Jill N. Parrish, United States District Court Judge.
Before the court is a Motion for Partial Summary Judgment filed by Plaintiffs Navajo Nation Human Rights Commission, Peggy Phillips, Mark Maryboy, Wilfred Jones, Terry Whitehat, Betty Billie Farley, Willie Skow, and Mabel Skow, (Docket No. 144); a Motion for Summary Judgment filed by Defendants San Juan County, John David Nelson, Phil Lyman, Bruce Adams, and Rebecca Benally (collectively, "County Defendants"), (Docket No. 141); and a Motion for Partial Summary Judgment filed by Defendant Rebecca Benally, (Docket No. 127).
San Juan County is a sparsely populated and geographically vast political subdivision of the State of Utah, occupying the state's southeastern corner. The County's southern boundaries encompass a large section of the federally established Navajo Reservation. As a result, approximately half of the County's residents are members of the Navajo Nation, a federally recognized Indian tribe. Most of the County's Navajo residents live within the boundaries of the Reservation. Much of the rest of the County's residents are centralized in the northern half of the County. This geographic segregation has often resulted in significant political tension between Navajo and white residents, which has played out in numerous cases before this court. See, e.g., Navajo Nation v. San Juan Cty., 162 F.Supp.3d 1162 (D. Utah 2016) (addressing voting rights and election districts in San Juan County).
These motions for summary judgment come before the court in the context of a lawsuit initiated by the Navajo Nation Human Rights Commission and several named plaintiffs
During 2014 and early in 2015, the Navajo Nation and the Navajo Nation Human Rights Commission officially opposed the mail-in system, asserting that the closure of polling locations and switch to mailed ballots burdened rural Navajo voters. The
After some unfruitful back-and-forth between the County and various civil-liberties organizations opposed to the mail-in ballot system, the Commission filed the Complaint underlying this Motion on February 25, 2016, alleging that the mail-in ballot system violated the VRA and the Equal Protection Clause. (Docket No. 2). Shortly thereafter, Defendants filed their Answer, which asserted that the County was making significant changes to its election procedures in anticipation of the June 2016 primary elections.
After the parties unsuccessfully attempted to resolve the case through settlement in early 2017, the instant motions for summary judgment were filed. (Docket Nos. 141, 144). Each party filed a response and a reply to the respective cross-motions. (Docket Nos. 149, 151, 154 155). A previously filed motion for partial summary judgment on behalf of Defendant Benally alone is also before the court for resolution. (Docket No. 127). Both a response and a reply were filed to that Motion as well. (Docket Nos. 130, 133). The court heard oral argument on July 26, 2017. (Docket No. 170). The court now rules on the Motions under jurisdiction granted by 28 U.S.C. § 1331.
Before addressing the merits of Plaintiffs' claims, the court must address certain challenges to its subject-matter jurisdiction raised by County Defendants. Specifically, County Defendants assert that any controversy regarding the 2014 procedures is no longer live and, as a result, any claims based thereon are moot. As the party asserting that claims regarding the 2014 procedures are moot, the County "bears the burden of coming forward with the subsequent events that have produced the alleged result." Chihuahuan Grasslands All. v. Kempthorne,
To that end, the County explains that it has abandoned the 2014 procedures in favor of the 2016 procedures for an entire election cycle and that the County Clerk has "no intention to return to the 2014 procedures." (Docket No. 154, at 48). Plaintiffs respond that the County's shift from the 2014 procedures to those used in 2016 occurred "under mysterious circumstances," (Docket No. 149, at 5), and assert that the shift was "a temporary move[ ] intended to derail this litigation," (id. at 50). As explained below, the court concludes that Plaintiffs' claims regarding the 2014 procedures are indeed moot and must be dismissed for lack of subject-matter jurisdiction. However, the court also holds that Plaintiffs' newly-minted claims regarding the legality of the 2016 procedures are fit for resolution and may be added to the complaint. Additionally, the court concludes that Plaintiffs' claims for injunctive relief are not mooted by the implementation of the 2016 procedures and may also proceed.
In general, "a federal court cannot give opinions absent a live case or controversy before it," In re Overland Park Fin. Corp., 236 F.3d 1246, 1254 (10th Cir. 2001) (citation and quotations omitted), because "the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction," Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005) (internal quotations omitted) (quoting McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)). Thus, "[m]ootness is a threshold issue," see id., that must be decided before addressing the merits of Plaintiffs' request for declaratory relief, Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109-10 (10th Cir. 2010) ("Declaratory judgment actions must be sustainable under the same mootness criteria that apply to any other lawsuit.").
In evaluating whether a claim for declaratory judgment is moot, "[t]he crucial question is whether granting a present determination of the issues offered will have some effect in the real world." See id. at 1110 (internal quotations and emphasis omitted) (quoting Wyoming v. U.S. Dep't of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)); Overland Park, 236 F.3d at 1254 ("A case is moot when it is impossible for the court to grant any effectual relief whatever to a prevailing party." (citation and quotations omitted)); Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999) ("The core question in mootness inquiry is whether granting a present determination of the issues offered... will have some effect in the real world." (citation and quotations omitted)). The court must "look beyond the initial controversy which may have existed at one time and decide whether the facts alleged show that there is a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Chihuahuan Grasslands, 545 F.3d at 891 (quoting Beattie v. United States, 949 F.2d 1092, 1094 (10th Cir. 1991)).
Here, the court concludes that the County's abandonment of the 2014 procedures has mooted Plaintiffs' claims for declaratory relief regarding those procedures. The County has not used the 2014 procedures for an entire election cycle, choosing instead to implement entirely different procedures for both the primary and general elections in 2016. Moreover, neither the current County Clerk nor the County government has openly expressed any intention to reinstitute the 2014 procedures.
Plaintiffs insist that an exception to the mootness doctrine readily applies to their case. Plaintiffs argue that the County's shift to new voting procedures for 2016 is simply a voluntary cessation of challenged conduct and that County officials "should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." (Docket No. 149, at 50 (quoting Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1149 (10th Cir. 2007)).
"An exception to the mootness doctrine can occur when a defendant voluntarily ceases a challenged action. This exception traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (quotations and citations omitted); Chihuahuan Grasslands All., 545 F.3d at 892 ("[T]his exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct."). Nevertheless, a government defendant's voluntary cessation moots a case when the challenged policy or procedure "is repealed and the government does not openly express intent to reenact it. But a case is not moot if a challenged [procedure] is repealed and there are clear showings of reluctant submission by government actors and a desire to return to the old ways." Citizen Ctr. v. Gessler, 770 F.3d 900, 908 (10th Cir. 2014) (brackets and quotations omitted); see also Brown v. Buhman, 822 F.3d 1151, 1167 (10th Cir. 2016). In other words, "[v]oluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction." Rio Grande, 601 F.3d at 1115 (citation omitted). "The party asserting mootness bears the `heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again." Id. (internal alteration omitted).
Still, this "heavy burden" often falls more lightly on government actors.
Here, County Defendants assert that the implementation of 2016 procedures shortly after this lawsuit was filed was not a litigation tactic, but a response both to "comments by voters about the [2014] vote-by-mail process" and an October 2015 meeting with DOJ officials from the Civil Rights Division who evidently evaluated the 2014 procedures. (Docket No. 154, at 9). The County Attorney and County Clerk have further testified that the decision to reopen certain polling places was made sometime in January or February of 2016 — i.e., shortly before this litigation began. (Id. at 9-10).
