Navajo Nation et al v. San Juan County et al

Filing 397

MEMORANDUM DECISION AND ORDER - Finding them unconstitutional, the court cannot 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. Signed by Judge Robert J. Shelby on 7/14/2017. (jds)

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

NAVAJO NATION, a federally recognized
Indian tribe, et al.,
MEMORANDUM
DECISION AND ORDER
Plaintiffs,
v.

Case No. 2:12-cv-00039

SAN JUAN COUNTY, a Utah governmental
subdivision,

Judge Robert J. Shelby
Magistrate Judge Dustin B. Pead

Defendant.

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. § 1973.1 The court previously
found both sets of districts unconstitutional under the Equal Protection Clause.2 The court did
not decide whether the School Board or County Commission districts violated Section 2 of the
Voting Rights Act.
The court then outlined a process for adopting legally sound remedial districts.3 The
court suggested it would adopt San Juan County’s proposed remedial plans if they cured the
1

Dkt. 75.

2

Dkt. 312.

3

See dkt. 281; dkt. 343.

1

identified violations and were otherwise legally sound.4 Navajo Nation and the County then both
submitted competing remedial plans for the School Board and County Commission, with
supporting declarations by their respective experts.5 Following an opportunity for discovery,
Navajo Nation and the County filed objections to each other’s remedial plans. On December 8,
2016, the court received argument on the proposed plans.
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.
BACKGROUND
The background relevant to Navajo Nation’s challenge generally is set forth in the court’s
previous Memorandum Decisions and Orders.6 The court recounts below the facts relevant only
to the issue currently before it—the legality of San Juan County’s proposed remedial districts.
The court focuses largely on San Juan County’s plans because, as noted above, the court
indicated it likely would adopt them if legally sound.
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
4

See dkt. 281 at 3.

5

See dkt. 286; dkt. 294; dkt. 297; dkt. 345; dkt. 346.

6

See dkt. 280; dkt. 312.

2

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.
I.

Procedural Background

Navajo Nation filed the original Complaint in this case more than five years ago, in
January 2012.7 The Complaint, as subsequently amended, includes allegations that San Juan
County’s election districts were legally deficient under three distinct legal theories. First, Navajo
Nation alleged the County Commission election districts were illegally racially gerrymandered
under the Equal Protection Clause.8 Second, Navajo Nation alleged both the County
Commission election districts and the School Board election districts violated Section 2 of the

7

Dkt. 2.

8

Dkt. 75 at 4–7 (First Claim for Relief).

3

Voting Rights Act.9 Finally, Navajo Nation alleged the School Board election districts violated
the one-person, one-vote requirement of the Equal Protection Clause.10
Extensive motion practice ensued, including motions for partial summary judgment under
each legal theory.11 The court issued two Memorandum Decisions and Orders, one addressing
each of Navajo Nation’s two Equal Protection theories. The first Memorandum Decision and
Order concluded the County’s School Board election districts violated the one-person, one-vote
requirement of the Equal Protection Clause.12 The second Memorandum Decision and Order
concluded the County had unconstitutionally racially gerrymandered County Commission
election District 3.13 The court, finding both the County Commission and School Board districts
legally infirm, outlined a remedial process.
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.14 To prove a Section 2 violation, a plaintiff must establish three
9

Dkt. 75 at 7–10 (Second Claim for Relief as to the County Commission election districts and Third Claim for
Relief as to the School Board).
10

Dkt. 75 at 10 (Fourth Claim for Relief).

11

See dkt. 173, dkt. 182, dkt. 202, dkt. 207, dkt. 221, dkt. 222, dkt. 234, dkt. 248, dkt. 298.

12

Dkt. 280.

13

Dkt. 312.

14

Specifically, the government cannot impose or apply a “voting qualification or prerequisite to voting or standard,
practice or procedure” that “results in the 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. § 103101 (a). The Supreme Court has applied Section 2 to
redistricting. See Thornburg v. Gingles, 478 U.S. 30 (1986); Growe v. Emison, 507 U.S. 25, 40–41 (1993).

4

necessary preconditions, known as the Gingles factors: “(1) the minority group [is] sufficiently
large and geographically compact to constitute a majority in a single-member district, (2) the
minority group [is] politically cohesive, and (3) the majority . . . vote[s] sufficiently as a bloc to
enable it . . . usually to defeat the minority’s preferred candidate.”15 If the plaintiff successfully
establishes the Gingles factors, the court analyzes whether a Section 2 violation has occurred
under a totality of the circumstances test, determining whether the protected voters have less
opportunity to elect a representative of their choice than other members of the electorate.16
Navajo Nation filed three motions for partial summary judgment relating to Section 2,
specifically as to the County Commission election districts. First, Navajo Nation filed a motion
arguing it had established the first Gingles factor—proving that San Juan County’s Native
American population is sufficiently large and geographically compact to constitute a majority in
two single-member County Commission districts.17 To make this showing, Navajo Nation was
required to submit hypothetical County Commission election districts that are reasonably
compact where Native Americans constituted a majority in two Commission districts.18 The
County argued in opposition that Navajo Nation’s hypothetical plans failed to establish the first
Gingles factor because the proposed districts did not abide by traditional redistricting factors.19

15

Bartlett v. Strickland, 556 U.S. 1, 11 (2009) (internal quotation marks omitted).

