Jesse C. Trentadue (#4961) Carl F. Huefner (#1566) … · County Clerk; and PHIL LYMAN, BRUCE ADAMS, and REBECCA BENALLY, in their official capacities as San Juan County Commissioners,

Jesse C. Trentadue (#4961)Carl F. Huefner (#1566) Britton R. Butterfield (#13158)SUITTER AXLAND, PLLC8 East Broadway, Suite 200Salt Lake City, UT 84111Telephone: (801) 532-7300Facsimile: (801) 532-7355E-Mail: [email protected]: [email protected]: [email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURTDISTRICT OF UTAH, CENTRAL DIVISION

NAVAJO NATION HUMAN RIGHTSCOMMISSION; PEGGY PHILLIPS; MARKMARYBOY; WILFRED JONES; TERRYWHITEHAT; BETTY BILLIE FARLEY;WILLIE SKOW; and MABEL SKOW,

Plaintiffs,

v.

SAN JUAN COUNTY; JOHN DAVIDNIELSON, in his official capacity as San JuanCounty Clerk; and PHIL LYMAN, BRUCEADAMS, and REBECCA BENALLY, in theirofficial capacities as San Juan CountyCommissioners,

Defendants.

::::::::::::::::::::

SAN JUAN COUNTY DEFENDANTS’MEMORANDUM IN OPPOSITIONTO PLAINTIFFS’ MOTION FORSUMMARY JUDGMENT AS TO

LIABILITY OF ALL PLAINTIFFS’CLAIMS

Case No. 2:16-cv-00154 JNP

Judge Jill N. Parrish

Magistrate Judge Brooke C. Wells

Oral Argument is Requested

Case 2:16-cv-00154-JNP-BCW Document 151 Filed 03/24/17 Page 1 of 61

mailto:[email protected]






SAN JUAN COUNTY; JOHN DAVIDNIELSON; PHIL LYMAN, BRUCEADAMS; and REBECCA BENALLY

Counterclaim Plaintiffs,

v.

NAVAJO NATION HUMAN RIGHTSCOMMISSION; PEGGY PHILLIPS; MARKMARYBOY; WILFRED JONES; TERRYWHITEHAT; BETTY BILLIE FARLEY;WILLIE SKOW; and MABEL SKOW,

Counterclaim Defendants.

::::::::::::::::

Defendants and Counterclaim Plaintiffs San Juan County; John David Nielson; Phil

Lyman; Bruce Adams; and Rebecca Benally (collectively “San Juan County” or “Defendants”),

by and through counsel of record, hereby submit their Memorandum in Opposition to Plaintiffs’

Motion for Partial Summary Judgment as to Liability of All of Plaintiffs’ Claims.1

STATEMENT OF ISSUES

Defendants submit that the following issues are controlling with respect to Plaintiffs’

Motion for Partial Summary Judgment:

With respect to Plaintiffs’ Voting Rights Act claims, do the San Juan Clerk/Auditor’s

current election procedures deny Navajo voters the ability to participate in elections on equal

terms with non-Navajo voters, or has the San Juan Clerk/Auditor failed to provide adequate

Navajo-language assistance to voters with limited English proficiency?

Dkt. 144.1

2


With respect to Plaintiffs’ Fourteenth Amendment Claims, were the San Juan

Clerk/Auditor’s current election procedures adopted either with an intention to discriminate

against Navajo voters, or whether, as implemented by the Clerk/Auditor, the ability of Navajo

residents to exercise their right to vote is unreasonably hindered as compared to non-Navajo

residents?

SUMMARY OF ARGUMENT

47%2

58%3

69%4

OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFFS

It is well settled that only admissible evidence can be considered by the Court in ruling on

Motions for Summary Judgment. Towards this end, a court may not consider either hearsay5

evidence or unsworn documents submitted either in support of or in opposition to a party’s

The voter turnout for the 2016 Navajo Nation Elections held on, November 8, 2016, 2

the same day as the San Juan County 2016 General Election.

The nationwide voter turnout for the 2016 Presidential Election, also held on November3

8, 2016.

The voter turn-out for the Montezuma Creek, Aneth, Mexican Hat, Oljato, Navajo4

Mountain and Red Mesa precincts, which are on-Reservation, for the 2016 General Election.

Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).5

3


Motion. The Declaration or Affidavit submitted in support of or in opposition to a Motion must6

be based upon the witness’s personal knowledge, set out facts that would be admissible in7

evidence, and show that the affiant or declarant is competent to testify on the matters. A8

declarant or affiant also cannot state legal opinions/conclusions in his or her Declaration or

Affidavit. Similarly, a Declaration or Affidavit that makes conclusory factual assertions and/or9

is based upon speculation is likewise deficient and not to be considered by the Court. And,10

even if the Declaration or Affidavit is not hearsay, is not improper speculation, and is otherwise

free of conclusory statements, including legal opinions, it still must be relevant in order to be

considered by the Court. 11

The Local Rules provide the procedure for challenging evidence submitted in support of a

Motion. Pursuant to DUCivR 7-1(b)(1)(B), evidentiary objections to Plaintiffs’ Motion must be

included by Defendants in this Memorandum submitted in opposition to that Motion. Set out

below are Defendants’ objections to the “evidence” submitted by Plaintiffs in support of their

Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th Cir. 1987); See6

Rogers v. Ford Motor Co., 952 F. Supp. 606, 610 (N.D. Ill. 1997).

See Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003)(Statements not based upon7

affiant’s personal knowledge should be stricken).

Federal Rule of Civil Procedure 56(b)(4).8

See Fedler v. Oliverio, 934 F. Supp. 1032, 1047 (N.D. Ind. 1996).9

See e.g. Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2nd Cir. 1985); 10

Koclanakis v. Merrimack Mutual Fire Insurance Co., 899 F.2d 673, 675 (7th Cir. 1990); FirstPacific Networks, Inc. v. Atlantic Mut. Ins. Co., 891 F. Supp. 510, 514 (N.D. Cal. 1995).

See McKeithen v. S.S. Frosta, 430 F. Supp. 899, 905-906 (E.D. La. 1977).11

4


Motion for Partial Summary Judgment that should be stricken in their entirety. With respect to

the remainder of Plaintiffs’ evidence, Defendants will raise objections in response to specific

undisputed facts.

The Affidavits of Betty Billie Farley, Bonnie B. Charley, Mabel Skow, and Willie12 13 14

Skow, should be stricken in their entirety for lack of foundation. To begin with, these15

documents purport to be “Affidavits” but they are not. An affidavit must be under oath, and also

contain the signature of the affiant and an officer authorized to administer oaths. None of these16

documents contain the requisite oath and officer’s signature, which means that they cannot be

considered by the Court as an affidavit. Neither do they qualify as a 28 U.S.C. § 1746

“Declaration” because of a lack of foundation.

In each of these documents, the affiants state that they are not fluent in and/or speak

English. In each of these documents, the affiants also state that “I declare under penalty of

perjury that the foregoing is true and correct, as translated from English to Navajo by Leonard

Gorman.” Leonard Gorman, however, is Executive Director of Plaintiff Navajo Human Rights

Commission. The fact that these Affidavits all involve translations of a foreign language into17

Dkt. 144-11.12

Dkt. 114-13.13

Dkt. 144-16.14

Dkt. 144-17.15

See Ham Investments, LLC v. United States, 89 Fed. Cl. 537, 550, fn. 8(2009).16

Dkt. 112-2, ¶ 1.17

5


English; that Mr. Gorman did the translations and, therefore, had motive to distort the evidence;

the fact that there is no evidence of Mr. Gorman’s skill as a translator; the fact that there is no

evidence the person certifying that the translation was accurate and that person actually made it;

and the fact that there is no evidence that each of the affiants were actually advised of the

contents of their affidavit before signing the document, precludes their consideration by the Court

on the basis of a lack of foundation. 18

On the basis of hearsay, the expert reports of Dr. Dan McCool, Gerald Webster, Dr.19 20

Richard Engstrom, and Joanna Manygoats should be stricken and/or not considered by the21 22

Court. This is so because an expert report not under oath is inadmissible hearsay. Admittedly,23

each of these witnesses does submit a sworn Declaration along with his or here report.

However, in each instance the witness merely states that the report filed with the Court is a true

and correct copy. In other words, they establish the foundation for their respective reports but24

See Beltran v. D. Dexter, 568 F. Supp.2d 1099, 1105 , fn. 7(C.D. Cal. 2008); Jack v.18

Trans World Airlines, Inc., 854 F.Supp. 654, 659 (N.D. Cal. 1974); Cruz v. Aramark Servs., Inc.213 Fed. Appx. 329, 334 (5th Cir. 2007); Miranda v. Sweet Dixie Melon Co., 2009 WL 1324847at *1-2 (M.D. Ga. May 13, 2009); Sunrider Corporation v. Bountiful Biotech Corp, 2010 Wl4599156 at *4(C.D. Cal. Nov. 3, 2010).

Dkt. 94-519

Dkt. 94-2.20

Dkt. 94-6.21

Dkt. 144-15.22

See Arizona, Dept. Of Civil Rights v. ASARCO, LLC, 844 F.Supp.2d 957, 966(D. Ariz23

2011).

See Dkt. 95-5, 95-2, 94-6 and 144-15.24

6


the reports themselves remain unsworn to hearsay.

RESPONSE TO PLAINTIFFS’ PURPORTED UNDISPUTED FACTS

Plaintiffs present their “undisputed facts” in four separate sections of their Motion: (1) a

“Statement of Facts” ; (2) A statement of “Relevant Undisputed Facts Bearing on Section 225

Claim” ; (3) a statement of “relevant Undisputed Facts Bearing on Section 203 Claim” ; and (4)26 27

a statement of “Relevant Undisputed Facts Bearing on Fundamental Right to Vote Claim Under

the First and Fourteenth Amendments” Defendants will separately respond to each alleged fact. 28

A. Response to “Introduction” Statement of Facts

In their Memorandum, Plaintiffs include over two pages of “Facts” that consists of

unnumbered, rambling and convoluted paragraphs that clearly do not comply with the Local

Rules. Defendants, therefore, object to these facts which Plaintiffs contend are undisputed. 29

However, a fair reading of the contested paragraphs reveals that the so-called undisputed facts

consist of the following:

1. The County does not provide equal access to early voting opportunities, as Navajo

citizens must travel, on average, over three times farther round-trip, than white citizens to take

Plaintiffs’ Memorandum, p. 2. 25

Id. at p. 12.26

Id. at p. 27.27

Id. at p. 37.28

See DUCivR 56-1(b)(2)(C)(“Each asserted fact must be presented in individually29

numbered paragraphs. . . .”).

