this case is in its remedial phase. the court previously ... · other districts triggered by race...

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This case is in its remedial phase. The court previously found the San Juan County

School Board and County Commission election districts unconstitutional under the Equal

November 8, 2017

Bernard Grofman is Professor of Political Science and Jack W Peltason Endowed Chair of

Democracy Studies at the University of California, Irvine, and former Director of the UCI Center

for the Study of Democracy. His research deals with topics such as theories of representation

(including minority voting rights and the comparative study of electoral rules and constitutional

design), party competition, and behavioral social choice. He is co-author of five books (four

from Cambridge University Press – including Minority Representation and the Quest for Voting

Equality, and one from Yale University Press), and co-editor of 23 other books; with over 300

research articles and book chapters, including ten in the American Political Science Review. A

member of the American Academy of Arts and Sciences since 2001, he has been a scholar-in-

residence at universities and research centers in the U.S., Canada, France, Germany, Hungary,

Italy, Japan, the Netherlands, Spain, and the UK, and he has an honorary Ph.D. from the

University of Copenhagen, Denmark. In areas related to redistricting he has 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 subunits at both the state and local level. His work on redistricting has been cited

in nearly a dozen U.S. Supreme Court cases over the course of the past four decades. In 2015,

while serving as a Special Master for a three judge federal district court, he drew new court-

ordered congressional districts for the State of Virginia that were used in the 2016 elections. In

2017 he won the Charles Merriam award, given biennially by the American Political Science

Association for lifetime achievement in research applications in the area of public policy.

PRELIMINARY REPORT OF BERNARD GROFMAN, SPECIAL MASTER

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EXECUTIVE SUMMARY

Submitted to the Court along with this Preliminary Report are three alternative

configurations for the San Juan Utah County Commission, and two alternative

configurations for the San Juan County School Board. In my view, each of these

can be used as the basis for a remedy of the Constitutional infirmity found by this

Court, namely a violation of the “equal protection” test laid out in Shaw v. Reno.

509 U.S. 630 (1993) and subsequent Supreme Court cases. However, these are

“conceptual maps,” that are not intended as final plans. Rather, while they lay out

overall configurations, 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. As per Court order, the parties to

this case will have a chance to address these preliminary conceptual maps and

indicate objections to and/or preferences among them, and public hearings will be

held in Monticello and in Bluff to allow public input in the line drawing process.

After receiving this input, pursuant to the instructions I receive from the Court,

final plans will be created for the County Commission and the School Board to be

used in the next election, subject to approval of the Court.

The Court found that race was the preponderant motive in line drawing in some

districts in the County’s proposed remedial redistricting plans (School Board

District 3 and County Commission Districts 1 and 2). However, in examining the

proposed County maps, it became clear that race had affected the configurations of

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the entire three-district map in the case of the County (including the district

contiguous to the two unconstitutional districts), and strongly affected four districts

of five districts in the case of the School Board (the ones contiguous to the

unconstitutional district, along with the district itself), and also affected the fifth

district (District 1) to a lesser degree in so far as irregularities in the borders of the

other districts triggered by race conscious line drawing had implications for this

district. As a consequence, these preliminary conceptual maps make substantial

changes from those proposed by the County both for the County Commission maps

and the School Board maps.

The maps I have drawn are based on census blocks and other units of census

geography, which are the only units of geography for which we have reliable

population estimates. These maps all reflect as their dominant motivation good

government criteria and are drawn based on the geography and population

demography of the County, with attention to the location of Schools in the case of

the School Board plans, and with attention to political subunit boundaries. In

particular, the maps for the County Commission keep whole the City of Monticello

and keep whole all census places in the County, and they divide the City of

Blanding in no more than two pieces and divide the Navajo Nation in no more than

two pieces. In contrast, the Commission map drawn by the County splits Blanding

in two but the Navajo Nation in three parts.

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Similarly, the maps for the School Board keep the City of Monticello whole and

other census places whole, but necessarily divide the City of Blanding since

Blanding already has more than sufficient population to form a School Board

district on its own, and cannot for population equality purposes be kept whole

within a single district. Both of the two proposed conceptual School Board maps

divide Blanding into only the mathematically required two segments. Both

proposed School Board conceptual maps split the Navajo Nation into three pieces,

since the population in this southern portion of the County is in excess of what is

needed for two School Board districts. Though compactness is a criterion

subordinate to constitutionally mandated concerns and is better used as an

indicator of possible gerrymandering than as a desideratum in and of itself, the

districts in the conceptual maps proposed are also as compact on average as those

offered by the County.

The maps I drew necessarily reflect two features of the racial demography and

geography of the County, namely: (a) its stark pattern of racial separation in a

County with near equal proportions of Native-American and non-Native-American

population (with racial and linguistic minorities making up a preponderance of the

County population), but with Native American population overwhelmingly located

in the southern portion of the County (with the vast bulk of that population within

the Navajo Nation), and white/Anglo population located in the northeast and east

central areas); (b) the existence of population centers (especially the cities of

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Monticello and Blanding) that, though not at all dense as compared to large cities

elsewhere, are nonetheless highly concentrated relative to the rest of the County --

much of which is unpopulated (including large areas of federally owned land).

These population and demographic facts impose considerable constraints on what is

feasible without making race a preponderant factor in line drawing.

In addition, for the School Board conceptual maps, attention was paid to the

location of schools, with the aim of distributing schools across School Board

districts. Both proposed plans split Blanding into only two segments and distribute

schools across the districts so as to have at least one school in each district, and

they all also locate all present incumbents in separate districts.