Plaintiffs dispute this narrative, arguing that the only support for these assertions are the "self-serving" statements of County Officials. (Docket No. 149, at 12). They further assert that a contemporaneous County Commission meeting held on February 16, 2016 indicated that the "decision as to whether to retain the mail-only system [w]as still ... [an] open [question]." (Id. at 13). Moreover, Plaintiffs point out that the first public announcement of a change in voting procedures came approximately a week after County Defendants were served with the operative complaint. (Id.).
But such circumstantial evidence does not in fact controvert County Defendants' general assertion that County officials made the decision to reopen polling places "on or before February 16, 2016." (See Docket No. 154, at 10). County officials may very well have concluded directly after their discussion of options at the County Commission meeting on February 16, 2016 that the best option would be to abandon the 2014 procedures for the upcoming elections. Indeed, the Commissioners seemed to rely on the County Clerk for information regarding the decision during the February meeting, and it appears that he made the final call. (See Docket No. 149, at 12-13; Docket No. 141, at 6-7). Moreover, assuming the decision to alter voting procedures was made sometime directly after that meeting, the timing of the press announcement is not at all suspicious — three weeks seems about right to draw up county-wide plans and secure new polling locations. While it is possible to construe this all as very convenient timing, there must be a "clear showing[ ] of reluctant submission" by County officials in order to avoid mootness. See Brown, 822 F.3d at 1167. There is simply insufficient evidence on the record to indicate that the County's abandonment of the 2014 procedures was a sham meant "merely to defeat the district court's jurisdiction" or to avoid adverse judgment. See Rio Grande, 601 F.3d at 1117; Brown, 822 F.3d at 1170 ("To find this voluntary cessation is a sham for continuing possibly unlawful conduct, we would have to conclude the highest-ranking law enforcement official in Utah County had engaged in deliberate misrepresentation to the court. We see no basis for this conclusion." (quotations and citation omitted)).
Plaintiffs protest that the County Clerk has testified that he may unilaterally change the voting procedures at any time and that the County Defendants have sought a declaration from this court that the 2014 procedures complied with the VRA. Plaintiffs argue that these facts, taken together, indicate a cognizable threat of a "return to the old ways." See Brown, 822 F.3d at 1151. But the fact that the County has sought to reserve the right to return to the 2014 procedures does not mean that it will certainly take that course, or even
At oral argument, Plaintiffs also seemed to argue that the controversy regarding the 2014 procedures is not moot because the replacement procedures still allegedly violate the VRA and the Fourteenth Amendment. Plaintiffs appear to rely on the following rule: "Where a new statute `is sufficiently similar to the repealed statute that it is permissible to say that the challenged conduct continues,' the controversy is not mooted by the change, and a federal court continues to have jurisdiction." Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (quoting Northeastern Fla. Chapter of Associated Gen. Contractors of Amer. v. City of Jacksonville, 508 U.S. 656, 662 & n. 3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)).
While Plaintiffs are correct that their claims regarding the 2016 procedures arise under the same provisions of the VRA and the Constitution, it cannot be said that the new procedures differ "only in some insignificant respect" from the 2014 procedures. See Ne. Fla. Chapter of Associated Gen. Contractors of Amer. v. City of Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). The voting procedures in San Juan County have "changed substantially" and "there [is] therefore no basis for concluding that the challenged conduct [is] being repeated" by implementation of the 2016 procedures. See id. at 662 n.3, 113 S.Ct. 2297. The new procedures, which place approximately equivalent focus on mail-in and in-person voting, are fundamentally different from the 2014 procedures, which essentially confined the County's voting opportunities to mail-in ballots.
Evidence of this fundamental difference can be seen in the legal deficiencies Plaintiffs attribute to the 2016 procedures. Plaintiffs allege that the new procedures result in disproportionate in-person early-voting opportunities for whites and Navajos, and that the County provided inadequate language assistance during the 2016
All told, there are significant factual and legal disconnects between what Plaintiffs have alleged regarding the 2014 procedures and the reality of the situation in San Juan County. As a result, Plaintiffs' claims for declaratory relief regarding the 2014 procedures are moot and, as explained above, the voluntary cessation exception is inapplicable. In short, any declaration by this court as to the validity of the 2014 procedures would have "no effect in the real world and [would] essentially be an advisory opinion." See Unified Sch. Dist. No. 259, 491 F.3d at 1150 (quotations and citations omitted). The court therefore lacks subject-matter jurisdiction over Plaintiffs' claims for declaratory relief under both the VRA and the Fourteenth Amendment regarding the 2014 procedures. Those claims, designated as the First, Second, and Third Claims for Relief found in Plaintiffs' complaint, (Docket No. 2), are hereby DISMISSED without prejudice, see Brown, 822 F.3d at 1179 ("[D]ismissal for lack of jurisdiction is not an adjudication on the merits and therefore dismissal must be without prejudice.").
Although Plaintiffs' claims for declaratory relief regarding the 2014 procedures are plainly moot, those are not the only claims Plaintiffs have raised at the summary judgment stage. As described above, the cross-motions for summary judgment also extensively address the validity of the 2016 procedures under the VRA and the Fourteenth Amendment. However, Plaintiffs have made the presumably strategic decision not to amend their complaint to describe or otherwise challenge the 2016 procedures. At oral argument, Plaintiffs made several unsuccessful attempts to link ambiguous language in their complaint with the deficiencies they allege characterized the 2016 procedures. But "the liberal pleading standard for civil complaints under Federal Rule of Civil Procedure 8(a) ... does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage." Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004) (per curiam). And, more fundamentally, the complaint simply cannot allege or challenge procedures that did not exist at the time of filing.
At least the First, Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits
At the summary judgment stage, Plaintiffs present two new claims under the VRA regarding the County's 2016 voting procedures. The first is a claim that the County's early-voting procedures provide unequal opportunity to Navajo voters in violation of Section 2 of the VRA. The second is a claim that the language assistance provided by the County to Navajospeaking voters is ineffective in violation of Section 203 of the VRA. The court concludes that Plaintiffs should be granted leave to amend their complaint to include these claims so that the court may address them at the summary judgment stage.
Rule 15 provides that "[t]he court should freely give leave [to amend] when justice so requires." FED. R. CIV. P. 15(a)(2). "The purpose of the Rule is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). Thus,
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (quoting FED. R. CIV. P. 15(a)(2)). Under ordinary circumstances, Plaintiffs' inexplicable delay would provide ample reason to refuse leave to amend. See Minter, 451 F.3d at 1206 ("We have held that denial of leave to amend is appropriate when the party [seeking amendment] has no adequate explanation for the delay." (quotations omitted)); Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987)
As an initial matter, the new claims here arise from the unilateral conduct of County Defendants during litigation, who appear to have participated in the litigation with the understanding that the 2016 procedures were now the animating issue in the case. The court has already entertained — without objection — a preliminary injunction motion that addressed Plaintiffs' claims regarding the 2016 procedures under the VRA. The extensive briefing and subsequent memorandum decision issued regarding this motion likely provided the court and County Defendants with a sufficient understanding of the general contours of Plaintiffs' claims. (See generally Docket Nos. 94, 108, 112, 129).