7


advantage of in-person early voting opportunities or to get voting assistance.

RESPONSE: Disputed. The “Constitution does not require any opportunities for early

voting and as many as thirteen states offer just one day for voting: Election Day.”30

Consequently, not offering early voting or reducing the number of days offered for early voting

does not violate Section 2, even if some voters would have preferred to vote earlier. Simply31

stated, “[t]he Equal Protection Clause . . . cannot be reasonably understood as demanding

recognition and accommodation of such variable personal preferences, even if the preferences are

shown to be shared in higher numbers by members of certain identifiable segments of the voting

public.” 32

2. The County has failed to take all reasonable actions to effectively inform Navajo

language voters about election-related activities and to allow them to effectively participate in

election-related activities.

RESPONSE: Disputed. Furthermore, the San Juan County Clerk/Auditor’s Office does

far more than the Navajo Nation Election Administration in terms of providing language

assistance to voters. To begin with, ballots in the Navajo Nation’s elections are in English. 33

The Navajo Nation Election Administration’s website is also in English and it does not contain

Ohio Democratic Party v. Husted, No. 16-3561, 2016 WL 4437605 at *1 (6th Cir.30

Aug. 23, 2016).

See id.31

Id. at *7.32

Whitehat Depo., pp. 11-12, Exhibit 1 hereto.33

8


any audio recordings. The Navajo Nation allows mail-in or absentee ballots, too, and the34

application for an absentee ballot is in English. In the November 8, 2016 election, the voter35

turn-out for the Navajo Nation elections was only 47.21%; and the nationwide turnout for the36

2016 Presidential Election was 55.4%; whereas the 2016 General Election voter turn-out for the37

San Juan County on-Reservation precincts was 69.68%.38

3. The County's election practices place undue burdens on voters in remote areas of

the County.

RESPONSE: Disputed. See response to paragraph 2 above.

B. Response to “Relevant Undisputed Facts Bearing on Section 2 Claim”

1. In 2014, San Juan County officials closed all polling places, except the County

clerk's office in Monticello, and implemented a vote-by-mail election system.

RESPONSE: Undisputed. But irrelevant.

2. In September, 2015 NNHRC and the Lawyers' Committee for Civil Rights Under

Law, in partnership with the American Civil Liberties Union, sent letters opposing the mail-only

plan and closure of polling sites to San Juan County.


See 34 http://www.navajoelections.navajo-nsn.gov/index.html

See id.35

See id.36

37 http://www.cnn.com/2016/11/11/politics/popular-vote-turnout-2016/

Second Francom Dec., ¶ 9, Exhibit 2 hereto,38

9


http://www.navajoelections.navajo-nsn.gov/index.html

%20%20http://www.cnn.com/2016/11/11/politics/popular-vote-turnout-2016/

3. In his September 17, 2015 response to this letter, the County Clerk stated the

County would not reconsider opening any polling places for the upcoming elections.


4. On February 25, 2016, having received no written commitment from the County to

reopen polling places, Plaintiffs filed their Complaint and served Defendants on March 1, 2016.


5. The County first publically communicated its decision in a press release to reopen

three of the polling places on the Navajo Reservation on March 9, 2016, only after the Complaint

was filed. Although the County has claimed that the decision to open additional polling locations

was made prior to Plaintiffs filing their Complaint, the County has provided no evidence, beyond

a declaration, to support that claim.

RESPONSE: Undisputed. However, Plaintiffs have submitted no evidence contradicting

the sworn statements of the San Juan County Clerk/Auditor and the San Juan County Attorney

that the decision to open three additional on-Reservation polling locations was made as a result of

meeting with representatives from the United States Department of Justice (“DOJ” during October

of 2015, and that the “final decision” as to the location of these three on-Reservation polling

locations was made on or before February 16, 2016.39

6. The Clerk-Auditor testified that he could make decisions regarding changes in

election administration without approval of the County Commission.

Nielson Dec.¶¶ 16 through 20, Dkt. 62; Laws Dec. ¶¶ 7through 13, Dkt.39

109.(emphasis added).

10


RESPONSE: Undisputed.

7. Utah state law requires counties to provide in-person early voting for a

fourteen-day period prior to the date of the election.

RESPONSE: Disputed. Counties conducting elections with mail-in-ballots are not

required to have any polls open for early voting. Furthermore, there is no constitutional right to40

early voting. Neither is there a right to vote in-person. In addition, mail-in-ballots afforded all

voters, both Navajo and non-Indians, almost a month of “early voting.” In fact, the

Clerk/Auditors’ Office considered vote-by-mail to be early voting.41

8. Utah Election Code provides that "[a]n individual who is registered to vote may

vote before the election date" and that the "voting period shall [ ] begin on the date that is 14 days

before the date of the election." Utah Code § 20A-3-601(1)-(2). Voting is conducted for a

"minimum of four days during each week" for local special elections and primary and general

municipal elections; for all other elections, voters can cast their ballots early any weekday.


9. Utah Election Code § 20A-3-603 further requires election officers to "designate

one or more polling places for early voting."


10. San Juan County provided early in-person voting only at the county clerk's office in

See UCA §20A-3-605(3).40

Francom Depo., p. 14, Dkt 109. 41

11


Monticello. (Public Notice indicating that "[r]egistered voters of San Juan County Utah can cast

an Early Vote ballot in the clerks [sic] office weekdays from 8:00 A.M. to 5:00 P.M.").


11. In addition to having additional days to cast a ballot in-person, the location of

in-person voting in Monticello provides a number of additional benefits including the ability to

request a ballot or help troubleshooting a problem.

RESPONSE: Undisputed. However, Ed Tapaha, San Juan County’s liaison with the

Navajo Nation, provides the same service during his routine visits to Navajo Nation Chapter

Houses. 42

12. The Office Manager for San Juan County has explained "the advantage of having a

polling location in our office is that we were able to resolve any of those [voting related] issues in

our office."


13. Navajo citizens in San Juan County must travel, on average, three times the

distance and three times the time that white citizens must travel to reach the Monticello location

to vote early in-person, or to get assistance.

RESPONSE: Disputed. See response to paragraph 7 above. Defendants also object to

this asserted fact insofar as it is based upon the unsworn “Expert Report” of Gerald R. Webster,

which is hearsay.

14. This means that Navajo citizens must travel, on average, over two hours longer

See Nielson Dec. ¶ 12, Dkt. 144-2.42

12


round-trip, and 94 miles farther round-trip than white citizens to take advantage of in-person early

vote opportunities or to get assistance.

RESPONSE: Disputed. See response to paragraph 7 above. Defendants also object to this

asserted fact insofar as it is based upon the unsworn “Expert Report” of Gerald R. Webster, which

is hearsay.

15. This past general election, Mr. Whitehat, who has a preference for voting

in-person, had just a small window during which he could vote, because his father had an

operation in Flagstaff, Arizona scheduled on Election Day and because the only satellite office

offering in-person early voting is approximately five hours away in Monticello.

RESPONSE: Disputed. Mr. Whitehat has historically voted by absentee ballot, which is a

mail-in-ballot. Mr. Whitehat’s preference for in-person voting, even if true, is irrelevant. 43

16. In order to travel in the remote parts of the County, a person must often use dirt

tracks and unpaved roads that may be impassible in inclement weather, especially for the general

election in the fall.

RESPONSE: Undisputed. It is further noteworthy that this is true for both Indian and

non-Indian voters, the majority of whom live in remote-rural portions of the County.

17. Almost 54% of the County's registered voters do not have a street address and

many residents therefore rely on post office boxes to receive their mail.

RESPONSE: Undisputed. But again, these residents without street addresses include

both Indian and non-Indian voters.

Francom Depo., p. 14, Dkt. 109.43

13


18. There is a shortage of post office boxes in Oljato and Monument Valley, meaning

some residents without a home mailing address are also unable to get a post office box in San

Juan County.


19. Some residents in the remote areas of San Juan County may have to drive 30 or 40

miles - and cross state lines - just to get their mail.

RESPONSE: Disputed. Defendants also object to this asserted fact insofar as it is based

upon the unsworn “Expert Report” of Dr. Dan McCool, which is hearsay. Furthermore, even if

true, these facts mean that both Indian and non-Indians receive their mail at post offices located in

adjoining states.

20. Navajo residents live, on average, more than twice as far from the nearest post

office than white voters.


upon the unsworn “Expert Report” of Gerald R. Webster, which is hearsay. Furthermore,

Defendants have no control over where its residents choose to live within San Juan County.

21. Many residents do not regularly get their mail. (quoting resident explaining that

"the people out there they hardly ever go to the post office, they hardly get their mail").


upon the unsworn “Expert Report” of Dr. Dan McCool, which is hearsay. Furthermore, even if

true, these facts apply equally to Indian and non-Indian residents, and the Clerk/Auditor’s Office

has no control over how and when a Country resident chooses to pick-up their mail .

14


22. The history of official voting discrimination against the Navajo in Utah is

extensive and severe.


upon the unsworn “Expert Report” of Dr. Dan McCool, which is hearsay.

23. Elections since 2000 have been racially polarized in San Juan County, with Native

American voters supporting Native American candidates and non-Native American voters largely

supporting only non-Native American candidates.

RESPONSE: Disputed. The Navajo vote along party lines. In fact, political party

affiliation among Navajo voters in San Juan County is so strong that they will vote for a non-

American-Indian Democratic candidate rather than an Navajo Republican candidate.

24. The unemployment rate among Navajo residents is five times greater than the

national average.


25. While only 11.2% of whites in the County live below the poverty level, 42.3% of

American Indians in the County live below the poverty line and nearly one-third of American

Indian households in San Juan County live off an annual income of less than $10,000.

RESPONSE: Disputed. In addition, Defendants object to this asserted fact insofar as it is

based upon the unsworn “Expert Report” of Gerald R. Webster, which is hearsay.