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PRELIMINARY REPORT OF THE SPECIAL MASTER

1. Appointment of Special Master

On September 28, 2017, I was appointed Special Master in Navajo Nation v. San

Juan County after remedial plans proposed by the County for the County

Commission and the School Board had been held to violate the Equal Protection

Clause of the U.S. Constitution. The court found in in its memorandum order of 14

July 2017 that “race predominated in the formation of District 3 of the County’s

proposed School Board election districts and Districts 1 and 2 of the County’s

proposed County Commission election districts.” The court further concluded that

“the County’s race-based districting decisions were not narrowly tailored to meet a

compelling government interest, and thus fail strict scrutiny.” Consequently the

Court refused to accept the County’s proposed plans. Since the plans were already

found to be unconstitutional under the Equal Protection test, although it discussed

Section 2 issues, the court did not seek to “reach Navajo Nation’s claims under

Section 2 of the Voting Rights Act.” After the Court found the County proposed

districts to be unconstitutional, it declined to evaluate the proposed remedial plans

submitted by the Navajo Nation, and chose instead to appoint a special master to

assist the Court in formulating lawful remedial districts.

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2. My role as a special master to assist and advise the Court

Pursuant to this role

(a) I reviewed demographic information on total population and the racial and

ethnic composition of population at various levels of census geography as well as

basic geographic data for the County.

i. There are 7431 individuals in the County, who claim a single race identity as

Native-American, and 7693 who are either Native-American alone or choose Native-

American in combination with some other race. The total population in the County

in 2010 is 14746, so, using the breakdown used by most U.S. governmental agencies

when a limited number of racial categories are being considered, the Native

percentage of the County is 52.17%. If we include other minority racial and

linguistic groups, it is even more apparent that non-Hispanic whites are a minority

in the County.

ii. I also found that, despite roughly equal proportions of Native-American and non-

Native-American population, the County exhibited a stark pattern of racial

separation. Native American population was overwhelmingly located in the

southern portion of the County (with the vast bulk of that population within the

Navajo Nation), and white/Anglo population was overwhelmingly located in the east

central and northern areas (especially in the cities of Monticello and Blanding). In

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particular, there are 6068 people that live in blocks that are in within the Navajo

Nation, of which 5861 identify on the census as single race Native-American.

Within these blocks there are 5943 who identify racially as either Native-American

alone or as Native American in combination with some other race. Thus, of the

residents of those blocks, using the breakdown used by most U.S. governmental

agencies when a limited number of racial categories are being considered, the

Native-American percentage of these blocks is 97.9%, and 77.7% of the Native-

American population of the County resides in these southern census blocks.

iii. I found that the County was characterized by great disparities in population

across its various parts, with population centers such as the City of Monticello, with

a total 2010 population of 1972, and the City of Blanding, with a total population of

3375, that, though not at all dense as compared to cities elsewhere, are nonetheless

highly concentrated relative to the rest of the County. Much of the County is

unpopulated (including large areas of federally owned land). Also, even within the

Navajo Nation, there are areas such as Aneth and Oljato–Monument Valley

(identified by the U.S. Census as census places) that are considerably more

populated than other areas within the Navajo Nation.

(b) I reviewed the maps proposed by the County for the County Commission and

the School Board, and by the Plaintiffs.

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i. The total County population is 14746, so that ideal population in each of the three

County Commission districts is 4915. Because of a deannexation of Spanish Valley

from the San Juan County School District the population eligible to vote in School

Board elections is only 14259, and thus the ideal population in each of the five

School Board districts is 2582.

ii. There are two cities in the County, and twelve census places where there are

population concentrations.

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iii. There are twelve schools in the County, one in La Sal (La Sal Elementary

School), two in Monticello (Monticello Elementary School, Monticello High School),

three in Blanding (Blanding Elementary School, Albert R. Lyman Middle School,

San Juan High School), one in Bluff (Bluff Elementary School), and five within the

Navajo Nation, including three high schools (Monument Valley High School,

Whitehorse High School-adjacent to Montezuma Creek, Navajo Mountain High

School) and two elementary schools ( Tsé'bii'bidzisgai Elementary School - Oljato–

Monument Valley, Montezuma Creek Elementary School –Aneth). As part of my

review of school data, I located these schools on a map of the County. In addition, I

examined bus routes taking students to the schools, to see how schools, especially

high schools, had as pupils children and young adults whose parents lived outside

the boundaries of the City or Census Place in which the school was located.

iv. According to data provided by School Superintendent Ron Nielson, a clear

majority of the student population in the County school system are Native-

American. Indeed, if we directly compare Native American to the sum of Native

American and White (non-Hispanic) student population, roughly 57% of the

students in that grouping are Native American even if we define Native American

as only those who identify with a single race (1655 vs.1260). Even higher minority

percentages among the San Juan County schools student body will be generated if

we appropriately extend the definition of Native American to include those who

have part Native American identity, and will grow still further if we include other

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minority groups such as Hispanics. See Table below. Ten of the twelve schools in

the County have student enrollments that are overwhelmingly Native American or

overwhelmingly non-Native American. Two (San Juan High School and Bluff

Elementary School) have a more racially mixed student population. See Table

below

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(c) I familiarized myself with the Court’s memorandum order of 14 July 2017,

especially with respect to identification of constitutional infirmities in the proposed

County maps.

(d) I reviewed materials and documents in the case, with a focus on expert witness

reports, including those of Mr. Kimball Brace, Mr. William Cooper, Dr. David Ely,

Dr. Richard Engstrom, and Dr. Garth Massey. Because of the extended period of

this litigation and the size of the record, I have largely limited myself to reviewing

material (including briefs and expert witness reports) that involve current map

submissions.

(e) I obtained mapping and other relevant factual information from expert witnesses

in this case (Mr. Kimball Brace, Mr. William Cooper, Dr. Richard Engstrom) and

from the Superintendent of Schools (Mr. Ronald Nielson) pursuant to a Court order.

