Navajo Nation v. San Juan County
Opinion
In 2012, the Navajo Nation and several of its individual members (collectively, the Navajo Nation) sued San Juan County, alleging that the election districts for both the school board and the county commission violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Voting Rights Act (VRA) of 1965,
On appeal, the county challenges each of the district court's decisions. For the reasons explained below, we affirm.
Background
San Juan County occupies the southeastern corner of Utah. Geographically, it's the largest county in the state. The county seat is Monticello, and the county's largest city is Blanding. Approximately 52% of the county's population is Native American. Most Native American residents live in the southern portion of the county, on the Navajo Nation Reservation; the northern portion of the county contains "most of the non-Hispanic [w]hite population." App. vol. 43, 8420. As of the 2010 census, 14,746 people lived in the county.
A three-member county commission governs the county. Until the early 1980s, the county elected its commissioners in at-large elections. But in 1983, the United States sued the county, alleging that the at-large elections violated the Constitution and § 2 of the VRA because they denied Native American residents "an equal opportunity to participate in the [c]ounty political process and to elect candidates of their choice." 1 App. vol. 2, 277. In its complaint, the United States pointed out that although the county had a substantial Native American population, it had never elected a Native American representative to the county commission. 2
Rather than going to trial, the county entered into a consent decree with the United States. The district court accepted the parties' agreement and entered a settlement order. The settlement order acknowledged that the county's at-large election system "fail[ed] to comply fully with the requirements of [§] 2 of the [VRA]."
Accordingly, the county established three single-member county-commission districts: Districts 1, 2, and 3. A former county official who helped design the districts "testified that she understood that District [3] 'was to be heavily loaded with Navajo voters.' " App. vol. 49, 9836 (quoting App. vol. 30, 5580). Thus, when the county first created the single-member districts in the 1980s, Native Americans made up 88% of District 3's population. And in the years since the county adopted single-member districts, "the commissioners elected from Districts [1] and [2] have been white, and the commissioners elected from District [3] have been Native American." App. vol. 3, 450. As the district court put it, "[i]n this way, the [c]ounty moved from a system that historically denied representation to a minority group to one that allowed th[e] group greater participation in the political process." App. vol. 49, 9834.
In 2011, the Navajo Nation asked the county to redraw the county-commission districts in response to the 2010 census. It argued that District 3, which was now over *1276 92% Native American, had "an inordinately large population of Native Americans." App. vol. 3, 450. The county declined to change District 3's boundaries, and it made only a few small changes to Districts 1 and 2 to equalize the population of those districts. In response, the Navajo Nation brought this action against the county in federal district court. The Navajo Nation alleged that the boundaries of the county-commission districts, specifically the boundaries of District 3, were unconstitutionally based on race in violation of the Equal Protection Clause.
Additionally, the Navajo Nation challenged the constitutionality of the county's school-board districts. By state law, the school board has "five members, each elected from a single[-]member district." App. vol. 43, 8344;
see also
Utah Code Ann. § 20A-14-202(1)(a), (h). As of the 2010 census, the total population deviation among the five school-board districts was around 38%. In other words, the districts weren't equally populated; some districts contained substantially more voters than other districts. The Navajo Nation contended that this high population deviation resulted in vote dilution in violation of the Equal Protection Clause's guarantee of one person, one vote.
See
Avery v. Midland Cty.
,
The county moved to dismiss the Navajo Nation's claim related to the county-commission districts, arguing that it was an impermissible collateral attack on the 1984 consent decree and settlement order. It also argued that the United States was an indispensable party to any litigation related to the consent decree and settlement order. The district court disagreed and denied the county's motion. 4
The parties then cross-moved for summary judgment on the Navajo Nation's two Equal Protection claims: (1) that District 3 of the county-commission districts was unconstitutionally based on race; and (2) that the population deviation among the school-board districts caused unconstitutional (although not race-related) vote dilution. The district court found that both the school-board and county-commission districts violated the Equal Protection Clause and were therefore unconstitutional. Accordingly, it awarded summary judgment to the Navajo Nation on both claims.
The district court then ordered the county to develop a remedial redistricting plan.
5
See
Large v. Fremont Cty.
,
After the county submitted its proposed remedial redistricting plan, the district court found that the remedial plan was also unconstitutional. Specifically, it found that some districts in the remedial plan were based on race and didn't survive strict scrutiny. So the district court rejected the county's plan and appointed a special master. After the special master created several proposed redistricting plans, the district court conducted two public hearings and accepted input from the parties. The special master then drafted a final plan, and the district court ordered the county to adopt it. The district court further ordered the county to hold special elections utilizing the new districts in November 2018.