And while the court is absolutely mystified by Plaintiffs' failure to properly amend their complaint to reflect the change in voting procedures during the course of litigation, County Defendants do not appear to oppose a ruling on the 2016 procedures. Nor do they claim prejudice from a lack of notice regarding any of the claims for declaratory relief dealing with the 2016 procedures. Instead, County Defendants limit their mootness challenge to Plaintiffs' claims regarding the 2014 procedures, (see Docket No. 154, at 48-49), and make substantive arguments regarding the validity of the 2016 procedures as if the claims were properly before this court, (see Docket Nos. 141, at 31-39; 154, at 49-54). In fact, it appears from the parties' briefing that discovery has proceeded as if these claims were part of the operative complaint, and each side has presented extensive evidence and made substantive arguments as to the legality of the 2016 procedures.
As the court and the parties are essentially familiar with these claims, the prejudice typically associated with the summary adjudication of claims not pled in the complaint is lacking. See Minter, 451 F.3d at 1208 ("Courts typically find prejudice only when the amendment [to the complaint] unfairly affects the defendants in terms of preparing their defense to the amendment.") (quotation omitted); cf. Gilmour, 382 F.3d at 1315 (refusing to entertain new claims at summary judgment because the defendant "had no notice of a contract claim based on the tort claims set forth in the complaint"); Desparois v. Perrysburg Exempted Vill. Sch. Dist., 455 Fed.Appx. 659, 667 (6th Cir. 2012) (unpublished) ("Because the new claims are factually distinct from the original claims, [defendant] had no notice that it would have to defend against such allegations."); Hexion Specialty Chem., Inc. v. Oak-Bark Corp., No. 7:09-cv-105-D, 2011 WL 4527382, at *8 (E.D.N.C. Sept. 28, 2011) (unpublished) (explaining that the general prohibition on new claims raised after discovery without amendment to the operative complaint aligns with the fundamental purpose of a complaint, which is to put the party's "opponent and the court on notice of the claims in the case."). And, again, County Defendants have not claimed any particular prejudice to their defense from the new claims and do not otherwise oppose a summary ruling on the legality of the 2016 procedures.
For these reasons, the court concludes that the claims for declaratory relief under the VRA regarding the 2016 procedures, as outlined in Plaintiffs' briefing, are fit for resolution at this stage and will be treated as if raised in the complaint. Cf. FED. R. CIV. P. 15(b)(2).
In addition to their new claims under the VRA, Plaintiffs also assert new claims under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs make a two-tiered argument regarding the legality of the 2016 procedures under the Equal Protection Clause. First, they claim that the County's 2014 vote-by-mail procedures burdened the right of rural County residents to vote. Second, they claim that the voting facilities provided to rural County residents were so inadequate as to abridge the fundamental right to vote. This court "may deny leave to amend where amendment would be futile." Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (quoting Jefferson Cty., 175 F.3d at 859). Thus, a district court is "clearly justified in denying [a] motion to amend if the proposed amendment could not have withstood a motion to dismiss or otherwise failed to state a claim." Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992). Here, the court concludes that neither tier of Plaintiffs' new Equal Protection claim could survive a motion to dismiss and therefore amendment to allow the claim would be futile.
The first tier of Plaintiffs' equal protection claim argues that "[t]he County's reduction of polling places and practice of relying on primarily vote-by-mail election system" impermissibly burdens rural County residents' right to vote. (Docket No. 144, at 39). In support of this argument, Plaintiffs present a great deal of evidence regarding the relative reliability and accessibility of mail service in rural areas of the County. This argument is little more than a vestige of Plaintiffs' now-moot arguments regarding the 2014 procedures — procedures that eliminated all polling places except the election center in Monticello and relied almost exclusively on mail-in voting. But the 2016 procedures that now animate this lawsuit do not restrict voting to mail-in ballots, they provide mail-in voting as one option among several. Even assuming that mail-in voting is as difficult for rural residents as Plaintiffs allege, the mere existence of an option that is less accessible for certain voters is not a cognizable burden on those voters' rights. Cf. McDonald v. Bd. of Election Comm'nrs of Chi., 394 U.S. 802, 807-08, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) (explaining that laws that prevented certain detainees from receiving absentee ballots were "designed to make voting more available to some groups who cannot easily get to the polls" and did "not themselves deny appellants the exercise of the franchise"). Were mail-in voting the only option or even the only accessible option to cast a ballot, then the County's failure to provide other options could arguably be burdensome to rural voters. But that is simply not the current scenario in San Juan County, where rural voters may choose from four total in-person voting locations on Election Day, early voting in Monticello, or mail-in voting in order to cast their ballot.
Insofar as Plaintiffs argue that rural voters are unduly burdened by the number or location of polling locations available on Election Day and must therefore rely on the allegedly burdensome mail-in option, they have not adduced any evidence to that effect. Plaintiffs have not pointed to any statistical evidence or even a well-pled allegation that would indicate that rural voters as a class have less access to in-person voting on Election Day or otherwise.
Plaintiffs attempt to salvage their equal protection claim by insisting that although the polling locations may be equally accessible to rural voters, the in-person polling locations provided by the County on November 8, 2016 were so inadequate as to place an impermissible burden on rural residents' right to vote. (Docket No. 144, at 42). Plaintiffs allege the following polling place inadequacies during the general election: 1) the Oljato Senior Center polling location ran out of paper ballots by 10 a.m. and voters there had access to only one functioning electronic voting machine; 2) "long lines" resulted from the limitation to a single voting machine; 3) "poll workers... were not trained;" and 4) Navajo interpreters were not trained resulting in inadequate translations of the ballots, "leaving some voters confused." (Docket No. 144, at 42). The first two allegations are clearly intertwined, as there is no discernible argument from Plaintiffs that the lack of paper ballots, by itself, burdened rural voters. Instead, it appears that Plaintiffs' theory is that the lack of an adequate amount of paper ballots, coupled with the malfunction of two out of three available voting machines, created "long lines," which impermissibly burdened rural voters in the exercise of their rights. (See Docket No. 144, at 42). As explained below, the court concludes that these allegations cannot support an equal protection claim on behalf of rural San Juan County residents and therefore any amendment to include them in the complaint would be futile.
The court notes first that many of these allegations are not clearly the result of any identifiable regulation, policy, or practice at the County level. Rather, they appear to be the result of inadvertent human error (misapprehending the number of paper ballots needed for a particular location) and unanticipated mechanical failure (the breakdown of two out of three voting machines). Issues of inadvertent error do not fit neatly into the established framework for evaluating typical voting-related equal protection violations set forth in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), and reaffirmed in Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). There are no laws, regulations, rules, or restrictions for the court evaluate and, by extension, no "precise interests" that the municipality may "put forward... as justifications for the burden imposed." See Burdick, 504 U.S. at 434, 112 S.Ct. 2059; see also Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980) ("Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause."). Thus, every time an inadvertent error that burdens certain voters in their exercise of the franchise occurs, the error would be essentially indefensible. Accordingly, the court believes that the Anderson/Burdick framework is essentially inapplicable to Plaintiffs' claims here.
Instead, it appears that the appropriate analysis of an equal protection claim alleging a government entity's failure to provide some voting service or facility (as opposed to a claim alleging that a particular
Moreover, these allegations, even taken together, cf. Clingman v. Beaver, 544 U.S. 581, 607-08, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (O'Connor, J., concurring) ("A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition."); N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016) ("[T]he district court also clearly erred in finding that the cumulative impact of the challenged provisions ... does not bear more heavily on African Americans." (emphasis added)), do not amount to the same kind of systemic breakdown that constituted an equal protection violation in cases that Plaintiffs cite in support. See League of Women Voters, 548 F.3d at 477-78 (finding plaintiff had adequately alleged an Equal Protection voting claim because, among numerous other severe hindrances and outright barriers to voting, a misallocation of voting machines led to delays of two to twelve hours, voting at one location "was not completed until 4:00 a.m. on the day following election day," and, as a result, certain voters had "to leave their polling places without voting in order to attend school, work, or to family responsibilities"); Ury, 303 F.Supp. at 124 (finding
Here, there is no indication from the evidence identified by Plaintiffs of how "long" the line that resulted from these errors actually were.