This order requested their full cooperation, and provided for confidentiality in my

communications with them until otherwise informed by the Court. My only

communications with these individuals to date has been to ask for maps and GIS

data sets of actual and proposed districts, and other factual information (e.g. from

Superintendent Nielson I requested information on school locations and school bus

routes, and from the experts, in addition to mapping files, I also requested

information as to exactly what data analyses they had performed.) I am deeply

grateful to these individuals for the full, prompt and helpful information they

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provided.

(f) With the authorization of the Court, I hired a research assistant, Mr. Jonathan

Cervas, familiar with ARCGIS mapping software. Mr. Cervas is an advanced Ph.D.

student in the political science program at the University of California, Irvine.

(g) I identified map features that I regarded as central to good government map-

making and critical for constitutionality, and explored (with the assistance of Mr.

Cervas, who operated at all times under my direct supervision) alternative

mappings that satisfied those constraints.

(h) I identified two alternative maps for the County Commission, and two for the

School Board that I viewed as ones that could be chosen as the underlying basis for

a court-ordered plan that would remedy the constitutional violations found in this

case. These are what I refer to as “conceptual maps,” in that they are not intended

as final plans. Rather, while they lay out overall configurations, further

adjustments, such as the avoidance of packing of minority voting strength, may be

ordered by the Court. Also some other (minor) adjustments, e.g., ones based on

community of interest concern, might be made in final plans. Attached to the

Preliminary Report are black and white shape outlines of the districts in each of

these maps, a map showing cities and census places within each district, and

summary information on the total population and Native-American population of

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the districts. In addition, a detailed map showing how the City of Blanding is

divided among districts, as well as GIS shape files and a data file providing the

allocation of census blocks to districts in each of the conceptual maps discussed in

this Preliminary Report, will be made available to the Court and to the parties.

3. Criteria that can be used to evaluate a redistricting plan as a whole, or used to

evaluate the configuration of one or more individual districts.

(a) conformity to a standard of one person, one vote

(b) avoiding use of race as a predominant criterion for redistricting so as to avoid

violating the equal protection test laid out in Shaw v. Reno, 509 U.S. 630 (1993)

and subsequent Supreme Court cases.

(c) avoiding diluting the voting strength of constitutionally or statutorily protected

minorities. Here, while ultimately the standard is based on the Equal Protection

Clause of the 14th Amendment, the practical test has been based on the

implementation of that equal protection standard laid out in Section 2 of the Voting

Rights Act of 1965 (and as subsequently amended), and specified in Supreme Court

and other federal court decisions in voting rights litigation brought under that

provision.

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(d) avoiding the creation of districts which are divided into two or more

discontiguous parts;

(e) avoiding to the extent feasible unnecessary splits (partition into two or more

districts) of long standing political subunits such as cities. (However, in general,

some splits may become obligatory or near obligatory by the need to satisfy other

constitutionally or statutorily mandated criteria such as population equality.)

(f) avoiding unnecessarily ill-compact districts, i.e., ones which are elongated or

have irregularly shaped perimeters.

And, because one of the plans is for a School Board,

(g) paying attention to the location of schools within the County in districting the

School Board is highly desirable and serves good government purposes.

4. In situation such as that applying here, where a court is drawing a map to

remedy a constitutional infirmity, there is an eighth criterion that may be relevant:

(h) avoiding changes in those district boundaries that are not required to create a

constitutional map, i.e., what is sometimes referred to a “least change” criterion.

Sometimes a component of “least change” is taken to be an attempt to assure that,

in terms of the location of their homes, current incumbents are not paired within a

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district. However, “least change” is a criterion clearly subordinate to the other

criteria described above.

5. Applicability of each of the criteria identified in sections 3 and 4 above to the

conceptual maps presented here:

(a) conformity to a standard of one person, one vote.

i. As noted earlier, the maps presented are only “conceptual maps,” in that they are

not intended as final plans. Rather, they lay out overall configurations, and levels of

population equality may still need to be adjusted to those appropriate for

redistricting of local (County and School Board) elections. Constitutionally

mandated levels of population equality vary across types of jurisdictions, with the

OPOV standard strictest for elections to the U.S. House of Representatives.

ii. One person, one vote considerations also directly impact the plans that I have

drawn. In particular, for the School Board plans, given the population size of the

City of Blanding (3375) and the population of an ideal School Board district (2582 )

it is mathematically necessary to divide the City of Blanding into two segments,

while the population size of the Navajo Nation (6068) is larger than twice the

population of an ideal School Board district (5164), and so it is mathematically

necessary to divide the Navajo Nation into three segments for purposes of School

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Board districting.

(b) avoiding use of race as a predominant criterion for redistricting and thus

avoiding a violation of the equal protection test laid out in Shaw v. Reno, 509 U.S.

630 (1993) and subsequent Supreme Court cases.

Because the finding of a constitutional infirmity in both past and present County

plans hinged on the use of race as a preponderant factor, I have been especially

attentive to this consideration. In particular, all my line drawing has been based

almost entirely on geographic features such as cities and populated census places

and total population features of the County, and race is not a preponderant criterion

in any of the conceptual maps I drew.