26. Less than 1% of white households in San Juan County have no vehicle, while 1 in

10 American Indian households in the County are without a vehicle.


15


based upon the unsworn “Expert Report” of Gerald R. Webster, which is hearsay.

27. Because of a history of discrimination and the difficulties of making the trip, many

Navajo residents of San Juan County are hesitant to travel to Monticello to vote.

RESPONSE: Disputed. Defendants also object because there is no evidence of this fact.

As “evidence,” Plaintiffs refer to paragraphs 3 and 4 of Plaintiff Terry Whitehat’s Declaration,44

and paragraph 18 of Plaintiff Leonard Gorman’s Declaration. But all Mr. Whitehat says is:45

“That from my home, it takes me approximately five hours to drive to Monticello one way. . .

[that] there is a history of discrimination against Navajo people in San Juan County [and that]

Whenever I go into Blanding or Monticello it feels like I’m a target.” Furthermore, during the46

2016 election cycles, Mr. Whitehat voted in-person at Navajo Mountain where he lives. Prior to47

2016 Whitehat, who resided out-of-state, voted with an absentee mail-in-ballot. Mr. Gorman’s

statement that “[b]ecause of a history of discrimination and the difficulty of making the trip, many

Navajo residents of San Juan County are hesitant to travel to Monticello to vote,” is even more

objectionable since it not based on personal knowledge, is hearsay, lacks foundation and is

conclusory. Both Mr. Whitehat’s and Mr. Gorman’s statements are also irrelevant since there are

three polling locations on the Navajo Reservation and Navajo voters also have the option of mail-

Dkt. 112-3.44

Dkt. 112-2.45

Dkt. 112-3 at ¶¶ 2 through 4.46

Nielson Declaration, Appendix Exhibit 3, ¶ 16 Dkt 109. 47

16


in-ballots.

28. For instance, Mr. Whitehat feels like he is a target whenever he goes to Monticello

and will avoid going there, if possible. If he is driving, he will fill his gas elsewhere to avoid

stopping in Monticello.

RESPONSE: Disputed. Defendants also object to Mr. Whitehat’s statement because it is

conclusory and provides no instances of his having been discriminated against or otherwise

treated badly by non-Indians.

29. Multiple political campaigns in San Juan have been characterized by racial appeals.



30. In a 1990 election, for instance, a flyer was distributed advising residents that

"Utah Navajos are 60% of all the people in San Juan County, so if they all vote, they can always

control the county."



31. In 2012, supporters of Bruce Adams, one of the current county commissioners, ran

an advertisement warning voters that his Navajo opponent (Willie Grayeyes) was "campaigning

on promises that if he is elected he will use San Juan County money for projects on the

reservation..."


17



32. Navajo residents have never been elected to a majority of seats in the county

commission or school board.


33. Navajo candidates have consistently lost to white candidates: for instance, in 1990,

Navajo candidates ran for five of six countywide seats and lost in each race.


based upon the unsworn “Expert Reports” of Dr. Dan McCool, and that of Richard L. Engstrom,

which are hearsay.

34. No Navajo candidate has ever won a countywide election and, before the U.S.

Department of Justice filed suit against San Juan County, no Navajo resident had been elected to

County office.

RESPONSE: Defendants object to this asserted fact insofar as it is based upon the

unsworn “Expert Reports” of Dr. Dan McCool, and that of Richard L. Engstrom, which are

hearsay.

C. Response to “Relevant Undisputed Facts Bearing on Section 203 Claim”

1. San Juan County is a covered jurisdiction under Section 203 of the VRA for the

Navajo language.


2. Contrary to promises made in their Answer and other filings, no working audio

translations of the ballot were available at polling places in the general election for the voters or

18


the poll workers.

RESPONSE: Disputed. 48

3. In their Answer and other filings, the County promised to provide radio

announcements on Navajo language radio stations regarding the election for the 2016 election

cycle.


4. The County failed to provide radio announcements regarding voting procedures on

Navajo language radio stations in advance of the 2016 primary.


5. The Defendants have stated that the failure to provide radio announcements

regarding the primary election was due to a "communication" problem within the San Juan

County Clerk's office.


6. Plaintiff Betty Billie Farley regularly listens to KNDN, a Navajo language radio

station, during the 12:30- 1 p.m. newscast, and did not hear any information about the 2016

general election.

RESPONSE: Disputed. This is also one of the “Affidavits” that Defendants have objected

to in its entirety based on a lack of foundation. But even if true, it is irrelevant. Besides, Ms.

Farley is one of the Plaintiffs and most certainly would have been notified by her attorneys about

See Fourth Nielson Dec.,¶ 15, Exhibit 2 hereto; Second Francom Dec., ¶¶ 28-30,48

Exhibit 3 hereto.

19


the details of the 2016 General Election.

7. Leroy Teeasytoh, a Navajo resident of San Juan County, heard the radio

announcement on KNDN prior to the general election, but did not think the information was clear.

RESPONSE: Undisputed. But irrelevant. However, it is interesting that in the previous

paragraph Plaintiffs suggest that no radio announcements pertaining to the 2016 General election

were aired yet in this paragraph they acknowledge that Mr. Teeasytoh heard them. As far as not

that ad not being “clear”, that may be explained by the next asserted fact.

8. There are places in the Navajo portion of San Juan County where static can

interfere with the radio signal.


9. Mr. Teeasytoh believes that there is a need for more information to be distributed

about the election systems, particularly because of the changes.

RESPONSE: Objection. Irrelevant.

10. Mr. Tapaha testified that he visits Chapter Houses as part of the County's

pre-election publicity efforts.


11. Ms. Bonnie B. Charley, a Navajo elder who does not speak, read, or write English

attended a chapter house meeting when Mr. Tapaha visited but, because Mr. Tapaha often spoke

in English, Ms. Charley could not understand most of what he was saying.

RESPONSE: Disputed. This is also one of the “Affidavits” that Defendants have49

See Fourth Nielson Dec., ¶ 21, Exhibit 2 hereto.49

20


objected to in its entirety based on a lack of foundation. It is also noteworthy that Ms. Charley

said that “I received my ballot in the mail and voted by mail with the assistance of my son,

Jimmy Charley, Jr.”50

12. After listening to Mr. Tapaha at the chapter house meeting, Ms. Charley and her

son both believed that, if they wanted to vote in the general election, they would have to vote by

mail, even though they would have preferred to vote in person.

RESPONSE: Objection, irrelevant.

13. Some Navajo residents of San Juan County who require language assistance

mistook their mail-in ballot for junk mail and failed to vote.

RESPONSE: Objection, irrelevant. In addition, Defendants object to this asserted fact

insofar as it is based upon the unsworn “Expert Reports” of Dr. Dan McCool, which is hearsay.51

14. A state or political subdivision covered by Section 203 of the Voting Rights Act is

responsible for providing the appropriate language assistance and "furnish[ing] oral instructions,

assistance, or other information relating to registration and voting," in the case of unwritten

languages.


15. In 2014, when the County moved to a vote-by-mail system, Mr. Johnson, the

former County Clerk, acknowledged that the County "relied a lot on families to help people out"

by "[e]xplaining the ballot, explaining what was on the ballot, what offices were being voted for."

Charley Aff., ¶ 5, Dkt. 144-13.50

See Dkt. 94-5, pp. 5 through 275.51

21


RESPONSE: Undisputed. Moreover, that is apparently what happened.52

16. Mr. Johnson, the former County Clerk, acknowledged that these tasks were

"something [his] office would have taken care of in the past," but that "after [the County] went to

mail in ballots that was something you expected the family to do."

RESPONSE: Undisputed. See also response to paragraph 15 above.

17. Ed Tapaha, the Navajo liaison for the County Clerk's office, has stated that young

Navajos, who are more likely to speak English and less likely to speak Navajo, would have

difficulty translating election materials.


18. Tapaha has also explained that translating election materials is quite challenging,

and that he has consulted with Navajo translators in Arizona and New Mexico in an effort to

improve the accuracy of his translations.

RESPONSE: Disputed. Mr. Tapaha said that translating legal terms in to Navajo can be

challenging.

19. Mr Jimmy Charley, a member of the Navajo Nation and resident of San Juan

County, attempted to translate the 2016 general election ballot for his mother who does not speak

English, but struggled to explain some of the provisions on the ballot.

RESPONSE: Objection, irrelevant. However, in addition to Mr. Tapaha’s visit to the

Navajo Chapter Houses there was also an audio recording of the ballot on the San Juan County

website and at the Chapter Houses themselves.

See e.g., Charley Aff., ¶ 5, Dkt. 144-13; Farley Aff. ¶ 13, Dkt. 144-11.52

22


20. The County's own audio translation of the 2016 general election ballot posted on

their website is not correctly translated, and confuses the terms "Judicial Retention,"

"constitutional amendments" and "for or against," affecting the accuracy of the message.


based upon the unsworn “Expert Report” of Joanna Manygoats, which is hearsay.

21. At least one Navajo voter who required language assistance to vote was

uncomfortable asking for and getting the assistance she needed, as the only interpreter was

preoccupied.

RESPONSE: Objection, irrelevant.

22. Mr. Tapaha provides translation services for the County, but his translations are not

reviewed by a trained translator or anyone employed by the County.

RESPONSE: Undisputed but irrelevant.

23. Translators are recruited informally by Mr. Tapaha and translators are not required

to have any relevant qualifications.

RESPONSE: Disputed. They are required to be fluent in both English and Navajo.

24. Mr. Tapaha has expressed concerns that the lack of formal training for translators

means there is a risk translators "misword[ ]" when they try to translate the ballot.


25. Mr. Tapaha did not provide training to poll workers working in the predominantly

Navajo precincts for the 2016 primary election.

RESPONSE: Objection, irrelevant. It is irrelevant because there is a difference between a

23


poll worker and an on-site interpreter. Mr. Tapaha had trained the on-site interpreters, who had53

served this function for years.54

26. Mr. Tapaha likewise did not provide training to poll workers working in the

predominantly Navajo precincts for the 2016 general election.

RESPONSE: Undisputed but irrelevant. See also response to paragraph 25 above.

27. Plaintiffs Mabel and Willie Skow do not speak English and requested language

assistance when they voted in person during the 2016 general election.

