ROBERT J. SHELBY, United States District Judge.
Plaintiffs, Navajo Nation and several individual tribe members (Navajo Nation), sued Defendant San Juan County, claiming the County Commission and School Board election districts violated the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.
The court then outlined a process for adopting legally sound remedial districts.
For the reasons below, San Juan County's remedial plans fail to pass constitutional muster. Specifically, the court concludes race was the predominant factor in the development of District 3 of the School Board plan and Districts 1 and 2 of the County Commission plan. The County's consideration of race requires strict scrutiny analysis of these districts. The court concludes the County has failed to satisfy strict scrutiny and, therefore, these districts are unconstitutional. The court will not adopt the County's plans.
The background relevant to Navajo Nation's challenge generally is set forth in the court's previous Memorandum Decisions and Orders.
Though limited in scope, the factual recitation that follows is lengthy and detailed. This is a product of the legal analysis the court is required to perform. The court must evaluate whether the County's proposed plans constitute an unconstitutional racial gerrymander under the Equal Protection Clause. To do this, the court must first make a factual finding about whether race was the predominant factor in the County's decision to place a significant number of voters within or without any specific election district. To be the predominant factor, race must have subverted traditional race-neutral redistricting principles. Traditional redistricting principles include compactness, respect for political boundaries, incumbency protection, and contiguity, among others.
Because the court concludes race was the predominant factor, it must determine whether the County has narrowly tailored its race-based decisions to meet a compelling government interest. The Supreme Court has long assumed compliance with the Voting Rights Act is a compelling government interest. If the County invokes compliance with the Voting Rights Act as its compelling government interest, it must show it had a strong basis in the evidence for concluding its actions were necessary to comply with the Act.
With this framework in mind, the court first provides a brief procedural background, then discusses the County's overall approach to redistricting, and finally discusses the County's development of the proposed School Board and County Commission election districts.
Navajo Nation filed the original Complaint in this case more than five years ago, in January 2012.
Extensive motion practice ensued, including motions for partial summary judgment under each legal theory.
The court did not reach Navajo Nation's claims under Section 2 of the Voting Rights Act. A brief discussion of the parties' positions on Section 2 issues is necessary, however, because Voting Rights Act considerations significantly affected the County's redistricting process; and because the County's position on the existence of a Section 2 violation is important to the court's legal analysis below.
Section 2 of the Voting Rights Act prohibits State and local governments from restricting the right to vote based on race.
In a second motion, Navajo Nation argued it had established the second and third Gingles factors — proving that Native Americans in the County are politically cohesive and that White voters in the County vote sufficiently as a bloc to defeat the Native American's preferred candidates.
In its third motion for partial summary judgment, Navajo Nation argued it had established a Section 2 violation as to the County Commission election districts under the totality of the circumstances test.
With this procedural background in mind, the court turns to the County's redistricting process. The County took the same general approach to redistricting both the School Board and County Commission election districts.
Brace's first, and most important, consideration when developing the remedial districts was compliance with the Constitution, specifically the one-person, one-vote requirement of the Equal Protection Clause.
Brace's second consideration, which he prioritized after one-person, one-vote but before traditional redistricting principles, was compliance with Section 2 of the Voting Rights Act. To ensure the newly drawn districts complied with the Voting Rights Act, Brace aimed to achieve "proportional representation" — where each racial group has the opportunity to elect representatives in proportion to its population.
Proportional representation presented a challenge in San Juan County, which is roughly half Native American and half White but with an odd number of voting districts — five for the School Board and three for the County Commission. Brace's goal, therefore, was to create two safe Native American School Board districts, two safe White School Board districts, and a district where the racial mix reflected the County's overall demographics — approximately 52% Native American and 48% White.
Brace stated that under the County's plans, Native Americans had an opportunity to elect candidates of their choice — effectively asserting compliance with Section 2. The analysis he performed to support this statement involved "simply taking a look at the voting age population and the racial mix in voting age population."
After addressing one-person, one-vote and the Voting Rights Act, Brace then considered what he described as "the kitchen sink."
Brace described the plans as "the careful result of a process of refinement involving multiple attempts to create as little deviation as possible among the districts [one-person, one-vote], while reflecting the overall makeup of the County [Voting Rights Act] as well as respecting traditional communities of interest as much as possible [the `kitchen sink']."