(c) avoiding diluting the voting strength of constitutionally protected minorities.

i. Because the Court “did not reach Navajo Nation’s claims under Section 2 of the

Voting Rights Act,” having found the maps proposed by the County for both the

County Commission and the School Board unconstitutional under a test based on

Shaw v. Reno, there was no finding by the Court of a Section 2 violation in the maps

submitted by the County. However, courts are under an obligation to avoid creating

new violations of Section 2 in court drawn or court adopted plans. It is my view that

the existence of districts in which Native American population is overwhelmingly

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packed creates a presumptive evidence of a probable Section 2 violation. However,

given the stark racial separation in the County, some level of minority

concentration is virtually impossible to avoid unless districts with peculiar

configurations are drawn in a race conscious fashion (as this Court found had been

done by the County in its proposed remedial School Board and County Commission

plans). Thus, careful attention is required to what is geographically and

demographically feasible to limit racial packing (or fragmentation) within the

context of plans whose predominant motive is the satisfaction of good government

criteria of districting and which thus clearly do not have race not a predominant

motive. The problem of racial packing is especially acute for School Board districts

because they are smaller than the Commission districts and the County has so

many areas where the population is largely of one race.

ii.a In drawing conceptual plans for the County Commission I relied entirely on

population and geographic constraints, not race. All the maps I propose rely on good

government criteria above all, e.g., keeping the city of Monticello whole, not

splitting any census places which reflect population concentrations, and not

splitting the city of Blanding into more than two pieces, and not splitting the

Navajo Nation into more than two pieces. The three plans I provided for Court

consideration are labeled in the supplementary documentation as plans A,B, and C.

One of these plans, Conceptual Map A, though developed completely independently,

has some similarities to the plan proposed by the County, but with districts that are

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far more compact. Another, Conceptual Map B, though again developed completely

independently, resembles the plan for the County Commission proposed by the

Plaintiffs. Conceptual Map C is a variant on Map B.

ii.b Given the geography and demography of the County, I do not view Conceptual

County Commission Map Plan A, with Native American shares in the three districts

of 11.6%, 67.2% and 78.7%, respectively, as raising Section 2 packing concerns.

ii.c Conceptual County Commission Map B, where the Native American

percentages are 7.7%, 62.6% and 86.1%, although satisfying other good government

criteria, might be seen as raising potential Section 2 issues vis-a vis racial packing

in the district with highest Native-American population, since the County

Commission map proposed by Plaintiffs has only a 76.1% Native American

percentage in the district in that plan with the highest Native American

percentage.

ii.d In contrast, Conceptual County Commission Map C, which is a variant of

Conceptual County Commission Map B, was drawn so that it avoids the pairing of

present incumbents. It is not quite as compact as Conceptual County Commission

Map B. In the process of redoing Conceptual County Commission Map B to avoid

incumbent pairing, the result in Conceptual Map C was also a somewhat more

nearly even balancing of Native American populations across the two districts

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which each had already exhibited a Native American majority in Map B . In

Conceptual County Commission Map C, Native American percentages in the three

districts are 11.8%, 64.7%, and 79.9%, respectively.

ii.e As noted above, all these County Commission maps, Conceptual Map A,

Conceptual Map B, and Conceptual Map C, are drawn along good government lines

without race as a preponderant motive.

iii.a In the Conceptual Maps for the School Board, vote dilution issues involving

racial packing are directly relevant. As I have observed, the geography and

demography of the County makes it difficult to avoid some degree of concentration

of minority voting strength since the Navajo Nation, with nearly 78% of the Native

American population contained within it, is nearly 98% Native American, and white

population concentrations are located some distance away, to the north of the

Navajo Nation. This problem is particularly acute given the relatively small size of

School Board districts and the existence of highly concentrated minority areas.

iii.b Conceptual School Board Plan SB1 described below (and in the accompanying

documentation) does not fully resolve this problem. It has Native American

percentages in the districts of 6.2%, 24.8%, 58.4%, 83.8%, and 96.1%, respectively. It

is difficult to avoid some concentration of minority voting strength when drawing

School Board Districts. For example, the Plaintiffs’ plan for the School Board, while

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it has a more even distribution of Native American voting strength across districts

than does SB1, still has one School Board district with a Native American

population percentage of around 90% and another with a Native American

population percentage of around 80%. As described below, I created a variant of

Conceptual School Board Plan SB1, namely SB2, which sought to address this

problem of racial packing within the constraints of what was feasible under a good

government map that did not use race as a preponderant criterion.

iii.c Because it has a number of desirable good government features, I have

reported Conceptual School Board Plan SB1 to the Court despite the potential issue

of racial packing which it raises In particular, as well as splitting Blanding only

into only the two mathematically minimally required segments, and keeping

Monticello whole and all census places whole, Conceptual School Board Plan SB1

places all present School Board incumbents into separate districts, and draws quite

compact district shapes, and splits the Navajo Nation only into the three segments

that are mathematically necessary given the population in the Navajo Nation and

the ideal population size of School Board districts.

iii.d Moreover, from the standpoint of placing the schools in the County into School

Board districts Conceptual Map SB1 is close to ideal. With twelve schools and five

School Board districts, it is both readily doable given the geography and

demography, and desirable from a good government standpoint, that each School

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Board district contain at least one school. Ideally, however, given the mathematics,

it would be further desirable to have no district with only one school and no district

with four or more schools, since (if there were no geographic or population

constraints operating) the 12 schools could be partitioned into districts such that

three districts would have two schools each and two districts would have three

schools each. Conceptual Map S1 actually achieves this end. There are two

schools in Districts 2, 3, and 4, and three schools in Districts 1 and 5. See below

(and the supporting documentation) for details.

iii.e The County’s proposed School Board plan had one district with only one school

and one district with four schools; and the Plaintiffs’ proposed School Board Plan

had one district with only one school within it (that school being Blanding

Elementary), but no districts with four schools.

iii.f Conceptual Map SB1, is drawn with attention to both the geographic locations

of schools and to populations from surrounding areas that may attend those schools,

with other features of the map largely reflecting population balancing concerns,

with population balancing concerns sometimes critical. In looking to draw School

Board districts, to the extent feasible given the very severe constraints imposed by

population equality concerns, I looked to the information provided me by

Superintendent of Schools, Ron Nielson, on what the feeder bus routes were for

schools in the County. For example, the City of Monticello is kept whole but located

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at the southern edge of a northern district. Since its high school draws heavily from

its own population and from the area to its north, having the district in which

Monticello is placed a northern district makes geographic sense (the schools

included are Monticello Elementary, Monticello High, and La Sal Elementary).

