10th Circuit Court upholds voting rights decision in San Juan County that resulted in historic Navajo-majority control

The 10th Circuit U.S. Court of Appeals on Tuesday unanimously upheld the lower court’s decision that San Juan County had violated the constitutional rights of residents in its previous racially gerrymandered voting districts. The appeals court also affirmed the new court-imposed districts that resulted in the county’s first Navajo-majority commission.

Judge Nancy Moritz, writing for the court, agreed that the county had violated the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act when it failed to redraw voting districts, originally formed in 1986, that packed most Navajo residents into a single district of the three.

Those districts remained largely unchanged until District Judge Robert Shelby threw them out in 2017 and replaced them with new ones that resulted in one majority-Anglo district, one Navajo-dominant district and a third “true swing district” with a smaller Navajo majority. The appeals court rejected county claims that these, too, were racially gerrymandered.

“We find no error in the district court’s well-reasoned rulings,” Moritz wrote, rejecting each of the county’s five arguments one by one. “Accordingly, we affirm the district court’s decisions in all respects.”

The decision is a victory for the Navajo Nation, which brought suit against San Juan County in 2012. Attorneys for the Navajo Nation alleged that the county commission and school board districts violated the rights of Native Americans, who make up 52% of the county’s population.

The appeals court earlier declined an injunction sought by the county that would have stopped the court-ordered special election in November under the new voting boundaries. In that balloting, Willie Grayeyes and Kenneth Maryboy, both Democrats, were elected to the first-ever majority-Navajo commission along with incumbent Anglo Commissioner Bruce Adams, a Republican.

“It is no surprise the 10th Circuit upheld the decision of Judge Shelby, knowing that there are laws and protocols for redistricting," said Leonard Gorman, executive director of the Navajo Nation Human Rights Commission, who was involved in the suit early on. “It was very clear at the onset in 2011 that San Juan County was outside the bounds of the redistricting laws and principles.”

The left-leaning Alliance for a Better Utah also cheered the decision.

"Racial gerrymandering is a disenfranchisement tactic that is appalling to anyone who believes in fair elections, and it’s been disappointing to watch a local government spend so much energy and taxpayer money to defend it. We hope the county will now let this case rest,” said Chase Thomas, the organization’s executive director.

Jesse Trentadue of Salt Lake City-based law firm Suitter Axland, which represented the county in the case, repeatedly argued that the county did not have the authority to substantially alter voting districts because of a 1984 consent decree under which commissioners were elected by district rather than at large.

Moritz acknowledged that county officials may have “subjectively believed” they did not have the authority to alter district boundaries, but said those beliefs were based on a mistaken interpretation of the consent decree.

Adams, who is in his 15th year on the commission, said he was surprised.

“We relied very heavily on the county clerk,” Adams said of the districts the commission approved in 2011, “and it was our belief based on the information we got from the clerk [and the clerk’s interpretation of the consent decree] that we could not change those districts.”

Adams added that he feels the commission was not well informed on the matter. “Unfortunately, nobody told us — you know, the county attorney, the county clerk, our attorney in the case — nobody ever said, ‘Hey, you guys are putting too much weight on that consent decree.’ ”

Adams said he did not put a lot of stock in Shelby’s 2017 ruling because he thought Shelby was “prejudiced against the county." Reading Tuesday’s ruling, however, made Adams see Shelby’s decision in a new light. Adams is now reasonably sure the case is over.

Trentadue did not immediately respond to a request for comment Tuesday.

State Rep. Phil Lyman, R-Blanding, who sat on the commission until 2018, doesn’t want to see the case end yet. “I’m sure we’ll ask for an en banc review [before the entire 10th Circuit as opposed to the three-judge panel] and probably take it to the [U.S.] Supreme Court,” Lyman said.

Though the new commission is not likely to vote to continue the appeal, Lyman said, “I’m hoping that the state ... will take this off the shoulders of San Juan County and start paying a little bit more attention to what the federal courts are doing to local elections.”

Lyman remains highly critical of Shelby’s ruling and sees it as tied to the creation of Bears Ears National Monument by President Barack Obama in 2016. In regards to the new ruling, Lyman said, “I don’t know what’s in the minds of those judges out in Denver, and I don’t really care to try to speculate on what their biases are."

He added that he believes the rulings are “politically motivated” and not made out of genuine adherence to voting rights laws. “There’s no concern for the voting rights of Native Americans. It’s completely driven by environmentalists who hate [President Donald] Trump and want to use San Juan County, I guess, as the whipping boy to to show their disapproval.”

The 10th Circuit’s ruling also shot down other arguments made by Trentadue in defense of the county’s five school board districts, which were unequal in population and which the Navajo Nation argued violated the “one-person, one-vote principle.”

The U.S. Supreme Court has ruled that population between districts can deviate by as much as 10% without necessarily violating the Fourteenth Amendment. San Juan County’s school board districts deviated by 38%, which the court ruled was not only unconstitutional but violated state law.

Finally, Moritz’s ruling agreed with the district court finding that a redistricting plan proposed by the county in 2016 was “predominantly based on race” and therefore unconstitutional. Shelby then appointed a “special master,” Bernard Grofman, a University of California Irvine political scientist, to redraw the districts. The 10th Circuit ruled that Grofman’s districts, which were used in the 2018 election, were drawn in accordance with legal requirements.

A common refrain since the 2018 elections from residents of the county’s largest population center, Blanding, is that Grofman’s districts “disenfranchised” its residents by splitting the city into three commission districts. The county’s attorneys made a similar argument in court.

Moritz calls that assertion “factually untrue.” The area within the city limits is only divided into two districts, and although a third district encompasses Blanding’s outskirts, Moritz said, “the alleged boundaries of these outlying areas don’t appear anywhere in the record." She went on to state that there’s no way to determine where Blanding’s unofficial boundaries end.

The Navajo Nation presented a number of settlement offers to the county between 2014 and 2016, in which the plaintiffs warned of the rising costs of the suit and reminded the county that it could be required to pay attorney’s fees under Voting Rights Act provisions. The county did not respond to any of the offers, and its subsequent appeal added hundreds of thousands of dollars to the suit’s total price tag.

Adams approached the state Legislature in February to request $1.5 million to help the county pay its legal defense bills, but that request was not granted.

The county paid Suitter Axland $1.1 million between 2015 and 2018 to represent the county in two voting rights cases.

“It was obvious from the outset that the county’s position was a clear case of intentional racial discrimination, that it represented a serious violation of the constitutional rights of the Navajo citizens of San Juan County and that the county would lose in the end," said Steven Boos, lead counsel for the plaintiffs. "I made that clear to the county’s legal counsel in December 2012, but the county decided to defend its racial discrimination to the bitter end. Justice has prevailed.”

Barring appeal, the case now goes back to district court, where Shelby will rule on whether the county will be forced to pay over $3 million in attorneys fees requested by the Navajo Nation.

This story has been updated.

Zak Podmore is a Report for America corps member and writes about conflict and change in San Juan County for The Salt Lake Tribune.