Having described the County's overall approach to redistricting, the court now discusses each set of districts in turn, starting with the School Board districts. San Juan County submitted its proposed remedial School Board election districts in the form of a Status Report
As the court ordered, Brace focused on achieving compliance with the Equal Protection Clause's one-person, one-vote requirement. Brace worked to create School Board election districts that were as nearly of equal population as practical. The
Brace also discussed the racial composition of the districts and his use of proportionality. He asserted compliance with Section 2 of the Voting Rights Act, which requires protected voters have the same opportunity as other members of the electorate to elect representatives of their choice. In his initial declaration, Brace stated, "the County [School Board] Proposal provides all voters in San Juan County, including Native American voters, the opportunity to elect candidates of their choice from Districts that reflect the nearly equal division of the population in the County between non-Hispanic Whites and Native Americans."
In Navajo Nation's objection to the County's School Board plan, its expert William S. Cooper argued the County's plan improperly packs Native Americans, in violation of Section 2 of the Voting Rights Act.
Brace stressed the School Districts were racially proportional — noting the County's plan "creates two districts with substantial non-Native American majorities, two districts with substantial Native American majorities, and a swing district that is more nearly evenly split (but still having a Native American majority that is greater than the bare Native-American majority for the County as a whole claimed by Plaintiffs)."
In their depositions, the San Juan County Commissioners recalled discussions of race and the concept of proportionality to varying degrees. Commissioner Phil Lyman testified that the process of adopting new School Board districts in accordance with the court's mandate "was an exercise in compliance, and we took our expert's
Commissioner Rebecca Benally testified that Brace discussed proportionality with the Commissioners. She described the concept as resulting in a map "that represented the people whether it was Native Americans, Hispanic, the white population, that was fair and equitable."
Brace also considered several traditional redistricting principles while drawing the remedial School Board election districts.
Brace stressed the potential administrative burden on the County in implementing the new election districts — and his resulting decision to minimize precinct splits.
Brace discussed the importance of instituting the County's "community school" concept in the new districts. The community school concept requires establishing districts "around the four high schools and their feeder schools establishing a situation in which an individual Board member represents his/her community and the schools in that community."
Brace also submitted a declaration in response to Navajo Nation's proposed remedial plans.
The court now turns to the County's proposed County Commission election districts. The County submitted with its proposed remedial plan for the Commission districts
In his declaration supporting the County Commission districts, Brace discussed his goal of creating districts with populations as nearly equal as possible. The proposed plan has a deviation of 0.2441%, representing just twelve people.
Brace again asserted compliance with Section 2 of the Voting Rights Act, stating "[t]he County['s County Commission] Proposal provides all voters in San Juan County, including Native American voters, the opportunity to elect candidates of their choice from Districts that reflect the nearly equal division of the population in the County between non-Hispanic Whites and Native Americans."
In the County's submissions, Brace also discussed several traditional redistricting principles he considered while redrawing the County Commission districts.
In his declaration in response to Navajo Nation's plan, Brace provided additional information regarding the district's compactness in the County's plan.
In his initial declaration, Brace again discussed his efforts to limit precinct splits to curb the administrative burden of implementing the new election districts.
Brace briefly addressed incumbent protection and communities of interests, stating each incumbent Commissioner resides in a separate district, and "no municipality or census designated place within the County is split by the County's Proposal."
In addition to the general information regarding the development of the County Commission plan, the record contains information specific to the development of Districts 1 and 2. The court first discusses District 2 to provide context for its discussion of District 1.
In his declaration responding to Navajo Nation's opposition to the County's plan, Brace elaborated on his use of race and proportionality in District 2. He stated, "when I drafted an initial plan based on traditional redistricting principles, the plan produced District 2 that was only 45% Indian. I continued to revise the plan so as to raise the Indian population above 50%. In the County's Plan, District 2 has an Indian population of 51.94%."
Brace also "included part of [precinct] 13, Oljato, into District 2 in order to bring
Brace discussed in his deposition two of the communities included in District 1 — Spanish Valley and Navajo Mountain. Spanish Valley is a mostly-White, fast-growing suburb of Moab.
When asked why he placed Navajo Nation and Spanish Valley in the same district, Brace explained he created District 3 and District 2, "and the District 1 is what's left over."
This case is now in its remedial phase. Having previously found both the School Board and County Commission election districts unconstitutional, the law requires the court to oversee the implementation
Consistent with this guidance, the court previously made clear if "San Juan County's proposal remedies the identified Equal Protection violation, and is otherwise legally sound," the court likely would enter that plan.
The court must now decide if the legislative redistricting plans submitted by the County are valid — whether they comply with the Constitution, the Voting Rights Act, and traditional redistricting principles.
The Equal Protection Clause limits racial gerrymandering of legislative districts — "prevent[ing] a State, in the absence of sufficient justification from separating its citizens into different voting districts on the basis of race."