16

Id. at 11–12; 52 U.S.C. § 10301(b) (“A violation . . . is established if, based on the totality of the circumstances, it
is shown that the political process leading to the nomination or election in the State or political subdivision are not
equally open to participation by members of a class of citizens protected by subsection (a) in that its members have
less opportunity than other members of the electorate to participate in the political process and to elect
representatives of their choice.”).
17

Dkt. 182.

18

See Johnson v. De Grandy, 512 U.S. 997, 1008 (1994); cf. Bush v. Vera, 517 U.S. 952, 979 (1996).

19

Dkt. 216 at 66–69.

5

Specifically, the County argued the hypothetical districts did not respect communities of interest
and did not preserve precinct boundaries.20
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.21 In response, the County argued, “the absence of political cohesion among
American Indian voters is shown by the fact that in San Juan County American Indians vote
along party lines.”22 Further, the County argued Plaintiffs had failed to show White voters voted
sufficiently as a bloc to defeat the Native American’s preferred candidates. Again, the County
pointed to political affiliation, stating Native American candidates lost because of their political
affiliation (Democratic) and not because of their race.23
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.24 Before the County could respond to this third Motion, the court denied all
three Section 2 Motions as moot in view of its rulings striking down the districts on other
grounds. The court never made a finding concerning the alleged Section 2 violations, nor did it
weigh the evidence submitted by the parties.

20

Id.

21

Dkt. 202.

22

Dkt. 255 at 49.

23

Id. at 50–53.

24

Dkt. 298.

6

II.

General Approach to Redistricting

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.25 Kimball William Brace, the County’s expert, described
his three main considerations in drawing the remedial districts as (1) compliance with the United
States Constitution, (2) compliance with Section 2 of the Voting Rights Act, and (3) traditional
redistricting principles.
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.26 As Navajo Nation concedes, the County appears to have successfully
ameliorated any previous one-person, one-vote issues with new districts that are within the tenpercent safe harbor for legislatively drawn plans.27
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.28

25

The court notes that in some of the deposition testimony included in this section, Brace responded to questions
about the development of the School Board election districts, not the County Commission election districts. But he
did not indicate that his approach to redistricting varied between the plans—and none of the material submitted
indicates separate approaches. Therefore, the court applies his general discussion of methodology to the
development of both plans.
26

See, e.g., dkt. 366-1 at 96–97.

27

See dkt. 389 at 58–67.

28

Dkt. 366-1 at 85–89. He “was cognizant of the racial makeup, and [his] process was to depict as closely as
possible the overarching county composition . . . to the degree possible.” Id. at 84.

7

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.29 Similarly, his goal was to create one safe White County
Commission district, one safe Native American County Commission district, and a third district
that reflected the racial composition of the County generally.
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.”30 He did not complete any analysis of racially
polarized voting.31 Nor did Brace consider the racial polarization analysis performed by Navajo
Nation’s expert, Dr. Engstrom.32
After addressing one-person, one-vote and the Voting Rights Act, Brace then considered
what he described as “the kitchen sink.”33 The kitchen sink included—“anything else that might
be a factor, be it political, be it other types of demographics, be it geography, be it communities

29

Id. at 84 (discussing the goal of creating “two overwhelmingly non-Indian populated districts, . . . two
overwhelmingly Indian populated districts, and . . . one that was pretty evenly split”); id. at 89 (“Q: So you apply
those same racial percentages to how you draw the fifth district so that 51 percent of the Indian VAP in that district
is Indian and 48 percent is non-Hispanic white; correct? A: That could be one way that you do it, yeah. Q: But is that
the way you did it? A: Yes, I did approach it that way.”).
30

Id. at 95.

31

Id. at 99–100.

32

Id. at 101.

33

Id. at 96–97.

8

of interest, be it any of those other kinds of things that people talk about in terms of
redistricting.”34 Many traditional redistricting principles appear to fall into this third category.
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,onevote], 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’].”35 Brace
stated, “the line-drawing exercise turned into a search along district boundaries for just the right
number of people to move out of one district or put into another district. At the same time, there
was constant checking on what impact a change would have on the racial mix of the appropriate
districts so as to reflect the overall makeup of the county. In all, the development of the Plan
entailed a process of shifting and re-shifting portions of the County from one district to another,
reviewing the result, and trying again.”36 The Commissioners deferred greatly to Brace in
developing the remedial plans, and further deferred to Brace and their attorneys regarding the
plans’ legality.37

34

Id. at 97.

35

Dkt. 347 at 14.

36

Id. at 16.

37

See, e.g., dkt. 366-19 at 28 (“A: My only priority is compliance with the - - with the judgment handed down by
the federal judge. Q: And what do you understand compliance to encompass? A: That’s why we hired some experts,
legal, and everything to advise us, because that’s not my - - that’s not my area. . . .”); id. at 16 (“It . . . was an
exercise in compliance, and we took our expert’s advice on it.”); id. at 32 (“Q: Why did you think this proposal’s
reasonable? A: Because it was given to us by the experts that we hired to counsel us along those lines.”); dkt. 366-20
at 8 (Commissioner Benally stated regarding the school board districts that “we do have an expert that . . . is their
realm of work; so as far as I’m concerned as a commissioner, just at a recommendation level, but leaving it to the
experts to determine. . . what the formula or - - or what needs to be done.”); dkt. 366-20 at 15 (“So any specifics, I
don’t recall, just that experts were hired to do – to do that, to do what needed to be done.”); id. at 34 (“I don’t know
the methodology that was used, the formula that was used. That was up to the experts. So I can only tell you an
opinion is that the information that was given to us, the 48/52 as you mentioned and the deviation of ten or less.”).