Similarly, there is no indication of any actual burden on rural voters' rights stemming from Plaintiffs' allegation of inadequate poll worker training. Plaintiffs flatly allege that poll workers "were not trained," (Docket No. 149, at 60), as if that fact alone evinced a burden on rural voters. But Plaintiffs have not demonstrated or even explained how the lack of some unidentified training for poll workers burdened any rural voter. Cf. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding that an allegation that "[p]oll workers received inadequate training, causing them to provide incorrect instructions and leading to the discounting of votes" along with other severe polling problems sustained a claim for relief under the Equal Protection Clause) (emphasis added). Moreover, this argument is not supported by the record. Plaintiffs' own affidavits supporting this contention indicate that poll workers received training on "how to look up prospective voters and check identification." (Docket No. 144-6, at 3). It is not clear what additional training Plaintiffs believe the poll workers should have received, but did not. Thus, this allegation, even in combination with the purported "long lines" at the Oljato polling location, does not amount to a constitutional violation.
The final allegation — that the language assistance provided to Navajo-speaking voters was inadequate — is puzzling, because it appears to fundamentally alter the nature of Plaintiffs' claim. This allegation shifts the focus of the claim from the rights of rural voters generally to Navajo-speaking voters specifically. But Plaintiffs emphatically denied in their reply brief that their equal protection claim had anything to do with unequal treatment of Navajo voters. They repeatedly emphasized that their claim was that certain voting procedures "violate the rights of all of San Juan County's rural residents." (Docket No. 155, at 61 (emphasis added)). And, while it is clear from the record that many, if not most, Navajos live in rural areas, there is no evidence in the record or plausible allegation in the briefing that an injury to the right of Navajo-speaking voters can be construed as an injury to rural voters generally. Accordingly, these allegations cannot support an equal protection claim premised on the rights of rural voters generally. While the allegations regarding inadequate language assistance could perhaps support an equal protection claim regarding Navajo-speakers in particular, the court declines to cobble together such a claim on Plaintiffs' behalf. It is evident from briefing that Plaintiffs did not wish to bring such a claim. (See Docket No. 155, at 61 ("Plaintiffs do not contend that San Juan County's voting procedures violate only Navajo residents' constitutionally protected right to vote. Rather, Plaintiffs assert that these procedures violate the rights of all of San Juan County's rural residents.")).
Finally, the court believes that the addition of a newly-minted equal protection claim, with differing factual and legal parameters than those alleged in the original complaint, is ill-advised at this late stage.
In sum, Plaintiffs' briefing on the matter fails to state a claim for relief under the Equal Protection Clause and therefore amendment to allow inclusion of such a claim would be futile. See Ketchum, 961 F.2d at 920 (explaining that a district court may deny amendment "if the proposed amendment could not have withstood a motion to dismiss or otherwise failed to state a claim"). And, in any event, the equitable factors described above militate against allowing an amendment to include this claim. The court therefore declines to consider this proposed claim at the summary judgment stage. Instead, the court will consider only the new claims for declaratory relief under Section 2 and Section 203 of the VRA.
Before proceeding to a summary judgment analysis, the court pauses to address one final challenge to its subject matter jurisdiction over Plaintiffs' claims. In addition to their arguments regarding the mootness of Plaintiffs' claims for declaratory relief, County Defendants similarly argue that Plaintiffs' claims for injunctive relief were also mooted by the implementation of the 2016 procedures. (Docket No. 154, at 55 & 55 n.90). They insist that the 2016 procedures "provide more and far better relief than Plaintiffs have asked for in their Complaint." (Id. at 55). The court disagrees.
Plaintiffs' prayer for injunctive relief spells out the steps they believe the County must take in order to comply with the VRA. In this way, Plaintiffs allege that they will be subject to "continuing, present adverse effects" until the injunctive relief they have requested is fully implemented. See Beattie v. United States, 949 F.2d 1092, 1094 (10th Cir. 1991). Further, the procedures Plaintiffs ask this court to impose on the County go well beyond those actually implemented by the County in the 2016 election cycle. And the court has already allowed for the addition of certain new claims for declaratory relief regarding the legality of the 2016 procedures. Thus, assuming a violation of Plaintiffs' voting rights may be found, it is not "impossible
Having narrowed the claims at issue on summary judgment to those under the VRA dealing with the 2016 procedures, the court now turns to the substance of the parties' motions for summary judgment. The court will first briefly outline the summary judgment standard, then address certain evidentiary disputes, and then apply the summary judgment standard to each of Plaintiffs' claims under the VRA.
Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). In applying this standard, the court must "construe the evidence and the reasonable inferences drawn therefrom in the light most favorable to the nonmovant." Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002); see also Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) ("The nonmoving party is entitled to all reasonable inferences from the record."). However, the nonmoving party "is entitled to only those inferences that are `reasonable.'" Hornady Mfg. Co. v. Doubletap, Inc., 746 F.3d 995, 1004 (10th Cir. 2014). "A fact is `material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented." Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quoting E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)).
"[T]he movant bears the burden of showing the absence of a genuine issue of material fact, [but] the movant need not negate the nonmovant's claim." Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). "[A] movant may make its prima facie demonstration by pointing out to the court a lack of evidence on an essential element of the nonmovant's claim." Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007). Once the movant meets this initial burden, the "nonmovant may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Jenkins, 81 F.3d at 990. The court also recognizes that "conclusory allegations without specific supporting facts have no probative value" and that a conclusory affidavit is "insufficient to support summary judgment." Fitzgerald v. Corrections Corp. of Am., 403 F.3d 1134, 1143-45 (10th Cir. 2005) (internal citations and quotations omitted). Ultimately, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
"Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another." Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). "When the parties file cross motions for summary judgment, [the court is] entitled to assume that
In their memorandum in opposition to Plaintiffs' Motion for Partial Summary Judgment, County Defendants make several evidentiary objections regarding purported affidavits and expert reports filed by Plaintiffs in support of their Motion. County Defendants also filed a Motion to Strike and reiterated their previously lodged evidentiary objections. Because "[m]otions to strike evidence as inadmissible are no longer appropriate" under local rules, DUCivR 7-1(b)(1)(B), the court DENIES the Motion to Strike as improper. As for the additional or otherwise expanded evidentiary objections introduced in the Motion to Strike, the court concludes that they are untimely under DUCivR 7-1(b)(1)(B). That local rule requires that objections to new evidence introduced in a reply memorandum "be filed within seven (7) days after service of the reply." DUCivR 7-1(b)(1)(B). The reply memorandum in this instance was filed in early April 2017, while County Defendants' Motion to Strike was filed at the end of June 2017. (Compare Docket No. 155 with Docket No. 158). Accordingly, the court will consider only the objections properly raised by County Defendants in their briefing on the underlying Motion for Partial Summary Judgment. The court will first address County Defendants' objections to certain translated statements, then their objections to the introduction of Plaintiffs' expert reports.
