Navajo Nation v. San Juan CountyNavajo Nation v. San Juan County
Paul Spruhan (Ethel Branch, Attorney General, with him on the brief), Navajo Nation Department of Justice, Window Rock, Arizona, for plaintiff-appellee Navajo Nation.
Steven Boos, Maynes, Bradford, Shipps & Sheftel, LLP, Durango, Colorado (Maya Kane, Maynes, Bradford, Shipps & Sheftel, LLP, Durango, Colorado, and Eric Swenson,
R. Blake Hamilton, Durham Jones & Pinegar, P.C., Salt Lake City, Utah, for amicus curiae City of Blanding, Utah.
Before BRISCOE, MORITZ, and EID, Circuit Judges.
MORITZ, Circuit Judge.
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
On appeal, the county challenges each of the district court‘s decisions. For the reasons explained below, we affirm.
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].” Id. at 223. As such, it provided that the county would adopt “fairly drawn single[-]member districts.” Id.
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 92% Native American, had “an inordinately large population of Native Americans.”
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
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
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., 670 F.3d 1133, 1138 (10th Cir. 2012) (noting that when court declares election districts unconstitutional, it should allow legislature to create new plan). It stated that “it would adopt [the county]‘s proposed remedial plan[] if [the plan] cured the identified violations and [was] otherwise legally sound.” App. vol. 54, 10825–26; see also Large, 670 F.3d at 1138 (noting that district court should adopt legislature‘s remedial plan “unless it, too, is challenged and found to
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
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, 630 F.2d 15, 22 (1st Cir. 1980) (noting that “only the district court supervising implementation of the decree will have subject[-]matter jurisdiction to modify the decree“). That typically means parties to a consent decree can‘t collaterally attack the judgment in a separate action. See Floyd v. Ortiz, 300 F.3d 1223, 1225 n.1 (10th Cir. 2002) (noting that party to consent judgment can‘t
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, 454 F.3d 1154, 1156–57 (10th Cir. 2006). The county first contends that the Navajo Nation was a party to the consent decree and settlement
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
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, 300 F.3d at 1225 n.1 (prohibiting collateral attack by party or person in privity with party to settlement order).
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
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
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, 228 F.3d 1147, 1161 (10th Cir. 2000) (quoting McGarry v. Bd. of Cty. Comm‘rs, 175 F.3d 1193, 1198 (10th Cir. 1999)). Under that legal standard, summary judgment is appropriate if there are no genuine issues of
The
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
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 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, 321 F.3d 950, 958 (10th Cir. 2003) (noting that we review de novo whether party satisfies strict scrutiny).
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, 97 F.3d 1303, 1328 (10th Cir. 1996); see also Cooper, 137 S. Ct. at 1464 (assuming that complying with VRA is compelling interest). That‘s because the compelling interest is only half the battle of strict scrutiny. And the county doesn‘t survive the other half because, for the reasons
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, 135 S. Ct. 1257, 1274 (2015)). On appeal, the county asserts that the consent decree and settlement order provide the required strong evidence and good reasons for its race-based line drawing. But this argument ignores the context and language of the consent decree and settlement order. As discussed, the county entered into the consent decree to remedy potential VRA violations resulting from its at-large elections. But the consent decree and settlement order themselves didn‘t mandate the composition of the single-member districts. Nor did they set the boundaries of those districts. So complying with the 1984 consent decree and settlement order didn‘t supply the county with a good reason to pack Native American voters into District 3 in 2011.
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
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
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, 377 U.S. at 577. Recognizing this reality, the Court has held that “a maximum population deviation under 10%” is a “minor deviation[]” that doesn‘t “make out a prima facie case of invidious discrimination under the
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
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, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). This test provides a sliding scale under which “the rigorousness of [the] inquiry into the propriety of a
We begin with “the character and magnitude of the asserted injury.” Anderson, 460 U.S. at 789. On this point, the county takes no issue with the district court‘s conclusion that “[t]wo decades of significant non[]compliance with the one-person, one-vote principle on its own strongly suggests an arbitrary abdication of constitutional responsibilities.” App. vol. 43, 8363. Indeed, when the county first drew the districts in 1992, the deviation was 18.7%. And the county never attempted to correct this deviation. In fact, it failed to redistrict every 10 years as required by state law. See
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. Burdick, 504 U.S. at 434. Instead, the county primarily challenges the manner in which the district court analyzed the county‘s proffered justifications for the population disparity. See id. (directing court to review “precise interests put forward by the [government] as justifications for the burden imposed” (quoting
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, 420 U.S. at 24. In fact, the Court indicated in Chapman that sparse population actually cuts the other way because “in a [s]tate with a small population, each individual vote may be
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.”