9

III.

Development of San Juan County’s Remedial School Board Plans

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 Report38 supported
by a declaration from Brace.39 The County Commission adopted the proposed School Board
election districts on January 19, 2016,40 and these districts were in place for the November 2016
elections.41 The County’s proposed School Board election districts, depicted in Exhibit A, divide
the County’s 14,259 residents into five single-member districts. The County also provided the
population’s racial breakdown by district as reflected in Exhibit A.
A. One-Person, One-Vote
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 population deviation of his
proposed plan was only 0.35%42—just ten people. In Brace’s opinion, “[g]iven the error factor
within the federal census, all the districts in the County Proposal, are, essentially, equal.”43 The
County Commissioners testified that compliance with one-person, one-vote was an important
consideration in the redistricting process.44

38

Dkt. 286.

39

Dkt. 294.

40

Dkt. 286 at 2.

41

See dkt. 389 at 12.

42

Dkt. 294 at 4. This percent deviation was “based on an ideal population division of 2,852 (based on the 2010
Census total population for San Juan County of 14,259 divided by five).” Id.
43

Id. at 5.

44

See dkt. 366-19 at 13; dkt. 366-20 at 36.

10

B. Compliance with the Voting Rights Act
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.”45 He also testified that “[t]he
County Proposal includes two School Board election districts, Districts 1 and 2, with majorities
of non-Hispanic Whites, and three districts, Districts 3, 4, and 5 that have majorities of Native
American voters.”46 He further stated that “[t]he make-up of these districts reflects the
geographic distribution of people within San Juan County . . . and is not an attempt to draw
district boundaries on racial or ethnic lines.”47
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.48 Brace disagreed, stating in a second declaration that Navajo Nation’s
packing argument was based on the improper “assumption that a bare majority of Native
American voting-age population requires race-conscious construction of districts intended to
substantially increase the likelihood that Native Americans will elect a Native-American

45

Dkt. 294 at 13.

46

Id. at 12.

47

Id. at 12–13.

48

Dkt. 297-1 at 14.

11

majority School Board, even if it must be done at the expense of the non-Native American voting
population that Plaintiffs assert are in the minority in San Juan County.”49
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).”50
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 advice on it.”51 He recalled Brace presented
the racial composition of the districts. While not discussing the term “proportionality,”
Commissioner Lyman recalled Brace’s efforts to achieve racial balance—or “the same
proportion in each of these districts, was roughly equivalent to the proportion of the county
overall.”52 Commissioner Lyman testified he agreed with Brace’s proportionality approach
when he voted to adopt the remedial plans.53 He also rejected the notion that racially polarized
voting exists in the County.54
49

Dkt. 308 at 16.

50

Id. at 16–17.

51

Dkt. 366-19 at 16.

52

Id. at 34.

53

Id. at 34–35.

54

Id. at 38 (“I don’t believe that there is a major racial division in San Juan County. I don’t believe that Navajos
vote only for Navajos or whites vote only for whites. I have hundreds of friends who are married to white people
and they’ve got half Navajo children, and I think I understand the demographics of the county enough to say that’s a
silly . . . politically motivated mandate. But it is a mandate, and we hire experts to figure out how to comply with
that.”).

12

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.”55
Commissioner Benally recognized it was a priority to “achieve and propose a map that was . . .
fair and equitable.”56 When asked what “fair and equitable” meant, Commissioner Benally said
equal representation—or representation equal to the demographics of the county.57 Specifically,
the Commission’s top priority was ensuring the plan was “fair and equitable for the Native
American population.”58 Commissioner Benally mentioned the racial target of 48/52 and stated
that hitting this target was one of the primary factors considered.59 Commissioner Bruce Adams
did not recall discussing the proportionality concept with Brace.60
C. Traditional Redistricting Principles
Brace also considered several traditional redistricting principles while drawing the
remedial School Board election districts.
i. Limiting precinct splits & administrative burden
Brace stressed the potential administrative burden on the County in implementing the
new election districts—and his resulting decision to minimize precinct splits.61 The County’s
final School Board plan splits only eight of the County’s precincts or sub-precincts.62

55

Dkt. 366-20 at 13.

56

Id. at 29.

57

Id. at 30.

58

Id. at 33.

59

Id. at 34–35.

60

Dkt. 366-21 at 13.

61

See, e.g., dkt. 294 at 6–8.

62

Dkt. 308 at 18–19.

13

ii. Community school concept
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.”63 Brace met with the
San Juan School District Superintendent to determine how to best meet this goal.64 The San Juan
County Commissioners testified about the importance of the community school concept to the
Commissioners and the School Board members.65
iii. Incumbent protection, compactness, & contiguity
Brace also submitted a declaration in response to Navajo Nation’s proposed remedial
plans.66 In it, he discussed how the County’s plan complies with several traditional redistricting
factors not discussed in his initial declaration. He stated each incumbent School Board member
remained in the same district under the County’s plan.67 Brace also presented the compactness

63

Dkt. 309 at 9.

64

Dkt. 294 at 9.

65

See, e.g., dkt. 366-21 at 9–11.

66

Dkt. 308.

67

Id. at 9.

14

scores for the County’s proposed districts,68 and stated that the County’s plan is contiguous.69
IV.