County Defendants lodge several objections to the statements of Betty Billie Farley, Bonnie B. Charley, Mabel Skow, and Willie Skow, which were attached in support of Plaintiffs' Motion for Partial Summary Judgment and labeled as affidavits. (See Docket Nos. 144, 144-11, 144-13, 144-16, 144-17). In support of or opposition to a motion for summary judgment, either party may present evidence in the form of an affidavit or a declaration. See FED. R. CIV. P. 56(c)(4). Whichever form the document takes, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Id.
Here, County Defendants rest their objections on several theories. First, County Defendants assert that the statements, labeled as "Affidavit[s]," are not properly sworn under oath and lack any signature by an officer authorized to administer oaths. The court rejects this argument because the documents, though erroneously labeled as affidavits, are nonetheless admissible at the summary judgment stage as unsworn declarations pursuant to 28 U.S.C. § 1746. Each statement includes the declaratory language required by § 1746 and makes direct reference to that section in the body of the document. (See, e.g., Docket No. 144-13, at 2-3 ("Pursuant to 28 U.S.C. § 1746, I declare as follows.... I declare under penalty of perjury that the foregoing is true and correct, as translated to Navajo by Leonard Gorman. Executed on 11/21/16[.]")). The
Next, County Defendants argue that, even if the statements are properly considered "Declarations" pursuant to 28 U.S.C. § 1746, they lack foundation, cannot be authenticated, and should be ignored for purposes of summary judgment. See Rosario-Guerrro v. Orange Blossom Harvesting, 265 F.R.D. 619, 623 (M.D. Fla. 2010) ("At the summary judgment stage, a translation must be properly authenticated and shown to be an accurate translation by a qualified interpreter.") (internal quotations omitted). More specifically, County Defendants assert that these statements lack foundation for three reasons: 1) because they were translated from Navajo into English by Leonard Gorman, the executive director of Plaintiff Navajo Human Rights Commission, an individual who County Defendants assert "had motive to distort the evidence;" 2) there is no indication in the record of Mr. Gorman's qualifications to translate; and 3) there is no evidence that the declarants actually knew what they were signing because the documents are in English and the declarants ostensibly do not speak English fluently or at all. While the court agrees that the declarations are problematic as drafted, the court finds County Defendants' arguments ultimately unpersuasive.
First, County Defendants' argument that Mr. Gorman, as executive director of Plaintiff Navajo Nation Human Rights Commission, has reason to "distort" the translations in favor of his organization is unavailing. Mr. Gorman has affirmatively sworn to the accuracy of the translations in a new declaration submitted by Plaintiffs in reply to County Defendants' objections. Beyond pointing to Mr. Gorman's position in the Plaintiff organization, County Defendants have not provided any colorable evidence to contradict this sworn statement. The court declines to disregard the contested declarations on this basis. See Lakah v. UBS AG, 996 F.Supp.2d 250, 258 (S.D.N.Y. 2014) (finding that documents translated by defense counsel were admissible where opponents of admissibility "offer[ed] no credible evidence of bias").
Second, the court acknowledges, as County Defendants assert, that there is no information regarding Mr. Gorman's qualifications to translate on the face of any of the declarations. However, Plaintiffs have cured this deficiency by submitting a new declaration containing Mr. Gorman's averment that he is a certified court interpreter for the State of Arizona. County Defendants protest that this does not conclusively prove Mr. Gorman's qualifications, but the court is satisfied with this showing of translation ability, however bare-bones it may be. The substantively uncontested assertion of Mr. Gorman's certification reasonably indicates that the State of Arizona trusts him to translate legal documents and/or court proceedings. County Defendants' bare assertion that Mr. Gorman's declaration is insufficient for purposes of FED. R. EVID. 604 is not enough to undermine this showing of basic competence. Accordingly, the court declines to disregard the declarations on this basis. Cf. Lakah, 996 F.Supp.2d at 258 (finding that otherwise deficient translation was cured by submission of supplemental declaration of accuracy by translator); Matsuda v. Wada, 101 F.Supp.2d 1315, 1323 (D. Haw. 1999) (finding that translation by declarant's son was sufficient despite the absence of any evidence as to the son's skills or qualifications as a translator.); Barbosa v. Nat'l Beef Packing Co., Civ. No. 12-2311-KHV, 2015 WL 4920292, at *4 & *4 n.3 (D. Kan. Aug. 18, 2015) (unpublished) (finding that deficiencies in translated affidavits were cured by introduction of translator's identity and
Finally, the court is satisfied that the translated declarations are admissible for purposes of summary judgment despite the fact that the Navajo-speaking declarants signed a document presented solely in English. "Nothing in § 1746 requires that a non-English speaking affiant provide evidence that the declaration was translated into the affiant's native language before signing it. Moreover, ... such an argument would go to the weight of the declaration and not its admissibility." Collazos-Cruz v. U.S., 117 F.3d 1420 (unpublished table opinion), 1997 WL 377037, at *3 (6th Cir. Jul. 3, 1997) (holding that a translated declaration was validly admitted at summary judgment despite the fact that there was no "evidence that the declaration was translated to [the Spanish-speaking declarant] from English to Spanish"); see also Ahn v. Hanil Dev., Inc., 471 Fed.Appx. 615, 618-19 (9th Cir. 2012) ("There is no authority for Ahn's argument that Huh was required to use his native language of Korean in his declaration."); Matsuda, 101 F.Supp.2d at 1323; Coach, Inc. v. Weng, No. 13 Civ. 445, 2014 WL 2604032, at *8 (S.D.N.Y. Jun. 9, 2014) (unpublished); but see, e.g., Cruz v. Aramak Servs., Inc., 213 Fed.Appx. 329, 334 (5th Cir. 2007) (supplying a four-factor balancing test for determining whether a translator acted as a "mere conduit" for hearsay purposes). While the court acknowledges that a more clear showing could be made by Plaintiffs regarding the translation process, the scenario that County Defendants advance — one in which Mr. Gorman potentially falsified declarations and coaxed Navajo-speaking declarants into signing them — is not sufficiently supported to justify further evaluation at this stage. Ultimately, there is sufficient indicia, including a declaration of accuracy by a qualified translator, individualized and distinct factual averments, as well as signatures or fingerprinting by each of the declarants, to allow the court to infer that these documents are what Plaintiffs purport them to be, i.e., the more or less accurately translated statements of Navajo-speaking declarants. In the absence of any truly contrary evidence, County Defendants' objection on this basis is overruled.
County Defendants next object to the court's consideration of certain expert reports referenced by Plaintiffs in their Motion for Partial Summary Judgment. Specifically, County Defendants object that the expert reports of Dr. Dan McCool, Gerald Webster, Dr. Richard Engstrom, and Joanna Manygoats are unsworn hearsay and should not be considered by the court for purposes of summary judgment. As explained below, this objection is partially unavailing.
At the summary judgment stage, a party may support its factual assertions by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials[.]" FED. R. CIV. P. 56(c)(1). In opposition, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Id. 56(c)(2). Evidence supporting a motion for summary judgment
See Agro v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (emphasis in original, internal citations and quotations omitted).
