for the district of utah central division … · county clerk; and phil lyman, bruce adams, and...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

NAVAJO NATION HUMAN RIGHTS COMMISSION; PEGGY PHILLIPS; MARK MARYBOY; WILFRED JONES; TERRY WHITEHAT; BETTY BILLIE FARLEY; WILLIE SKOW; and MABEL SKOW,

Plaintiffs,

v.

SAN JUAN COUNTY; JOHN DAVID NIELSON, in his official capacity as San Juan County Clerk; and PHIL LYMAN, BRUCE ADAMS, and REBECCA BENALLY, in their official capacities as San Juan County Commissioners,

Defendants.

Case No. 2:16–cv–000154 JNP

PLAINTIFFS’ REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Case 2:16-cv-00154-JNP-BCW Document 155 Filed 04/07/17 of 64

TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................. 1

II. RESPONSE TO EVIDENTIARY OBJECTIONS ............................................................ 2

III. PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ UNDISPUTED FACTS ..................................................................................................... 4

A. Plaintiffs’ Reply to Defendants’ Response to the Introduction ............................. 4

B. Plaintiffs’ Reply to Defendants’ Response to Relevant Undisputed Facts Bearing on Section 2 Claim ................................................................................... 7

C. Plaintiffs’ Reply to Defendants’ Response to Relevant Undisputed Facts Bearing on Section 203 Claim ............................................................................. 18

D. Plaintiffs’ Reply to Defendants’ Response to Relevant Undisputed Facts Bearing on Foundational Right to Vote Claim Under the First and Fourteenth Amendments ...................................................................................... 29

IV. PLAINTIFFS’ REPLY TO ADDITIONAL “UNDISPUTED FACTS ENTITLING DEFENDANTS TO SUMMARY JUDGMENT” ..................................... 35

V. ARGUMENT ................................................................................................................... 47

A. San Juan County’s Election Practices do Not Provide Equal Voting Opportunities and Violate Section 2 of the Voting Rights Act .......................... 47

1. San Juan Election Procedures Disadvantage Navajo Voters ................... 47

2. San Juan County’s Election Practices Violate Section 2 When Considered Within the Totality of the Circumstances ............................. 49

B. Summary Judgment is Appropriate on Plaintiffs’ Section 203 Claim ................. 52

C. Defendants’ Reliance on a Mail-In Ballot System Unduly Burdens San Juan County Residents’ Right to Vote and Violates the Equal Protection Clause ................................................................................................................... 53


TABLE OF AUTHORITIES

Page(s) CASES

American Civil Liberties Untion of New Mexico v. Santillanes, 546 F.3d. 131 (10th Cir. 2008) ................................................................................................54

Arizona, Dep’t. of Civil Rights v. ASARCO, LLC, 844 F. Supp. 2d 957 (D. Ariz. 2011) .........................................................................................2

Brown v. Dean, 555 F. Supp. 502 (D.R.I. 1982)..........................................................................................48, 49

Burdick v. Takushi, 504 U.S. 428 (1992) .................................................................................................................53

Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ...................................................................................................54

Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003) ...................................................................................................2

League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) ...................................................................................................50

Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991) .............................................................................................48, 49

Navajo Nation v. San Juan Cty., 162 F. Supp. 3d 1162 (D. Utah 2016) ......................................................................................50

Navajo Nation Human Rights Comm’n v. San Juan Cty., 12:16-cv-000154-JNP-BCW, 2016 WL 6068125 (D. Utah Oct. 14, 2016) ......................51, 55

Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524 (6th Cir. 2014) ...................................................................................................50

Spirit Lake Tribe v. Benson Cnty., N.D., No. 2:10-cv-095, 2010 WL 4226614 (D.N.D. Oct. 21, 2010) ...........................................48, 49

Thornburg v. Gingles, 478 U.S. 30 (1986) ......................................................................................................49, 50, 51

United States v. McKinley Cnty., 941 F. Supp. 1062 (D.N.M. 1996) ...........................................................................................53


Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017) ..............................48, 50, 52

STATUTES

28 U.S.C. § 1746 ..............................................................................................................................4

52 U.S.C. § 10301 ..........................................................................................................................49

52 U.S.C. § 10301(a) .....................................................................................................................48

52 U.S.C.A § 10503 .......................................................................................................................28

Utah Code § 20A-3-601(1)-(2) ........................................................................................................9

Utah Election Code § 20A-3-603 ....................................................................................................9

OTHER AUTHORITIES

Fed. R. Civ. P. 56 .........................................................................................................................1, 2

U.R.C.P. 56-1 ...................................................................................................................................1

U.S. Const. Amend. XV.................................................................................................................48


Pursuant to Fed. R. Civ. P. 56 and D. Utah Civ. R. 56-1, Plaintiffs Navajo Nation Human

Rights Commission, Peggy Phillips, Mark Maryboy, Wilfred Jones, Terry Whitehat, Betty Billie

Farley, Willie Skow and Mabel Skow (“Plaintiffs”) respectfully submit this Reply.