RESPONSE: Undisputed for purposes of this Motion.

28. The language assistance the Skows received did not help them understand what

was on the ballot.

RESPONSE: Objection, Mr. and Mrs. Skow’s Affidavits are among those that Defendants

have asked to be stricken for lack of foundation.

29. Because Mr. Skow did not understand the ballot, he did not cast votes for most of

the positions on the ballot for the 2016 general election.

RESPONSE: Objection, Mr. Skow’s Affidavit is among those that Defendants have

asked to be stricken for lack of foundation.

30. Plaintiff Wilfred Jones requested language assistance when he went to vote in the

2016 general election as Navajo is his first language.

See Fourth Nielson Dec., ¶ 20, Exhibit 2 hereto,53

See, e.g., Stevens Aff., ¶ 4, Dkt. 144-7.(“I have been a translator for elections for almost54

10 years”).

24


RESPONSE: Undisputed for purposes of this Motion. However, Mr. Jones is one of the

Plaintiffs which makes his “Affidavit” highly suspect, especially given that fact that he purports to

not have known that voting was taking place at Montezuma Creek on the day of the General

Election; that he claims that Navajo is his first language and therefore prefers to vote in Navajo,

when his Affidavit is entirely in English and signed by him; and that he apparently confusing the

2016 County-wide General Election with the Navajo Nation election held on the same day.55

31. The interpreter at the Montezuma Creek polling place who assisted Mr. Jones did

not interpret the entire ballot for him, could not explain to Mr. Jones which were the County and

which were the State elections and propositions on the ballot, and told Mr. Jones to "turn in [his]

ballot as is" if he did not "know about a particular portion of the ballot."

RESPONSE: See response to paragraph 30 above.

32. Because the interpreter could not answer Mr. Jones' questions or provide a full

translation, Mr. Jones did not vote for the propositions on the ballot and did not vote for officials

because he could not identify which race was for a County or State position.

RESPONSE: See response to paragraph 30 above. In addition, Mr Jones apparently asked

the poll worker “Who am I voting for?”, which was a question that the poll worker could not56

legally answer.57

33. Plaintiffs' Navajo language expert identified various deficiencies in the County's

See Second Francom Dec., ¶¶ 22-23, Exhibit 3 hereto .55

Jones Aff., ¶ 7, Dkt. 144-5.56

Fourth Nielson Dec., Exhibit 2 hereto, ¶ 17.57

25


posted sample ballot translation and the County's general election information found on their

website. These problems varied from relatively small, like a confusing translation of the word

"computer," to entirely problematic, like not being able to understand the general election

translation.

RESPONSE: Objection. Defendants object to this asserted fact insofar as it is based upon

the unsworn “Expert Report” of Ms. Manygoats, which is hearsay.

RESPONSE:

D. Response to Statement of “Relevant Undisputed Facts Bearing onFoundational Right to Vote Claim Under the First and FourteenthAmendments”

1. 'Many mail-in ballots are returned due to a high percentage of undeliverable

addresses in the County. (email from mail processor noting that 8% of San Juan addresses are

undeliverable.)

RESPONSE: Undisputed, but irrelevant. People move and do not notify the

Clerk/Auditor’s Office of their new address. Besides, this is true for both Indian and non-Indian

residents of San Juan County.

2. Mail delivery to remote parts of the County is frequently delayed, such that it may

take almost two weeks to receive one's ballot. The County, however, assumes it only takes four

days for ballots to reach residents. (noting a delay of almost two weeks from the date the County

sent out ballots to the date Whitehat received his ballot); (County Commission notes dated

October 6, 2014, in which the Clerk informs commissioners ballots for the 2014 general election

would be mailed out on October 10 and received four days later on October 14).

26


RESPONSE: Undisputed for purposes of this Motion. But it is also irrelevant. The San

Juan County Clerk/Auditor’s Office does not control the Postal Service. Neither does the

Clerk/Auditor’s Office control when residents choose to retrieve their mail from the Post Office,

such as Plaintiff Farley who only “check[s] the post office box approximately once a month.” 58

Furthermore, the alleged delay in mail delivery applies to Indians and non-Indians alike.

3. Some voters never received their ballot in the mail for the 2016 election, and many

people received their ballots after the election was over.

RESPONSE: Objection, irrelevant. Dr. McCool’s Report, upon which this fact is based,

was prepared on August 18, 2015; which was over a year PRIOR to the 2016 General Election!59

However, even if true, both Indians and non-Indians would not have received ballots in the mail

for any number of reasons, including having moved and not notified the Clerk/Auditor’s Office of

their change of address or mistakenly thinking the ballots were junk mail, like Ms. Crank. In60

addition, Defendants object to this asserted fact insofar as it is based upon the unsworn “Expert

Report” of Dr. Dan McCool, which is hearsay.

4. Some mail routes through San Juan County have multiple stops, meaning it may

take several days for a ballot from a remote part of the County to reach the point in the mail

system where it is actually postmarked.

RESPONSE: Objection. See response to paragraph 3 above.

Farley Aff., ¶ 11, Dkt. 144-11.58

See Dkt. 94-5, ¶ 3.59

See Crank Aff.,¶ 4, Dkt. 144-9. 60

27


5. Some of the ballots the County rejected from the 2016 primary had postmarks from

Phoenix, Arizona, and Albuquerque, New Mexico.

RESPONSE: Undisputed, but irrelevant.

6. On November 8, 2016, the Oljato Senior Center ran out of paper ballots by 10:00

AM.

RESPONSE: Undisputed. However, the ballot shortage was due to the extraordinary

voter turnout, which was almost 70% for the on-Reservation precincts. More importantly,61

however, voting continued via electronic means.62

7. On November 8, 2016, voters experienced long lines at the Oljato Senior Center.

RESPONSE: Undisputed, but irrelevant. It is also noteworthy that voters would not have

encountered this problem if they had opted to vote-by-mail rather than in-person. Lines at the

polls, even long lines, are not only common but, in the instant case, they show how successful the

Clerk/Auditor’s Office was in educating-assisting Navajo voters with respect to the General

election.

8. On November 8, 2016, ballots were inadequately translated to Navajo by some poll

workers, leaving some voters confused.

RESPONSE: Objection. This purported fact is based upon the Affidavits of Plaintiffs Ms.

Skow, and Mr. Skow to which Defendants have objected on the basis of a lack of foundation and

asked to have stricken. Defendants also dispute these assertions. The other support for these so-

See Second Francom Dec., ¶ 9, Exhibit 3 hereto.61

See Fourth Nielson Dec., ¶¶ 7-9, Exhibit 1 hereto.62

28


called facts come from the Affidavits of Ms. Crank and Plaintiff Jones. Ms. Crank said that

“Because there was only one interpreter and she was having some health issues, I didn’t feel

comfortable using the language assistance” and that “An audio recording of the ballot was not

made available to me.” Nowhere in her Affidavit does Ms. Crank say that she asked for but was63

refused language assistance. With respect to Mr. Jones’ Affidavit, that is highly suspect for a

number of reasons: (a) he is one of the Plaintiffs’ and most certainly knew about the audiotape of

the ballot on the County’s website and present at the polling location, yet apparently opted not to

listen to them, and (b) he obviously reads and speaks English but insists that he wanted language

assistance because he feels more comfortable voting in Navajo 64

9. Voters who wished to vote in the November 8, 2016 election faced, on average, an

hour roundtrip to a polling place in 2016.

RESPONSE: Disputed. According to Plaintiffs’ time and distance expert, Dr. Webster,

Navajo voters live within 15.24 miles of a polling location compared to non-Indian voters who

must travel 20.39 miles to a polling location to vote in-person.65

10. The County has asserted several reasons for relying on a predominately mail-only

voting system: (1) increasing voter turnout, (2) ensuring that non-ADA compliant chapter houses

are not used as polling places, and (3) giving voters more time to vote and obtain Navajo language

assistance from family and friends.

Crank Aff., ¶¶ 9 and 11, Dkt. 144-9.63

See Jones Aff., Dkt. 144-5.64

Dkt. 94-2, p. 51.65

29


RESPONSE: Undisputed. However, there are other benefits to a vote-by-mail system

over an in-person voting system, including, among others: (a) providing voters the opportunity to

consider their election decisions over a longer period of time; (b) accommodating the needs of

voters who regularly work outside of the immediate area of their residence, are at school or in the

military, without their having to apply personally for an absentee ballot which may be particularly

of benefit to a significant number of Navajo voters who work away from their homes due to the

limited availability of jobs in San Juan County; (c) allowing voters to make their ballot decisions

away from candidates campaign efforts in close proximity to polling places; and (d) allowing

limited-English proficiency voters to seek assistance from family members or other trusted

acquaintances if they so choose rather than having to rely on interpreters provided by the

County.66

ADDITIONAL UNDISPUTED FACTS ENTITLINGDEFENDANTS TO SUMMARY JUDGMENT

The following additional undisputed facts entitle Defendants to summary judgment:

1. On the day of the 2016 General Election, the polling locations at Oljato and

Montezuma Creek ran out of physical ballots.67

2. The shortage of ballots for the Oljato and Montezuma Creek polling locations was

due to the fact that voter turnout was much greater than had been anticipated.68

Id. at ¶ 35.66

Fourth Nielson Dec., ¶ 7, Exhibit 2 hereto.67

Id. at ¶ 8.68

30


3. However, the ballot shortage at the Oljato and Montezuma Creek polling locations

was remedied by having voters use the touchscreen voting machine that was available and

operating at those polling locations.69

4. In addition, on the day of the 2016 General Election, at the Navajo Mountain

polling location the optical vote scanning machine malfunctioned due to a paper jam. 70

5. On the day of the 2016 General Election, at the Navajo Mountain polling location

the touch screen voting machine also did not operate properly. 71

6. But, despite the failure of the optical vote scanning machine and the touch screen

voting machine at the Navajo Mountain polling location, there were sufficient ballots for voters to

vote and deposit their ballot in the ballot box provided. 72

7. Nevertheless, the equipment failures at these three polling locations highlight

another of the benefits of vote-by-mail, which allows the Clerk/Auditor’s Office to conduct an

election without any voting machines or other highly specialized equipment. 73

8. The San Juan County Clerk/Auditor, reviewed the Affidavits from Bonnie B.

Charley, Terva Begay, Nelson Yellowman, Jimmy Charley, Jr., Wilfred Jones, Marietta Stevens,

Jenny Crank, Mabel Skow, Terry Whitehat, Leroy Teeasytoh, Betty Billie Farley and Willie Skow

Id. at ¶ 9.69

Id. at ¶ 10.70

Id. at ¶ 11.71

Id. at ¶ 12.72

Id. at ¶ 13.73

31


that Plaintiffs have recently filed in this case, and has some observations about the statements

made by some of these affiants.74

9. A number of the affiants, for example, say that the audiotapes of the ballot were

not made available to them at the polls on the day of the 2016 General Election. However, an

audio recording of the ballot was available on laptops at each of the on-Reservation locations.