The county appeals.
Analysis
The county raises five challenges; we examine each in turn. We first address the county's argument that the district court erred in denying its motion to dismiss the Navajo Nation's claim relating to the 2011 county-commission districts. Second, we consider whether the district court erred when it ruled that the county lacked a compelling interest to justify the racially drawn boundaries of county-commission District 3. Third, we review the county's assertion that the district court erred in rejecting the county's justifications for the population deviation in the 1992 school-board districts. Fourth, we ask whether the district court erred in finding that the county's proposed remedial redistricting plan was predominantly based on race and failed to satisfy strict scrutiny. Last, we consider whether, as the county contends, the district court erroneously ordered the county to adopt the special master's remedial redistricting plan. 6
I. The County's Motion to Dismiss
The county first argues that the district court erred in denying its motion to dismiss. In particular, it argues that (1) the 1984 consent decree and settlement order bar the claim related to the county-commission districts because the court that approved the consent decree and entered the settlement order retained jurisdiction over the matter; and (2) the United States, as a party to the consent decree and settlement order, is indispensable to this action. Neither argument succeeds.
When a court accepts a consent decree and enters an accompanying order, it often retains jurisdiction over the matter. If it does so, other courts necessarily lack subject-matter jurisdiction over suits seeking to modify that decree.
See
Culbreath v. Dukakis
,
And that's what the county urges happened here: it contends that this case is an impermissible collateral attack on the consent decree and settlement order. The district court rejected this subject-matter-jurisdiction argument for two reasons. First, it found that because the Navajo Nation wasn't a party to the consent decree and settlement order, the rule that "parties to a consent decree may not collaterally attack the judgment in a separate action" didn't apply. App. vol. 3, 452. Second, it determined that "the present suit does not address the subject matter of the 1984 [consent decree and settlement order]." Id. at 453. Specifically, the district court noted that the consent decree and settlement order aimed to eliminate at-large elections but said nothing about specific boundary lines or the makeup of any single-member district. And in this case, the Navajo Nation didn't seek to return to at-large elections; instead, it sought to redraw certain boundaries. Thus, the district court concluded that although the court that approved the consent decree and entered the settlement order "retain[ed] jurisdiction for all purposes," this case didn't implicate "th[e] matter" over which jurisdiction was retained. Id. (quoting App. vol. 2, 224).
On appeal, the county challenges both of these rationales. "We review de novo the district court's denial of a motion to dismiss for lack of subject[-]matter jurisdiction."
Opala v. Watt
,
Resisting this plain language, the county points out that the 1983 complaint identifies
But the county cites no authority for the proposition that the United States' mere mention of § 175 somehow made the Navajo Nation a party to the 1983 lawsuit or brought the Navajo Nation into privity with the United States. Nor does it point to any fact tending to show that the Navajo Nation invoked § 175 and asked the United States to bring the 1983 lawsuit on its behalf. Indeed, although the 1983 complaint cites § 175, it plainly relies on the VRA as authority for the action. The VRA permits the United States to institute a civil action whenever "any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of" the right to vote. § 10101(c). In line with this authority, the 1983 complaint alleges violations of the VRA and requests relief under the VRA.
*1279
Accordingly, we conclude that the mere reference to § 175 on the first page of the 1983 complaint doesn't establish that the United States acted as a representative of the Navajo Nation in bringing the 1983 lawsuit. Thus, we reject the county's argument that the Navajo Nation was a party to the earlier lawsuit simply because the United States used the VRA to protect the voting rights of Native Americans living in San Juan County. And because the Navajo Nation wasn't a party to the consent decree and settlement order, the collateral-attack doctrine doesn't bar this action.
Cf.
Floyd
,
The county next argues that the Navajo Nation's suit seeking to redraw the boundaries of the county-commission districts implicates the 1984 consent decree and settlement order because those documents required the United States to approve the county's new single-member districts. The district court found it "reasonable to infer from the record that the [c]ounty presented a final plan to the [United States] before enacting it." App. vol. 49, 9834 n.34. We accept this inference. But the county takes this inference too far, insisting that (1) the county created District 3's boundaries "at the insistence of the" United States, and (2) these boundaries are permanent and can't be changed without involvement and permission of the United States. Aplt. Br. 37.