I. INTRODUCTION

Unable to muster a substantive defense to Plaintiffs’ Motion for Partial Summary

Judgment, Defendants resort to a cavalier approach to the issues in the case. First, they

summarize their entire argument as resting on three numbers (printed in increasingly larger

fonts), purportedly representing the voter turnouts in different geographical areas in November

2016, (Defs.’ Opp’n 3, ECF No. 151). Yet Defendants fail to connect this gimmicky opening to a

substantive defense against any of Plaintiffs’ claims. Id. Then, they devote over three pages of

argument attempting to convince the Court that 8 of Plaintiffs’ affidavits and declarations are

(with two exceptions, which are curable without prejudice to Defendants) inadmissible. (Defs.’

Opp’n 3–6.). While Defendants find success in puffery and identifying correctable, non-

substantive issues with evidence of their illegal behavior, they fail to present a colorable

argument on the merits of Plaintiffs’ claims.

When a jurisdiction provides avenues for its citizens to exercise their right to vote, it

cannot do it in a way that makes it more difficult for racial or ethnic minorities to vote.

Defendants’ 2014 plan, which failed to provide equally accessible polling places to Navajo

voters for both in-person early voting and in-person voting on election day, among other things,

failed this test. Nothing in Defendants’ response contradicts that conclusion. Defendants’ 2016

plan also failed to meet this standard, because, among other things, it did not provide equally

accessible polling places to Navajo voters choosing to exercise the in-person early voting option.


Nothing in Defendants’ response contradicts that conclusion. Nor have Defendants controverted

the over-arching fact that entitles Plaintiffs to summary judgment as to liability on their Section

203 claim, i.e., the systemic failure to implement procedures to make language assistance

effective, or the over-arching fact that controls disposition of Plaintiffs’ equal protection claim,

i.e., that Defendants’ mail-only system disadvantages rural voters compared to others. For these

reasons, set forth fully below, Plaintiffs’ motion should be granted.

II. RESPONSE TO EVIDENTIARY OBJECTIONS

Bereft of a substantive opposition to the undisputed facts supporting the discriminatory

burden placed on Navajo voters, Defendants rest wholly on the misguided assertion that the

evidence relied upon by Plaintiffs to prove discriminatory burden is inadmissible hearsay,

claiming that Plaintiffs have failed to submit expert reports “under oath.” (Defs. Opp’n 6). With

one exception, each of the challenged reports submitted by Plaintiffs was accompanied by a

declaration, which set forth the expert’s qualifications to render an opinion and the scope of the

opinion, and stated that the report attached to the declaration was a true copy of the expert’s

report. See ECF Nos. 94-2, 94-5, 94-5, 94-6, and 150-21. For purposes of summary judgment,

this is sufficient. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary

judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on

the admissibility of its contents.”) 1

To remove any whit of ambiguity, Plaintiffs attach revised declarations that expressly

1 In contrast, Defendants’ sole case support, Arizona, Dep’t of Civil Rights v. ASARCO, LLC, 844 F. Supp. 2d 957, 966 (D. Ariz. 2011), precluded an expert’s report at trial because it inadmissible hearsay, but permitted the expert to testify as the opinions contained in the report.


attach the reports to the declarations. See Supplemental Declaration of Dr. Dan McCool, Apr. 4,

2017 with First McCool Report, attached hereto as Ex. A; Supplemental Declaration of Richard

L. Engstrom, Ph.D. Apr. 3, 2017, with Engstrom Report, attached hereto as Ex. B; Supplemental

Declaration of Dr. Gerald R. Webster, Apr. 6, 2017, with Webster Report, attached hereto as Ex.

C; and Supplemental Declaration of Joanna Manygoats, Mar. 30, 2017, with the Manygoats

Report, attached hereto as Ex. D. There is no prejudice to Defendants because they have

addressed the substance of the reports in their response, they had the opportunity to depose each

of these experts and declined to do so, and they had the opportunity to submit their own expert

reports, but declined to do so. In fact, Defendants relied on Dr. Webster’s report in support of

their own cross-motion for summary judgment.

Plaintiffs’ acknowledge that they inadvertently neglected to attach a single affidavit to

Dr. McCool’s second “Brief Report,” and have cured that omission with this filing. See Ex. A,

Supp. McCool Decl., attaching as Ex. 2 the McCool Brief Expert Witness Report. For the same

reasons explained above, there is no prejudice to the Defendants. Further, Plaintiffs relied, in

part, on Dr. McCool’s Brief Report for Fact Nos. 4 (for their Equal Protection claim) and 16 and

19 (for their Section 2 claim) to which Defendants either do not dispute or fail to raise a

substantive objection. (See Defs. Opp’n 13-14, 27.)