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, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). In other words, even if we accept that the county drew unequal districts in an effort to implement its school-community philosophy, the county fails to show that the substantial 38% deviation was an unavoidable consequence of this goal. Of course, the county need not demonstrate that the unequal districts were necessary to implement its school-community philosophy. See Mahan, 410 U.S. at 326 (noting that in one-person, one-vote cases, “the proper equal[-]protection test is not framed in terms of ‘governmental necessity‘” (quoting Reynolds, 377 U.S. at 580-81)). But even under the intermediate Anderson-Burdick test, the county must show something more than a rational motivation for drawing unequal districts; it must provide a reason or reasons that are strong enough to justify the significant dilution of its citizens’ right to vote.
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 id. at 571, 573 (noting that “the more numerous the districts,” the “harder [it is] to create districts of equal population“). Thus, the high number of districts at issue in Frank gave the county a sufficiently strong justification for the population variance. And that justification is entirely lacking here. Further, the 18% deviation in Frank is far less than the 38% deviation at issue in this case. See id. at 572. Thus, we find Frank unpersuasive.
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
The county argues that the district court erred when it determined that the county‘s proposed remedial redistricting plan was 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., 321 F.3d at 958 (noting that we review de novo whether party can satisfy strict scrutiny).
Because “[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of local functions,” Miller, 515 U.S. at 915, a plaintiff alleging racial discrimination in this context faces a “demanding” burden of proof, Cooper, 137 S. Ct. at 1479 (quoting Easley v. Cromartie, 532 U.S. 234, 241 (2001)). Specifically, “[t]he plaintiff‘s burden is to show, either through circumstantial evidence of a district‘s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature‘s decision to place a significant number of voters within or without a particular district.” Miller, 515 U.S. at 916 (emphasis added); accord Cooper, 137 S. Ct. at 1479.
“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
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, 515 U.S. at 920. And as discussed earlier, “[t]o satisfy strict scrutiny,” the county “must demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest.” Id.
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
The district court next considered whether and how this proportionality policy impacted the individual districts. See Ala. Leg. Black Caucus, 135 S. Ct. at 1267. It concluded that race predominated in the drawing of school-board District 3 (but not in any of the other school-board districts). In support of its conclusion that race predominated in that district, the district court pointed to (1) the racial demographics showing a narrow racial split that mirrored the county as a whole; (2) the odd and noncompact “horseshoe[-]like” shape of the district;12 and (3) the four precinct
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
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, 470 U.S. 564, 573-74 (1985))). Instead, the county asserts that it drew these boundaries to meet the goals of adhering to the one-person, one-vote principle; complying with the
First, the one-person, one-vote principle is “taken as a given[] when determining whether race, or other factors, predominate.” Ala. Leg. Black Caucus, 135 S. Ct. at 1270. That the county was following this principle isn‘t relevant to the question of whether race predominated in creating these districts. Second, it‘s true that complying with the
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
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., 321 F.3d at 958. As we did earlier, we assume that complying with § 2 of the
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
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. Id. This casual comment about a source of law relevant to redistricting simply isn‘t “‘a strong basis in evidence’ for concluding that the [VRA] required” strict proportionality and the resulting race-based boundary lines. Cooper, 137 S. Ct. at 1464 (quoting Ala. Leg. Black Caucus, 135 S. Ct. at 1274).
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
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
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.
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, 507 U.S. 146, 153 (1993) (explaining that racial packing can result in vote dilution in violation of VRA if
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 parts, splits [the] Navajo Nation [Reservation] into only the three mathematically required parts, and keeps all census places whole.” Id.
In the district court, the county argued that Grofman‘s remedial redistricting plan violated the
The county first argues that, in rejecting the county‘s argument that Grofman‘s plan was unconstitutionally based on race in violation of the
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, our review is for abuse of discretion. See Connor v. Finch, 431 U.S. 407, 415 (1977) (noting that when federal court draws election districts “[i]n the wake of a legislature‘s failure” to do so
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
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, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant‘s opening brief.“).
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 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, 431 U.S. at 414 (noting that court-drawn election districts “must ordinarily achieve the goal of population equality with little more than de minimis variation“). The county doesn‘t seriously dispute the need for equally populated districts; it merely cites its administrative concerns related to switching its system from precincts to census blocks. But the district court didn‘t abuse its discretion when it prioritized compliance with the constitutionally mandated one-person, one-vote principle over the county‘s administrative burden.
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. Id. at 415 (quoting Roman, 377 U.S. at 710).
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.