As I noted a few days ago, Justice Kavanaugh put on hold via an administrative stay an Eighth Circuit case concerning whether private plaintiffs have the right to sue to enforce Section 2 of the Voting Rights Act. The answer should be that of course they do—that’s what Congress has understood since 1982, when it enacted the current regime for Section 2 claims (and in 2006 when Congress overwhelmingly renewed the VRA). The 8th Circuit decision conflicts with lots of other precedents, and stands alone. It would essentially kill VRA enforcement in all the states contained in that circuit.

When I blogged earlier, I had only a quick chance to glance at the petition seeking a stay pending the Native plaintiffs seeking full Supreme Court review of the decision, which would eliminate fair representation for tribal members in the North Dakota Legislature.

But this caught my eye upon reviewing the petition more closely:

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 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.

If you take a look at the appendix beginning around page 100, you can see the memo from the North Dakota Legislative Council, taking the bizarre position that once the 8th Circuit mandate issues, the lower court opinion finding a voting rights violation automatically becomes a nullity, the state reverts back to the 2021 districts that were found to be a voting rights violation, and the state legislator elected from a majority-Native American district could be ousted because the no longer lives in the (old) district.

I’ve never seen anything like this and it is now how things work. The districts are what they are until the next election or a new court order. The 8th Circuit ruling does not automatically render the last election invalid. This is an insane interpretation unlike anything else I’ve ever seen.

If the Supreme Court stay is lifted and the mandate issues, that does not nullify the old election or old districts. It would mean instead that in the next election, the old district lines would be be used (following an order from the lower court that would have to reverse its initial ruling). The eligibility rules would apply for the next election.

I expect the Supreme Court to keep the stay in place and grant cert in this case, eventually reversing the 8th Circuit. But sheesh!