These were provided as a backup for the Navajo interpreters and not to replace them.75

10. Furthermore, from Mr. Nielson’s observations on the day of the 2016 General

Election the reason these audiotapes were not “made available” to voters was because the voter

never asked to listen to a tape or the on-site interpreter had assisted the voter as requested. 76

11. Similarly, it seems that many of the affiants are complaining about their lack of

knowledge with respect to the qualities of candidates, which is consistent with Mr. Nielson’s

observations on the day of the 2016 General Election. On that day, it appeared to Mr. Nielson

that many voters were asking poll workers or on-site interpreters about how they should vote,

which would be unlawful for the poll worker or on-site interpreter to do.77

12. Several affiants likewise expressed concern about whether their votes were

counted. They were counted. 78

Id. at ¶ 14.74

Id. at ¶ 15.75

Id. at ¶ 16.76

Id. at ¶ 17.77

Id. at ¶ 18.78

32


13. The sealed boxes containing the ballots from all three of the on Navajo -

Reservation polling locations were transported back to the Clerk/Auditor’s Office where the seals

were broken in the presence of election officials, including myself, and all of the votes were

counted.79

14. It also seem to Mr. Nielson that some of the affiants were confusing poll workers

with interpreters and/or other election officials. Poll workers, for example, verify that voters are

registered as well as oversee generally the conduct of the voting, including confirming and

witnessing the sealing of the ballot boxes at the close of voting. The poll workers during the 2016

General Election, therefore, were not there to serve as interpreters of the ballot or to otherwise

offer language assistance.80

15. One of the affiants, Bonnie B. Charley, stated that she could not understand

explanations given by Mr. Ed Tapaha at her chapter meeting because he sometimes spoke in

English, which she does not understand. During 2014, however, Mr. Nielson attended the Aneth

and Red Mesa Chapter meetings at which Mr. Tapaha explained the election process. 81

16. Mr. Nielson likewise says that at those Chapter meetings Mr. Tapaha made his

presentation in both Navajo and English, alternating between the two, so that chapter members

who do not speak Navajo would also receive in English the information provided in Navajo. 82

Id. at ¶ 19.79

Id. at ¶ 20.80

Id. at ¶ 21.81

Id. 82

33


17. Five days before the November 8, 2016, General Election, Mr. James Adakai,

President of the Oljato Chapter of the Navajo Nation, contacted the San Juan County

Clerk/Auditor’s Office asking to have the Oljato “Senior Center” polling location changed to the

Monument Valley, Utah “Welcome Center.” 83

18. That change in polling locations, however, could not be done for the following

reasons: (a) for months the Clerk/Auditor’s Office had advertised the sites of the three on-

Reservation polling locations and there was not sufficient time to change the Oljato poll to

Monument Valley; and (b) the Oljato location had been the site of the poll in the 2016 primary

election, and voters would be familiar with its location. 84

19. In addition, the three on-Reservation polling locations had been carefully selected

by the Clerk/Auditor’s Office to insure that Navajo voters would be within a one-hour drive to a

poll should they chose to vote in-person..85

20. On the day of the 2016 General Election representatives from the DOJ were

physically present at all three of the on-Reservation polling locations observing the voting.86

21. The Montezuma Creek, Aneth, Mexican Hat, Oljato, Navajo Mountain and Red

Mesa precincts are located in the southern portion of San Juan County.87

Id. at ¶ 22.83

Id. at ¶ 23.84

Id. at ¶ 24.85

Id. at ¶ 25.86

Second Francom Dec., ¶ 6, Exhibit 3 hereto.87

34


22. The voters in the Montezuma Creek, Aneth, Mexican Hat, Oljato, Navajo

Mountain and Red Mesa precincts reside within boundaries of the Navajo Reservation. 88

23. The election records maintained by the San Juan County Clerk/Auditor’s Office

show that during the 2016 General Election held on November 8, 2016, a total of 1,922 people

from the Montezuma Creek, Aneth, Mexican Hat, Oljato, Navajo Mountain and Red Mesa

precincts voted.89


show that during the 2016 General Election held on November 8, 2016, the voter turn-out for the

Montezuma Creek, Aneth, Mexican Hat, Oljato, Navajo Mountain and Red Mesa precincts was

69.68%.90


show that during the 2016 General Election held on November 8, 2016, Plaintiff Peggy Phillips

voted. 91


show that during the 2016 General Election held on November 8, 2016, Plaintiff Mark Maryboy

voted. 92

Id. at ¶ 7.88

Id. at ¶ 8.89

Id. at ¶ 9.90

Id. at ¶ 10.91

Id. at ¶ 11.92

35



show that during the 2016 General Election held on November 8, 2016, Plaintiff Wilfred Jones

voted. 93


show that during the 2016 General Election held on November 8, 2016, Plaintiff Terry Whitehat

voted. 94


show that during the 2016 General Election held on November 8, 2016, Plaintiff Betty Billie

Farley submitted a ballot that was not counted because it was postmarked by the Montezuma

Creek Post Office on November 9, 2016, which was one day after the election and, therefore,

untimely.95


show that during the 2016 General Election held on November 8, 2016, Plaintiff Willie Skow

voted.96


show that during the 2016 General Election held on November 8, 2016, Plaintiff Mabel Skow

Id. at ¶ 12.93

Id. at ¶ 13.94

Id. at ¶ 14.95

Id. at ¶ 15.96

36


voted.97

32. On the day of the General Election, Mr. Francom was present at the Navajo

Mountain polling location in my official capacity overseeing the voting.98

33. On the day of the General Election, at the Navajo Mountain polling location the

optical vote scanning machine malfunctioned due to a paper jam. 99

34. On the day of the General Election, at the Navajo Mountain polling location the

touch screen voting machine also did not operate properly. 100

35. But, despite the failure of the optical vote scanning machine and the touch screen

voting machine, at the Navajo Mountain polling location there were sufficient ballots for voters to

vote and deposit their ballot in the ballot box provided. 101

36. James Francom, the Chief Deputy San Juan County Clerk/Auditor, also reviewed

the Affidavits from Bonnie B. Charley, Terva Begay, Nelson Yellowman, Jimmy Charley, Jr.,

Wilfred Jones, Marietta Stevens, Jenny Crank, Mabel Skow, Terry Whitehat, Leroy Teeasytoh,

Betty Billie Farley and Willie Skow that Plaintiffs have recently filed in this case, and has some

observations about statements made by some of these affiants.102

Id. at ¶ 16.97

Id. at ¶ 17.98

Id. at ¶ 18.99

Id. at ¶ 19.100

Id. at ¶ 20.101

Id. at ¶ 21.102

37


37. According to Mr. Francom, it seemed that many of the affiants may have been

referring to events that occurred during the Navajo Nation’s elections, which were also held on

November 8, 2016.103

38. For example, Wilfred Jones states in his Affidavit that one of the poll officials told

Jones that “she was a candidate on the ballot.” However, according to Mr. Francom none of the

San Juan County poll workers and/or interpreters on site during the 2016 General Election were

candidates for a County or other local elected office.104

39. Similarly, it seemed to Mr. Francom that many of the affiants, such as Willie

Skow, were complaining about their lack of knowledge with respect to the qualities of candidates.

In fact, Mr. Skow apparently wants “pictures of the candidates” on the ballot, which is not

permissible.105

40. In addition, at Navajo Mountain on the day of the General Election, many of the

voters where asking the poll workers and interpreter for advice as how they should vote.106

41. Mr. Francom noted, too, that Nelson Yellowman stated in his Affidavit that during

the June of 2016 primary election he mailed his ballot on June 14, 2016, but was notified on June

28, 2016 that it was not counted because he had not signed the ballot. 107

Id. at ¶ 22.103

Id. at ¶ 22.104

Id. at ¶ 23.105

Id. at ¶ 24.106

Id. at ¶ 25.107

38


42. Mr. Yellowman complains that he should have been immediately notified that he

had not signed his ballot. But Mr. Francom said that the Clerk/Auditor’s Office attempted to call

Mr. Yellowman by telephone on June 24, 2016, but there was no answer or recording to leave a

message, so the notice was mailed to him.108

43. A number of the affiants say that an audio recording of the ballot in Navajo was

not made available to them. But Mr. Francom says that these affiants are mistaken.109

44. As Mr. Francom explains, at Navajo Mountain, on the day of the General Election

an audio recording of the ballot was available on a laptop computer. That audiotape was there as

a back-up for the Navajo interpreter on-site. 110

45. The audio recording of the ballot was available and playable at the Navajo

Mountain polling location, as a file saved directly on the laptop present there. 111

46. The audio file that was not available on the laptop was the recording of the radio

public service announcements concerning the election for which an internet connection would

have been necessary. 112

47. Unfortunately, that audio file could not be accessed because of internet

Id. at ¶ 27.108

Id. at ¶ 28.109

Id. at ¶ 29.110

Id.111

Id.112

39


connectivity problems. 113

48. Despite the internet access problem Marietta Stevens, the on-site interpreter,

provided language assistance to the voter. 114

49. Monticello is the County seat of San Juan County, Utah.115

50. Monticello is located on Highway 191, the only paved highway that runs from

Spanish Valley on San Juan County’s norther border to Monument Valley on the County’s

southern border, which is a distance of approximately139 miles.116

51. The two most remote communities in San Juan County are Navajo Mountain, Utah

and Halls Crossing, Utah.117

52. Navajo Mountain is a Navajo community approximately 205 miles from

Monticello, Utah.118

53. Halls Crossing is a non-Indian community approximately 108 miles from

Monticello, Utah.119

Id. 113

Id. at ¶ 30.114

Id. at ¶ 34.115

Id. at ¶ 35.116

Id. at ¶ 36.117

Id. at ¶ 37.118

Id. at ¶ 38.119

40


ARGUMENT: THE ELECTION PROCEDURE DO NOT DISPARATELY DISADVANTAGE NAVAJO VOTERS

Plaintiffs’ argument that the County’s election process—in particular, the failure to open

multiple early voting locations in closer proximity, on average, to Navajo voters, as well as the

County’s adoption of a vote-by-mail system—creates a disproportionate burden on Navajo voters,

fails to establish that, as administered in 2016 and as expected for the foreseeable future, any of

those processes impede participation by Navajo voters in the election process.