Development of San Juan County’s Remedial County Commission 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 districts70 a
supporting declaration from Brace.71 Unlike the School Board plans, the San Juan County
Commission did not vote to adopt the proposed County Commission districts and the County did
not use these districts in an election. Instead, the Commission discussed and approved the
proposal for submission to the court as the County’s proposed remedial plan.72 As depicted in
Exhibit B, the proposed County Commission districts divide the County into three singlemember districts.

68

Id. at 15.
District

Reock

PolsbyPopper

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
Average

0.58

0.32

69

Id.

70

Dkt. 346.

71

Dkt. 347.

72

Id. at 3.

15

A. One-Person, One-Vote
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.73
B. Compliance with the Voting Rights Act
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.”74 He again stated the “make-up of these districts reflects the geographic
distribution of people within San Juan County . . . and is not an attempt to draw district
boundaries on racial or ethnic lines.”75 When discussing the County Commission plan, Brace
reiterated that “proportionality is one of the very first things you look at in terms of drawing
districts.”76
C. Traditional Redistricting Principles
In the County’s submissions, Brace also discussed several traditional redistricting
principles he considered while redrawing the County Commission districts.

73

Id. at 4–5. These districts divide the County’s 14,746 residence as follows: District 1 has 4,923 residents; District
2 has 4,911 residents; and District 3 has 4,912 residents. The ideal population of each district is 4,915 persons and
the total deviation from this goal is 0.2441%, or twelve people. Dkt. 346-2 at 2.
74

Dkt. 347 at 19.

75

Id.

76

Dkt. 366-1 at 141.

16

i. Compactness
In his declaration in response to Navajo Nation’s plan, Brace provided additional
information regarding the district’s compactness in the County’s plan.77
ii. Limiting precinct splits & administrative burden
In his initial declaration, Brace again discussed his efforts to limit precinct splits to curb
the administrative burden of implementing the new election districts.78
iii. Incumbent protection and communities of interests
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.”79 Commissioner Adams
stated that it was important to him that the municipalities of Blanding and Monticello were not
split.80

77

District

Reock

PolsbyPopper

Perimeter

1

0.1320

0.1516

563.99

2

0.3534

0.3775

229.58

3

0.2815

0.4270

237.76

Mean
Average

0.2557

0.3187

1,031.33

Dkt. 363 at 6.
78

Dkt. 347 at 6–14.

79

Id. at 18.

80

Dkt. 366-21 at 22.

17

D. County Commission District Specific Information
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.
i. County Commission District 2
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%.”81 Brace further stated,
this is not to say that race was the ‘dominant and controlling consideration’ in
developing the County plan . . . . Because race is inherent in the analysis under the
Voting Rights Act as a second-tier factor, race is an appropriate consideration in
drawing a plan, so long as it is not the dominate and controlling consideration. It
was not the dominant and controlling factor in the County’s plan. A predominant
factor was creating a plan allowing all County voters a reasonable opportunity to
elect candidates of their choice while reflecting the demographics of the County.82
Brace also “included part of [precinct] 13, Oljato, into District 2 in order to bring up the
population of Native American[s] in District 2.”83 He stated “precinct 13 was carefully divided
in a manner consistent with one of the overall design criteria for the County’s plan not to divide,
if possible, incorporated municipalities or census-designated places. The Oljato-Monument
Valley census-designated place was not divided in the division of precinct 13.”84 Brace opined

81

Dkt. 373 at 4.

82

Id. at 4–5.

83

Dkt. 366-1 at 162.

84

Dkt. 373 at 11.

18

that the Native American voters in District 2 would be able to elect a candidate of their choice
based solely on the targeted racial quota.85
ii. County Commission District 1
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.86
Navajo Mountain is predominately Native American.87 The drive from Spanish Valley to
Navajo Mountain takes four and a half hours (nearly 250 miles) and crosses through Arizona.88
These two communities share no common infrastructure;89 and Brace did not recall considering
if Spanish Valley and Navajo Mountain shared any common interests when drawing District 1.90
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.”91 Brace
stated, “if I’m trying to create districts that have got minority populations, then this is what
remains.”92 When asked whether it was possible to create a redistricting scheme that did not put
completely disparate communities together, Brace responded, “it again goes back to what I had

85

Dkt. 366-1 at 166 (“Q: Okay. So when you say that those numbers give Indians in Commission District 2 the
ability to elect candidates of their choice, that is not based on anything other than an unsubstantiated opinion on your
part; correct? A: It is based upon trying to make sure that there was a majority of Native Americans . . . . Q: [I]t’s
not based on any analysis that you’ve completed; correct? A: At this point in time, no, it was not based on any other
analysis.”).
86

See dkt. 366-1 at 125, 138; dkt. 366-19 at 21 (“I believe it’s the fastest growing community in San Juan County.”);
Dkt. 366-21 at 17–18.
87

See dkt. 366-21 at 21.

88

Dkt. 366-1 at 128; dkt. 366-21 at 18–19.

89

See Dkt. 366-1 at 136; dkt. 366-21 at 20.

90

Dkt. 366-1 at 138 (“Q: Did you look at whether they had any shared interests? A: I don’t know if I did or not. I
don’t recall.”).
91

Id. at 138.

92

Id.

