Nation v. San Juan Cnty., Case No. 2:12-cv-00039

• Decision Date: 21 December 2017
• Docket Number: Case No. 2:12-cv-00039
• Parties: NAVAJO NATION, a federally recognized Indian tribe, et al., Plaintiff, v. SAN JUAN COUNTY, a Utah governmental subdivision, Defendant.
• Court: U.S. District Court — District of Utah

NAVAJO NATION, a federally recognized Indian tribe, et al., Plaintiff,
v.
SAN JUAN COUNTY, a Utah governmental subdivision, Defendant.

Case No. 2:12-cv-00039

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

December 21, 2017

MEMORANDUM DECISION AND ORDER

Judge Robert J. Shelby

Before the court are Special Master Dr. Bernard Grofman's Final Report and Addendum,¹ recommending remedial election districts for the San Juan County Commission and School Board, together with the County's objections to these recommended election districts.² For reasons below, the court concludes the recommended remedial districts comply with the Constitution, the Voting Rights Act, and traditional redistricting principles to the extent possible. Having concluded the proposed districts are legally sound, the court adopts the Special Master's recommendations and orders the use of these remedial districts in the November 2018 election.

BACKGROUND

Plaintiffs Navajo Nation and several individual Tribe members (collectively, Navajo Nation) challenged the County Commission and School Board election districts in San Juan County, Utah, under the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth

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Amendment, and Section 2 of the Voting Rights Act.³ The court subsequently held both the County Commission and the School Board election districts unconstitutional.

This case then entered its remedial phase. The court requested and San Juan County provided proposed remedial districts for both the School Board and County Commission. The court intended to adopt these districts if legally sound. The court eventually determined, however, that San Juan County's proposed remedial districts were also unconstitutional.

The court then ordered the appointment of a neutral Special Master, Dr. Bernard Grofman, to propose redistricting plans. The court now considers the remedial County Commission and School Board districts recommended by the Special Master. The court first sets forth the background necessary to address the issue currently before it—whether to adopt the Special Master's proposed remedial plans—and provides context for its decision. A more detailed background of this long-running case is set forth in the court's three prior substantive written decisions.⁴

I. Procedural History

A. Liability Phase

In 1983, the United States Department of Justice sued San Juan County in this court, arguing the existing at-large election system in the County violated Section 2 of the Voting Rights Act.⁵ That lawsuit resulted in a Consent Decree and a Settlement and Order. In 1984, the County adopted remedial County Commission election districts, comprised of three single-member districts, one of which (District 3) was majority Native American. These three single-

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member County Commission districts remained in place unchanged for more than twenty-five years before they were adjusted in 2011 to address population equality issues. The County made only minor changes to its Commission districts in 2011, shifting two precincts from District 1 to District 2, and not touching the boundaries of District 3.⁶ The County left unchanged the boundaries of District 3 because it believed it was legally required to leave the district lines in place to provide for a minority-majority district—thus using race as a predominant factor for its decision.⁷

Plaintiffs filed the original Complaint in this case in January 2012, nearly six years ago.⁸ In their subsequently amended Complaint, they challenged the 2011 County Commission districts and the School Board districts, which had last been redrawn in 1992. Navajo Nation alleged San Juan County's election districts were legally deficient under three distinct legal theories: (1) that the County Commission election districts were illegally racially gerrymandered under the Equal Protection Clause;⁹ (2) that both the County Commission and School Board election districts violated Section 2 of the Voting Rights Act;¹⁰ and (3) that the School Board election districts violated the one-person, one-vote requirement of the Equal Protection Clause.¹¹

In a previous Order, the court determined County Commission District 3 was racially gerrymandered in violation of the Equal Protection Clause.¹² The court found race was the predominant factor in the County's decision to freeze the boundaries of County Commission District 3—a majority Native American district—in place for over twenty-five years. Because

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race was the predominant factor in the County's decision to freeze District 3, its actions were subject to strict scrutiny.