Plaintiffs continue to point to the procedures in place for the 2014 election cycle, despite

the changes made for the 2016 elections. Their Complaint seeks only prospective relief by way120

of an injunction. As was the case in their Complaint, Plaintiffs attack the vote-by-mail procedures

used by the County for the 2014 election cycle alleging that “in 2014, San Juan County closed all

polling places and switched to a mail-only voting system. The only way for a voter either to vote

in person on Election Day or to vote by absentee ballot was, and currently is, to go to the County

Clerk’s office in Monticello.” But for consideration of the prospective relief sought by121

Plaintiffs, such focus is irrelevant since they are focused upon the 2014 procedures and not those

currently in use by the County. As such, arguments about the 2014 procedures are misplaced

because of the changes made for 2016, as noted by this Court in its Memorandum Decision and

Order of October 14, 2016. 122

Dkt. 2 (see particularly the Plaintiffs’ Prayer for Relief).120

Complaint, Dkt. 2, p. 10. Plaintiffs choose to ignore the fact that the County’s mail-121

in-ballot is an absentee ballot under Utah’s statute. See Utah Code § 20A-3-302.

Dkt. 129, pp. 8-11 (denying Plaintiffs’ Motion for Preliminary Injunction).122

41


Moreover, Plaintiffs fail to adduce any evidence that any significant number of Navajo

voters were denied the opportunity to participate in the election process as a result of the

challenged procedures. Rather, Plaintiffs’ argument and the statements of various affiants in

support thereof are merely an argument for a different process that Plaintiffs claim to prefer, while

ignoring the significant advantages offered by the County’s system, and particularly the

opportunity for all eligible voters to vote by mail, in overcoming the alleged burdens that are due

to remote locations, dirt roads that are not always passable, and the distance to polling places and

even the post office.

As has been shown, there are benefits to the vote-by-mail system over an in-person voting

system, including, among others: (a) providing voters the opportunity to consider their election

decisions over a longer period of time; (b) accommodating the needs of voters who regularly work

outside of the immediate area of their residence, are at school or in the military, without their

having to apply personally for an absentee ballot which may be particularly of benefit to a

significant number of Navajo voters who work away from their homes due to the limited

availability of jobs in San Juan County; (c) allowing voters to make their ballot decisions away

from candidate’s campaign efforts in close proximity to polling places; (d) allowing limited-

English proficiency voters to seek assistance from family members or other trusted acquaintances

if they so choose rather than having to rely on interpreters provided by the County; and (e)

avoiding delays at the polls caused by long lines and equipment failures. These benefits are

particularly advantageous to Navajo voters who may have limited means of transportation or

otherwise may have difficulty traveling to a polling location, wherever located.

42


In light of the foregoing, the undisputed facts of this case do not support a conclusion that

the Clerk/Auditor’s vote-by-mail procedures at issue or the voting procedures as a whole afforded

them less opportunity to participate in the political process. Furthermore, without proof of a

discriminatory impact, and there is no such proof in this case, Plaintiffs cannot invoke the “Senate

Factors.”

ARGUMENT: PROPER ANALYSIS OF THE TOTALITY OF CIRCUMSTANCESSHOWS THAT THE CURRENT ELECTION PROCEDURES DO NOT AFFORD

NAVAJO VOTERS LESS OPPORTUNITY TO VOTE THAN OTHER RESIDENTS

Premised on their erroneous conclusion that Navajo residents are disadvantaged

disproportionately by the County’s election procedures (and in particular, the use of a single early

voting location in Monticello and the move to a vote-by-mail system), Plaintiffs compound their

error by assuming that the required “totality of the circumstances” analysis required to establish a

violation of Section 2 of the Voting Rights Act is sufficient and complete if the enumerated

“Senate factors” are considered. Furthermore, Plaintiffs’ limited analysis of the “Senate factors”

focuses on factors that have less applicability to a challenge of election processes rather than

allegations of vote dilution of protected minority groups. Finally, and most fundamentally,

Plaintiffs’ argument fails to connect the factors analyzed to the essential determination under the

Voting Rights Act that the County’s election procedures “are not equally open to participants of a

[protected] class . . . in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their choice.” 123

52 U.S.C. § 10301(b).123

43


A. The “Senate Factors” Are a Non-exclusive List of Factors to Be Considered asPart of “The Totality of the Circumstances” Analysis.

In approaching the “Senate factors” it is important to remember that they were articulated

as part of the legislative history of the 1982 amendment to the Voting Rights Act, which made

clear that evidence of discriminatory intent was not necessary to establish violation of Section 2,

but grew out of a list of factors first articulated in judicial precedent from cases involving claims

of dilution of minority voting power through gerrymandering of election districts. As noted by124

this Court, the application of the test developed by the U.S. Supreme Court in Thornberg v.

Gingles, with its incorporation of the “Senate Factors” to vote-denial claims “is challenging,125

and a clear standard for its application has not been conclusively established.”126

In order to develop a workable approach to the Section 2 issue in vote-denial cases (like

the instant case), several circuits have adopted a two-part test applicable to voting procedures.

The first prong of this test requires a claimant to establish that members of a protected class, as a

result of the challenged practice, have less opportunity to participate in the political process than

others. The second prong of the test is that the discriminatory burden must be caused by or linked

See Veasey v. Abbott, 830 P.2d 216, 274 (5th Cir. 2016)(Higginson, J., concurring,124

citing Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)). As this Court noted in itsMemorandum Decision and Order, racial gerrymandering and similar claims are referred to as“vote dilution” claims, while election procedures that restrict access to the political process arereferred to as “vote denial” claims. Dkt. 129, p. 12. See also Burdick v. Takushi, 504 U.S. 428,433 (1992) (quoting Illinois Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184(1979)).

478 U.S. 30 (1986). These factors are often referred to as the “Gingles factors.”125

Dkt. 129, p. 13 (citing Ohio Democratic Party v. Husted, 834 F.3d 620, 636-37 (6th126

Cir. 2016)).

44


to social and historical conditions of discrimination. It is under the second prong of the this127

two-part test that the Gingles factors and the “Senate Factors” may be taken into account. But it

has been acknowledged that some of these factors have less applicability in the context of a vote-

denial claim.128

The Seventh Circuit’s decision in this regard emphasizes the importance of establishing

the first prong of the test as a prerequisite to moving to the second, by reference to the statutory

language itself:

Section 2(b) [of the Voting Rights Act] tells us that § 2(a) does notcondemn a voting practice just because it has a disparate impact on minorities. . . .Instead § 2(b) tells us: “A violation of subsection (a) is established if, based on thetotality of the circumstances, it is shown that the political processes . . . are notequally open to participation by members of a [protected] class . . . in that itsmembers have less opportunity than other members of the electorate to participatein the political process.129

The Seventh Circuit also emphasized that in analyzing to totality of the circumstances,

single aspects of the process are not to be examined in isolation, but in the context of “the entire

Id. (citing Veasey v. Abbott, 830 F.3d 216, 244-45 (5th Cir. 2016); League of Women127

Voters v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014); Ohio State Conference of NAACPv. Husted, 768 F.3d 524, 554 (6th Cir. 2014), vacated, 2014 WL 10384647 (6th Cir. 2014)). Seealso Frank v. Walker, 768 F.3d 744, 751-55 (7th Cir. 2014).

See, e.g., Veasey v. Abbott, 830 F.3d at 273-74 (Higginson, J., concurring)(noting128

“some of the factors may have less relevance in vote-denial cases, others, particularly SenateFactors one, three, five and nine aid in applying the Supreme Court’s admonition to discern therelevant social and historical effects of discrimination and their interaction with a challengedlaw” (internal quotations and citations omitted)).

Frank v. Walker, 768 F.3d at 753.129

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voting and registration system.” Thus, the consideration of the “totality of the circumstances”130

—assuming the analysis proceeds to that point—must take into account whether the factors may

be overcome through the interaction of different aspects of the election procedures as a whole.

Defendants respectfully submit that this is another point where Plaintiffs’ argument founders.

The undisputed facts clearly establish that San Juan County’s election procedures, and

particularly the opportunity to vote by mail, rather than in person, afford at least equal, if not

greater, opportunity for Navajo voters to participate in the election process, notwithstanding the

lack of multiple early voting locations or even a greater distance or more difficult travel

conditions. The opportunity to vote by mail overcomes these potential burdens by giving voters

(1) the opportunity to consider and cast their ballots over a longer period of time; (2) seek

information during a longer period of time in which to investigate the issues and candidates, and

seek guidance about questions either from the County or through other individuals of the voter’s

own choice; (3) eliminate the need to personally travel to a polling location, or even to personally

travel to a post office to return a ballot by mail; and (4) for those who may not be English-

proficient, to seek language assistance, either from the County resources (including the

availability of an interpreter by telephone before and during the voting period) and/or friends and

family.