19

testified [to previously] in terms of proportional representation.”93 Further, when asked if he
analyzed factors commonly associated with communities of interest—including shared local
experience, shared resources, and compatible political interests—Brace responded, “[o]ne factor
that you do take a look at is the racial mix. That is a clue in terms of community of interest.
And certainly that was taken into account in terms of the plan.”94
ANALYSIS
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 of legally sound election districts. This is a sensitive undertaking. 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.”95 Consequently, when a
court finds an existing voting scheme unconstitutional, it should first allow the legislature to
draft new voting districts, instead of developing and imposing its own plan in the first instance.96
But if the legislature’s plan is invalid—because it violates the Constitution, the Voting Rights
Act, or traditional redistricting principles—the court does not defer to the legislative plan and
may adopt its own.97
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
93

Id. at 139.

94

Id. at 143.

95

Wise v. Lipscomb, 437 U.S. 535, 539 (1978).

96

Id. at 540 (recognizing “when a federal court declares an existing apportionment scheme unconstitutional, it is
appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional
requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own
plan”).
97

See Large v. Fremont, 670 F.3d 1133 (10th Cir. 2012).

20

court likely would enter that plan.98 The court stated, however, if the County’s proposal “does
not remedy the Equal Protection violation, or suffers from some other constitutional or legal
defect,” then it would not enter the County’s plan.99
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.100 As explained below, the court’s analysis here starts and ends with the
Constitution. Navajo Nation argues the County’s proposed remedial School Board and County
Commission election districts violate the Equal Protection Clause because they are racially
gerrymandered.
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.”101 The Supreme Court observed racial
classifications used in the redistricting process, even when done for remedial purposes, “may
balkanize us into competing racial factions,” and such classifications “threaten to carry us further
from the goal of a political system in which race no longer matters.”102 These racial
classifications, therefore, are subject to searching judicial review.103
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
98

Dkt. 281 at 3.

99

Id.

100

See Sanchez v. Colorado, 97 F.3d 1303, 1327 (10th Cir. 1996) (“[C]ompliance with the VRA falls second only to
the one person, one vote requirement and precedes all traditional districting concerns.”).
101

Cooper v. Harris, 137 S. Ct. 1455, 1463 (2017) (internal quotation marks omitted).

102

Shaw v. Reno, 509 U.S. 630, 657 (1993).

103

Id.; see also Sanchez, 97 F.3d at 1328 (“[R]edistricting in which racial concerns predominate, done even for
remedial purposes, is subject to strict scrutiny.”).

21

apply, Navajo Nation must show race predominated over traditional redistricting principles in the
drawing of a specific district. If Navajo Nation makes this showing, then the court must decide
if San Juan County’s actions satisfy strict scrutiny and “the burden shifts to the [County] to
‘demonstrate that its districting legislation is narrowly tailored to achieve a compelling
interest.’”104
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.
I. Race Predominated in School Board District 3 and
County Commission Districts 1 and 2
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.”105 For strict scrutiny to apply, the plaintiff must show
“race was the predominant factor motivating the legislature’s decision to place a significant
number of voters within or without a particular district.”106 In other words, the plaintiff must

104

Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 801 (2017) (quoting Miller v. Johnson, 515 U.S.
900, 920 (1995)).
105

Miller, 515 U.S. at 916.

106

Id.

22

establish “that the legislature subordinated traditional race-neutral districting principles . . . to
racial considerations.”107 This burden is a demanding one.108
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.109 The government’s attempt to comply with
the Equal Protection Clause’s one-person, one-vote requirement is not a traditional redistricting
principle.110 Instead, “it is part of the redistricting background, taken as a given, when
determining whether race, or other factors, predominate in a legislator’s determination as to how
equal population objectives will be met.”111
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.”112 The plaintiff must make this showing at the district level, instead of at the State or
county level, as “[a] racial gerrymandering claim . . . applies to the boundaries of individual
districts.”113
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

107

Id.

108

Cooper, 137 S. Ct. at 1479.

109

See Miller, 515 U.S. at 916; Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1270 (2015).

110

Alabama Legislative Black Caucus, 135 S. Ct. at 1270 (“[A]n equal protection goal is not one factor among
others to be weighed against the use of race to determine whether race ‘predominates.’”).
111

Id.

112

Miller, 515 U.S. at 916 (emphasis in original).

113

Alabama Legislative Black Caucus, 135 S. Ct. at 1265; see also Bethune-Hill, 137 S. Ct. at 799 (“But even where
a challenger alleges a conflict, or succeeds in showing one, the court should not confine its analysis to the
conflicting portions of the lines. That is because the basic unit of analysis for racial gerrymandering claims in
general, and for the racial predominance inquiry in particular, is the district.”).

23

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.114 Instead, the Court made “clear that parties
alleging a State has assigned voters on the basis of race are [not] confined in their proof to
evidence regarding the district’s geometry and makeup.”115
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.116 In Alabama Legislative Black Caucus v. Alabama, the Court concluded the State’s
“policy of prioritizing mechanical racial targets above all other districting criteria (save oneperson, one-vote)” was “evidence that race motivated the drawing of particular lines,” but was
not conclusive evidence that race predominated over traditional redistricting principles in any
particular district.117
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.118 The Court clarified that a State’s plan could comply with
all traditional redistricting principles, but the plaintiff could still establish race predominated
114

Miller, 515 U.S. at 915.

115

Id.

116

Bush v. Vera, 116 S. Ct. 1941, 1951 (1996).