Yet we see no support for these additional inferences in the record. Even if the United States approved the original single-member district boundaries, nothing in the 1984 consent decree and settlement order prohibits the county from altering those boundaries over time. The record does indicate that one county official testified that she believed the consent decree and settlement order (1) established District 3's boundaries such that the district would be packed with Navajo voters and (2) locked those boundaries. But those documents simply do not support the official's testimony. Indeed, the county's opening brief at one point concedes that the consent decree and settlement order "do[ ] not dictate that the boundaries of District[ ]3 remain unchanged or even that District[ ]3 be a Navajo-majority" district. Aplt. Br. 42. Accordingly, the district court correctly determined that the Navajo Nation's claim seeking to modify District 3's boundaries doesn't implicate the consent decree and settlement order. As a result, we conclude that although the district court retained jurisdiction over the 1983 consent decree and settlement order, that fact didn't deprive the district court in this case of jurisdiction over the Navajo Nation's claim related to the county-commission districts. 7
Relatedly, and briefly, the county argues that the district court abused its discretion when it ruled that the United States wasn't an indispensable party under Federal Rule of Civil Procedure 19.
See
N. Arapaho Tribe v. Harnsberger
,
In sum, because this case doesn't implicate the 1984 consent decree and settlement order, we affirm the district court's order denying the county's motion to dismiss.
II. The 2011 County-Commission Districts
Next, the county argues that the district court erred in granting summary judgment to the Navajo Nation on the claim that the boundaries of District 3 of the 2011 county-commission districts were unconstitutionally based on race in violation of the Equal Protection Clause. "We review a grant of a motion for summary judgment de novo, applying the same legal standard used by the district court."
Adarand Constructors, Inc. v. Slater
,
The Fourteenth Amendment's Equal Protection Clause "limits racial gerrymanders in legislative districting plans."
Cooper v. Harris
, --- U.S. ----,
Here, the parties largely agree on the underlying material facts. Most critically, the county "admit[s]" that it drew District 3's boundaries "based on race." Aplt. Br. 41. Thus, we need not consider whether the Navajo Nation sufficiently proved that race predominated in the creation of District 3; the county has conceded as much. Instead, we need only determine whether, as the county argues, the district court erred in concluding that it couldn't satisfy the strict scrutiny applied to that race-based decision.
In reaching that conclusion, the district court rejected the county's argument that it had a compelling interest in adhering to the terms of the 1984 consent decree and settlement order. Specifically, the district court acknowledged that county officials subjectively believed that the consent decree and settlement order required packing Navajo voters into District 3. But it found that this subjective belief wasn't enough to establish a compelling interest. In particular, the district court stated that "subjective beliefs cannot supply legal requirements ... that are not found in the documents themselves." App. vol. 49, 9855. It further noted that nothing in the consent decree or settlement order established specific district lines or provided
*1281
that such lines must exist, unchanged, in perpetuity; nor did those documents refer to packing Native American voters into a single district. As such, the district court concluded that complying with the consent decree and settlement order did not provide a compelling interest to justify District 3's race-based boundaries. Thus, the district court granted summary judgment in favor of the Navajo Nation on its claim that the boundaries of District 3 of the 2011 county-commission districts were unconstitutionally based on race in violation of the Equal Protection Clause. We review that ruling de novo.
See
Concrete Works of Colo., Inc. v. City & Cty. of Denver
,
In seeking reversal of this ruling, the county first contends, as it did below, that the 1984 consent decree and settlement order required it to maintain District 3's race-based boundaries. But the county fails to "explain ... why the district court's decision was wrong."
Nixon v. City & Cty. of Denver
,
Rather than challenging any aspect of the district court's sound analysis of the language of the consent decree and settlement order, the county instead advances a new compelling-interest argument: it asserts that it has a compelling interest in complying with § 2 of the VRA. Although we assume that "compl[ying] with § 2 of the VRA constitutes a compelling government interest," we nevertheless reject the county's argument.
Sanchez v. Colorado
,
Narrow tailoring in the context of VRA compliance means that the county must show "it had 'a strong basis in evidence' for concluding that the [VRA] required its action," or, stated differently, "that it had 'good reasons' to think that it would transgress the [VRA] if it did not draw race-based district lines."
Cooper
, 137 S. Ct. at 1464 (quoting
Ala. Leg. Black Caucus v. Alabama
, --- U.S. ----,
Indeed, there's no evidence that when redistricting in 2011, the county ever attempted to determine what § 2 required. Instead, the evidence shows that (1) the county mistakenly believed it wasn't permitted to modify District 3's boundaries, and (2) it maintained this belief despite being unsure of what the consent decree and settlement order required. The county's mistaken understanding simply doesn't provide "a strong basis in evidence" or a "good reason[ ]" to believe that § 2 required this racially drawn boundary.
Cooper
, 137 S. Ct. at 1464 (quoting
Ala. Leg. Black Caucus
,
Accordingly, we affirm the district court's order granting summary judgment to the Navajo Nation on its claim that the county created county-commission District 3 based on race in violation of the Equal Protection Clause.