The same attention to geography applies to my consideration of how to draw the two

districts with the most substantial Native American population. Each is drawn

around a concentration of schools in the Navajo Nation, with additional population

to the North added for population purposes, and each is drawn to avoid having too

many schools in one School Board district (the westernmost district includes

Tsebiinidzisgai Elementary, Navajo Mountain High, and Monument Valley High;

the easternmost district includes Montezuma Creek Elementary and

Whitehorse High). Similarly, the City of Blanding, which must be split in two, has

two of its three schools in one district (Albert R. Lyman Middle School and San

Juan High School) and one of its schools in another district. That latter district

joins a portion of Blanding with southern areas of the County, including Bluff and

White Mesa, and includes Blanding Elementary and Bluff Elementary, and thus

satisfies the criterion of placing exactly two (or exactly three) schools within each

School Board district. The district includes White Mesa which has strong

commonalities with the Navajo Nation, a portion of which is also included in the

district.1

1 I would also note that the areas in and around White Mesa and the area above

Bluff serve as feeder populations for San Juan High School in Blanding (as shown

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iii.g Having identified SB1 as one possible basis for a constitutional School Board

plan, I again note that this plan suffers from a severe problem of racial packing in

two of its five districts. Moreover, racial packing in one or more districts affects

minority voting rights not just in those districts but overall, since such racial

packing removes minority populations from other districts. Since equal protection

issues are clearly of a higher order of priority than other aspects of redistricting, I

also created a plan, SB2, with some reconfiguring of the districts shown in SB1. In

particular, I moved Bluff into the western district so as to reduce the level of racial

packing of minority voting strength in that district. In SB1 the district with the

highest Native American percentage has a Native American percentage of 96.1%; in

SB2, such a district has a Native American percentage of 89.3%.

iii.h Conceptual Plan SB2

In SB2, the Native American percentages are 6.2%, 24.8%, 65.2%, 83.8%, and

89.3%, respectively. In SB1, as preciously noted, the district with the highest Native

American percentage has a Native American percentage of 96.1%. For comparison

in School Board bus maps for routes such as BUS 23 ROUTE #16A, BUS 43 ROUTE

#17, BUS 49 ROUTE #10A, BUS 58 ROUTE #14A, and BUS 62 ROUTE #11A)

Hence this district also makes sense in terms of commonalities between Blanding

and these other communities with respect to schooling, even though there are clear

differences among these communities in terms of race and in terms of income levels.

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purposes I note that, in both Plaintiffs’ proposed School Board Plan and the

County’s proposed School Board Plan, the district with the highest Native American

percentage has a Native American percentage of 97.7%. Among those that I have

considered, SB2 appears to be the best available plan for mitigating racial packing

in School Board districts, while it continues to have the desirable good government

features of SB1, with the relatively minor exception of now having a School Board

district with only one school in it – a feature which is characteristic of both

Plaintiffs and the County School Board plans, and one district which has four

schools in it - also a feature of the County School Board plan. As in all my line

drawing for the Court, race was not used as a preponderant criterion in SB2, but

rather concern for geography and preservation of city and census place boundaries

dominated. Race was only taken into account in redrawing the boundaries between

two districts that were both already majority minority districts in SB1, and race

was taken into account only so as to mitigate extreme racial packing.

(d) avoiding the creation of districts which are divided into two or more

discontiguous parts. All districts in the conceptual maps submitted along with this

Preliminary Report create districts that are contiguous.

(e) avoiding to the extent feasible unnecessary splits (partition into two or more

districts) of long standing political subunits such as cities. The conceptual maps I

drew reflect good government criteria and are drawn based on the geography and

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population demography of the County, with attention to the location of schools in

the case of the School Board plans, and with attention to political subunit

boundaries. In particular, the maps for the County Commission keep whole the City

of Monticello and keep whole all census places in the County, and they divide the

City of Blanding in no more than two pieces and divide the Navajo Nation in no

more than two pieces. Similarly, the maps for the School Board keep the City of

Monticello whole and other census places whole, but necessarily divide the City of

Blanding since Blanding already has more than sufficient population to form a

School Board district on its own, and cannot for population equality purposes be

kept whole within a single district, and divides Blanding into only the

mathematically required minimal two segments. Conceptual Map SB2, to mitigate

issues of racial packing, shifts the district in which Bluff is located.

(f) avoiding unnecessarily ill-compact districts, i.e., ones which are elongated or

have irregularly shaped perimeters. Compactness is a criterion subordinate to

constitutionally mandated concerns. It is my view that compactness is better used

as an indicator of possible racial (or political) gerrymandering than as a

desideratum in and of itself. Also, some political subunits (and units of census

geography used for mapping purposes) may themselves not be especially compact

(see e.g., the boundaries of the City of Blanding, or the irregularities in terms of

perimeter on the western edge of San Juan County). Nonetheless, it is visually

apparent that the districts in the conceptual maps proposed here are at least as

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compact on average than those offered by the County.2

(g) avoiding changes in those district boundaries that are not required to create a

constitutional map.

i. The Court found that race was the preponderant motive in line drawing in some

districts (School Board District 3 and County Commission Districts 1 and 2).