117

Alabama Legislative Black Caucus, 135 S. Ct. at 1267.

118

Bethune-Hill, 137 S. Ct. at 799.

24

through “direct evidence of the legislative purpose and intent or other compelling circumstantial
evidence.”119 Still, the Court recognized “a conflict or inconsistency may be persuasive
circumstantial evidence tending show racial predomination,” and “[a]s a practical matter, in
many cases, . . . challengers will be unable to prove an unconstitutional gerrymander without
evidence that the enacted plan conflicts with traditional redistricting criteria.”120 In sum, “[a]
plaintiff’s task . . . is simply to persuade the trial court—without any special evidentiary
prerequisite—that race . . . was the ‘predominant consideration in deciding to place a significant
number of voters within or without a particular district.’”121
Applying these principles here, Navajo Nation must show through either direct or
circumstantial evidence that San Juan County subordinated traditional race-neutral redistricting
principles (that do not include compliance with one-person, one-vote) to racial considerations.
In other words, Navajo Nation must show race was the predominant factor motivating the
County to put a significant number of voters within or without a particular district. Navajo
Nation must make this showing at the district level and cannot rely solely on any County policy
of prioritizing racial targets above all other districting criteria. While bizarrely shaped districts
and conflicts between race and traditional redistricting principles may be evidence that race
predominated, they are not threshold requirements to such a showing.
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

119

Id. “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial
classifications.” Id. at 798.
120

Id. at 799.

121

Cooper, 137 S. Ct. at 1479 (quoting Alabama Legislative Black Caucus, 135 S. Ct. at 1265).

25

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.
A. San Juan County Adopted a Countywide Policy of Racial Targets
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.122 The court, therefore, imputes Brace’s
priorities and decisions to the Commission.
Brace described his approach to redistricting as follows. First, he considered the oneperson, 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.”123 Next, he prioritized
compliance with the Voting Rights Act, specifically Section 2. Third, he attempted to abide by
traditional redistricting principles. Prioritizing goals in such a way is not unique.124 But Brace
improperly equated compliance with Section 2 of the Voting Rights Act with racial

122

See supra note 37.

123

Dkt. 281 at 1.

124

See Alabama Legislative Black Caucus v. Alabama, No. 2:12-cv-10801, 2017 WL 378674, * 5 (M.D. Ala.
January 20, 2017) (noting the Alabama redistricting guidelines instructed that “not all of the redistricting goals could
be accomplished and provided that, in case of conflict, priority would be given to requirements of one person, one
vote and the Voting Rights Act”); Bethune-Hill, 137 S. Ct. at 795 (noting that in establishing criteria for
redistricting, the House Committee prioritized one-person, one-vote and compliance with the Voting Rights Act
above traditional redistricting factors).

26

proportionality. This led him to set racial targets during the redistricting process instead of
considering the totality of the circumstances as required by Section 2.
As discussed, Section 2 of the Voting Rights Act prohibits State and local governments
from restricting the right to vote based on race.125 The Supreme Court has applied Section 2 to
redistricting.126 In assessing whether a Section 2 violation exists, the Supreme Court has set
forth a factually intensive analysis, which includes a threshold determination followed by a
totality of the circumstances analysis.127 Under the totality of the circumstances analysis, the
court must determine if the protected minority group’s members “have less opportunity than
other members of the electorate to participate in the political process and to elect representatives
of their choice.”128
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.”129

125

Specifically, the government cannot impose or apply a “voting qualification or prerequisite to voting or standard,
practice or procedure” that “results in the 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. § 103101 (a).
126

See Thornburg v. Gingles, 478 U.S. 30 (1986); Growe v. Emison, 507 U.S. 25, 40–41 (1993).

127

Bartlett v. Strickland, 556 U.S. 1, 11 (2009) (internal quotation marks omitted).

128

52 U.S.C. § 10301(b) (“A violation . . . is established if, based on the totality of the circumstances, it is shown
that the political process leading to the nomination or election in the State or political subdivision are not equally
open to participation by members of a class of citizens protected by subsection (a) in that its members have less
opportunity than other members of the electorate to participate in the political process and to elect representatives of
their choice.”).
129

Dkt. 294 at 13 (regarding the proposed School Board districts); dkt. 347 at 19 (regarding the proposed county
commission districts).

27

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.130 As used by the County, proportionality entailed designing “the districts in a
manner that reasonably approximated the nearly equal division of the County’s population
between Native Americans and non-Native Americans, with Native Americans hav[ing] a slim
majority of both the total population (52.17%) and the voting-age population (50.33%).”131
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 focus in the design of the County’s Plan was to create districts, consistent
with other redistricting principles (including maintaining traditional communities
of interest and precinct boundaries), that reflected the overall composition of the
County’s population, thereby affording both Native Americans and non-Hispanic
whites the opportunity to have a reasonable opportunity to elect candidates of
their choice, while leaving the final representational division to the political
process, where the Supreme Court has indicated it should be, because neither the
Constitution nor the Voting Rights Act establishes a guaranty of absolute
proportional representation.132
130

Brace attempted to conduct a Section 2 analysis, but was not able to obtain the data he claimed to need from
Navajo Nation in order to do so. Dkt. 366-1 at 106–07 (“Q: So what you’re saying is that you made some limited
attempts to do the analysis but reached no conclusions. A: That would be fair to say, yes.”).
131

Dkt. 375 at 19–20.

132

Id. at 19.

