by Sonja Horoshko | December 1, 2017 8:46 pm
After a five-year court battle between the Navajo Nation and San Juan County, Utah, registered voters in the county may finally have a chance for representation that adheres to the U.S. Constitution and the Voting Rights Act of 1965.
But local elected officials in San Juan County, including the county commissioners, are skeptical of the newly drawn districts and say they may fight them in court.
Final redistricting maps are expected to be approved by U.S. District Court Judge Robert Shelby in time for contenders in the new districts to file candidacy papers on Dec. 15 and the county to organize elections for three county commission and five school-board seats by November 2018.
Last year, Shelby had ruled in favor of the Navajo Nation in its 2012 lawsuit charging that the current election districts are unconstitutional. The new districts were drawn by Bernard Grofman, a redistricting special master appointed by Shelby after previous attempts to redraw the current districts did not withstand his scrutiny
Grofman submited final maps to the court in late November.
In response, San Juan County Commissioner Phil Lyman told the Free Press “We’ll wait for the 10th Circuit Court [to decide on the maps] – it’s more rational, impartial and [the decision] will be out of the hands of Shelby.”
Lyman said the 1965 Voter Rights Act “was declared under very different circumstances than we have here in San Juan County today,” implying the county may appeal Shelby’s decision to redraw the voting districts.
A court hearing is scheduled to hear comments to the final report in U.S. District Court in Utah on Dec. 6, and a final court order is anticipated on Dec. 15
The county and the Navajo Nation had both redrawn the election-district maps, submitting them to the court in early 2017. But in July, Shelby found that the remedial plans submitted by San Juan County violated the Equal Protection Clause of the U.S. Constitution. His memorandum stated that in the plans “race predominated…,” concluding that “the County’s race-based districting decisions were not narrowly tailored to meet a compelling government interest, and thus fail strict scrutiny.”
The court declined to evaluate the proposed remedial plans submitted by the Navajo Nation. In September, Shelby appointed Grofman to assist the court in formulating lawful remedial districts.
Grofman submitted three conceptual county-commission district maps and two conceptual school-board-district maps to the court. Shelby then set meetings in Monticello and Bluff, Utah, in mid-November. Nearly 300 people attended one or both of the hearings to listen to the judge and Grofman explain the results.
‘Not what courts do’
Shelby was appointed to the District Court in October 2012, and was immediately given the case involving the Navajo Nation and San Juan County, which was only five months old at the time.
“Since 2012 two judges have presided over the case that brings us here today,” Judge Shelby said in his opening remarks to the audience in Bluff. “It has been a long and legally complex case. . . . Normally, elected representatives draw election district lines. It is not what courts do.”
But in this case, after many failed attempts to resolve the mapping issues through elected officials, he explained, “I appointed Dr. Grofman, an expert in redistricting, to assist me in re-drawing the districting lines.”
Shelby explained that Grofman has done work on redistricting that has been cited in nearly a dozen U.S. Supreme Court cases over the past four decades. Grofman has also worked as a consultant or expert witness for the U.S. Department of Justice and federal courts, as well as both political parties, the NAACP Legal Defense, the Mexican- American Legal Defense Fund, and political sub-units at both the state and local level.
“The highest praise I can give you is that you are good citizens participating in this process,” Grofman told the audience. “As an outsider coming in, I too have tried to be a good citizen by making use of the constitution and good government criteria to create these conceptual preliminary maps.”
Grofman’s preliminary report and conceptual plans were available on-line at the county website for comment before the meetings. “In my view,” Grofman wrote, “each of these [maps] can be used as the basis for a remedy of the constitutional infirmity found in the existing San Juan County election districts by this court. However, they are not intended as final plans. Rather, adjustments such as ones based on community of interest concerns, and avoidance of packing of the voting strength of racial minorities, and some population equalizing, may still be needed.”
He assured the audiences that their public testimony and written comments about the plans would be considered before he submitted his final plans to Shelby.
Grofman’s report explains that during his examination of the proposed county maps it became clear that race had affected the configurations of the three commission districts and strongly affected four of five districts in the case of the school board. As a consequence, the final commission and school-board district maps he drew make substantial changes from those proposed by the county.
Navajo translators were present at the two meetings, making it possible for elders to understand the complex issues. Comments were also translated into English from Navajo speakers.
During the meeting, Leonard Gorman, executive director of the Navajo Nation Human Rights Commission, told the community, “The 1965 Voting Rights Act was established to protect and enhance minority voting rights. This provides minority votes to be enhanced and not retrogress the voting power for minorities by cracking the voting strength, packing into a single district. We need to secure Native American voting strength in the county that aligns with the Voting Rights Act.”
Both the commission and the schoolboard districts maps were finished by late November in time for candidates to file for the new districts for the 2018 election cycle.
“Because the boundaries of present districts and proposed [new] districts overlap, it is necessary to have an election for all seats in 2018,” Grofman said. “To do otherwise would create confusion as to which representative represented which voters.”
The maps are based on census blocks and other units of census geography, which Grofman says are the only units of geography for which there is reliable population estimates.
Grofman’s map for the county commission keeps whole the City of Monticello and all census places in the county. But unlike the commission map submitted by the county earlier this year, which divided the Navajo Nation in the southern half of the county into three parts, Grofman’s map divides it into only two parts.
The final commission map also divides the City of Blanding in two pieces, as the county remedial map did, but with boundaries that stop at city limits, excluding residents that live just outside the lines.
Lyman, from the current District 2, said that he and his wife were driving into Blanding recently after sunset. “As we crested a hill, still miles from the city, the twinkling lights of the city came into our view and she said, ‘Oh look. Blanding.’ I didn’t want to tell her she couldn’t say that until we crossed the city limits.