However, in examining the proposed County maps, because of the effects of race

conscious line drawing in one district on the boundaries of adjacent districts, it

became clear that race had affected the configurations of the entire three-district

map in the case of the County (including the district contiguous to the two

unconstitutional districts); and strongly affected four districts of five districts in the

case of the School Board (the three contiguous to the unconstitutional district, along

with that district itself), and also affected the fifth district (District 1) to a lesser

degree in so far as irregularities in the borders of the other districts triggered by

race conscious line drawing had implications for this district. Thus, in order to

create maps that do not violate the equal protection standard of Shaw v. Reno, my

2 In making such comparisons, however, we must be careful, since the County

defines the boundaries of its districts in terms of precincts that are characterized by

straight lines that cut across census units. Using straight line units that do not

actually correspond to census units can gives rise to an illusory reduction in

perimeter based measures of district compactness. (For a more detailed discussion

of compactness measures see Niemi, Richard G., Bernard Grofman, Carl Carlucci

and Thomas Hofeller. 1990. Measuring compactness and the role of a compactness

standard in a test for partisan and racial gerrymandering. Journal of Politics,

52(4):1155-1181.)

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alternative maps necessarily make substantial changes from those proposed by the

County in all the districts.

ii.a I initially drew the County Commission conceptual plans and the School Board

conceptual plans with no attention to where present incumbents live, and, both

County Commission Conceptual Plan A and County Commission Conceptual Plan

B, had incumbent pairings in terms of the location of present incumbent homes

within a single district. It is my view that, in general, incumbency protection is a

concern that is very much a subordinate one to other concerns. Also, and rather

obviously, concern for incumbency protection is further weakened after a court has

found both previous and proposed plans tainted by racial gerrymandering.

Moreover, my view is that this taint of racially preponderant gerrymandering has

affected entire plans even if most clearly instantiated in particular districts.

Furthermore, occupants of office may change over time. Thus, drawing plans to

specifically take into account the homes of earlier incumbents may yield maps that

are different in configuration in some respects from than those that might be

redrawn so as to specifically reflect the homes of present incumbents. (It is my

understanding that, over the course of this decade, there have been changes in

incumbency in both the County Commission and the School Board.) For these

reasons, I did not assign any priority to protecting incumbents in my initial line

drawing. However, as noted above, at the request of the Court, I was asked to

prepare an alternative version of one of my County Commission plans so as to keep

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present incumbents unpaired.

ii.b To this end I drew County Commission Conceptual Map C, a variant of County

Commission Conceptual Map Plan B. In C there are no incumbent pairings.

Working from County Commission Conceptual Map Plan B, it was possible to

redraw the lines to unpair incumbents in CCB1 with minimum disruption of the

overall features of the plan. In County Commission Conceptual Map Plan A, in

contrast, the changes from the County’s plan in that conceptual map were such that

substantial changes would have been needed to unpair some incumbents because

incumbent homes were located entirely on the eastern side of the County, and any

plan done with this purpose using the configuration in County Commission

Conceptual Map Plan A would either have increased the racial packing in the

western district by placing Montezuma Creek in that district, or would have had to

draw a western district that looked like the elongated and unconstitutional district

drawn in the County plan, stretching to the northeast. Thus I did not present to the

Court a plan with present incumbents in separate districts that would be a variant

of County Commission Conceptual Map A. Nonetheless, because of the geography

and demography involved, and because of the very strong good government features

of County Commission Conceptual Map A, I do not believe that there is any barrier

to the Court choosing to adopt Conceptual Map A (or some variant thereof), despite

its pairing of two incumbents.

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ii.c In the School Board Conceptual Map SB1, all incumbent homes are, to the best

of my knowledge, each located within a different district. In the School Board

Conceptual Map SB2, all incumbent homes are, to the best of my knowledge, each

located within a different district.

6. De Novo line drawing

The Court had not evaluated Plaintiffs’ plans. Before I wished to propose a

recommendation re the adoption of Plaintiffs’ plans for either the County

Commission or the School Board I believed it necessary for me to initially do

districting de novo. This allowed me to draw plans where there was no possibility

that race had been a preponderant motive, and where I could identify the feasibility

of alternative configurations that both avoided race as a preponderant motive and

also avoided the packing of minority voting strength. While Section 2 issues re

previous plans, have not yet been resolved by the Court, as discussed above, it is my

view that courts are under an obligation to avoid Section 2 violations in crafting

court-drawn plans or evaluating proposed alternatives. I also believe that

egregious packing of minority populations is a prima facie indicator of a potential

Section 2 violation. However, as I also noted, the stark racial concentration and

population concentration patterns in the County make avoiding some district level

concentration of minority voting strength very difficult, especially for the smaller

district sizes in the five member School Board (where School Board districts are also

33

smaller than in previous decades because they are minus the de-annexed population

of Spanish Valley).

7. Plaintiff’s County Commission plan

Based on evaluating Plaintiffs County Commission plan for compliance with

constitutional and good government criteria, including the avoidance of minority

vote dilution in the form of packing or cracking (dispersion) of minority voting

concentrations, to the extent feasible. I would not reject the Plaintiffs’ plan for the

County Commission, though there may be other plans preferable on other grounds.

Like Conceptual Maps A (CC1) and B (CC2), it, too, keeps the city of Monticello

whole, does not split any census places which reflect population concentrations, and

does not split the city of Blanding into more than two pieces, and does not split the

Navajo Nation into more than two pieces. Moreover, it is a more compact plan than

that offered by the County, and it is based on census blocks rather than precincts so

that accurate population counts can be generated for all districts – something which

is not the case for the County plan.

8. Map outlines and overview of the total population and Native American

population percentages in County Commission Conceptual Map A, County

Commission Conceptual Map B, and County Commission Conceptual Map C, with

comparison to the remedial submissions of the County and of the Plaintiffs.

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County Commission Conceptual District Plans (Three Districts)

Ideal District - 4915

NOTE: These plans indicate different ways in which the County population could be allocated

subject to the constraints that Monticello and all census places be kept whole, and Blanding

be split in no more than two segments and the Navajo Nation be split in no more than two

segments.