The fact that the list of Senate factors is non-exclusive is fundamentally important. A

slavish restriction of the analysis to the factors enunciated by the Senate and the Gingles decision,

particularly in challenges alleging vote-denial, may obscure rather than enlighten the evaluation of

Id.130

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whether the election process in question actually results in unequal participation opportunity for a

protected class. The Frank v. Walter decision overturned a district court determination that had

evaluated in detail the Senate factors, specifically mentioning relevant inquiries that the district

court did not consider, including whether substantial numbers of persons eligible to vote were

precluded from doing so, whether the procedure adversely affected voter turnout or not, and

whether personal choices as opposed to a governmentally imposed limitation or requirements

affected the ability of individuals to fully participate in the process.131

Plaintiffs have submitted Affidavits from several Navajo voters, all of whom voted in the

2016 general election (although some chose not to vote on particular issues or races because they

felt they had insufficient information). Moreover, voter turnout in precincts located on the Navajo

Reservation was extremely high. Plaintiffs have adduced no evidence that any Navajo voter

wishing to vote was in fact denied the opportunity to vote because of the County’s election

system, including the lack of multiple early voting locations. Individual preferences for a

different process than that adopted by the County do not necessarily establish an unreasonable or

discriminatory burden, particularly when the same limitations apply to substantial numbers of

voters who are not part of a protected class. Each of the affiants acknowledges that he or she was

able to vote on election day. Similarly, the fact that some voters (including one or more affiants)

arrived at the polling place without having attempted to learn about the candidates or other issues

on the ballot, cannot be laid at the feet of the County’s election process. Non-Navajo voters in

remote or rural locations in the County that are far from Monticello (including, for example,

Frank v. Walker, 768 F.3d at 746-49.131

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voters in the Halls Crossing precinct, in Spanish Valley and Lasal in the northern end of the

County) were equally “burdened” by the lack of additional and more personally convenient early

voting locations. Most significantly, the failure to take advantage of voting by mail is a personal

choice, despite expressed preferences for in-person voting. Personal preferences do not create a

duty under the Voting Rights Act to offer procedures that conform to such preferences.132

The Voting Rights Act primarily protects the right to vote and for candidates of one’s

choice, not a particular favored part of the process adopted to exercise that right, absent a showing

that the process actually impedes such participation by a protected group. Plaintiffs have failed to

show that any of the County’s procedures are in fact the cause of any impediment to such

participation. Many of the individual voter complaints about the 2016 election administration

reflect their own failure to take advantage of assistance made available or to review the ballot and

avail themselves of other information made available by the County or otherwise available, before

appearing at the polling location. Willful or negligent ignorance of the voting procedure or the

candidates or issues on the ballot is not something that the County can, let alone ought to be

ordered to, overcome through its election administrations system and procedures.

Defendants respectfully submit that when examined under a true “totality of the

circumstances” analysis, the County’s election procedures do not violate the requirements of the

Voting Rights Act.

Ohio Democratic Party v. Husted, 834 F.3d 620, 630 (6th Cir. 2016)(noting that this132

is true even if a particular preference may be shared in higher numbers by members of anidentifiable segment of the voting public).

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B. Plaintiffs’ Analysis of the Senate Factors Fails Because It Fails to Link SuchFactors to the County’s Election Process and Gives Inappropriate Weight toSome Factors That Relate Specifically to Vote-Dilution Claims.

I. Senate Factor 1: History of Official Discrimination.

Plaintiffs rely on decisions from forty-five years ago and thirty-three years ago as133 134

finding an extensive history of discrimination against Navajos in the County. Apparently

recognizing the weakness of relying on circumstances at such a remote time to a current

controversy, Plaintiffs attempt to bring this history current by relying heavily on interim rulings135

in the ongoing redistricting case involving San Juan County as a basis for their claim of relevant136

historic discrimination against Navajo voters in San Juan County. However, in doing so Plaintiffs

mischaracterize the rulings in that case as holding that the County intentionally discriminated

against Navajo voters, when in fact those rulings acknowledged that the County did not

purposefully discriminate against Navajo residents, but acted intentionally in a manner that had a

discriminatory effect against on Navajos, despite having been based, in the case of the County

Commission Districts, on a misunderstanding that its obligations under a prior Consent Decree to

Yanito v. Barber, 348 F. Supp. 587 (D. Utah 1972).133

United States v. San Juan Cnty, Civ. No. C-83-1286W (D. Utah, Apr. 4, 1984).134

See Shelby County, Alabama v. Holder, 534 U.S. ___, ___, 133 S. Ct. 2612, 2629-31135

(2013)(holding that the pre-clearance requirement of Section 5 of the Voting Rights Act wasunconstitutional because it was based on 40-year old data).

Navajo Nation v. San Juan County, Civil No. 2:12-cv-00039-RJS.136

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create a district with a Navajo majority, and in the case of the School Board Districts, on an137

erroneous belief that race-neutral considerations of school policy justified a wider disparity among

those districts than the Court determined was permissible under the one-person one-vote

standard.138

Plaintiffs’ attempt to make the link between historic discrimination and the County’s

limited early voting procedure by claiming a reticence on the part of some Navajo to travel to

predominantly-white Monticello. However, the availability of voting by mail and having voting

centers on the reservation eliminates the need of any voter to travel to Monticello to cast their

ballot, either early or on election day itself.

ii. Senate Factor 2: Racially Polarized Voting.

Plaintiffs rely on their expert’s analysis to claim that there is racially polarized voting

within San Juan County, but they do not even attempt to try to make a connection with this

assertion and the challenged County election process, and they cannot. This is one of the factors

that is of particular relevance to vote-dilution claims rather than vote-denial claims, and is among

the factors that courts have acknowledged to be of lesser importance in the later type of claims,139

in which the instant case fits. Furthermore, the undisputed facts demonstrate that Navajo voting is

Navajo Nation v. San Juan County, 162 F. Supp. 3d 1162, 1180-1183 (D. Utah137

2016)(Memorandum Decision and Order re: County Commission election districts)(distinguishing direct intent to discriminate from discriminatory results of an intentionallymaintained system not supported by a compelling interest).

Navajo Nation v. San Juan County, 150 F. Supp. 3d 1253, 1267-72 (D. Utah138

2015)(Memorandum Decision and Order re: County School Board election districts).

See Veasey v. Abbott, 830 F.3d at 273-74 (Higginson, J., concurring).139

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polarized along party lines, rather than racial lines, with a history in which a Democratic candidate

who is non-Navajo is preferred over a Navajo Republican candidate.

iii. Senate Factor 3: Use of Unusually Large Election Districts Enhancing theOpportunity for Discrimination.

Plaintiffs’ argument with respect to this factor relies solely on the same arguments as for

Senate Factor 1 and is flawed in the same way. Moreover, Plaintiffs fail to make any attempt to

link this factor to the challenged County election procedures.

iv. Senate Factor 5: Effects of Discrimination on Socioeconomic Status.

Plaintiffs’ argument with respect to this factor is limited to pointing out the unemployment

and poverty levels among Navajos in San Juan County in comparison to non-Navajos, and the

attendant additional burden on travel attributable to the related lack of reliable transportation.

Significantly, Plaintiffs do not directly attempt to attribute these differences to the effects of

discrimination.

The County does not dispute that some Navajos along with some Anglos are

socioeconomically disadvantaged in San Juan County. Again, however, viewing the County’s

election procedures as a whole under the totality of the circumstances analysis, demonstrates that

the availability of voting by mail (during a period that is even greater than the early voting period),

provides an alternative that eliminates any burden on participation on the election process due to

lack of reliable transportation, whether to an early voting location or to a polling place open on

election day. Indeed, a key impetus for implementation of the vote-by-mail system was to bring

more voters, including Navajo voters, into the process by making the process of voting easier.

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v. Senate Factor Six: Use of Racial Appeals in Election Campaigns.

Plaintiffs’ argument about this factor points to two instances, separated by over twenty

years, that are characterized as racial appeals. Moreover, again Plaintiffs fail to even attempt to

link such the evidence under this factor to the County’s election process, either as a whole or even

with respect to Plaintiffs’ challenge in isolation to the lack of multiple early voting locations.

vi. Senate Factor Seven: Extent to Which Minorities Have Been Elected toPublic Office.

Plaintiffs’ evidence related to this factor points to the fact, acknowledged by the County,

that relatively few Navajo have been elected to County offices. However, again they have made

no attempt to link this fact to the challenged aspects of the County’s election system, because they

cannot. Even assuming for purposes of argument that such lack of electoral success (despite a

history of multiple Navajo candidates for various County offices) is the result of discrimination on

the part of County voters, there is no link to the adoption of the County’s election process or its

challenged aspects.

Plaintiffs erroneously assume that by identifying evidence that falls within the ambit of the

analysis of the Senate factors that the work of showing a discriminatory burden has been met. As

shown above, this is simply not the case because of the failure to link the allegations of evidence

of discrimination to the challenged election process, and because it falls short of a complete

analysis of the “totality of the circumstances” explicitly required under Section 2 of the Voting

Rights Act.

ARGUMENT: THE CURRENT LANGUAGE ASSISTANCE TO NAVAJO-SPEAKINGVOTERS EXCEEDS WHAT IS REQUIRED UNDER THE VOTING RIGHTS ACT

Despite this Court’s careful exposition of the language assistance requirements under

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Section 203 of the Voting Rights Act, Plaintiffs’ Motion is premised on a continuing belief that140

the County is required to provide more language assistance than the statute requires, even though

the County’s efforts to enable Navajo-speaking residents to participate in elections exceed those

requirements.

As explained by this Court, the language assistance mandated by Section 203 of the141

Voting Rights Act with respect to a traditionally unwritten language, like Navajo, is substantially

less than what is required for other languages. Indeed, under the terms of the statute itself “if the

predominant language is historically unwritten, the State or political subdivision is only required

to furnish oral instructions, assistance or other information relating to registration and voting.” 142

Moreover, under the regulations issued pursuant to the statute, the determination of whether a

jurisdiction has fulfilled this obligation subject to an effectiveness standard, not analysis of any

particular means by which the requirement is satisfied. “Effectiveness” has been held not to143

demand perfection.144

Plaintiffs attempt to establish a lack of effectiveness through the affidavits of various

voters including some of the individual plaintiffs who allege that they did not fully understand the

explanations provided. However, none of the affiants alleges that the information communicated

Memorandum Decision and Order, Dkt. 129, pp. 26-31.140

Id., p. 27 (quoting the statute and citing United States v. McKinley Cty., 941 F. Supp.141

1062 (D.N.M. 1996)(applying it to the Navajo language)).

