By Sonja Horoshko
San Juan County, Utah, must redraw the boundaries for its county-commission districts, according to a ruling issued Feb. 19 in Salt Lake City by U.S. District Court Judge Robert Shelby that the county’s 2011 redistricting decisions violated the Equal Protection Clause of the U.S. Constitution.
The decision creates the potential for the three-member county commission, which since 1987 has always two Anglo commissioners and one Native American, to have two Natives. That could mean the commission might adopt different positions on any number of issues, including public lands.
Some citizens have written letters to the editor in the local paper expressing concern that if there were two Native (probably Navajo) commissioners, it would mean the majority of the board was deciding questions about spending county tax revenues while not paying any property taxes themselves.
Commission Chair Phil Lyman strongly took issue with the order from Shelby – who was the judge who oversaw Lyman’s trial on charges related to an ATV ride in Recapture Canyon in 2014. Shelby recused himself from Lyman’s sentencing after Lyman’s attorneys accused the judge of bias.
“I don’t have a problem with redistricting, but the Navajo [Human Rights Commission] is using the federal law, even Judge Shelby, to get two Navajo commissioners,” he told the Free Press.
“They’re taking a non-problem and making it problematic.
“A group of Navajos have decided to use redistricting to be vexatious. Their motivation is spite and malice, and it will continue. I say that we do our best at the commission and be prepared for lawsuits.”
At issue is the voting strength of the county’s Native American population. Although the county is Utah’s largest in size, it is sparsely populated, with 14,476 people in the 2010 census. But the population is growing. Estimates by the U.S. Census Bureau put the number near 15,000 today.
Different parts of the lawsuit involved the county’s three county-commission districts and five school-board districts, but in both regards the Navajo Nation argued that plans for new districts adopted by the county commission in 2011 represent intentional discrimination.
Fixed in place
For most of its history, San Juan County elected its county commissioners at-large, meaning everyone in the county could vote in each commission race. Under that system, however, no Native Americans were ever able to gain seats on the county commission.
In 1983, the Department of Justice sued the county in federal court, arguing that the existing at-large voting system denied the substantial American Indian population “an equal opportunity to participate in the county political process and to elect candidates of their choice to the San Juan County Board of Commissioners.”
The result of the lawsuit was a 1983 consent decree that permanently prohibited the county from “any action or conduct which abridges or denies the right to vote of the Indian citizens of San Juan County” or “applying a voting standard, practice, or procedure which abridges the right of the Indian citizens of San Juan County to vote on the basis of race or color.”
The decree included a provision to establish three single-member (rather than at-large) districts, “precisely to afford electoral minorities a chance to affect the political process.” In November 1984, the com missioners approved a plan to set lines for the districts. The districts were to be “compact, contiguous, as equal in population as possible and shall not split or fragment geographic concentration of minorities.”
At that time, District 3 was approximately 89 percent Native American. In 1986, the first Navajo was elected to the county commission.
For 25 years, the commission districts remained fixed in place. And although there is an expectation of redistricting after every decennial census, the exact commission district lines drawn and adopted in 1986 were unchanged after the 1990 and 2000 censuses, and even initially after the 2010 census.
Drawn in perpetuity?
Shelby wrote that although it is unclear why the county did not redistrict in 2011, one former county official has testified that commission members believed they were required to leave the 1986 boundaries in place in perpetuity.
But in October 2011, according to the order, a Navajo Nation representative urged the county to explore redistricting based on demographic shifts there.
Leonard Gorman, executive director of the Navajo Nation Human Rights Commission, told the Free Press, “We tried to work with the county commission [on the districting issues] in 2011,” but to no avail.
Ultimately, county officials came to believe that districts 1 and 2 had grown malapportioned in population and tweaked their boundaries. But they did not entertain any suggestion of adjusting the lines of District 3.
In November 2011, San Juan County altered its districts for the first time since 1986. The plan moved two voting precincts from District 1 to District 2, but otherwise left the boundaries of those districts undisturbed. The county made no changes to District 3.
