U.S. 874, 917-23 (1994) (Thomas, J. concurring) (expressing the
view that Section 2 confers rights on affected voters). A Reconstruction Amendment
enforcement statute by its very nature “secures” rights contained in the “Constitution
and laws.” 42 U.S.C. § 1983.
Third, and reaching beyond the decision of the majority below, the Secretary
contends (at 20-23) that Section 2 vote dilution claims are “collective in nature” and
thus unenforceable under Section 1983. This argument fails at the gate because this
Court has twice held otherwise. In a Section 2 case brought by private plaintiffs, this
Court held in League of United Latin American Citizens v. Perry that “[a] local
appraisal is necessary because the right to an undiluted vote does not belong to the
‘minority as a group,’ but rather to ‘its individual members.’” 548 U.S. 399, 437 (2006)
10
(quoting Shaw v. Hunt, 517 U.S. 899, 917 (1996)); Shaw, 517 U.S. at 917
(characterizing as a “misconception” the view that the “right to an undiluted vote . . .
belongs to the minority as a group and not to its individual members”). This Court’s
holding flows from the plain statutory text. See 52 U.S.C. § 10301(a) (“the right of any
citizen . . . to vote”). A clear holding of this Court—with the considerable force of
statutory stare decisis—creates a fair prospect of that precedent being followed here. 2
The Secretary does not mention this Court’s contrary precedent and instead
contends (at 21-22) that Section 2 vote-dilution claims are collective rather than
individual because the Gingles preconditions assess district-level voting patterns.
But this conflates the statutory right of “any citizen,” to be free of racial vote dilution,
52 U.S.C. § 10301(a), with the type of threshold evidence that establishes that it is
the challenged electoral system that is causing a redressable, individual harm, see
Thornburg v. Gingles, 478 U.S. 30, 49-51 (1986). Every discrimination claim is proved
by showing how others are treated in relation to the complainant. That evidence does
not convert the right to be free of discrimination from an individual to a collective
one. Moreover, the Secretary is wrong to contend (at 22) that Section 2 rights are
collective because a plaintiff may not ultimately reside in the newly configured
remedial district. The legal injury is that the plaintiff’s voting strength is diluted, i.e.,
“abridged,” “on account of race” by the districting configuration. 52 U.S.C. § 10301(a).
Once a remedial map is adopted, the plaintiff’s voting strength is no longer being
2 The Secretary’s citation to Section 2’s “class of citizens” language, Resp. at 21 (quoting 52 U.S.C.
§ 10301(b)), is especially peculiar, given that an identifiable “class of beneficiaries,” makes a statute
enforceable under Section 1983, see Talevski, 599 U.S. at 183-84.
11
diluted “on account of race,” id., even if her favored candidates do not prevail in the
district in which she resides. The racial vote dilution injury has been resolved, and
what remains is a political disagreement with other voters. The Secretary’s
misunderstanding in this regard explains his odd suggestion (at 22) that vote dilution
claims are collective while vote denial claims are individual—despite the same
statutory text creating both.
Fourth, the Secretary contends (at 27) that it is a “roundabout” analysis to
conclude that Section 2 “secures” against the “deprivation of a[] right[],” 42 U.S.C.
§ 1983, because the VRA expressly guards against a person who “shall deprive or
attempt to deprive any person of any right secured by [Section 2],” 52 U.S.C.
§ 10308(a). The VRA uses the exact language of Section 1983 to describe the operation
of Section 2. That is a straight line, not a roundabout. The Secretary’s response is
unconvincing. He contends (at 27) that Section 10308 “simply provide[s] that if ‘any
right’ is secured by the listed substantive provisions, then violating them may result
in specified criminal penalties.” (emphasis in Secretary’s brief). The statute does not
use the word “if,” and the Secretary’s interpretation seems to suggest that Congress
inadvertently listed a host of VRA provisions without attending to whether its list
had any meaning or import. That is not how statutory interpretation is conducted.