52 U.S.C. § 10503(c).142

28 C.F.R. § 55.20(a). 143

U.S. v. Sandoval Cty., 797 F. Sup. 2d 1249, 1253-54 (D.N.M. 2011).144

53


to them in Navajo, either in presentations by Mr. Edward Tapaha at chapter meetings discussing

election procedures in general, or by interpreters at the polling locations on election day, was

incorrect. Rather, the complaint is that the information was insufficient to allow them to make a

decision about how to vote. Indeed, voters appeared at polling locations on election day asking

poll workers and interpreters how they should vote. Such problems are not due to a failure of the

County to provide the required information, but rather a lack of comprehension (due to lack of

advance consideration of the ballot issues and candidates before arriving at the polling location)

and would entail conveying information that it would be improper for the County to attempt to

provide.

The County attempted to provide election information to bring more Navajo voters into

the process, which was one of the prime motivating factors in the decision by the prior County

Clerk/Auditor, Mr. Norman Johnson, to adopt the vote-by-mail system. The County has since145

placed announcements on Navajo-language radio stations about the election procedures, has sent

Mr. Ed Tapaha to chapter meetings to explain election procedures and answer questions, has made

Mr. Tapaha’s translation of ballots available on the County’s website and at polling locations on

election day, as well as having trained interpreters at each of the in-person polling locations to

answer questions. This Court has also acknowledged that these procedures exceed what might be

required under Section 203. The Affidavits filed by Plaintiffs in support of their Motion are146

insufficient to establish that County’s efforts were not “effective.”

Norman Johnson Deposition, Appendix of Exhibits, Dkt. 109, Exhibit 11, pp. 67-69, 145

73-75.

Memorandum Decision an d Order, Dkt. 129.146

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ARGUMENT: THE COUNTY ELECTION PROCEDURES DO NOT INFRINGENAVAJO VOTERS’ CONSTITUTIONAL RIGHT TO VOTE

Plaintiffs assert that those procedures, including the use of mail-in ballots and a limited

number of in-person polling places, violates Navajo residents as protected under the First and

Fourteenth Amendments, even though the County’s election procedures are generally applicable

to all voters. As such, Plaintiffs must demonstrate that the procedures in fact impose a greater

burden on Navajo residents ability to vote, the procedures would be subject to the strict scrutiny

standard, for which the Clerk/Auditor would be required to demonstrate a compelling interest to

justify the different burden, and whether the means chosen are narrowly tailored to advance that

interest.147

However, the evidence adduced by Plaintiffs’ in support of this claim are that (1) Navajo

voters face greater burdens than other citizens in using mail-in ballots because of undeliverable

mail, difficulties accessing post offices, and mail delivery and postmarking delays; and (2) and a148

new claim, raised for the first time in this Motion, that polling places are not adequately staffed

with trained personnel to provide sufficient assistance in connection with in-person voting on

election day. As to the burdens alleged related to problems related to unreliable Postal Service149

access and delivery, Plaintiffs have adduced no evidence that supports the implication that U.S.

Mail service is any less reliable on the Navajo Reservation than it may be in other rural and

See generally Riddle v. Hickenlooper, 742 F.3d 922, 927-928 (10th Cir. 2014)147

(discussing the level of scrutiny in cases involving candidate access to the ballot under a FirstAmendment analysis).

Plaintiffs’ Motion, Dkt. 144, pp. 33-35.148

Id. at p. 36. 149

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remote parts of the County which have predominantly non-Navajo residents.

The arguments made by Plaintiffs about the inadequacy of staffing at in-person polling

places is based solely on individual voters’ perception of what levels of assistance they expected.

Moreover, some of those expectations were the result of certain voters’ failure to prepare

themselves to cast their ballots before coming to the polling places, and expecting at some level

that the County poll workers should be in a position to assist them in making the decisions that are

at the heart of the voting system as individual citizens, including in some cases asking who they

should vote for, tasks that the County could not and should not undertake. Finally, long lines and

problems with voting systems, including voting machines on election day are not unique, let alone

attributable to the County’s voting procedures. Particularly in the 2016 general election, long

lines and malfunctioning voting machines were widespread occurrences, not only in San Juan

County but throughout the State and Country.150

Significantly, by now arguing both that vote-by-mail and in-person voting impose burdens

on Navajo voters’ right to vote, Plaintiffs argument would also apply to a return to the in-person

voting system in place in the County before 2014, as sought in the Plaintiffs’ Complaint.151

Plaintiffs’ assertions that the County’s current election procedures violate the

constitutionally protected right to vote of all voters who live in rural areas or prefer to vote in-

See150

http://www.usatoday.com/story/news/politics/elections/2016/11/08/voting-polls-election-day/93201770/

Significantly, Plaintiffs never amended their Complaint to encompass the current151

County election procedures or even to add any of the additional types of injunctive relief theysought in their Motion for Preliminary Injunction.

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person rather than by mail because the procedures are different from those used in the past, such a

claim also fails.

As most recently articulated by the Tenth Circuit Court of Appeals in the context of the

right to vote, the Constitution ensures that “citizens enjoy ‘a constitutionally protected right to

participate in elections on an equal basis with other citizens in the jurisdiction.’” The Tenth152

Circuit has also held that “restrictions that are generally applicable, even-handed, politically

neutral, and which protect the reliability and integrity of the election process are generally not

considered severe restrictions and are upheld.” 153

The Tenth Circuit has held that “the appropriate test when addressing an Equal Protection

challenge to a law affecting a person’s right to vote is to ‘weigh the asserted injury to the right to

vote against the precise interests put forward by the State as justification for the burden imposed

by its rule.’” Further, unless a statute or other governmental procedure jeopardizes the exercise154

of a fundamental right or categorizes on the basis of a suspect classification (such as race), the

statute or procedure is “presumed to be valid and will be sustained if the classification drawn by

the statute is rationally related to a state purpose. 155

Citizen Center v. Gessler, 770 F.3d 900, 918 (10th Cir. 2014)(quoting Dunn v.152

Blumstein, 405 U.S. 330, 336 (1972).

The ACLU of New Mexico v. Santillanos, 546 F.3d 1313, 1322 (10th Cir.153

2008)(quoting Gonzales v. Arizona, 485 F.3d 1041, 1049 (9th Cir. 2007)(internal quotationmarks omitted).

The ACLU of New Mexico, supra, 546 F.3d at 1320 (quoting Crawford v. Marion154

County Election Bd., 533 U.S. 181, 190 (2008)).

See id., at 1319 (quoting Coalition for Equal Rights, Inc. v. Ritter, 517 F.3d 1195,155

1199 (10th Cir. 2008)(internal quotations omitted); see also Griffin v. Roupas, 385 F.3d 1128,

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Plaintiffs’ asserted undisputed facts do not show that the County denied any Navajo voter

the opportunity to vote in County elections. Indeed, the turnout and results of the 2016 general

election in particular demonstrate that, notwithstanding any problems associated with a large

turnout of voters, voting at in-person polling places and by mail-in ballot for precincts on the

Navajo Reservation substantially increased. As such, Plaintiffs’ claims related to infringement of

Navajo residents’ right to vote under the Constitution fail for the same reasons that their claims

under the Voting Rights Act fail, as discussed above.

CONCLUSION

For the reasons set forth above, Plaintiffs are not entitled to partial summary judgment and

their Motion should be denied.

1131, 1132 (7th Cir. 2004), cert. denied, 544 U.S. 923 (2005)(noting that the balancing ofconflicting interests in establishing election procedures is “quintessentially a legislative judgmentwith which . . . judges should not interfere unless strongly convinced that the legislativejudgment is grossly awry” and that “unavoidable inequalities in treatment, even if intended in thesense of being known to follow ineluctably from a deliberate policy do not violate equalprotection”). Significantly, the Griffin case involved a challenge by “working mothers” torestrictions on what voters could use absentee (or mail-in) ballots. Judge Posner’s opinionexpressly notes the advocacy for all-absentee mail-in ballot election procedures, differingapproaches among the states, including the adoption of an all-mail system by Oregon which wasupheld by the Ninth Circuit against a challenge under federal legislation regulating federalelections. 385 F.3d at 1130-32 (citing Voting Integrity Project, Inc. v. Keisling, 259 F.3d 1169(9th Cir. 2001), upholding Oregon’s mail-only voting system).

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DATED this 24 day of March, 2017.th

SUITTER AXLAND, PLLC

/s/ jesse c. trentadue Jesse C. TrentadueCarl F. Huefner Britton R. Butterfield Attorneys for Defendants

59




CERTIFICATE OF SERVICE

I hereby certify that on the 24 day of March, 2017, I electronically filed the foregoingth

document with the U.S. District Court for the District of Utah. Notice will automatically be

electronically mailed to the following individual(s) who are registered with the U.S. District Court

CM/ECF System:

John Mejia (Bar No. 13965)Leah Farrell (Bar No. 13696)American Civil Liberties Union of Utah355 North 300 WestSalt Lake City, UT 84103T: (801) [email protected]@acluutah.orgAttorneys for Plaintiffs

Ezra D. RosenbergM. Eileen O’ConnorArusha Gordon*Lawyers’ Committee for Civil Rights Under Law1401 New York Ave., Suite 400Washington, D.C. 20005T: (202) [email protected]@[email protected] for Plaintiffs

M. Laughlin McDonaldAmerican Civil Liberties UnionFoundation2700 International Tower229 Peachtree Street, NEAtlanta, GA 30303T: (404) [email protected] for Plaintiffs

Maya Kane10 Town Square, #52Durango, Colorado 81301T: (970) [email protected] for Plaintiffs

William A. RudnickDLA Piper LLP (US)203 North LaSalle Street, Suite 1900Chicago, IL 60601T: (312) [email protected] for Plaintiffs

Raymond M. WilliamsLauren M. WilchekDLA Piper LLP (US)One Liberty Place1650 Market Street, Suite 4900Philadelphia, PA 19103T: (215) [email protected]@dlapiper.comAttorneys for Plaintiffs












Patrick CastanedaDLA Piper, LLCOne Liberty Place1650 Market Street, Suite 4900 Philadelphia, PA 19103-7300Telephone: [email protected]

/s/ jesse c. trentadue

T:\7000\7788\1\SAN JUAN COUNTY MEMO OPPOSE NAVAJO MOTION FOR PARTIAL SUMMARY JUDGMENT-1.wpd

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Documents

Jesse C. Trentadue (#4961) Carl F. Huefner (#1566) … · County Clerk; and PHIL LYMAN, BRUCE ADAMS, and REBECCA BENALLY, in their official capacities as San Juan County Commissioners,