III. The 1992 School-Board Districts
The county next challenges the district court's order granting summary judgment to the Navajo Nation on its claim that the school-board districts violate the Equal Protection Clause because the districts contain substantially unequal populations, in violation of the one-person, one-vote principle. The same summary-judgment standard of review applies to this issue, and the parties again agree on the underlying facts.
In addition to prohibiting race-based classifications that fail to survive strict scrutiny, the Equal Protection Clause of the Fourteenth Amendment "prohibits states from restricting or diluting votes in violation of the 'one person, one vote' principle."
City of Herriman v. Bell
,
At the same time, "it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters."
Reynolds
,
Initially, the parties disagree about the level of scrutiny we should apply to the county's justifications for deviating from the one-person, one-vote principle. The Navajo Nation argues that we should apply strict scrutiny, and the county suggests that we should instead follow the district court's lead and use the intermediate balancing test the Court articulated in
Anderson v. Celebrezze
,
Under the
Anderson
-
Burdick
test, we "weigh 'the character and magnitude of the asserted injury' ... against 'the precise interests put forward by the [government] as justifications for the burden imposed by its rule,' taking into consideration 'the extent to which those interests make it necessary to burden the plaintiff's rights.' "
Burdick
,
We begin with "the character and magnitude of the asserted injury."
Anderson
,
Likewise, the county doesn't dispute that the seriousness of the injury increases "the rigorousness of [the] inquiry into the propriety" of the county's justifications.
*1284
Burdick
,
The county's primary justification on appeal is its school-community philosophy. Under this philosophy, the school-board "districts are essentially drawn around the[ ] schools, creating communities of interest" to "ensur[e] that each school ... has specific representation on the [s]chool [b]oard by placing voters who are within the school's boundaries in the voting district for that school's board member." Aplt. Br. 48. The county argues that this philosophy, in combination with the county's geography and sparse population, justifies the 38% population deviation.
The county's argument suffers from several flaws. First, "sparse population is not a legitimate basis for a departure from the goal of equality."
Chapman
,
Nor does the addition of the school-community philosophy change this analysis. Like the district court, we accept that the school-community philosophy could potentially justify the population deviation. 10 But the county's method of implementing this philosophy runs contrary to state law. By statute, Utah mandates three considerations for drawing school-board districts, one of which is that the districts must be "substantially equal in population."
*1285 § 20A-14-201(1)(b). State law says nothing about a school-community philosophy. Thus, the county's goal of prioritizing the school-community philosophy over a state-mandated factor that mirrors the Fourteenth Amendment's one-person, one-vote guarantee fails to justify vote dilution, even when considered in combination with the county's sparse population and geography.
In any event, even assuming these justifications carry some weight and could explain part of the population disparity, the county failed to demonstrate below and likewise fails to demonstrate on appeal the extent to which the unequal districts are a necessary result of its school-community philosophy, sparse population, and geography. In the absence of such a showing, we can't determine the "extent to which" the school-community philosophy "make[s] it necessary to burden" the voting rights of the county's residents.
Burdick
,
In a final attempt to persuade the court that it has made this showing, the county relies on
Frank
,
This case is distinguishable from
Frank
based solely on the number of districts involved-five here, compared to 21 in
Frank
. Critically, it's far more difficult to equally divide a county's residents into 21 districts than it is to equally divide them into only five districts.
See
In summary, the county's reasons for its substantially unequal school-board districts fail to adequately justify the heavy and longstanding burden on its residents' right to vote. We therefore affirm the district court's order granting summary judgment to the Navajo Nation on its claim that the school-board districts violate the Equal Protection Clause.
IV. The County's Proposed Remedial Redistricting Plan
The county argues that the district court erred when it determined that the county's proposed remedial redistricting plan was
*1286
predominantly based on race (a factual finding we review for clear error) and that the plan didn't survive strict scrutiny (an analysis we review de novo).
See
Cooper
, 137 S. Ct. at 1465 (noting that we review racial-predomination factual finding for clear error);
Concrete Works of Colo.
,
Because "[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of local functions,"
Miller
,
"To make this showing, a plaintiff must prove that the legislature
subordinated
traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations."
11
Miller
,
If a plaintiff shows that race predominated the districting process, then the district court will subject the racially drawn lines to strict scrutiny.