CC Plan A Two Eastern Districts, One Western District

District Total Population Native Am Population

Percent Native Am

Blanding

Western (District 1)

4756 3659 78.7% 0

Northeastern (District 2)

4974 481 11.6% 2149

Southeastern (District 3)

5016 3291 67.2% 1125

CC Plan B Northern District, with Blanding split between the Northern and the Southwestern Districts


Percent Native Am

Blanding

Northern (District 1)

4916 431 8.8% 723

Southwestern (District 2)

4911 3029 61.7% 2551

Eastern (District 3)

4919 4233 86.1% 0

CC Plan C Northern District, with Blanding split between the Northern and the Southwestern Districts,

but with all incumbents separated into individual districts


Percent Native Am

Blanding


4909 579 11.8% 1600

Southwestern (District 2)

4922 3185 64.7% 1674


4915 3929 79.9% 0

36

PLAINTIFF AND COUNTY PROPOSALS FOR COMPARISON

NOTE: THE COUNTY PLAN IS SIMPLY TO ILLUSTRATE NUMBERS; THIS PLAN HAS ALREADY BEEN

DECLARED UNCONSITUTIONAL ON PROCESS AND INTENT GROUNDS

CC Plaintiff’s Plan


Percent Native Am

Blanding


4914 504 10.3% 1451


4918 3239 65.9% 1823


4914 3688 75.1% 0

CC County Plan


Percent Native Am

Blanding


4954 1338 27.0% 8

Central (District 2)

4880 2417 49.5% 3266


4912 3676 74.8% 0

NOTE: Variance between the numbers reported here and those reported by the County reflect the

difficulties of correctly assigning populations to districts not based on Census geography

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9. Plaintiff’s School Board plan

i. For the School Board, both plaintiffs’ map and the County map necessarily split

the Navajo Nation into three pieces, but the plaintiffs map also split the City of

Blanding into three pieces, as compared to the mathematically mandated two pieces

into which it was split in the County proposed map. The School Board plan

proposed by the County has already been found to be unconstitutional because it

was drawn using race as a preponderant criteria. While the Plaintiffs’ School Board

map does have a number of good government features, including higher levels of

compactness relative to the proposed County plan, and reducing the level of packing

in Districts 4 and 5 from the previous County plan, it also made three splits in the

City of Blanding without providing strong good government justifications for the

choices made in doing so. Accordingly, I cannot recommend that plan to the Court.

The unnecessary splitting of Blanding into three pieces does not, as far as I can

judge, serve good government ends to an equal extent as Conceptual School Board

Map SB2, which limits the split in Blanding to the two segments that are

mathematically required by population equality concerns.

10. Map outlines and overview of the total population and Native American

population percentages in School Board Conceptual Map SB1, and School Board

Conceptual Map SB2, with comparison to the remedial submissions of the County

and of the Plaintiffs.

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School Board Districts Conceptual Plans (Five Districts)

Ideal District - 2851

NOTE: SB1 and SB2 indicate different ways in which the County population could be allocated

subject to the constraints that Monticello and all census places be kept whole, and Blanding

be split in no more than the two segments mathematically required by population

constraints, and the Navajo Nation be split in no more than the three segments

mathematically required by population constraints.

Plan SB1

One Northern District (including Monticello), one Western District, One Eastern District, Two Central

Districts (Bluff with one of the Central Districts)

District Total Population

Native Am Population

Percent Native Am

Blanding

Northern (District 1) 2852 176 6.2% 0

Central-North (District 2)

2848 706 24.8% 2165

Central- South (District 3)

2859 1669 58.5% 1109

Eastern (District 4) 2848 2386 83.8% 0

Western (District 5) 2852 2740 96.1% 0

Plan SB2

One Northern District (including Monticello), one Western District (Bluff with the Western district), One

Eastern District, Two Central Districts



Percent Native Am

Blanding


Central-North (District 2)

2848 706 24.8% 2165

Central- South (District 3)

2858 1862 65.2% 1109

Eastern (District 4) 2848 2386 83.8% 0

Western (District 5) 2853 2547 89.3% 0

44

PLAINTIFF AND COUNTY SCHOOL BOARD PROPOSALS FOR COMPARISON

NOTE: THE COUNTY PLAN IS SIMPLY TO ILLUSTRATE NUMBERS; THIS PLAN HAS ALREADY BEEN

DECLARED UNCONSITUTIONAL ON PROCESS AND INTENT GROUNDS

Plaintiff’s Plan



Percent Native Am

Blanding


North-East (District 2)

2851 587 20.6% 1940

Central-East (District 3)

2853 1623 56.8% 1151

South-East (District 4)

2800 2735 97.7% 0

South-West (District 5)

2865 2556 89.2% 183

County Plan



Percent Native Am

Blanding

Northern (District 1) 2841 170 6% 0

Central-East (District 2)

2895 593 20.5% 1891

Horseshoe (District 3) 2858 1623 56.8% 1383

South-East (District 4)

2800 2735 97.7% 0

South-West (District 5)

2865 2556 89.2% 0

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11. Section 2 of the Voting Rights Act

i. It is my view that the Court’s previous finding that race was used in a

constitutionally impermissible way as a preponderant motive in the plans proposed

by the County for the County Commission and for the School Board, along with the

Court’s fiduciary obligations to avoid racial vote dilution that would violate the

Equal Protection Clause of the Constitution, provide it with clear guidelines for

action. The Court now has before it conceptual plans that it can choose among

which are drawn on good government lines and which clearly do not have race as a

preponderant motive.

ii. I would, however, note that, were the Court to now wish to issue a ruling on the

question of whether the conditions necessary for a Section 2 finding had been met,

that the present evidentiary record is clearly sufficient for such purposes. In

particular (see Expert Witness Report of Professor Richard L. Engstrom, filed

August 31, 2015 Case 2:12-cv-00039-RJS-DBP Document 188) there is evidence

both about racially polarized voting patterns, and about a stark pattern of minority

loss except in districts that are overwhelmingly minority in population.