28

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.”133
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.134 School Board Districts 4 and 5 have safe majorities of Native American
voters—97.42% and 85.33% respectively.135 The swing district, District 3, has a Native
American voting age population of 53.51% and a White voting age population of 43.36%.
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

133

Id. at 18.

134

Ex. A.

135

Id.

29

White majority of the total population and the voting-age population—71.25% and 73.25%
respectively.136 District 3 has a safe Native American majority of the total population and
voting-age population—75.88% and 73.86% respectively. And, the swing district, District 2, has
a slim Native American majority in both total population and voting age population—51.94%
and 50.60% 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.
B. School Board Election Districts
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 circumstantial evidence that race
predominated.
i. School Board District 3
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%

136

Ex. B.

30

of the total population of the County), and the voting-age population (constituting 50.33% of the
voting-age population).137 The County was successful in attaining its racial proportionality goal.
In the resulting District 3, Native American’s constitute 53.14% of the total population and
53.51% of the voting-age population.138
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 Reock139 score of 0.40 and a Polsby-Popper140
score of 0.15).141 The County offers no other explanation for District 3’s odd shape and lack of
compactness.
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

137

See Dkt. 375 at 20.

138

Ex. A.

139

“The Reock test is an area-based measure that compares each district to a circle, which is considered to be the
most compact shape possible. For each district, the Reock test computes the ratio of the area of the district to the
area of the minimum enclosing circle for the district. The measure is always between 0 and 1, with 1 being the most
compact.” Dkt. 297-1 at 5 n.2 (citing Maptitude For Redistricting documentation).
140

“The Polsby-Popper test computes the ratio of the district area to the area of a circle with the same perimeter.
The measure is always between 0 and 1, with 1 being the most compact.” Dkt. 297-1 at 5 n.3 (citing Maptitude For
Redistricting documentation).
141

Dkt. 308 at 15.

31

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.
ii. School Board Districts 1, 2, 4, and 5
Navajo Nation presented no evidence, outside the County’s overarching proportionality
goal, that race was the predominant factor motivating the County to place a significant number of
people within or without School Board Districts 1, 2, 4, or 5. The Supreme Court has instructed
that an express policy prioritizing mechanical racial targets above all other traditional districting
criteria, such as the County’s proportionality goal here, is not by itself enough to show race
predominated in any specific district. Because Navajo Nation has submitted no additional
evidence outside of the general policy, Navajo Nation has failed to meet its burden to show that
race predominated in these districts.
C. County Commission Election Districts
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.

32

i. County Commission District 2
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%.”142 He further explained he “included part of [precinct] 13, Oljato, into District 2 in
order to bring up the population of Native Americans in District 2.”143 Brace thus subverted to
race the County’s own stated traditional redistricting principle of limiting precinct splits. He
split precinct 13 specifically to increase the number of Native Americans in District 2. It is also
clear from Brace’s statements that he altered district lines, which were originally based on raceneutral districting criteria, to raise the percentage of Native Americans in District 2 from 45% to
51.94%—a 6.94% increase.
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.144 Here, the direct evidence strongly
142

Dkt. 373 at 4.

143

Dkt. 366-1 at 162.

144

Miller, 515 U.S. at 915.

33

supports the conclusion that race predominated in the County’s choice to put a significant
number of voters within or without District 2 based on race.
ii. County Commission District 1
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 traditional redistricting principles and split
precinct 13 he not only placed a significant number of Native Americans in District 2, but also
took those same people out of District 1—expressly based on race.
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.”145 Brace stated, “if I’m
trying to create districts that have got minority populations, then this is what remains.”146 When
asked if he analyzed factors commonly associated with communities of interest—including
shared local experience, shared resources, compatible political interests—Brace responded,
“[o]ne factor that you do take a look at is the racial mix . . . . [a]nd certainly that was taken into
account in terms of the plan.”147
145

Dkt. 366-1 at 138.

146

Id.

147

Id. at 143.

34

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.
iii. County Commission District 3
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.
II. San Juan County’s Predominant Use of Race Fails Strict Scrutiny
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.148 But the County attempted no such showing here—
choosing instead to stand on its argument that its consideration of race in redistricting was
permissible. The County did not explicitly identify any governmental interest it contends it was
trying to achieve, nor did it argue that its race-based considerations were narrowly tailored to

148

See Cooper, 137 S. Ct. at 1464.

35

achieve any specific interest. Because law places the burden to make this showing on the
County, its failure to address the issue necessarily means the County’s redistricting fails strict
scrutiny review.
And the same result yields even if the court reads the County’s submissions to suggest
that its race-based considerations were designed to ensure the resulting districts complied with
Section 2 of the Voting Rights Act—an interest the Supreme Court has assumed is
compelling.149 The Supreme Court has announced a relaxed version of narrow tailoring in this
context in recognition of the legal tension legislatures often confront when complying with both
the Voting Rights Act—which requires the consideration of race to some extent —and the Equal
Protection Clause—which disfavors such race-based classifications.150 Under this relaxed
standard, the State’s actions need not be actually necessary to comply with the Voting Rights
Act.151 Instead, “[w]hen a State invokes the VRA to justify race-based districting, it must show
(to meet the ‘narrow tailoring’ requirement) that it had ‘a strong basis in evidence’ for
concluding that the statute required its action.”152 The required strong basis in evidence “exists
when the legislature has ‘good reasons to believe’ it must use race in order to satisfy the Voting

149

See id. at 1469 (“[W]e have long assumed that complying with the VRA is a compelling interest.”); Sanchez, 97
F.3d at 1328 (“[C]ompliance with § 2 of the VRA constitutes a compelling governmental interest.”).
150

See Alabama Legislative Black Caucus, 135 S. Ct. at 1273–74 (“The law cannot lay a trap for an unwary
legislature, condemning its redistricting plan as either (1) unconstitutional racial gerrymandering should the
legislature place too many minorities in a district or (2) retrogressive under § 5 should the legislature place too
few.”).
151

Id.