“The map that divides the city in two districts ignores the people of the community of Blanding by shutting out those living beyond the incorporated boundaries of the town. It puts them in another district.”
Joe Lyman, Blanding City Council member and cousin to Phil Lyman, submitted a written comment on the county website supporting that view. “[The mapper] fails to acknowledge the reality that approximately 22 percent of the population of the community of Blanding lies outside the incorporated boundaries,” he wrote.
In November the Blanding City Council voted to not support any of the conceptual maps Grofman drew. According to the San Juan Record, the council “worried over why the only notable concern in each redistricted area is a racial one.” Their strongest concern was splitting Blanding, although they said the municipality was divided in three rather than two.
“It is not difficult to understand why we see it as three districts now, not two,” Councilman Lyman wrote in an email to the Free Press. “The incorporated boundaries are only split into two districts. The greater Blanding area ‘our community’ is split into three districts on all three maps. Cutting the outlying areas out of our community is the way they make it appear that Blanding is only one split into two districts.
“If the people just outside of Blanding are not part of our community because they are unincorporated, how is it that other communities that are unincorporated are considered communities at all? For example, Aneth, Montezuma Creek, Mexican Hat, Oljato and so on.”
A hotly debated consequence of the current election districts is the influence the sitting commissioners have on decisions related to federal lands in the county. Commissioner Rebecca Benally is the only Native American on the three-member commission. She represents District 3, the only current district with enough registered Native voters to elect their own representation.
Benally has been a vocal opponent of the declaration of Bears Ears National Monument last year. Benally insists that the San Juan County Native people agree with her.
But Wesley Jones, Aneth Chapter president in Benally’s district, says that Native people are “only seeking fair treatment, which has proven itself to be an impossible goal without a shift in power [in San Juan County]. I do not see the current San Juan County officials demonstrating this kind of fairness.”
In a Salt Lake Tribune opinion piece published in November, Jones says Bears Ears National Monument is a case in point. In all seven Utah Navajo chapters, 98 percent of the members voted this fall to support the monument, “yet three county commissioners tell everyone that we are puppets of environmental groups, and should not be listened to,” he wrote.
“The Navajo Nation Human Rights Commission is doing a great job in soliciting fairness in voting districts on behalf of Utah Natives. It makes me sad when I hear people speaking against our own Native people’s right to fair elections.”
Phil Lyman says the federal government doesn’t have any reason to be in San Juan County at all, “resolving such issues. Anyone who doesn’t think it [the redistricting suit] is not related to the [Bears Ears] monument is kidding themselves. Attorneys and environmental groups are attacking us,” he told the Free Press, “especially Blanding.”
Unlike other counties
Lyman believes the county is no longer bound by a 1984 court decree that ordered it to replace its election of three at-large commission seats with a threedistrict system.
Commissioner Bruce Adams agrees. “Why are they [the federal government] treating us different than everyone else in the country? It’s not the federal government’s business,” Adams said. “It’s up to the county commissioners and the state to change the voting processes.”
Every other county in America can opt for a default structure with three at-large commission districts, Adams said. “It’s time for us to get into the 21st century. We’re not bound by the 1984 agreement. The federal government wants to create division here in San Juan County where there is none.”
But according to Grofman, opinions and comments submitted to him during the comment period and at the community meetings that suggested elections should be held at-large or arguing that the Consent Decree of 1984 rendered the present lawsuit moot involved legal issues that had already been resolved.
Some proposals submitted to him suggested that he make the Navajo Nation a separate county. Many commented on the state of race relations in San Juan County, while other comments focused on laws affecting taxation on Native American lands.
He wrote in his final report that these issues were not directly relevant to his specifically charged task of drawing constitutional districts.
When asked what the commissioners will do about the eventual implementation of the final court-ordered maps, Commissioner Lyman said, “We’re not going to pay attention to them.”
He said the original decision by Judge Shelby in February 2016 that led to the mapping impasse and the consequential appointment of Grofman was not impartial. “That decision is undermining the good governance of San Juan County and Shelby should recuse himself from the case,” he said. “Judge Shelby cannot be impartial because he was the judge on my case.”
Lyman was convicted of two misdemeanor federal trespassing crimes in 2015 for leading a group of motorized vehicles into Recapture Canyon on federal land where motorized vehicles are not allowed. He is appealing his conviction in federal court.
Shelby was the judge in that trial.
But Navajo Nation Vice President Jonathon Nez said at the Bluff meeting that the Navajo Nation filed suit because San Juan County wasn’t doing what needed to be done to adequately represent all its citizens. “Instead of asking for fair representation, we took it upon ourselves to ensure that Native Americans have a larger voice,” Nez said.
Adams called that absurd. “Why do we have to pay attention to this district thing or even the races? Why can’t we go back to voting at-large like everyone else in the country?” Adams asked in a telephone interview.
“Two wrongs don’t make a right,” said Adams. “Why don’t they just leave us alone and let us decide like the rest of the country? I don’t know why the courts are deciding this in the first place.”
But Grofman said the conceptual plans adhere to the law. The proposals cannot violate the “one person, one vote” mandate and race cannot be a prominent factor when drawing lines, he said. Beyond that, the districts should be of similar population size.
Gorman, of the Human Rights Commission, noted that the Navajo Nation will be going through the redistricting process again in 2021 for all congressional, legislative, county, and school board districts. “It is paramount that all Navajos living on the Navajo Nation are counted during the 2020 census count,” he said.
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