Nor is it relevant that this provision predated the 1982 amendment that added the
results test to Section 2. Resp. at 27-28. Congress’s maintenance of its “any right
secured by [Section 2]” language, 52 U.S.C. § 10308(a), underscores its view that
Section 2 secures rights, pre- and post-1982. And this Court has rejected the
12
Secretary’s contention (at 28) that Section 2 does “not . . . enforce a Fifteenth
Amendment right” because it protects against discriminatory effects in addition to
discriminatory intent. (emphasis in Secretary’s brief); see Milligan, 599 U.S. at 41
(noting “40 years” of precedent in that regard).
Fifth, the Secretary contends (at 23-26) that even if Section 2 confers an
individual right, he has overcome the presumption of Section 1983 enforceability
because Section 2 contains a “comprehensive enforcement regime.” But that is not
enough. “[W]hen a particular comprehensive remedial scheme discharges the
defendant’s burden, it does so because the application of ordinary interpretive tools
reveals incompatibility. . . .” Talevski, 599 U.S. at 189 (emphasis added); id. at 187
(“necessary
discordance”
requires
indication
that
private
enforcement
is
“incompatible,” “inconsistent,” or would “thwart” public enforcement). The Secretary
did not contend below—and does not in this Court (at 23-26)—that private
enforcement of Section 2 is incompatible with the VRA’s provisions for enforcement
by the Attorney General.
The Secretary’s “single-minded focus on comprehensiveness mistakes the
shadow for the substance” of the necessary incompatibility showing. Talevski, 599
U.S. at 188-89. This Court has only found incompatibility where statutes had “selfcontained enforcement schemes that included statute-specific rights of action.” Id. at
189. It is the very absence of an express right of action in Section 2 that undermines
the Secretary’s contention that Section 1983 is unavailable. As Chief Judge Colloton
explained in rejecting the Secretary’s argument, there are no “indicia of congressional
13
intent to preclude enforcement of the Voting Rights Act under § 1983.” Turtle
Mountain, 137 F.4th at 725 (Colloton, C.J., dissenting). “The Act does confer
authority to sue on a government official, but there is no ‘unusually elaborate’ set of
enforcement provisions applicable to both government officials and private citizens.”
Id. To the contrary, Congress expressly envisioned that “the Attorney General or an
aggrieved person” would sue to enforce the VRA, 52 U.S.C. § 10302(a), provided that
“a person asserting rights under the provisions of [the VRA, including Section 2] . . .
[need not] exhaust[] any administrative or other remedies that may be provided by
law,” id. § 10308(f), and provided that prevailing parties “other than the United
States” were eligible for attorneys’ fees, id. § 10310(e). This is assuredly not how
Congress would communicate that private enforcement would thwart its regulatory
scheme.3 Decades of practice—with hundreds of private suits—illustrate that private
and public enforcement of Section 2 are in harmony.
The Secretary emphasizes (at 29) North Dakota’s dual redistricting litigation
as an argument for eliminating private Section 2 enforcement. But the second
lawsuit, which alleged that respecting the reservation boundaries of a Tribal Nation
constituted racial gerrymandering, rightly failed at the summary judgment stage—
an outcome this Court summarily affirmed. See Walen v. Burgum, 700 F. Supp. 3d
3 That the Attorney General is authorized to criminally prosecute those who violate an individual’s
Section 2 rights hardly makes private enforcement under Section 1983 incompatible. Resp. at 24, 28.
Private civil lawsuits do not thwart the Attorney General’s criminal prosecution authority, and Section
1983 does not purport to authorize private criminal enforcement. Indeed, the VRA authorizes criminal
enforcement of Section 5 and 10 as well, see 52 U.S.C. § 10308(a), yet this Court has held those
provisions to be privately enforceable, see Allen v. State Bd. of Elections, 393 U.S. 544, 556-57 (1969);
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996).
14
759 (D.N.D. 2023), affirming in part and dismissing appeal in part, 145 S. Ct. 1041
(2025) (Mem.). A meritless racial gerrymandering lawsuit aimed at stamping out any
Native American legislative representation that was summarily rejected hardly
illustrates doctrinal chaos hopelessly ensnaring the State. Nor does a successful
Section 2 lawsuit affecting just two out of forty-seven legislative districts. 4
None of the Secretary’s arguments overcome Plaintiffs’ showing that there is
at least a fair prospect that this Court will conclude that by conferring a “right of any
citizen . . . to vote,” 52 U.S.C. § 10301(a), Section 2 has conferred a right to vote
enforceable under Section 1983.