According to Shelby’s order, when redistricting was discussed, Commissioner and then-Chairman Bruce Adams stated with regard to District 3 “that the County is bound by a 1983 Consent Decree from the United States District Court for Utah and that the County would not change the basic Commission District configuration without the Judge’s agreement.”
In later testimony, Adams said that he thought the consent decree “guaranteed that there would be one Native American that would absolutely be elected,” with another seat safe for a white candidate.
According to the court document, former County Clerk and Auditor Norman Johnson testified that in redistricting efforts, one focus was to ensure relatively equal population and contiguity. And another focus was “ ‘protecting that third commission district, because [he] knew it had to stay involved in the reservation’,” based on his understanding that the  Settlement and Order required that District 3 ‘be a Native American population district’.”
The county officials responsible for the 2011 redistricting, however, were apparently not aware of the details of the 1980s litigation. Adams testified that he “assumed the decree itself set up the districts.” Lyman expressed a similar lack of familiarity with the consent decree, noting that he did not “know what the consent decree was addressing.”
Johnson likewise said that he did not remember the consent decree.
“The County submitted no evidence that County officials charged with 2011 redistricting decisions made any effort to locate, review, or familiarize themselves with the content of the consent decree or the court’s Settlement and Order,” Shelby’s order states. There is also no evidence that the county communicated with the Department of Justice concerning any limitations the 1980s litigation imposed in connection with the 2011 redistricting.
The two commissioners elected from Districts 1 and 2 supported the redistricting plan, while the District 3 commissioner, Kenneth Maryboy, voted against it.
How many Indians?
Six years later, the county and the Navajo Nation still disagree about how to determine which county residents should be considered Native American, and therefore don’t agree on the exact county or district demographics. Shelby found the dispute insignificant, saying that roughly half of the county population is Native American.
District 1 and 2 both have an approximately 30 percent Native population, while District 3 is 92.8 percent Native American, containing roughly 60 percent of Native Americans in the county. Districts 1 and 2 hold approximately 95 percent of the non-Native American population.
“It is difficult to explain with reference to any other consideration other than race,” Shelby wrote. “Crucially, Districts 1 and 2 do not bear the same characteristics; neither has a concentration of Native American or white voters approaching such a proportion.”
He said the county did not prove that it had a compelling government interest in the 2011 district boundaries.
“Under these circumstances, racially gerrymandering a single district is equivalent to racially gerrymandering the scheme as a whole. District 3 cannot be redrawn without necessarily impacting at least one, and more likely both,” of the other two, Shelby wrote. “Therefore, […] the predominant consideration of race in drawing the boundaries of District 3 requires a remedy directed to the entire districting scheme.
“[…] the districts in the county must be redrawn.”
The county’s defense offered the “binding nature” of the 1983 consent decree. But Shelby wrote, “No language in the Consent decree establishes district lines, or dictates that the boundaries remain in place in perpetuity.”
The county, he wrote, “failed to attend to minimal redistricting obligations for over twenty-five years, and then incorrectly treated the racially-based District 3 as a permanent fixture of politics … offending basic democratic principles.”
But Lyman disagreed.
“The way they’re going about it, alleging that the county commissioners did racially motivated re-districting is, I’d say, spurious,” he told the Free Press. “We can’t change the original consent decree. In fact, we changed the districts every time the county clerk thought we should.”
A separate issue
The order regarding the county commission districts follows an order by Shelby in December 2015 that the county must redraw its five schoolboard- district boundaries because they are so unequal in population that they are unconstitutional.
That order came in response to a separate part of the lawsuit.
The school board serves 12 schools with about 3,000 students. The five districts – also chosen through single-member voting – were established by the San Juan County commission in 1992, and since then the county had made no effort to redraw those districts.
In 2012 the Navajo Nation added the school-board districts to the commission redistricting suit.
According to Gorman, the Navajo Utah Commission, a sub-unit of the Navajo government located in Montezuma Creek, Utah, joined in the suit against the county in January 2016, and also put its support behind a school-board redistricting plan developed by the Human Rights Commission.
Shelby’s December order set Feb. 28, 2016, as the final date for a new school board redistricting plan. Both parties have submitted proposed plans to the court and, at press time were awaiting a decision by the court as to which plan satisfies the law.