Some clarifications to redistricting questions
As a scholar who has studied the State Legislature’s process, state and local voting behavior, and the changing demographics of the state over the last twenty years, I took a great interest in the North Dakota Redistricting Committee’s meetings which occurred earlier this Fall. Although my teaching schedule didn’t allow me to attend meetings in Bismarck, I was able to either watch the hearings live, or recordings right after the fact, for every meeting of this committee.
One of the key changes proposed by the Redistricting Committee this time around is the splitting of two Senate districts into separate single-member House districts. North Dakota is one of ten states to still use multi-member districts (MMD) for at least one chamber of the State Legislature. In our case, each of the 47 Districts elects a single Senator, and then the voters in that District also elect two “at-large” House members, who can come from any part of the district. This is the same system used by our neighbors in South Dakota. By contrast, Minnesota, Montana, and Iowa “split” their Senate districts into two smaller House districts.
However, these are not the only methods used to apportion legislative districts. Many states use completely separate maps for their House and Senate elections, with no shared or common boundaries between the two plans. Some (like Ohio) use a sub-districting system (like Minnesota), but with a three-to-one ratio. Others, like Washington and Idaho, have two House members per district (like North Dakota), but each Representative runs for their seat in a separate election. Still others, like West Virginia, New Hampshire, Maryland, and Vermont, use a mix of systems, even within the same chamber, with some districts being single-member, with others electing two or more members.
The reasons for these differing systems are numerous and unique, with each state choosing to emphasize and prioritize different characteristics. These could be ease-of-understanding for voters, maintaining county lines, balancing rural and urban interests, keeping communities of common interest together, and many others. However, there’s one priority that’s not negotiable, and that’s compliance with the Voting Rights Act of 1965.
This law, enacted during the wave of Civil Rights legislation, imposes various requirements on states and local governments in order to protect the voting rights of racial and ethnic minorities. One clause (VRA Section 2) prohibits states and localities from enacting any election rule which “dilutes” the voting power of minorities. Prior to the enacting of this law, almost all southern states, as well as many states with significant minority populations, used multi-member districts for legislative, local, and even Congressional offices. The federal Courts, including the US Supreme Court, have literally heard hundreds of cases dealing with this issue. The bottom line is that, in cases where a minority group has a significantly large enough population to influence the results, multi-member districts are considered suspect. This is the primary reason why the number of states using MMD today is ten, and not the twenty-plus it was in the 1970s.
This is the primary reason why the Redistricting Committee chose to split two districts (Districts 4 and 9) into smaller House subdistricts (4A, 4B, 9A, and 9B). To clarify, those districts include the two largest Native reservations in the state: Fort Berthold/Three Affiliated Tribes (MHA), and Turtle Mountain. However, under their new configurations, those Senate districts would have either a majority, or very high percentage, of white residents, with the Native populations being 34% and 57%, respectively. By dividing those districts into single House constituencies, the Native population is given a much higher chance of selecting the candidate of their choice. South Dakota, in the early 2000s, faced a similar situation with several of their Native reservations. However, they kept those districts as MMD, and ended up losing lawsuits brought by the federal Justice Department, individual tribal members, and the ACLU. Since 2005, South Dakota has split two of its Senate districts (26 and 28) into four separate House districts (26A and B, and 28A and B)
During the Redistricting Committee’s process, they heard requests from all four tribal governments to create sub-districts in Reservation communities. Given the standards laid out by the federal Courts (especially in the Thornburg v Gingles  case), the Committee concluded that it was required to do so for MHA and Turtle Mountain. The other two Reservations (Spirit Lake and Standing Rock) did not meet the population requirements as defined in the Gingles case.
Critics, including some current House members, as well as prominent political commentators in the state, have characterized this move as “racial gerrymandering”. Others have argued that to split some districts, but not all, would result in a violation of the Constitution’s Equal Protection clause (which was the basis of the Baker v Carr (1962) and Reynolds v Sims (1964) “one person, one vote” rule in the first place). However, the federal Courts, including the Supreme Court, have ruled on these questions many times. In fact, AFTER those two rulings, the Supreme Court rejected, TWICE, the argument that states were not allowed to mix single-member and multi-member systems (in Fortson v Dorsey  and Burns v Richardson ). I mentioned above that Maryland uses a mixture of single-member and multi-member districts (in its lower House). In 1994, the federal courts in Maryland ordered the division of a few of those districts to protect Black voters. Likewise, in the 2001-2005 cases in South Dakota, the courts ordered the splitting of just those two districts affecting Native Americans. If there was a serious concern about violating the Equal Protection rights of all voters, one would think that those federal courts would have ordered ALL districts in those states to be split.
As for the “racial gerrymandering” charge, it is true that in 1993, the Supreme Court invalidated a North Carolina congressional map because it created a second majority-Black district. However, the issue in that case was that the new district could only be created by stringing together neighborhoods in multiple cities, using an interstate highway to connect those areas across 150 miles. The Court, in its decision, still required states, if they were able, to follow VRA Section 2 rules to protect minority voters, especially if those voters lived in a “compact” area.
Having studied state Legislatures for over 20 years, I can say, with absolute confidence, that the committee’s actions, in regards to complying with VRA Section 2 and the Gingles precedents, were not only legally necessary, but the right thing to do.
(Mark L. Johnson, Fargo, teaches Political Science and Geography at Minnesota State Community and Technical College in Moorhead. He is a former Chief Clerk of the North Dakota House of Representatives. His research areas include the North Dakota Legislature, as well as demographic and voting trends in the region. All opinion expressed in this piece are his, and do not reflect any position of MState or the Minnesota State College and University System.)