B.
There is a fair prospect that the Court will uphold its precedent
that Section 2 implies a private right of action.
Plaintiffs have shown that they have a fair prospect of the Court adhering to
its Morse precedent finding an implied private right under Section 2. In order to
establish an implied right of action, the Court looks to the text of “the statute
Congress has passed to determine whether it displays an intent to create . . . a private
remedy.” See Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
Section 2 contains obvious rights-creating language, see Application at 27-32,
and Congress’s intent to provide a private remedy to enforce the statute can be
inferred from the personal nature of the rights that the VRA protects and from
Alabama blithely says that the Walen “district court held that North Dakota could racially
gerrymander in order to comply with §2.” Alabama Amicus at 13. The Walen district court ruled that
District 4A was not racially gerrymandered, the State argued that District 4A was not racially
gerrymandered, and this Court summarily affirmed the district court’s ruling that District 4A was not
racially gerrymandered. Walen, 700 F. Supp. 3d at 775, affirming in part and dismissing appeal in
part, 145 S. Ct. 1041 (Mem.). Alabama and the 14 signatory states apparently view the mere existence
of Native Americans in an electoral district as “racial gerrymandering.”
4
15
several other VRA provisions that evince Congress’s understanding that Section 2 is
privately enforceable.
The Secretary’s main contention to the contrary (at 33) is that “Congress has
amended the VRA numerous times yet never codified a private right of action for
Section 2.” But Congress had no need to do so. “Private enforcement of the VRA dates
from the statute’s enactment.” Ellen D. Katz, Curbing Private Enforcement of the
Voting Rights Act: Thoughts on Recent Developments, 123 Mich. L. Rev. Online 23,
30-34 (2024) (discussing history of private enforcement of the VRA and Congress’s
consistently expressed intention for such enforcement). In 1969, this Court held in
Allen that despite the lack of express statutory language, private plaintiffs could
enforce Section 5 of the VRA. 393 U.S. at 556-557.
Allen was decided in light of the established understanding that voting rights
are generally considered “private rights,” principally enforced by individual voters.
United States v. Raines, 362 U.S. 17, 27 (1960). Allen explains that the references to
the Attorney General in the VRA “were included to give the Attorney General power
to bring suit to enforce what might otherwise be viewed as ‘private’ rights.” 393 U.S.
at 555 n.18 (quoting Raines, 362 U.S. at 27). Moreover, Allen’s holding that Section 5
is privately enforceable is not tied to any language specific to that provision, but
instead follows from the “broad purpose” of the VRA “to make the guarantees of the
Fifteenth Amendment finally a reality for all citizens.” 393 U.S. at 556-57.
At the time it was decided, Congress had no reason to regard Allen’s reasoning
as any less applicable to Section 2 than to Section 5. Subsequent cases did not alter
16
that understanding. In City of Mobile v. Bolden, this Court assumed the existence of
a private right of action to enforce Section 2. 446 U.S. 55, 60-61 (1980). When
Congress amended Section 2 in response to Bolden to make clear that proof of
discriminatory intent is not necessary to establish a violation of the statute, there
was thus no need to expressly provide a private right of action. Instead, in the 1982
Senate Report that this Court has called the “authoritative source for legislative
intent” regarding Section 2, Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986),
Congress simply “reiterate[d] the existence of the private right of action under section
2.” S. Rep. No. 97-417, at 30 (1982); see H.R. Rep. No. 97-227, at 32 (1981).
This Court’s decision in Gingles—a case brought by private plaintiffs—
continued to reflect the understanding that Section 2 is privately enforceable. See 478
U.S. at 50-52 (describing what “the minority group must be able to demonstrate” to
establish a Section 2 violation—language that is inconsistent enforcement only by the
Attorney General). Likewise, Congress had no need to codify a private right for
Section 2 when it amended the VRA in 2006 because, by that point, the Court had
explicitly concluded that the statute is privately enforceable. Morse, 517 U.S. at 232;
accord id. at 240 (Breyer, J., concurring).
Given this history culminating in Morse, there is a fair prospect of reversal.
“Congress is presumed to be aware of an administrative or judicial interpretation of
a statute and to adopt that interpretation when it re-enacts a statute without
change.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (citation
omitted).