152

Cooper, 137 S. Ct. at 1464; see also Sanchez, 97 F.3d at 1328 (“[T]he state must have a strong basis in evidence
to conclude the Gingles’ preconditions exist to justify the redistricting as reasonably necessary to comply with
§ 2.”).

36

Rights Act.”153 “Or said otherwise, the State must establish that it had ‘good reasons’ to think
that it would transgress the Act if it did not draw race-based district lines.”154
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.155 To the
contrary, the County consistently argued that Navajo Nation had failed to establish the Gingles
factors, a threshold requirement to establishing a Section 2 violation.156 Commissioner Lyman
specifically rejected the notion that voting in the County was racially polarized, which is one of
the threshold requirements for a Section 2 violation.157 The inescapable conclusion throughout
this case is that the County vigorously denies the existence of any Section 2 issue in the County.
The County thus failed to provide legally sufficient reasons to believe it must use race in order to
satisfy the Voting Rights Act.
Ironically, there may well be good reasons to believe there is a potential Section 2
violation in San Juan County. Navajo Nation has argued as much and presented the court with
evidence of a potential violation, at least as to the County Commission election districts.158 The
court, however, can only address the arguments the parties place before it. And San Juan County
did not argue the evidence presented by Navajo Nation, or any other evidence, provided it good
153

Bethune-Hill, 137 S. Ct. at 801 (quoting Alabama Legislature Black Caucus, 135 S. Ct. at 1274).

154

Cooper, 137 S. Ct. at 1464.

155

See id. at 1472 (“In sum: Although States enjoy leeway to take race-based actions reasonably judged necessary
under a proper interpretation of the VRA, that latitude cannot rescue District 1. We by no means ‘insist that a state
legislature, when redistricting, determine precisely what percent minority population [§2 of the VRA] demands.’
But neither will we approve a racial gerrymander whose necessity is supported by no evidence and whose raison
d’etre is a legal mistake.” (citation omitted)).
156

See supra Background, § I.

157

Dkt. 366-19 at 37–38.

158

See dkt. 100.

37

reasons to believe it must act as it did, or risk violating the Voting Rights Act. This was the
County’s burden and it failed to meet it.
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 Grandy159 for this proposition. In De Grandy,
however, the Supreme Court explicitly rejected such an approach.160
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.
CONCLUSION
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
159

512 U.S. 997 (1994).

160

In De Grandy, the Supreme Court explained proportionality is not a safe harbor, and admonished its use where
the governing body has no evidence of a potential Section 2 violation. In that case, the Court rejected a safe harbor
approach advanced by the State of Florida, in part, because it would have a “tendency to promote and perpetuate
efforts to devise majority-minority districts even in circumstances where they may not be necessary to achieve equal
political and electoral opportunity.” Id. at 1019–20. The Court went on to explain that “[b]ecause in its simplest
form the State’s rule would shield from § 2 challenge a districting scheme in which the number of majority-minority
districts reflected the minority’s share of the relevant population, the conclusiveness of the rule might be an
irresistible inducement to create such districts.” Id. at 1020.

38

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.161 The court indicated that if it reached the Navajo Nation’s
plans, and if they were legally sound, the court likely would enter its plans as a final order.162
Having considered the issue more carefully in the time that has passed since its earlier Order, the
court no longer believes such an approach would lead to a satisfactory result.
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.”163 The
Court also instructs district courts to “undertake an ‘equitable weighing process’ to select a
fitting remedy for the legal violations it has identified, taking account of ‘what is necessary, what
is fair, and what is workable.’”164 Heeding this guidance, the court here attempted to avoid a
result in which voting districts were drawn by anyone other than the elected representatives in
the County. That attempt failed and the court must now become involved.
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

161

Dkt. 281.

162

Id.

163

Wise, 437 U.S. at 539.

164

North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) (per curium) (citations omitted).

39

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.
BY THE COURT:

____________________________
ROBERT J. SHELBY
United States District Judge

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EXHIBIT A
SAN JUAN COUNTY’S PROPOSED SCHOOL BOARD DISTRICTS

District

Percent
White_Race
Alone

Percent Native
American_Race
Alone

VAP Percent
White_Race
Alone

1

89.04%

4.59%

89.53%

VAP Percent
Native
American_Race
Alone
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

165

Dkt. 286-2 at 5.

166

Dkt. 286-2 at 11.

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EXHIBIT B
SAN JUAN COUNTY’S PROPOSED COUNTY COMMISSION DISTRICTS

District

Non-Native
American

Native American

1

71.26%

2
3

167

Voting Age
Population,
Native American

28.74%

Voting Age
Population,
Non-Native
American
73.25%

48.06%

51.94%

49.40%

50.60%

24.12%

75.88%

26.14%

73.86%167

Dkt. 347 at 17–18.

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26.75%