See
Miller
,
Here, the district court found that racial considerations predominated over traditional districting principles in the county's redistricting of both the school-board and county-commission districts. To reach this conclusion, the district court first noted that the county's primary goal, after adhering to the one-person, one-vote principle, was complying with § 2 of the VRA. But rather than rely on any particularized § 2 analysis, the county aimed for overall racial proportionality "as a proxy for compliance with [§] 2 of the [VRA]." App. vol. 54, 10852. That proportionality goal effectively created one county-commission district with a "safe [w]hite majority," one county-commission district with a "safe Native American majority," and one county-commission district with "a slim Native American majority." Id. at 10853-54. For the school-board districts, the county created two districts "with a safe majority of [w]hite voters," two districts "with a safe *1287 majority of Native American voters," and one district with "a slim Native American majority." Id. at 10853. The county's proposed remedial redistricting plan was meant to mirror the overall racial demographics of the county, which is just over half Native American. Based on this information, the district court concluded that the county "adopted a countywide policy of prioritizing racial targets above all other redistricting criteria." Id. at 10850.
The district court next considered whether and how this proportionality policy impacted the individual districts.
See
Ala. Leg. Black Caucus
,
It likewise concluded that race predominated in the drawing of county-commission Districts 1 and 2 (but not District 3). For District 2, it pointed to (1) testimony from the county's expert that he specifically moved voters from District 1 into District 2 in order to increase the percentage of Native Americans in District 2; (2) testimony from the county's expert that he split a precinct in order to complete that increase; and (3) the racial demographics showing a narrow racial split that mirrored the county as a whole. For District 1, the district court noted that the same expert testimony supported a finding that race predominated in creating its boundary, as did evidence showing that the county's expert grouped disparate communities from the far north and the far south of the county into District 1.
Having concluded that race predominated in creating these districts, the district court then determined that the county could not satisfy strict scrutiny. It did so primarily because the county chose "to stand on its argument that its consideration of race in redistricting was permissible" rather than attempting to meet strict scrutiny.
Id.
at 10859. But the district court nevertheless interpreted the county's purported attempts to comply with § 2 of the VRA as a compelling interest.
See
Sanchez
,
*1288
for its race-based choices.
Cooper
, 137 S. Ct. at 1464 (quoting
Ala. Leg. Black Caucus
,
On appeal, the county contends that the district court's factual finding-that race predominated the drawing of these districts-was clearly erroneous.
See
id.
at 1465 (noting that we review factual finding about "whether racial considerations predominated in drawing district lines" for clear error). But it fails to point to any part of the district court's analysis as unsupported by the record.
See
id.
at 1474 (noting that under clear-error review, we affirm court's finding so long as it's "plausible," and "we reverse only when 'left with the definite and firm conviction that a mistake has been committed' " (quoting
Anderson v. City of Bessemer City
,
First, the one-person, one-vote principle is "taken as a given[ ] when determining whether race, or other factors, predominate."
Ala. Leg. Black Caucus
,
Third, as to maintaining precinct boundaries, the district court specifically and correctly found that race predominated over this goal. The racially proportionate school-board District 3 included four of eight total precinct splits, and the county offered no other justification for these splits.
14
Also, the county's expert testified that he intentionally split a precinct between county-commission Districts 1 and 2 to increase the Native American population in District 2. In short, the county's challenge to the district court's conclusion that race predominated the county's redistricting process doesn't leave us with "the definite and firm conviction that a mistake has been committed."
Cooper
, 137 S. Ct. at 1474 (quoting
City of Bessemer City
,
The county next argues that assuming race did predominate, the districts nevertheless survive strict scrutiny. We review the application of strict scrutiny de novo.
See
Concrete Works of Colo.
,
Yet as we previously discussed at length, this case doesn't implicate the consent decree and settlement order. That the county entered into the agreement to remedy an alleged § 2 violation doesn't change the analysis; the violation alleged in the 1983 lawsuit resulted from an at-large election system that's no longer in place. So the § 2 concerns that led to the 1983 lawsuit and the consent decree and settlement order aren't relevant to whether the remedial single-member election districts create any § 2 issues.
Next, we reject the county's contention that the district court's instructions in this case provided the necessary good reasons to believe that the new single-member districts might violate § 2. The district court mentioned in passing, from the bench, that the county's remedial redistricting plan should comply with § 2: "The county is going to develop a plan, and it can be constitutionally infirm if the county chooses not to take into account the [§ 2] issues that might arise ...." App. vol. 58, 11273. But as the Navajo Nation points out, acknowledging that § 2 issues "might arise" isn't the same as advising the county that its plan would or did violate § 2.