17
There is also a fair prospect for reversal given the text and structure of the Act
as a whole. Indeed, there is no merit to the Secretary’s suggestion (at 32-33) that
Congress’s intent to create a private right of action under Section 2 is not sufficiently
clear.
Section 3 of the VRA, passed in 1975, reflects Congress’s understanding that
private plaintiffs can enforce the VRA’s substantive provisions—including Section
2—by providing specific remedies to “the Attorney General or an aggrieved person”
in lawsuits brought “under any statute to enforce the voting guarantees of the
fourteenth or fifteenth amendment.” 52 U.S.C. § 10302 (emphasis added). Because
Congress enacted and amended Section 2 pursuant to its power to enforce the
Fourteenth and Fifteenth Amendments, 5 it is among the “statute[s]” to which Section
3’s private remedies apply. 52 U.S.C. § 10302.
Section 12(f) of the VRA grants federal courts jurisdiction over “proceedings
instituted pursuant to [Section 12 of the VRA] and” states that they “shall exercise
the same without regard to whether a person asserting rights under the provisions of
[the VRA] shall have exhausted any administrative or other remedies that may be
provided by law.” 52 U.S.C. § 10308(f) (emphasis added). Section 12(f) applies to
“chapters 103 to 107” of the VRA—i.e., to all of the statute’s substantive provisions.
52 U.S.C. § 10308(f). Section 12(f) reflects Congress’s intent that federal courts have
subject matter jurisdiction over private suits to enforce the VRA’s substantive
provisions, including Section 2. Allen, 393 U.S. at 555 n.18 (finding “force” to the
5 See Pub. L. No. 89-110, 79 Stat. 437 (1965); S. Rep. No. 97-417, at 40 (1982); H.R. Rep. No. 97-227,
at 31 (1981).
18
argument that Section 12(f) “necessarily implies that private parties may bring suit
under the [VRA]”).
Finally, Section 14(e) of the VRA similarly indicates that private plaintiffs may
sue to enforce Section 2. It provides that “[i]n any action or proceeding to enforce the
voting guarantees of the fourteenth or fifteenth amendment, the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee[.]” 52 U.S.C. § 10310(e) (emphasis added). Congress added Section 14(e)
to the VRA in 1975 for the express purpose of encouraging private litigation under
the statute. Pub. L. No. 94-73, § 402, 89 Stat. 404 (1975); see also H.R. Rep. No. 97227, at 32 (1981) (stating that if private plaintiffs prevail under Section 2, “they are
entitled to attorneys’ fees under [Section 14(e)] and [42 U.S.C.] 1988”); S. Rep. No. 94295, at 40 (1975) (finding “appropriate” the award of “attorneys’ fees to a prevailing
party in suits to enforce the voting guarantees of the Fourteenth and Fifteenth
amendments, and statutes enacted under those amendments” because “Congress
depends heavily upon private citizens to enforce the fundamental rights involved”).
Collectively and individually, these provisions indicate that there is a fair
prospect for reversal of the Eighth Circuit’s conclusion that Section 2 is not privately
enforceable.
III.
The irreparable harm Plaintiffs face and the balance of equities favor
a stay of the mandate.
The irreparable harm Plaintiffs face and the balance of equities favor a stay of
the mandate. The Secretary’s contrary arguments are without merit.
19
First, the Secretary downplays (at 36-37) the North Dakota Legislative
Council’s memorandum questioning whether the issuance of the mandate will
immediately render Plaintiff Representative Collette Brown ineligible to serve the
remainder of her term. Appendix (“App.”) at 98-102. But the Secretary opens his brief
(at 4) by citing this interpretation of state law and contending that the State is
irreparably harmed by Representative Brown completing her term. If a stay is not
issued and Representative Brown is forcibly removed from office, Plaintiffs will be
irreparably harmed by the ejection of their duly elected candidate of choice. That
harm is magnified by the more-than-fair prospect that they will ultimately succeed
in this case. The draconian suggestion that Representative Brown becomes ineligible
to serve upon the issuance of the mandate strongly favors maintaining the status quo
until this Court resolves this case.