In considering Navajo Nation's claim of racial gerrymandering, the court must first decide if San Juan County used race in a way that triggers strict scrutiny. For strict scrutiny to apply, Navajo Nation must show race predominated over traditional
The court finds, for the reasons discussed below, that race predominated in the formation of District 3 of the County's proposed School Board election districts and Districts 1 and 2 of the County's proposed County Commission election districts. The court further concludes the County's race-based districting decisions were not narrowly tailored to meet a compelling government interest, and thus fail strict scrutiny. Because these districts are racially gerrymandered in violation of the Equal Protection Clause, the court will not adopt the County's proposed plans. The court takes up each of these issues in turn.
Not all consideration of race in the redistricting process subjects the government's action to strict scrutiny. The Supreme Court has recognized "the sensitive nature of redistricting" and has instructed "courts to exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race."
Traditional race-neutral districting principles include contiguity, compactness, communities defined by actual shared interests, respect for political subdivisions, incumbency protection, and political affiliation, among others.
A plaintiff may show race was a predominant factor "either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose."
In several cases, some recent, the Supreme Court has considered the type of evidence a plaintiff must put forth to make this showing — consistently rejecting bright-line rules in favor of a holistic approach. In Miller v. Johnson, the Supreme Court rejected a rule requiring the plaintiffs to make "a threshold showing of bizarreness" regarding the shape of the challenged district, in order to show race predominated.
The Court has also held that a State's use of a racial quota or goal in the redistricting process — in and of itself — is not sufficient evidence to prove race predominated over traditional redistricting criteria in a specific district, even when the racial goal was prioritized over all traditional redistricting principles. In Bush v. Vera, a plurality of the Court concluded race does not necessarily predominate merely because the State intended to create majority-minority districts.
In Bethune-Hill v. Virginia State Board of Elections, the Supreme Court this year rejected a lower court's "threshold requirement" that the plaintiffs show "a conflict or inconsistency between the enacted plan and traditional redistricting criteria" before finding race predominated over traditional districting criteria.
The court now turns to the question of whether race was a predominant factor in the drawing of any specific districts in the School Board or County Commission plans. The court first considers evidence of San Juan County's use of race generally in its redistricting processes for the School Board and the County Commission — concluding the County set specific racial targets for its districts and prioritized these racial goals above traditional redistricting principles. The court next conducts a district-by-district analysis considering the impact of the County's overarching policy on specific districts, including careful examination of all the evidence submitted at the district level.
The court concludes San Juan County adopted a countywide policy of prioritizing racial targets above all other redistricting criteria — except one-person, one-vote — when redistricting both the School Board and County Commission election districts. The San Juan County Commission, the legislative body tasked with redistricting, delegated this work to its retained expert and deferred to his priorities and conclusions.
Brace described his approach to redistricting as follows. First, he considered the one-person, one-vote requirement and attempted to abide by the court's instruction to produce districts that were "as nearly of equal population as is practicable."
As discussed, Section 2 of the Voting Rights Act prohibits State and local governments from restricting the right to vote based on race.
Brace's efforts to comply with Section 2 of the Voting Rights Act amounted to nothing more than setting racial targets for each district. He asserted both the County Commission and School Board plans complied with Section 2, stating, "the County Proposal provides all voters in San Juan County, including Native American voters, the opportunity to elect candidates of their choice from Districts that reflect the nearly equal division of the population in the County between non-Hispanic Whites and Native Americans."
But Brace also explained he was not able to complete any analysis to support this assertion other than to set racial targets for the districts — specifically, his goal of proportionality.
As applied to the School Board election districts, Brace and the County maintain proportionality dictated two safe Native American districts, two safe non-Hispanic White districts, and one district that reflected the overall racial composition of the County with 52.17% total Native American population and 50.33% voting-age Native American population. Similarly, proportionality for the County Commission required one safe Native American district, one safe non-Hispanic White district, and one district that that reflected the overall racial composition of the County.
In its briefing, the County discussed proportionality, and used it as a proxy for compliance with Section 2 of the Voting Rights Act. The County stated:
The County argued, "a plan that reflects the proportional racial characteristics of the entire jurisdiction is presumptively valid, absent a showing that the jurisdiction's re-districting was aimed at precluding a minority group from electing a proportionate number of representatives of their choice."
Because the County's attempt at compliance with Section 2 of the Voting Rights Act entailed nothing more than proportionality (meaning the establishment of racial targets for the resulting districts); and because compliance with the Voting Rights Act was the County's highest priority, save one-person, one-vote; the court concludes San Juan County adopted a countywide policy of prioritizing racial targets above all other traditional redistricting criteria.
