For now, county commissioner voting districts in San Juan County will remain in place.
Last week, the Tenth Circuit United States Court of Appeals upheld a judge’s decision in favor of the Navajo Nation in a 2012 lawsuit brought by the Navajo Nation against San Juan County, which alleged that the county’s commission and school board districts violated the Equal Protection Clause of the 14th Amendment and the Voting Rights Act. In 2017, District Court Judge Robert Shelby ruled that the districts did violate federal law and had to be redrawn. Elections held in 2018 using the new boundaries resulted in the current San Juan County Commission, in which, for the first time, two of the three seats are held by Native Americans. According to the 2010 census, a little over half of the county’s population identifies as Native American. Tenth Circuit Judges Nancy Moritz, Mary Briscoe, and Allision Eid heard the case.
The plaintiffs said they are gratified by the ruling. Navajo Nation President Jonathan Nez said in a press release, “The Navajo Nation commends the court ruling that once again reaffirms what we know is right and just for our people. As the first Americans, we have the indisputable right to vote to have fair representation at every level of government.”
The litigation has a long history. In 1983, the United States brought a suit against San Juan County, alleging that the county’s practice of at-large voting for its three-person commission violated the Voting Rights Act.
“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,” wrote District Judge Nancy Maritz in her summary of the case background, which she included in the opinion she wrote on the appeal. In a settlement of the case, the county agreed to split the county into districts. They created three voting districts for the commission, intentionally “packing” District Three, in the southern part of the county, with an eighty-eight percent majority of Native American residents.
In the years following, the commission was usually composed of two white and one Native American representative. The court agreed that the districts had allowed Native Americans “greater participation in the political process” than they had had access to under at-large voting.
By 2010, the U.S. Census showed that District Three was 92 percent Native American. The Navajo Nation asked that the boundaries be reconsidered, prompting the county to revise the boundaries of Districts One and Two, but they left District Three unchanged. The Navajo Nation filed a lawsuit. Drawn-out litigation ensued, throughout which the county moved to have the suit dismissed and later submitted a new districting map which the court also found to be in violation of the Voting Rights Act. A third-party “special master” was appointed by the court to create the new districts. Bernard Grofman, professor of political science at University of California, Irvine, used his expertise in voter districting and input from stakeholders in designing the map that was approved by the court. Throughout the process, the plaintiffs offered settlements to the defendants, which an attorney for the plaintiffs said were ignored. The county appealed Judge Shelby’s decision, even as elections were carried out.
Steve Boos, a partner with Maynes, Bradford, Shipps and Sheftel in Durango, Colorado, represents the Navajo Nation in the case. “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,” Boos said in a press release. “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.”
Jesse Trentadue of the Salt Lake City law firm Suitter Axland, who represents San Juan County in the case, said that the old districts were a more fair representation of the county’s population.
“What the original commission district plan, as it existed, did, is it left the Navajos a super-majority in Commission District Three, which is the south, and it left the non-Navajo with a super-majority in commission District One, which is the north, and Commission District Two was split fifty-fifty,” Trentadue said. “So it made the real fight take place in that District Two, as to who was going to have two of the three commissioners.”
A graphic published by the U.S. District Court for Utah, however, shows that the old District Two was only 29 percent Navajo, not 50 percent. The graphic compares the old districts to the existing boundaries, which show District Three at 79.9 percent Navajo, District Two at 65.6 percent Navajo, and District One at 11.1 percent Navajo. Trentadue called this a super-majority for Native Americans in Districts Two and Three, essentially “packing” white voters in District One.
“The 10th Circuit refused to address the main issue in the case, and that was whether the Constitution and/or Voting Rights Act protect non-Indian voters when they are the minority voting population in the county,” Trentadue said.
The opinion written by Maritz says, in reference to school-board districts, that “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.”
The opinion doesn’t offer a parallel note on commissioner districts, but the appeals court upheld the commissioner district boundaries submitted by Grofman, finding that he was guided by traditional districting concerns such as compactness, contiguity, and the ‘one-person, one-vote’ principle, and not primarily using race as a determining factor.
It’s unclear whether the county will pursue the case to the next level. They could ask for a re-hearing “en-banc,” in which all the judges on the Tenth Circuit re-hear the oral arguments, rather than just three, though it’s not certain that the county could meet the requirements to be granted such a hearing. They could also ask the U.S. Supreme Court to review the case. Proceeding with the case is complicated, however, by the fact that San Juan County, which is represented by official resolutions made by the county commission, is now made up of a membership which was elected by the very districts under dispute. Trentadue says the San Juan County Attorney is studying the issue, but he’s not sure how it’s going to work out.
Legal fees for the case have mounted over the years. The Navajo Nation will be seeking recovery of over $3 million in legal fees. Trentadue said the county’s fees are “nowhere near that amount.”
In spite of the conflict over district boundaries, the current county commission has been active. Boos noted that the commission has instituted changes like live streaming commission meetings, formalizing and publishing meeting protocols and agreeing to occasionally hold commission meetings in places other than the county seat of Monticello, which is difficult to get to for many San Juan County residents.