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A federal appeals court could undo San Juan County’s historic election over racial gerrymandering

Posted at 6:49 AM, Nov 19, 2018

DENVER -- The 10th U.S. Circuit Court of Appeals is considering what to do about San Juan County's historic elections that took place earlier this month.

The federal appeals court heard arguments last week in the county's appeal of a judge's ruling that found racial gerrymandering in county commission and school board seats. In court papers, San Juan County has asked the 10th Circuit Court to restore the original commission and school board boundaries, which could potentially unwind the historic election that took place earlier this month.

"As expected, if you pack a super majority of Navajo, Democratic voters in districts, they’re going to win. And they did," Jesse Trentadue, an attorney for San Juan County, told the three-judge panel.

Last year, U.S. District Court Judge Robert Shelby found San Juan County illegally gerrymandered political boundaries to give Native Americans a minority in government. By population, they are a majority -- just over 50%. After rejecting San Juan County's re-drawn boundaries, Judge Shelby implemented an independent monitor's recommendation and ordered new elections that took place earlier this month.

Motivated in part by anger over San Juan County leaders' support of shrinking Bears Ears National Monument (a decision made by President Trump last year), Democratic and Navajo candidates ran for county commission seats and won. Kenneth Maryboy and Willie Grayeyes, both supporters of Bears Ears National Monument, will be sworn in to office in January.

San Juan County appealed Judge Shelby's order setting the new political boundaries and the special election. In arguments on Wednesday in Denver, Trentadue suggested that now other parts of San Juan County are subject to gerrymandering.

"As a consequence, we have a population of Navajo Democrats that comprises, depending on how you count Indian between 50 and 51.9 percent of the county holding two-thirds of the elected office. We think that violated the constitution. We think that violated the Voting Rights Act," he said.

Stephen Boos, an attorney for a group of voters who sued over the boundaries, disagreed.

"The county objected to those plans because they said they subjected, as we’ve heard this morning, white Republicans to a Section 2 violation. Section 2 of the Voting Rights Act. But made absolutely no effort to present evidence showing how white Republicans were subject to historical election violations in San Juan County," he told the judges.

The Navajo Nation Department of Justice also insisted that the new boundaries did not violate prior court orders dating back to 1986.

"The county commission was a gerrymandered district by race in violation of equal protection," said assistant attorney general Paul Spruhan.

But the judges did question if the new boundaries set by Judge Shelby did have their own problems. Judge Mary Beck Briscoe asked about community schools and said the county raised good arguments about representation of compacted areas. The judges also indicated sympathy to the city of Blanding's claims that it's being unfairly impacted by the new boundaries.

The judges took the case under advisement with no timeline set for a ruling. In court filings, Trentadue acknowledged that even though San Juan County wants the original boundaries returned -- there's no remedy easily available.

"Regardless of the outcome of this case, there will be no remedy available for the County Commission and School Board members whose terms were cut short or for those who had to expend considerable resources to run again. There will be no remedies for County residents who voted for and expected representation from those elected officials. And there will be no remedy for the County, which will have lost leadership and institutional memory," he wrote. "The County asks this Court to address the significance of special elections, when they are appropriate, and the careful analysis that must be conducted before they are ordered, to guide lower courts faced with the same issue."