Second, the Secretary calls it “audacious” (at 37) that Plaintiffs should be
treated similarly to those in every other circuit—including the pending case from
Alabama that will raise the same issue this upcoming Term—while the Court
considers the question of Section 2’s private enforcement. A stay by this Court does
not “effectively invalidate North Dakota’s duly enacted election map,” Resp. at 37,
but rather it permits the district court’s injunction against that map—which Chief
Judge Colloton opined should be affirmed on the merits—to remain in effect (as it
was for the 2024 election).
Third, the Secretary contends (at 38) that his suggested December 31, 2025,
deadline for finalization of the map to govern the 2026 election “cuts against a stay”
20
because to stay the mandate “would effectively decide, for purposes of North Dakota’s
2026 election, that Section 1983 does provide Applicants a private cause of action.”
(emphasis in Secretary’s brief). But the standard that governs stay applications
provides otherwise. A stay would decide that there is a fair prospect that Section 2 is
privately enforceable—something every other court to consider this question
(including this Court) has concluded is so. Maintenance of that status quo does not
harm the Secretary.
Fourth, the Secretary posits (at 38-39) that his decision neither to oppose nor
appeal the district court’s imposition of the remedial map is unimportant to the
weighing of the equities. Not so. Contrary to the Secretary’s protestation (at 38) that
his silence with respect to the remedial map “did not indicate agreement with the
court-imposed map” (cleaned up), the district court applied its local rules to conclude
that the Secretary’s non-opposition meant that he viewed the imposition of the map
as well-taken. App. at 39. He did not appeal that finding or the map’s imposition. He
cannot collaterally attack it now.6 His acquiescence to the remedial map also casts
serious doubt on the genuineness of his suggestion (at 2) that combining nearby
Rolette and Benson Counties (and thus the Turtle Mountain and Spirit Lake Nations)
somehow constitutes racial predominance in redistricting merely because the two
counties are home to Tribal Nations. It of course does not. See App. at 6-7 (”The two
6 The Secretary is represented by the Attorney General, who is the sole state official with the power to
defend the validity of state law. N.D.C.C. § 54-12-01(3). The Secretary’s suggestion that the Legislative
Assembly should have carried the litigation effort in this regard fails because the legislature has no
Article III standing to do so. See Virginia House of Delegates v. Bethune-Hill, 587 U.S. 658, 664 (2019)
(legislature has no Article III standing to appeal where state law gives attorney general that sole
power).
21
Tribal Chairman highlighted how nonracial interests favored the unification of
Benson and Rolette Counties, thereby bringing together the two Tribal Nations.”). If
the Secretary was so concerned that a constitutional violation was afoot, why did he
stand mute as the district court imposed the map and the appellate timeline lapsed?
Put simply, the State is not harmed by the continued implementation of a map that
it did not oppose, did not appeal, and that has already governed an election while this
case has proceeded on appeal.
Fifth, and relatedly, the Secretary calls it “jarring” (at 39) that the district
court’s injunction—based on its finding of a Section 2 violation following a full trial
on the merits—would continue in effect if a stay were granted. But the Secretary
elides a decisive fact—the injunction has remained in effect to date because when he
sought a stay from the district court and from the Eighth Circuit (both of which
denied the request), his sole merits argument was that Section 1983 did not provide
a cause of action; he never argued that a stay should issue because the district court
was likely wrong in finding a Section 2 violation. See Sec’y Howe’s Mot. for Stay of
Judgment Pending Appeal, Turtle Mountain Band of Chippewa Indians, et al. v.
Howe, No. 23-3655 (Dec. 13, 2023), Doc. 5344314; Secy’s Brief in Support of Motion
for Stay of Judgment Pending Appeal, Turtle Mountain Band of Chippewa Indians v.
Howe, No. 3:22-cv-00022 (Dec. 4, 2023), ECF No. 132; App. at 42-43 (District Court’s
Order Denying Stay) (“This is not a preliminary injunctive relief case. This is a case
where a Section 2 violation of the VRA was proven by evidence at trial. . . . [N]owhere
in the Secretary’s motion does he challenge (or even address) the merits of the Section
22
2 claim and the Court’s finding of a Section 2 violation after trial. He instead focuses
on a new legal theory that 42 U.S.C. § 1983 provides no cause of action for private
plaintiffs to bring a Section 2 claim.”).