Based on Rule 56(c) and the corresponding framework supplied by the Tenth Circuit, the court concludes that the expert reports at issue are ultimately admissible for purposes of summary judgment. While County Defendants are correct that expert reports themselves would likely be inadmissible at trial as hearsay lacking any applicable exception, see Ariz., Dep't of Law, Civil Rights Div. v. ASARCO, L.L.C., 844 F.Supp.2d 957, 965 (D. Ariz. 2011) (finding an expert report inadmissible at trial "because it represent[ed] Dr. Pitt's out of court declaration offered for its truth"), the substance of the reports would plainly be admissible at trial in the form of expert testimony regarding methodology, opinions, and ultimate conclusions, see Cent. Weber Sewer Improvement Dist. v. Ace Fire Underwriters Ins. Co., No. 1:12-cv-166-TS, 2014 WL 495152, at *7 (D. Utah Feb. 6, 2014) (unpublished) (finding expert reports admissible at summary judgment stage because the reports "may ultimately be presented at trial in admissible form," i.e., through testimony by the experts regarding the substance of their reports). And, while County Defendants are correct that portions of certain expert reports submitted by Plaintiffs contain flatly inadmissible hearsay statements, experts are often entitled to rely on otherwise inadmissible evidence to explain and support their ultimate opinions and conclusions. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("Unlike an ordinary witness, ... an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.").
As the substance of these reports may ultimately be admissible at trial through the testimony of each report's expert author, the court finds that the reports themselves are properly considered under Rule 56(c)(1). However, the court will disregard any statements recorded in the expert reports that would not be otherwise admissible at trial as hearsay. See Agro, 452 F.3d at 1199 ("[A]t summary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form." (emphasis in original)). Instead, the court will consider those statements only insofar as they support or otherwise explain the reasoning and ultimate conclusions of the expert. See Daubert, 509 U.S. at 592, 113 S.Ct. 2786. Thus, County Defendants' objection is overruled in part and sustained in part.
The court will first address the parties' cross-motions for summary judgment regarding Plaintiffs' claims under Section 2 of the VRA and their claims under Section 203 of the VRA. Next, the court will address County Defendants' Motion for Summary Judgment regarding Plaintiffs' claims for injunctive relief. Finally, the court will address Defendant Benally's Motion for Partial Summary Judgment on Plaintiffs' Second Claim for Relief.
First, Plaintiffs and County Defendants have both moved for summary judgment
Plaintiffs argue that, under the totality of the circumstances, the undisputed facts reveal that the availability of early in-person voting only in the predominately white county seat of Monticello means that the average Navajo voter has "less opportunity" to participate in the political process in violation of 52 U.S.C. § 10301(b). (See Docket No. 144, at 19-20). More specifically, Plaintiffs argue that Navajos have less opportunity to participate in at least two ways. First, they assert that the provision of early in-person voting only in Monticello means that the average white voter, who lives closer to Monticello, has proportionately more days in which to vote than the average Navajo voter, who is more likely to live further from Monticello. Second, Plaintiffs assert that the provision of early in-person voting only in Monticello provides the average white voter with "additional benefits, including the ability to request a [new] ballot (if, for instance, the ballot was lost in the mail) or receive troubleshooting help if a [voting] problem arises." (Id. at 19). Plaintiffs also argue that the option of mail-in voting does not alleviate this inequity, because, among other barriers, the average Navajo lives more distant from post office locations than the average white voter and certain majority-Navajo precincts lack sufficient post office boxes to accommodate demand. Based on these arguments, Plaintiffs request summary judgment on their Section 2 claims.
Also relying to the totality of the circumstances, County Defendants argue that the fact that three Election Day polling locations are located on the Reservation, as compared with one polling location off the Reservation, taken together with the option of mail-in voting, "afford at least equal, if not greater opportunity for Navajo voters to participate in the election process, notwithstanding the lack of multiple early voting locations or even a greater distance or more difficult travel conditions." (Docket No. 154, at 51). Accordingly, they request summary judgment in their favor on Plaintiffs' Section 2 claims. As explained below, the court finds that genuine disputes of material fact, as well as the complex evaluation of the totality of circumstances required by Section 2, indicate that summary judgment is inappropriate.
Section 2 prohibits affected jurisdictions from imposing or applying a "voting qualification or prerequisite to voting or standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 52 U.S.C. § 10301(a). A plaintiff claiming a violation of Section 2 need not demonstrate that the affected jurisdiction acted with discriminatory intent. See Sanchez v. State of Colo., 97 F.3d 1303, 1309 (10th Cir. 1996); Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002) ("Section 2, unlike other federal legislation that prohibits racial discrimination, does not require proof of discriminatory intent.") Instead, a violation of Section 2 is established on a showing of discriminatory effect alone:
Three decades ago, in Gingles, the Supreme Court established a detailed test for evaluation of vote-dilution claims under Section 2, which can involve analysis of the so-called "Senate Factors" in order to determine whether electoral "devices result in unequal access to the electoral process." See 478 U.S. at 43-46, 106 S.Ct. 2752. Thus, much of "vote-dilution jurisprudence is well-developed," but "numerous courts and commentators have noted that applying Section 2's `results test' [based on Gingles] to vote-denial claims is challenging, and a clear standard for its application has not been conclusively established." Ohio Democratic Party, 834 F.3d at 636. Still, several circuits have employed a two-part test to establish whether a voting procedure constitutes a denial or abridgement of voting rights under Section 2. See Ohio State Conference of NAACP v. Husted, 768 F.3d 524, 554 (6th Cir. 2014), vacated on other grounds, 2014 WL 10384647 (6th Cir. 2014) (unpublished); Veasey v. Abbott, 830 F.3d 216, 244-45 (5th Cir. 2016); League of Women Voters v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014). The Fourth, Fifth, and Sixth Circuits articulate the test as follows:
League of Women Voters, 769 F.3d at 240 (internal citations and quotations omitted) (quoting Ohio State Conference, 768 F.3d at 553); see also Veasey, 830 F.3d at 244-45.
"The first step essentially reiterates Section 2's textual requirement that a voting standard or practice, to be actionable, must result in an adverse disparate impact on protected class members' opportunity to participate in the political process." Ohio Democratic Party, 834 F.3d at 637. Once a disparate impact is established, the second step asks whether the voting standard or practice, "albeit not designed or maintained for a discriminatory purpose," nonetheless effectually denies or abridges the right to vote "as it interacts with social and historical conditions." Id. (emphasis omitted). "In assessing both elements, courts should consider `the totality of the circumstances.'" Ohio State Conference, 768 F.3d at 554 (quoting 52 U.S.C. § 10301(b), formerly 42 U.S.C. § 1973(b)); see also Gingles, 478 U.S. at 79, 106 S.Ct. 2752 ("This determination is peculiarly dependent upon the facts of each case, and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms." (internal quotations and citation omitted)).
Gingles, 478 U.S. at 79, 106 S.Ct. 2752 (internal citations and quotations omitted) (discussing the standard of inquiry under Section 2 in vote-dilution cases). In sum, "[t]he essence of a [Section] 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives." Id. at 47, 106 S.Ct. 2752.
Here, the court concludes that neither side has adequately demonstrated a lack of genuine dispute of material fact regarding Plaintiffs' claims under Section 2. For example, there is a genuine dispute as to the relative availability of certain voting services to Navajo voters, even in the absence of an early in-person voting location on the reservation. On one hand, Plaintiffs contend that the location of early in-person voting solely in Monticello effectively prevents Navajo voters from obtaining new ballots or otherwise availing themselves of the administrative services of the County Clerk prior to Election Day. On the other, County Defendants have presented evidence that the County's Navajo liaison, Edward Tapaha, "provides the same service[s] during his routine visits to Navajo Nation Chapter Houses." (See Docket No. 151, at 12 (citing a declaration that indicates that Mr. Tapaha visits chapter houses "to answer questions, register voters, and explain voting procedures")). Moreover, the testimony cited by Plaintiffs plainly indicates that voters can request a ballot through Mr. Tapaha, (Docket No. 144-1, at 4), and that he provides certain registration services to remote voters.