The County implemented this proportionality goal in both the School Board and County Commission plans. As discussed above, the County contends proportionality required two School Board districts with a safe majority of White voters, two School Board districts with a safe majority of Native American voters, and a swing district that had a slim Native American majority of both the total population (52.17%) and the voting-age population (50.33%). The resulting School Board Districts 1 and 2 have safe majorities of White voters — 89.53% and 78.91% respectively.
Like the School Board remedial plan, the County succeeded in implementing its racial proportionality goal in the proposed remedial County Commission plan. District 1 has a safe White majority of the total population and the voting-age population — 71.25% and 73.25% respectively.
Based on the direct evidence of the County's racial proportionality goal, and the circumstantial evidence clearly showing that the County achieved proportionality, the court concludes San Juan County adopted and implemented a countywide policy of prioritizing racial targets above all other redistricting criteria in creating the School Board and County Commission remedial plans.
Having concluded the County prioritized racial targets above all other redistricting criteria, the court must now analyze the impact of this policy on individual districts in each proposed plan. The court must also consider other direct and
Navajo Nation met its burden to show race was the predominant factor motivating the drawing of School Board District 3, through both direct and circumstantial evidence. First, Navajo Nation points to the racial demographics of District 3, which approximate the County's racial target, as circumstantial evidence that race was predominant. In District 3, the County's racial target was very specific. The goal was to mirror the overall demographics of the County with Native Americans having a slim majority in both the total population (constituting 52.17% of the total population of the County), and the voting-age population (constituting 50.33% of the voting-age population).
Second, Navajo Nation compellingly points to the circumstantial evidence of District 3's shape. Indeed, when one looks at the map of the County's proposed School Board districts, District 3 stands out as oddly-shaped and non-compact. The District has a horseshoe like appearance, wrapping completely around District 4. District 3's low compactness reflects this odd shape. This District is significantly less compact than the other districts, as measured by two tests experts use to measure compactness (with a Reock
Third, the number of precinct splits related to District 3 provides additional circumstantial evidence that race predominated over the traditional districting criteria of maintaining precinct boundaries. Brace split a total of eight precincts or sub-precincts countywide in developing the remedial plan for the School Board districts. The map the County submitted shows at least four of those splits are along the boundaries of District 3. Again, the County has offered no other explanation for these precinct splits.
Based on the direct evidence of the County's stated racial target for District 3, along with the circumstantial evidence that the demographics of the District correlate closely to the County's racial goal, that the District was oddly shaped, relatively non-compact, and an outlier compared to other districts, and that the County's split precincts were focused around District 3, the court concludes that race was the predominant factor motivating the County to place a significant number of voters within or without School Board District 3.
Navajo Nation presented no evidence, outside the County's overarching
Having addressed the County's proposed School Board election districts, the court now addresses whether Navajo Nation has met its burden to show race was the predominant factor in any specific remedial County Commission election district. The court addresses District 2 first, as the discussion of District 2 informs that of Districts 1 and 3.
Navajo Nation met its burden to show race was the predominant factor motivating the County to include or exclude a significant number of voters from District 2. Navajo Nation submitted both direct and circumstantial evidence that race was the County's predominant consideration.
The sworn testimony of the County's expert provides perhaps the strongest evidence that race predominated over traditional redistricting criteria in the formation of District 2. Brace testified, "when I drafted an initial plan based on traditional redistricting principles, the plan produced District 2 that was only 45% Indian. I continued to revise the plan so as to raise the Indian population above 50%. In the County's Plan, District 2 has an Indian population of 51.94%."
In addition to this direct evidence, there is the circumstantial evidence that the County got very close to its racial target of 52.17%, with 51.94% Native Americans in the resulting district. Although District 2 is not bizarrely shaped, the Supreme Court has said that bizarreness is not a threshold requirement to a finding that race predominated.
Navajo Nation also met its burden to show race predominated over traditional redistricting principles in District 1. The evidence that race predominated in District 1 is tightly bound to decisions made in District 2. First, Brace's race-based decision to split precinct 13 to increase the Native American population in District 2 had a direct effect on District 1, the bordering district. When Brace chose to subvert
Second, Brace grouped disparate communities together in District 1 because these communities were in an area that was "left over" after he made his race-based decisions in District 2. District 1 contains the communities of Spanish Valley and Navajo Mountain, which are hundreds of miles apart, share no common infrastructure, and share few common interests. When asked why he put Navajo Nation and Spanish Valley in the same district, Brace stated he created District 3 and District 2, and District 1 "is what's left over."