The County argued its actions were necessary under the Consent Decree and Settlement and Order. But the court concluded nothing in the Consent Decree or Settlement and Order required the County to freeze District 3's boundaries in place. The Consent Decree did not set the number of districts to be established. It provided only that the redistricting plans that were to be developed could involve either "three or five single-member county commissioner districts."¹³ The Settlement and Order established neither district lines nor specific requirements for the contemplated districts, other than they be "fairly drawn single member districts as authorized by state law."¹⁴ The County's actions thus failed strict scrutiny review.

In a separate Order, the court concluded the School Board election districts violated the one-person, one-vote requirement of the Equal Protection Clause.¹⁵ The County's five single-member School Board election districts were established in 1992, and had not been redrawn despite Utah law requiring reapportionment at least once every ten years.¹⁶ These districts had a population deviation of around 38%, substantially higher than the 10% "safe harbor" courts have read Supreme Court precedent to provide.¹⁷ The court concluded Navajo Nation had established a prima facie violation of the Equal Protection Clause as to the School Board election districts,

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and San Juan County had failed to carry its burden to demonstrate this unequal distribution served a legitimate governmental interest.¹⁸

B. Remedial Phase

Having held both the County Commission and the School Board districts unconstitutional, the court then outlined a remedial process.¹⁹ As part of this process, both sides submitted proposed remedial County Commission and School Board plans. Following the opportunity for discovery, Navajo Nation and the County filed objections to each other's proposed plans. The court announced it intended to adopt the County's proposed remedial districts if it concluded they were legally sound.²⁰

But in its July 2017 Memorandum Decision and Order, the court concluded the County's proposed remedial plans were legally infirm and could not be adopted.²¹ The court concluded District 3 of the proposed School Board plan and Districts 1 and 2 of the proposed County Commission plan were racially gerrymandered in violation of the Equal Protection Clause.²² For reasons explained in the Order, the court concluded race was a predominant factor in the drawing of these districts and the County had failed to meet its burden to show it narrowly tailored its race-based decisions to achieve a compelling government interest.

In its Order outlining the remedial process, the court initially stated it would evaluate Navajo Nation's proposed remedial plans if the County failed to submit legally sound plans. And the court indicated it likely would then adopt Navajo Nation's plans if they were legally

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sound. But the court ultimately declined to evaluate Navajo Nation's proposed plans and instead appointed a neutral Special Master to recommend remedial plans for the County. As explained in the July 2017 Order, the court "believ[ed] adopting Navajo Nation's proposed redistricting plans—the product of an adversarial, litigation-driven process—could jeopardize, and possibly undermine confidence in, the legitimacy of the County's new legislative districts."²³

On September 29, 2017, the court appointed Dr. Bernard Grofman to serve as Special Master.²⁴ In the Order Appointing a Special Master, the court instructed Dr. Grofman to submit a report and recommendation proposing remedial districts that complied with the Constitution, the Voting Rights, and traditional redistricting principles to the extent possible.²⁵ The court also instructed that the proposed districts divide the County into three single-member County Commission districts and five single-member School Board districts.²⁶ The court set an expedited schedule to enable it to adopt or reject final plans by December 15, 2017.²⁷ Though the court provided time for objection, neither party objected to the Order Appointing a Special Master.²⁸

After Dr. Grofman developed an initial series of conceptual remedial plans, the court decided to solicit input from the parties and the public with the goal of improving the final proposed plans by identifying any mistakes early and addressing any concerns to the extent possible. Dr. Grofman provided a detailed Preliminary Report that set forth three conceptual plans for the County Commission districts (CC_A, CC_B, and CC_C) and two conceptual plans

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for the School Board districts (SB1 and SB2).²⁹ The Preliminary Report detailed the process Dr. Grofman used to develop his conceptual plans.

The court provided the Preliminary Report and the supporting technical files to the parties on November 9, 2017, and San Juan County made the materials publicly available on its website. The court then scheduled public meetings to gather feedback on the preliminary plans.³⁰ On November 15, 2017, the court held a hearing with the parties at the federal courthouse to hear any objections to or comments on Dr. Grofman's proposed conceptual plans.³¹ On November 16, 2017, the court held two public meetings in San Juan County—a morning meeting in Monticello and an afternoon meeting in Bluff. The parties assisted the court in...