As a more fundamental matter, the court also concludes that the analysis of this Section 2 claim is not readily amenable to summary resolution. Indeed, at least one federal circuit has toyed with the idea that summary judgment is inappropriate when evaluating the totality of the circumstances under Section 2. See McNeil v. Springfield Park Dist., 851 F.2d 937, 940-43 (7th Cir. 1988). Though the Seventh Circuit ultimately concluded that "summary judgment is sometimes proper in Section 2 cases" because certain threshold criteria in vote dilution cases are amendable to summary resolution, see id. at 943, the court acknowledged that the totality of the circumstances evaluation "generally call[s] for substantial and complex factual determinations" that may make summary judgment improper, see id. at 940. The Senate Factors and the broader "totality of the circumstances" analysis necessary under Section 2, 52 U.S.C. § 10301(b) reflect "Congress's intent to provide courts with a means of identifying voting practices that have the effect of shifting racial inequality from the surrounding social circumstances into the political process." Farrakhan v. Washington, 338 F.3d 1009, 1020 (9th Cir. 2003). "Congress, in amending [S]ection 2, expressed its preference for a searching practical evaluation of the past and present reality, and a functional view of the political process." McNeil, 851 F.2d at 940 (internal quotations omitted); see also Lee v. Virginia State Bd. of Elections, 188 F.Supp.3d 577, 585 (E.D. Va. 2016) ("The Supreme Court has continually counseled that vote-denial cases brought under Section 2 should not be viewed in isolation, but should be evaluated in light of the totality of circumstances."). This "searching practical evaluation" is inherently complex and widely variable depending on circumstances: "Whatever factors are to be considered, and indeed they are many and varied as explained by the Supreme Court, none is talismanic, none alone has controlling weight, none provides safe harbor, and none yields per se violation." Old Person v. Brown, 312 F.3d 1036, 1050 (9th Cir. 2002). In other words, "the ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts." Sanchez v. State of Colo., 97 F.3d 1303, 1311 (10th Cir. 1996) (quoting Johnson v. DeGrandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994)).
Based on the foregoing, the court declines to grant summary judgment to either party, believing instead that "the better course would be to proceed to a full trial" on Plaintiff's Section 2 claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Zapata v. IBP, Inc., No. Civ. A. 93-2366-EEO, 1998 WL 717621, at *9 (D. Kan. Sept. 29, 1998) (unpublished) ("Out of an abundance of caution, therefore, we deny summary judgment on [plaintiff's]... claim, under the belief that we will be in a much better position to make a definitive ruling after hearing the evidence at trial.").
Next, Plaintiffs and County Defendants have both moved for summary judgment regarding Plaintiffs' claims under Section 203 of the VRA. These claims focus on the adequacy of the language assistance provided to Navajo-speaking voters at the polls during 2016, as well as the methods
Plaintiffs assert that the undisputed facts show that the language assistance and Navajo-language publicity efforts by the County during the 2016 election cycle were ineffective and therefore inadequate under Section 203. Plaintiffs argue that there is no formal training for Navajo interpreters, that certain pre-election publicity provided by the County in Navajo was confusing to voters, and, among other issues, that certain voters did not receive adequate assistance from the interpreters available at polling locations. (Docket No. 144, at 34-36). County Defendants counter that the undisputed facts indicate that their efforts, taken as a whole, substantially complied with the requirements of Section 203.
Section 203 of the Voting Rights Act seeks to "enable members of applicable language minority groups to participate effectively in the electoral process." 28 C.F.R. § 55.2(b); see also U.S. v. Sandoval Cty., N.M., 797 F.Supp.2d 1249, 1250 (D.N.M. 2011) ("In enacting [Section] 203 of the Voting Rights Act (VRA), ... Congress intended that language minority populations have substantive access to the ballot." (internal quotations omitted)). In evaluating national voting practices, Congress determined that,
52 U.S.C. § 10503(a). Accordingly, Section 203 prohibits discriminatory voting practices related to English literacy and requires that voting materials provided in English also be provided in the languages of relevant minority language populations. See id. § 10503(a), (c).
The applicable requirements of Section 203 are as follows:
Id. § 10503(c). The plain language of this section provides two separate standards, one to be applied to written minority languages
Defendants do not dispute that they are subject to the requirements of Section 203. Thus, in their administration of local elections, Defendants are required by Section 203 to provide "oral instructions, assistance, or other information relating to registration and voting." See id. This requirement extends to both pre-election publicity efforts and direct assistance provided to voters at the polls. See 28 C.F.R. § 55.20(a). Defendants' compliance with these requirements is measured by an "effectiveness" standard, see id. § 55.20(c), which requires that a jurisdiction "take[ ] all reasonable steps to ensure minority language voters have received information and assistance allowing them to participate effectively in voting-connected activities." McKinley Cty., 941 F.Supp. at 1067 (internal quotations omitted); 28 C.F.R. § 55.2(b) (interpreting § 10503(c) and outlining the following requirements: "(1) That material and assistance should be provided in a way designed to allow members of applicable language minority groups to be effectively informed of and participate effectively in voting-connected activities; and (2) That an affected jurisdiction should take all reasonable steps to achieve that goal"). Nevertheless, "[t]he determination of what is required for compliance with ... [S]ection 203(c) is the responsibility of the affected jurisdiction" and the "guidelines should not be used as a substitute for analysis and decision by the affected jurisdiction." Id. § 55.2(c); see also id. § 55.14(c). Indeed, a great deal of discretion is granted to jurisdictions seeking to implement the requirements of Section 203(c), see id. § 55.2(c), and only where the jurisdiction falls below the effectiveness standard will the Attorney General take action. See Sandoval Cty., 797 F.Supp.2d at 1253-54 (explaining that the reasonable effectiveness standard under Section 203 "does not demand perfection, but only ... substantial compliance"). While the Attorney General's interpretations of the Act are not binding on this court, see Montero v. Meyer, 861 F.2d 603, 608-09 & 609 n.3 (10th Cir. 1988) (noting that the Attorney General's interpretations of the minority language provisions are "suggestive and not directory"), the reasonable effectiveness standard is consistent with the central purposes of Section 203 and therefore instructive in evaluating the County's compliance, see id. (explaining that an administrative interpretation must be consistent with statutory purposes if it is to be accorded deference).
In evaluating the effectiveness of a jurisdiction's efforts to publicize election information, the Attorney General "will consider whether public notices and announcements of electoral activities are handled in a manner that provides members
As with the previously evaluated claims under Section 2, neither party has sufficiently demonstrated that no genuine dispute of material facts exists as to Plaintiffs' Section 203 claims. For example, the parties have presented conflicting evidence regarding the availability of pre-recorded audio translations of the ballot at polling locations. Plaintiffs assert that "no working audio translations of the ballot were available at polling places in the general election for the voters or the poll workers." (Docket No. 144, at 27). To support this assertion, Plaintiffs cite to several declarations from individual Navajo-speaking voters and poll workers indicating that they were not aware of any audio recording available to voters or that the audio recording that was made available malfunctioned.