Moreover, the county acknowledges that its expert did not conduct a § 2 analysis. And in the absence of any investigation into what § 2 might require, the county lacks any basis to argue that it had good reasons to believe § 2 of the VRA required strict proportionality and race-based boundaries. Indeed, the Supreme Court tends to reject strict-scrutiny arguments based on § 2 compliance when "the [redistricting entity] c[an] point to 'no meaningful legislative inquiry' into 'whether a new, enlarged' district, 'created without a focus on race, ... could lead to § 2 liability.' "
Abbott v. Perez
, --- U.S. ----,
Last, the county argues that it used strict proportionality to avoid any potential § 2 violations because "[a] truly proportional plan" is the best way to ensure that "minority voters ... [can] elect the candidates of their choice." Rep. Br. 17. But the Supreme Court has previously rejected strict proportionality as a safe harbor from § 2 of the VRA.
See
Johnson v. De Grandy
,
In sum, we conclude that the district court didn't clearly err when it found that race predominated over traditional districting principles in the county's proposed remedial redistricting plan. Further, we agree with the district court that the county's race-based plan doesn't survive strict scrutiny. We therefore affirm the district court's order rejecting the county's proposed remedial redistricting plan.
V. The District Court's Remedial Redistricting Plan
Last, the county argues that the district court erred when it ordered the county to adopt the remedial redistricting plan of the court-appointed special master, Bernard Grofman, a professor of political science at the University of California, Irvine. To more fully address the county's specific arguments, we begin our analysis by reviewing Grofman's process and the details of Grofman's plan.
Grofman took the following approach: he used census blocks to ensure compliance with the one-person, one-vote principle;
16
he chose to draw new boundaries rather than relying on the county's former, unconstitutional districts; he aimed to avoid the use of race as a predominant factor; he didn't consider partisanship; he focused on keeping census places and cities whole; he aimed for contiguity and compactness; and he tried to unpair incumbents. At the final stage, he reviewed the racial makeup of the resulting districts for any potential § 2 problems. He believed that packing minorities into single districts can violate § 2, so he adjusted one school-board district to reduce its Native American population from over 96% to less than 90%.
See
Voinovich v. Quilter
,
The resulting districts have population deviations of less than 2%. Two of the three county-commission districts and three of the five school-board districts are majority Native American. Nevertheless, Grofman stated that in his plan, the county commission and the school board each contain a true swing district. That is, although the Native American population in those so-called swing districts was around 65%, expert testimony and empirical data on voter turnout indicated that such a percentage didn't make the districts safe Native American seats. Additionally, the county-commission plan "keeps Monticello whole, splits the [c]ity of Blanding in only two parts, splits [the] Navajo Nation [Reservation] in only two parts, and keeps all census places whole." App. vol. 56, 11096. Likewise, the school-board plan "keeps Monticello whole, splits the city of Blanding into only the two mathematically required
*1291
parts, splits [the] Navajo Nation [Reservation] into only the three mathematically required parts, and keeps all census places whole."
In the district court, the county argued that Grofman's remedial redistricting plan violated the Equal Protection Clause because it was unconstitutionally based on race, violated § 2 of the VRA, and ignored traditional districting principles. The district court rejected each of the county's arguments and ordered the county to use the new districts and hold special elections in November 2018. On appeal, the county renews two of its three challenges (it doesn't argue that Grofman's remedial plan violates § 2).
The county first argues that, in rejecting the county's argument that Grofman's plan was unconstitutionally based on race in violation of the Equal Protection Clause, the district court relied on a clearly erroneous factual finding. That is, the county asserts that the district court clearly erred when it concluded that race was not the predominant factor in Grofman's plan. See Cooper , 137 S. Ct. at 1463-65 (noting that clear-error review applies to question of whether race predominated in districting plan; explaining that to establish equal-protection violation, party must first show that race predominated in creation of election district). In support, the county baldly states that "[n]o plan[ ] drawn solely on race-neutral districting principles could achieve" the "significant Navajo majorities in two-thirds of the election districts." Aplt. Br. 62. But the county points to no evidence that in redistricting, Grofman was racially motivated or that race predominated his process. The district court specifically found that "[r]ace entered into ... Grofman's line[-]drawing calculation only at the final stage and only with respect to the [s]chool[-b]oard districts." App. vol. 56, 11083. The county points to nothing in the record to refute that finding on appeal. 17
Instead, the county contends that the district court's reasoning was flawed. In particular, it accuses the district court of (1) rejecting the county's remedial plan because the county tried to comply with § 2 but (2) accepting Grofman's plan, which also accounted for § 2 compliance. The problem with this position is that it conflates two very different approaches to § 2 compliance. The county's "efforts to comply with [§] 2 of the [VRA] amounted to nothing more than setting racial targets for each district" and then making additional race-based adjustments to meet those targets. App. vol. 54, 10851. But Grofman drew his lines based on race-neutral districting principles and then, at the end, accounted for a potential § 2 problem in one of the resulting school-board districts. These approaches are diametrically opposed: the county began its redistricting with strict racial proportionality in mind and made changes to districts to achieve that goal, and Grofman ended his process with one individual adjustment based on race. As such, we find no error in the district court's reasoning, and its factual finding that race didn't predominate in Grofman's plan isn't clearly erroneous. The district court therefore properly rejected the county's argument that Grofman's plan violated the Equal Protection Clause.