And so the district court’s injunction finding a Section 2 violation and its
(unopposed and unappealed) order imposing a remedial map have governed North
Dakota’s election as this appeal has progressed. A stay by this Court would place the
State in the same position it was in for the 2024 election—which occurred after the
Eighth Circuit oral argument but before its decision issued. And because that decision
was solely (and erroneously) about Section 1983’s inapplicability, all this Court must
consider to issue a stay is whether there is a fair prospect that ruling will be reversed.
If the Secretary thought the district court’s Section 2 liability finding were likely
wrong—or contained “glaring errors” as he now wrongly contends (at 40), he could
have sought a stay on that basis in the district court or the Eighth Circuit. He did
not, which together with the district court’s careful analysis and Chief Judge
Colloton’s opinion that it should be affirmed, is telling. So to call it “jarring” that the
district court’s injunction would continue to govern elections as this appeal continues
to proceed rings quite hollow.
Given the Secretary’s litigation choices, his contention (at 39-40) that the Court
would be unlikely to reach the underlying merits in its review of the decision below
misses the point. A stay will maintain the status quo that has persisted through the
appellate process as Section 1983’s application has remained the primary issue on
appeal. But in any event, the Secretary fails to offer even a colorable merits
23
argument. He argues (at 40) that the case should be remanded to the district court
because it did not expressly find that race had not predominated in the configuration
of Plaintiffs’ demonstrative districts. But “this Court to date has not . . . remanded a
case for a determination of predominance, without evidence that some district lines
deviated from traditional principles.” Bethune-Hill v. Va. State Bd. of Elections, 580
U.S. 178, 190 (2017). And as Chief Judge Colloton opined, “[n]onracial
considerations—such as consolidating reservation and trust lands and keeping
together tribal communities of interest—justify the district lines” and “[b]y rejecting
the State’s arguments, the district court implicitly found that race did not
impermissibly predominate.” Turtle Mountain, 137 F.4th at 728 (Colloton, C.J.,
dissenting).
Alabama chimes in to criticize Plaintiffs’ demonstrative district 9 as
“contract[ing] [] as it makes its way south before hooking east.” Alabama Amicus at
17. What Alabama describes is the shape of Benson County, which “hook[s] east”
following the shoreline of Devils Lake. Maintaining a whole county within a district
is hardly evidence of racial gerrymandering merely because the water border of the
county is not a straight line. See Milligan, 599 U.S. at 44 n.2 (Kavanaugh, J.,
concurring) (noting the importance of respecting county boundaries in demonstrative
maps). The district court found—and Chief Judge Colloton agreed—that Plaintiffs’
demonstrative districts did not deviate from traditional districting principles. App. at
64-66; App. at 33-34. The Secretary did not even oppose or appeal the imposition of
24
one of those demonstrative maps as the remedial map to govern the State’s elections. 7
And his own expert conceded at trial that the demonstrative maps did not
subordinate traditional districting principles to racial considerations and that he had
no evidence to suggest racial gerrymandering occurred. ECF No. 117 at 163-64. As
Chief Judge Colloton explained, “the district court’s decision is adequately supported
by the record and should be affirmed.” Turtle Mountain, 137 F.4th at 725; see
generally id. at 725-29. This is hardly the case to break new ground and remand for
a finding of predominance. Bethune-Hill, 580 U.S. at 190.
The Secretary is unharmed by the same map he declined to oppose or appeal
continuing to govern as the appellate process continues, just as it has up until now.
On the contrary, Plaintiffs and the public are harmed by suddenly reverting to a map
with an adjudicated Section 2 violation—which the Chief Judge of the Eighth Circuit
concluded should be affirmed.
CONCLUSION
For the foregoing reasons, the Court should grant a stay of the Eighth Circuit’s
mandate.
7 Indeed, this choice raises a jurisdictional question of whether the Secretary can even collaterally
attack that map’s lawfulness as a demonstrative district when he failed to appeal its imposition as a
remedy map. That is especially so considering that it was undisputed between the parties that some
district configuration exists that satisfies the first Gingles precondition. Resp. at 40 n.6.
25
July 23, 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
26
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.