In response, County Defendants assert that each polling location had a working audio translation available to voters. In support of this assertion, County Defendants present the declaration of the Deputy County Clerk reporting that there was no malfunction and, from his observation, the audio recording was operational and available to voters. (Docket No. 151-3, at 7-8). An additional declaration from the County Clerk indicates that his office made provisions to have an audio recording available at all of the on-Reservation polling locations, although it is not clear that he personally ensured that a recording was in fact available at each location. His declaration does, however, indicate that he personally observed that audio translations were available, but often unused at certain unspecified on-Reservation polling locations. (Docket No. 151-2, at 5-6).
As the court must determine whether the County has taken "all reasonable steps to ensure minority language voters have received information and assistance allowing them to participate effectively in voting-connected activities," McKinley Cty.,
Next, the court turns to County Defendants' request for summary judgment regarding Plaintiffs' claims for injunctive relief. As explained above, Plaintiffs' claims for injunctive relief against County Defendants are not mooted by the implementation of the 2016 procedures. County Defendants seek summary judgment on the basis that Plaintiffs have failed to demonstrate irreparable injury as a matter of law. (Docket No. 141, at 41). Because Plaintiffs' claims of irreparable injury ostensibly arise from the alleged violations of their rights under the VRA and the court has already determined that summary judgment is not appropriate on those claims, Plaintiffs' entitlement to injunctive relief remains an open question. Accordingly, the court must deny summary judgment regarding Plaintiffs' claims for injunctive relief.
Finally, the court turns to Defendant Benally's Motion for Partial Summary Judgment on Plaintiffs' Second Claim for Relief. (Docket No. 127). Plaintiffs' Second Claim for Relief alleges that the County's closure of certain polling places and institution of a primarily vote-by-mail system violated Section 2 of the Voting Rights Act. Plaintiffs' complaint seeks a declaration as to the legality of the voting procedures under Section 2 and further requests injunctive relief requiring the reopening of certain polling places "equally accessible to Navajo voters as to white voters." (Docket No. 2, at 21). Defendant Benally argues that she is not a proper target of any of the Section 2 claims in her official capacity and urges that she is therefore entitled to summary judgment on Plaintiffs' Second Claim for Relief. Plaintiffs filed a memorandum in opposition to Defendant Benally's Motion, (Docket No. 130), to which Defendant Benally replied, (Docket No. 133). The court heard oral argument on the Motion on July 26, 2017.
The facts pertaining to this motion are largely undisputed, despite some carping between the parties. In reality, the only material undisputed fact at issue here is Defendant Benally's position in the County Government. Neither party disputes that Defendant Benally is currently a County Commissioner. While the relevant facts are undisputed, Defendant Benally has not demonstrated that she is "entitled to judgment as a matter of law." See FED. R. CIV. P. 56(a).
As noted above, Defendant Benally's Motion argues that she is not the proper target of Plaintiffs' Second Claim for Relief, which alleges that the County's closure of certain polling places in favor of a primarily vote-by-mail system violates Section 2 of the Voting Rights Act. As Defendant Benally seems to acknowledge in her briefing, (see Docket No. 133, at 8-9), this Motion appears to be a retooling of positions articulated in a previous motion to dismiss, (Docket No. 42), which was denied by this court last year, (Docket No. 92).
The court has already explained in a previous order in this case that "[a] suit against a government official in h[er] official capacity `generally represents merely
Defendant Benally argues that she should nonetheless be dismissed from this Claim for two reasons: First, she argues that she had no involvement in the 2014 determination to close polling places and institute a primarily vote-by-mail voting system and therefore is not "liable for any alleged violations of the Voting Rights Act" relating to that determination. (Docket No. 133, at 15; see also Docket No. 127, at 4). Second, she argues that her position as County Commissioner does not provide any legal "right, power, or authority" to alter voting procedures that are determined and overseen exclusively by the County Clerk. (Docket No. 127, at 6). Because she allegedly has no authority to alter voting procedures, Defendant Benally reasons that she has no authority to bring the County into compliance with Section 2 should the court eventually mandate alterations to the voting procedures. The court finds these arguments unpersuasive.
First, Plaintiffs do not seek to hold Defendant Benally "liable" for violations of the Voting Rights Act. This is not a lawsuit pursuant to 42 U.S.C. § 1983 or § 1985, where Plaintiff could be held personally liable for damages resulting from an alleged constitutional violation. Instead, Plaintiffs' Second Claim for Relief alleges that the County itself has, by its voting policies and procedures, violated the voting rights of its Navajo residents. Even if the court were to grant all of the relief requested by Plaintiffs, Defendant Benally would not be "liable" for any damages or other relief — she would only be required, as a County official, to comply with any injunction issued by the court. Because Plaintiffs are not seeking to hold Defendant Benally "liable" for any of the events of 2014, her personal connection to those events is irrelevant. See Field Day, LLC v. Cty. of Suffolk, 463 F.3d 167, 195 n.6 (2d Cir. 2006) (explaining that the fact that a county employee "did not hold office at the time of these events" was "of no matter" because he was "sued only in his official capacity, not in his personal capacity").
Likewise, whether or not Defendant Benally has legal authority to alter certain voting procedures is beside the point. Because she is being sued in her official capacity, she is only being sued as an agent of the County itself. Graham, 473 U.S. at 165, 105 S.Ct. 3099. Arguing that Defendant Benally has no official authority to respond to the injunctive relief sought here is just another way of insisting that her presence in the case is redundant — which the court has already explained is not a sufficient reason, standing alone, to dismiss her from the action. See Capresecco, 261 F.Supp.2d at 322 (finding that redundancy alone "is not a persuasive basis for dismissal").
All told, Defendant Benally has not demonstrated that she is "entitled to judgment as a matter of law" on Plaintiffs' Second Claim for Relief. See FED. R. CIV. P. 56(a). While the court is puzzled by Plaintiffs' fervent insistence that Defendant Benally remain a defendant in this action, the court is equally puzzled by Defendant Benally's insistence that she is harmed by a suit against her in her official capacity. Even if she were dismissed from this action as a party, she would still be subject to all of the strains of the litigation process by virtue of her position as an agent of the County and her current participation in the implementation of the County's policies. In any event, the court concludes that Defendant Benally's Motion for Partial Summary Judgment must be denied.
Based on the foregoing, the court concludes as follows:
IT IS SO ORDERED.
The court also notes that on summary judgment, the statement by the other voter to Mr. Yellowman is hearsay and would not be admissible for consideration by the court. Thus, even if the court were to permit the amendment and consider the equal protection claim on summary judgment, Plaintiffs have failed to present evidence that the wait-time at the Oljato polling place exceeded fifty minutes. Again, while certainly not ideal, the court cannot say as a matter of law that such a wait-time amounted to a constitutional violation.
(Docket No. 144-1, at 4).
Since Plaintiffs have not fully specified which services beyond access to replacement ballots they believe are available only at the County Clerk's office, the court assumes from the cited materials that the provision of services includes both the provision of replacement ballots and the option of resolving voter registration status issues. (See Docket No. 94-4, at 190-91 (testimony of Deputy County Clerk regarding inactive voters)). The declaration cited by County Defendants indicates that voters may register through Mr. Tapaha and testimony from Mr. Tapaha in the record seems to generally support that assertion. (See, e.g., Docket No. 109, at 195, 205-06 (testimony of Mr. Tapaha indicating that he instructed Navajo voters to call him directly if they did not receive a voter-ID card for the 2014 elections and that he periodically set up registration drives at various locations on the Reservation and helped the County Clerk to update registration information for individual voters)).