Accepting that Brace's decision to group disparate communities together was based on race requires the court to accept that the race-based decisions made in District 2 had a significant impact on District 1. While such an inference may not always be appropriate, it necessarily follows here. Precinct 13 was split based on race and directly affected both adjoining districts; where the County espoused and successfully implemented a countywide policy setting racial targets for the County Commission districts and prioritized that policy over all traditional redistricting principles; and where the County offered no other explanation for grouping together communities hundreds of miles apart with no identified shared interests.
Navajo Nation presents little evidence, outside the County's overarching proportionality goal, that race was the predominant factor motivating the County to place a significant number of voters within or without District 3. The court concludes Navajo Nation failed to establish that race was a predominant factor in District 3.
Having concluded race was a predominant factor in the County's decision to allocate voters to District 3 of the School Board and Districts 1 and 2 of the County Commission, the court must now decide whether the County's race-based decisions survive strict scrutiny. The burden shifts to the County in this step of the analysis to show it narrowly tailored its decision to achieve a compelling government interest.
And the same result yields even if the court reads the County's submissions to
The County never argued it had good reasons to believe it would transgress the Voting Rights Act if it did not make these race-based decisions. And the County provided no evidence that there was a potential Section 2 violation to remedy as to Native American voters.
Ironically, there may well be good reasons to believe there is a potential Section
But even if the County had established it had good reasons to believe there was a Section 2 issue to remedy, its broad use of proportionality was not narrowly tailored to address a potential Section 2 violation. The County argued that proportionality was a safe harbor from Section 2 liability, and relied on Johnson v. De Grandy
In sum, the County never argued its race-based decisions were narrowly tailored to achieve a compelling government interest. The County also failed to establish that it had a strong basis in the evidence for concluding its actions were necessary to comply with the Voting Rights Act. The County's decision to allocate voters to District 3 of the School Board and Districts 1 and 2 of the County Commission based predominately on race thus fails strict scrutiny review.
The record establishes that San Juan County predominated racial considerations over other traditional districting criteria when drawing its County Commission Districts 1 and 2 and School Board District 3, and it did so without providing any reason to think it would violate the Voting Rights Act if it simply drew districts based on race-neutral factors. To the contrary, it did so even while maintaining there was no Section 2 issue that required it to take race into account in redistricting. This runs afoul of Supreme Court pronouncements against racial classifications in drawing voting districts. The court thus concludes School Board District 3 and County Commission Districts 1 and 2 in the County's proposed remedial plans are unconstitutional. For this reason, the court cannot accept the County's proposed plans.
The court must now consider how best to proceed to the adoption of remedial election districts. The court previously stated it would evaluate Navajo Nation's proposed redistricting plans if the County's plans failed.
The Supreme Court has cautioned, "redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt."
Drawing new election districts in San Juan County is an especially sensitive task given the County's demographics; its residents' legitimate, competing, and important interests implicated by redistricting; and its complicated voting rights history. In view of this reality, the court believes 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. Taking account of "what is necessary, what is fair, and what is workable" given the circumstances of this case, the court concludes the new districts must be a product of an independent, neutral process, with ample opportunity for participation and feedback from the parties.
For these reasons, the court declines to evaluate the proposed remedial plans submitted by Navajo Nation. It will instead appoint a special master to assist the court in formulating lawful remedial districts. The court will schedule a status conference to solicit input from the parties regarding this process.
SO ORDERED this 14th day of July, 2017.
District Percent Percent Native VAP Percent VAP Percent
White_Race American_Race White_Race Native
Alone Alone Alone American_Race
Alone
1 89.04% 4.59% 89.53% 4.40%
2 77.37% 18.41% 78.91% 18.36%
3 42.66% 53.14% 43.36% 53.51%
4 1.82% 96.84% 1.59% 97.43%
5 10.06% 87.17%165 13.17% 85.33%166
District Non-Native Native American Voting Age Voting Age
American Population, Population,
Non-Native Native American
American
1 71.26% 28.74% 73.25% 26.75%
2 48.06% 51.94% 49.40% 50.60%
3 24.12% 75.88% 26.14% 73.86%167
District Reock Polsby-Popper 1 0.63 0.36 2 0.52 0.26 3 0.40 0.15 4 0.74 0.54 5 0.59 0.30 Mean 0.58 0.32 Average
District Reock Polsby-Popper Perimeter 1 0.1320 0.1516 563.99 2 0.3534 0.3775 229.58 3 0.2815 0.4270 237.76 Mean 0.2557 0.3187 1,031.33 Average
