MINOT, N.D. — According to reporting from Jeremy Turley, a plan to subdivide a couple of North Dakota's legislative districts is moving forward.

If you haven't been paying attention to the redistricting process, here's some background: The admittedly noble purpose of the subdivision plan is to give our state's Native American communities a better chance of electing one of their own to the state assembly.

Currently, a legislative district is one chunk of geography served by one senator and two representatives.

Subdivision would split districts around tribal communities home to enough population to make it possible so that one district essentially serves the Native Americans and the other everyone else.

"We need to be at the table, and we need fair representation," Lisa DeVille, a member of the MHA Nation who unsuccessfully ran for the North Dakota Senate last year as a Democrat, told the redistricting committee.

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But is subdivision fair?

Supporters of this initiative argue that it's already been done in other states, notably South Dakota, and that if the Legislature doesn't do it during this redistricting process, the state could be sued. The state was sued over this very issue in the early 1990s, but the court found that subdivision wouldn't work because, back then, the tribal areas didn't have enough population to make the apportionment work.

That's changed. The population in at least two tribal areas — the Fort Berthold and Turtle Mountain reservations — is now sufficient and the redistricting committee, per Turley's reporting, is advancing plans to subdivide two districts around them.

Sen. Ron Sorvaag, R-Fargo, speaks to the state redistricting committee on Sept. 8, 2021, at the Hilton Garden Inn in Fargo regarding the legislative redistricting for eastern North Dakota. Chris Flynn / The Forum
Sen. Ron Sorvaag, R-Fargo, speaks to the state redistricting committee on Sept. 8, 2021, at the Hilton Garden Inn in Fargo regarding the legislative redistricting for eastern North Dakota. Chris Flynn / The Forum

What all of this ignores is what subdivision would do to political representation in non-tribal areas.

If the state subdivides only some legislative districts, to cater to the tribal communities, the non-tribal citizens in those districts should sue.

Here's why.

For one, they'd be represented in the Legislature by people they couldn't vote for. If, after redistricting, a legislative district encompassing the Fort Berthold communities were subdivided, the two representatives elected from the subdivided areas would still represent the entire district. Only, half the district wouldn't have been able to cast a ballot for that person.

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How can you be represented by someone who doesn't have to worry about earning your vote?

Subdivision would also create unequal representation in the Legislature.

If, after redistricting, you live in, say, District 41 in the Fargo area, you would be the direct constituent of two representatives and one senator. You can vote for them, and if they get out of line, you can vote for someone else.

If you're from the subdivided district near the Fort Berthold area, however, you could only vote for one senator and one representative.

North Dakota's redistricting committee approved a plan Wednesday, Sept. 29, to divide District 4 into two House subdistricts, one of which (4A) encompasses the Fort Berthold Indian Reservation. Special to the Forum
North Dakota's redistricting committee approved a plan Wednesday, Sept. 29, to divide District 4 into two House subdistricts, one of which (4A) encompasses the Fort Berthold Indian Reservation. Special to the Forum

The 14th amendment guarantees us equal protection under the law, but how can we be equally protected if we aren't equally represented in our law-making body? This is an important question because the 14th Amendment, which deals with equal protection, is at the heart of the jurisprudence around redistricting.

In Baker v. Carr, a 1962 opinion, the U.S. Supreme Court found that malapportionment in legislative redistricting was a violation of the 14th amendment's equal protection clause. That set the precedent for redistricting to be a judicial question.

Subdividing only some legislative districts would mean that most North Dakotans could vote for three lawmakers to represent them in Bismarck but some could only vote for two.

What is that if not unequal?

And if it's unequal, how is it not unconstitutional?

Some argue that the state will be sued if they don't subdivide districts around the reservations. I would argue that they should be sued if they do.

If we're going to subdivide districts, we must do all of them or none of them.

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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com.