Next, the county argues that the district court erred in ordering the county to adopt Grofman's redistricting plan because that plan "ignores" certain "traditional districting principles." Aplt. Br. 60. On this point,
*1292
our review is for abuse of discretion.
See
Connor v. Finch
,
The county first challenges how Grofman's plan splits the city of Blanding. It acknowledges that Blanding's population is "large enough that in order to meet the equal-population principle of 'one-person, one-vote,' it must be divided between two [c]ounty[-c]ommission districts." Aplt. Br. 60. But the county asserts that Grofman's plan unnecessarily splits Blanding into three county-commission districts, not just two.
The county's position is factually untrue. As the district court noted, Grofman's redistricting plan splits Blanding only into two districts, not three. The county tries to avoid this conclusion by arguing, as it did below, that the city of Blanding includes its suburbs and that Grofman placed those outlying areas in a third district. 18 But as the Navajo Nation points out, the alleged boundaries of these outlying areas don't appear anywhere in the record. As such, the county cannot reasonably argue on appeal that the district court erred by considering only the known boundaries of the city and not the unknown boundaries of the surrounding area.
Relatedly, the county hints at a partisan-gerrymandering argument when it alleges that the city of Blanding is heavily Republican and that Navajo individuals tend to vote for Democratic candidates. But Grofman specifically testified that he didn't consider any partisan factors when drawing his plan. And like it did below, the county fails to develop a partisan-gerrymandering argument on appeal. Any argument it does make appears only in its reply brief and in a letter of supplemental authority filed after oral argument. Accordingly, we decline to consider any such argument.
19
See
Bronson v. Swensen
,
The county's third point related to Blanding is that one of the school-board districts in the Blanding area contains only one school. The county doesn't explain why this fact weighs in its favor, and we see no indication that it does. There are only so many ways to divide the county's 12 schools among five school-board districts, and it's not patently unreasonable to have one district with only one school in it. We therefore find no abuse of discretion in the decision to accept Grofman's plan despite the Blanding split and the school-board
*1293
district with only one school in it.
See
Large
,
The county next suggests that the district court erred in approving a plan with election districts based on census blocks rather than on county precincts. Grofman explained that even though the county had long relied on voting precincts based on survey lines, he used census blocks because these are "the only units of geography for which we have reliable population estimates." App. vol. 56, 11072. And Grofman and the district court needed an accurate population count and distribution to comply with the one-person, one-vote principle-a principle that's even more important when a court, and not a legislative body, creates election districts.
See
Connor
,
To conclude, the district court didn't clearly err when it found that Grofman's plan wasn't predominantly based on race. And because the district court approved Grofman's plan "in a manner 'free from any taint of arbitrariness or discrimination,' " we affirm its order directing the county to adopt that plan.
Conclusion
In summary, we find no error in the district court's well-reasoned rulings. First, the district court correctly determined that the 1984 consent decree and settlement order have nothing to do with this action. It therefore properly denied the county's motion to dismiss the Navajo Nation's county-commission claim. Second, the district court didn't err when it ruled that the county lacked a compelling interest to justify the racially drawn boundaries of county-commission District 3. Third, the district court correctly rejected as inadequate the county's justifications for the longstanding and substantial population deviation among the 1992 school-board districts. Fourth, the record supports the district court's factual finding that several of the districts in the county's remedial redistricting plan were predominantly based on race. And it correctly concluded that the county lacked the required good reasons or a strong basis in evidence to justify this race-based line drawing. Fifth, the district court didn't clearly err when it found that the special master's remedial plan wasn't predominantly based on race; nor did it otherwise abuse its discretion in ordering the county to adopt that plan.
Accordingly, we affirm the district court's decisions in all respects.
Section 2 provides that "[n]o voting ... standard, practice, or procedure shall be imposed or applied by any [s]tate or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." § 10301(a). At-large voting may violate § 2 of the VRA if it has a discriminatory effect.
See
Thornburg v. Gingles
,
Historically, voting discrimination against Native Americans living in Utah wasn't limited to San Juan County. Until 1957, a Utah statute denied Native Americans the right to vote. That year, the state repealed the discriminatory law while a case challenging its constitutionality was pending in the Supreme Court.