Furthermore, as far as I can judge from my perusal of the recent record, these

claims are unrebutted. Moreover, the submission of maps by Plaintiffs clearly

demonstrates potential remedies in the form of districts with minority citizen voting

age majorities that are at least as compact, or more compact, than those proposed

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by the County. Thus the three prongs of the Thornburg v. Gingles 478 U.S. 30

(1986) test are met.

iii. In addition, other expert witness reports submitted by Plaintiffs demonstrate

race-related effects and behaviors that are relevant to the “totality of

circumstances” as those operate to affect in a negative way the voting rights of

Native Americans in San Juan County. For example, Professor Emeritus Garth

Massey, observes that “Indians and non-Indians live in almost entirely separate

worlds, with minimal interaction across ethnic boundaries. The social distance

between Indians and non-Indians that drove and continues to drive interethnic

distrust and animus is apparent in institutional arrangements, published

documents, personal remembrances and current accounts shared in interviews I

conducted in 2013, 2014 and 2015.” (Expert Witness Report of Garth Massey, Case

2:12-cv-00039-RJS-DBP Document 183 Filed 08/25/15, p. 3 of 39). Other evidence in

the record, taken from U.S. census and other government documents, demonstrates

substantial socio-economic disparities between Native American and non-Native

American populations that cannot be disputed (see, e.g., Expert Witness Report of

Garth Massey, Case 2:12-cv-00039-RJS-DBP Document 183 Filed 08/25/15, p. 6 of

39).

iv. The Court could also go in more depth than I need to do here to further

document a Section 2 finding. For example, additional evidence might be gleaned

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from material in submitted expert witness reports or other sources about racial

animus on the part of some past County officials and a past reluctance of the

County to equally consider interests of the Native American community or to regard

the Navajo Nation as properly a part of the County.

12. Building blocks for district maps

The maps I have drawn are based on census blocks and other units of census

geography. There was considerable controversy in the record about the need to

draw plans based on the limited number of existing precincts, which would require

splitting some precincts without having reliable estimates of the population in the

split portions. It is my view that redistricting must be based on census units since

these are the only units of geography for which we have reliable population

estimates. Precincts are merely units of administrative convenience and they have

no particular legal status. Moreover, they can readily be redrawn on the basis of

census geography and should be so drawn in the County in the future in order to

improve the population accuracy of the redistricting process. In any political unit

which does not use only mail ballots or only on-line voting, the purpose of precincts

is simply to have a way to readily assign voters to polling stations for in-person

voting and to determine what ballot /set of voting options must be made available to

those voters. (In turn, decisions about the number and location of polling stations

normally are made to facilitate the political participation of the citizenry.)

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13. Precinct configurations

After having been presented with the highly detailed maps used by the San Juan

County School system for the 45 bus routes to and from the County schools --maps

developed by its GIS-sophisticated technical staff, and showing the actual physical

locations of the homes of parents of school age children serviced by some bus routes

– it is my view that the County has the technical capacity to now facilitate

redistricting and the voting process by defining its precinct boundaries in terms of

census geography. It is rather puzzling that the County has, for the entire course of

this rather long ongoing litigation, failed to take the opportunity to create precinct

lines that could be aggregated with census data to permit accurate assessment of

the populations contained therein and the districts being created from these

precincts. Thus, claiming that the creation of such precincts in time for the next

election would now impose an undue burden on the County I do not take to be a

particularly compelling argument.

14. Defining the Native American population

Another controversy in the litigation record was about how to define the Native-

American population, with debate about whether those of mixed Native-American

and other descent should be tallied as Native-American. This debate appeared to

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center around the question of whether Native-Americans or non-Native Americans

constituted a majority of the County population—a debate understandable only

because the size of the Native-Americans and non-Native Americans populations in

the County are so similar. There are five points I wish to make about this

controversy. First, when using a limited number of racial categories, the federal

government commonly tallies those of mixed race as belonging to the race of the

group considered a minority. Second, the differences in totals between this method

and only counting those who identify with a single race as being of that race tend to

be minor. Third, the populations of Native-American who claim only that racial

identity and those who claim Native-American as one racial identity but have one or

more other racial identities tend to be intermingled geographically, thus rendering

the distinction practically irrelevant in the line drawing process in the County.

Fourth, the answer to the question will be affected by whether we treat Hispanics

as a separate category and only tally in the white category those whites who are

non-Hispanic. Fifth, and most importantly, the question of whether the population

in San Juan County as a whole has, say, a bare plurality of Native-Americans or a

bare plurality of non-Hispanic whites, is irrelevant for the purposes of drawing

districts within the County—and I paid no attention to this controversy in my own

line drawing. As the Supreme Court has repeatedly made clear, no group has a

right to proportional representation.

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15. Because the attached map are “conceptual maps” not intended as final plans

and may need further adjustment -- it is desirable to allow for feedback about them

that will aid the Court in perfecting plans and choosing among possible alternative

plans. As per court order, parties will have a chance to address these conceptual

maps and indicate objections to and/or preferences among them, or suggestions for

changing them, and Public Hearings in Monticello and Bluff will be held to allow

public input in the line drawing process. After receiving this input, pursuant to the

instructions I will receive from the Court, a final plan will be created for the County

Commission and a final plan will be created for the School Board, each to be used in

the next election.

16. in the final map drawing process, I anticipate that I will request technical

assistance from Mr. Brace or Mr. Cooper, or most likely both, in assuring that the

plans promulgated by the Court are provided to the County in a form that will be

most helpful to those in the County administering the 2018 elections.

this case is in its remedial phase. the court previously ... · other districts triggered by race...

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