See
Allen v. Merrell
,
The Navajo Nation further alleged that the county-commission and school-board districts diluted the voting power of Native Americans in violation of § 2 of the VRA. The district court didn't decide these two VRA claims, and they aren't before us on appeal.
After the district court denied the motion to dismiss, the county filed a motion to reopen the 1983 litigation and consolidate the 1983 litigation with this case. The district court also denied that motion.
The district court ordered the Navajo Nation to submit a redistricting plan as well. But it ultimately declined to review that plan because "adopting [the] Navajo Nation's proposed redistricting plan[ ]-[which was] the product of an adversarial, litigation-driven process-could jeopardize, and possibly undermine confidence in, the legitimacy of the [c]ounty's new legislative districts." App. vol. 54, 10864.
The county also argues that the district court erred in ordering special elections based on the new districts. But these elections took place in November 2018, before oral argument in this appeal. As such, this argument is moot, and we do not consider it.
See
Fleming v. Gutierrez
,
Because we may reject the county's argument on these bases alone, we need not and do not address whether, as the Navajo Nation alternatively argues, the district court's order refusing to reopen the 1983 litigation has some sort of preclusive effect in this case.
The district court reached the same conclusion when it addressed, "[o]ut of an abundance of caution," any suggestion that the county drew race-based boundaries in an attempt to comply with § 2. App. vol. 49, 9850 n.103.
Below, the county argued for rational-basis review. And on appeal, the county occasionally hints at a rational-basis argument: it states that the district court "applied the wrong test" and that the county's proffered justifications were a " rational ... policy that justified the greater-than-10% deviation." Aplt. Br. 47 (emphasis added). But because the county expressly invokes the Anderson - Burdick test as the applicable standard, we do not interpret these other statements as a renewed argument for rational-basis review.
The Navajo Nation suggests that because the school-community philosophy is a post hoc justification lacking support in the historical record, we shouldn't consider it. But even assuming that the school-community philosophy is a post hoc justification, that fact is irrelevant. In this context, we assume it's "enough that good reasons can be given for the action, whether or not they were articulated in advance of the action."
Frank v. Forest Cty.
,
Complying with the one-person, one-vote requirement isn't a traditional districting principle. Instead, "it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a [redistricting entity's] determination as to how equal[-]population objectives will be met."
Ala. Leg. Black Caucus
,
In particular, the district court described how school-board District 3 "wrapp[ed] completely around [school-board] District 4." App. vol. 54, 10855.
One "traditional districting objective" is to avoid "splitting ... precincts" into multiple districts.
Ala. Leg. Black Caucus
,
Nor did the county offer any explanation for the noncompact, horseshoe shape of school-board District 3. The county likewise entirely ignores the district court's noncompactness finding on appeal, failing to discuss or challenge it in any way.
Perhaps because the county recognizes the critical absence of any § 2 inquiry on its part, it points the finger at the Navajo Nation, arguing that the Navajo Nation refused to turn over certain data the county's expert needed to complete a § 2 analysis. But as the Navajo Nation argues, the county (1) doesn't identify this data or explain why it was needed and (2) failed to renew a motion to compel the Navajo Nation to turn over this data after the district court denied the motion without prejudice. As such, we reject the county's argument that the Navajo Nation is to blame for the county's failure to undertake a § 2 analysis.
A "[c]ensus block[ ] [is] a relatively small geographical unit compared to a city or county unit."
Fla. House of Representatives v. U.S. Dep't of Commerce
,
Below, the county alleged that Grofman lied to the court when he testified that he didn't consider race. The county doesn't repeat this argument on appeal; nor would such an argument succeed. As the district court noted, this allegation is "conclusory and entirely unsubstantiated." App. vol. 56, 11083.
The city of Blanding makes this argument clearer in its amicus brief. It acknowledges that Grofman "respect[ed] the political boundaries of the [c]ity of Blanding by only splitting it into two parts," but it concludes that "the finalized plan[ ] still split[s] the Blanding [ c ] ommunity into three parts." Amicus Br. 11 (emphasis added).
We further note that partisan-gerrymandering claims are no longer justiciable.
See
Rucho v. Common Cause
, --- U.S. ----,
Reference
- Full Case Name
- NAVAJO NATION, a Federally Recognized Indian Tribe; Lorena Atene; Tommy Rock; Harrison Hudgins, A/K/A Harrison Hutchins; Wilfred Jones ; Elsie Billie; Herman Farley, Plaintiffs - Appellees, v. SAN JUAN COUNTY, a Utah Governmental Subdivision, Defendant - Appellant. City of Blanding, Utah, Amicus Curiae.
- Cited By
- 23 cases
- Status
- Published