Elevating form over substance, Defendants also challenge the several sworn statements

submitted by Navajo voters attesting to, among other things, their difficulties voting, because

they are entitled “affidavits,” but are not notarized. However, the statements meet the standards

for sworn statements under 28 U.S.C. § 1746, and, therefore, are admissible for purposes of a

motion for summary judgment without being notarized.


Finally, Defendants object to the admissibility of the affidavits translated by Leonard

Gorman because Gorman did not provide a foundation to support his ability to translate from

Navajo to English. Plaintiffs submit a declaration by Gorman explaining his unchallenged

translation qualifications and reaffirming that he did, in fact, provide the translations for the

relevant statements. See Gorman Interpreter’s Oath, attached as Ex. E with Declarations of W.

Skow, M. Skow, B. Farley, and B. Charley attached thereto. Again, there is no prejudice to

Defendants, as they have addressed the substance of the translated declarations.

III. PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINT IFFS’ UNDISPUTED FACTS

A. Plaintiffs’ Reply to Defendants’ Response to the Introduction

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

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

Defendants’ 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.”

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. Simply

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.”

Plaintiffs’ Reply: Defendants’ response does not create a material dispute of fact,

because it is a legal argument and is not responsive to the facts alleged. Specifically, Defendants


do not explain why the specific facts as to the disparate travel burden are untrue, and therefore

those facts are undisputed. Plaintiffs are not “demanding recognition and accommodation

of . . . personal preferences,” as Defendants claim. Rather, Plaintiffs are asking for equal voting

opportunities, including equal access to in-person early voting and in-person assistance, which,

under the current system, are more readily available to white residents than Navajo residents.

Whether any law requires the provision of early voting is immaterial, because once the County

decides to allow for early voting, it must provide it on an equal basis.

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.

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

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

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

out for the Navajo Nation elections was only 47.21%; and the nationwide turnout for the 2016

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

Juan County on-Reservation precincts was 69.68%.

Plaintiffs’ Reply: Rather than disputing whether Defendants met the effectiveness

standard under Section 203 of the Voting Rights Act, Defendants point to the practices of the

Navajo Nation Election Administration, an agency which is not part of any U.S. state jurisdiction


or subject to federal oversight and which is not covered by Section 203 of the Voting Rights Act

requiring language assistance.2 The facts asserted by Defendants do not create a material dispute

of fact, because Defendants have provided no expert evidence to support the relevance of turnout

results to Plaintiffs’ claims. By way of example as to the need for expert support for this kind of

evidence, the results of the previous two mid-term general elections, 2010 and 2014 general

elections, posted to the San Juan County website (and included in the record at ECF No. 114, Ex.

4), indicate that turnout actually decreased significantly between 2010 and 2014 in some

predominantly Navajo precincts, including Oljato, Navajo Mountain and Red Mesa, Declaration

of John Mejia, Sept. 19, 2017, ECF No. 150-2, attached hereto as Ex. F; see also Ex. A, Ex. 1,

First McCool Report at 188–89 (discussing turnout between 2014 and 2010).

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

the County.

Defendants’ Response: Disputed. See Response to ¶ 2 above.

Plaintiffs’ Reply: See Plaintiffs’ Reply to Defendants’ Response to ¶ 2 above.

Additionally, Defendants fail to dispute whether the County’s practices place an undue burden

on voters in remote areas.

B. Plaintiffs’ Reply to Defendants’ 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.

2 In addition, Defendants fail to provide the “election records maintained by the San Juan Clerk/Auditor’s office” with the turnout results the office manager cites in his Declaration.


Defendants’ Response: Undisputed. But irrelevant.

Plaintiffs’ Reply: As discussed in Plaintiffs’ legal argument, this fact is material to

Plaintiffs’ Section 2 and constitutional claims.

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.




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.

Defendants’ 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.

Plaintiffs’ Reply: None necessary. Plaintiffs note that Defendants’ additional comments

concerning the timing of the decision are disputed in Plaintiffs’ Response to Defendants’ Motion

for Summary Judgment. (ECF 149 at 8–10.)

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

election administration without approval of the County Commission.

Defendants’ Response: Undisputed.

Plaintiffs’ Reply: None.

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

day period prior to the date of the election.

Defendants’ 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

to 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.

Plaintiffs’ Reply: Plaintiffs agree that counties conducting elections entirely by mail-in

voting are not required, under Utah law, to have any polls open for early voting, but that is not

the case in San Juan County. Plaintiffs object to the remainder of Defendants’ response as legal

argument, which Plaintiffs address below.

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.


Plaintiffs’ Reply: See Reply to ¶ 7.

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 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.”).



Plaintiffs’ Reply: Defendants fail to respond to the fact asserted: namely, that in-person

early voting is available at the county clerk’s office in Monticello.

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.

Defendants’ 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.

Plaintiffs’ Reply: Defendants’ reply is immaterial to the issue of whether early in-person

voting is being provided on an equal basis and whether Navajo voters have the same number of

days to vote in-person or get in-person voting assistance.

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.

Defendants’ Response: Disputed. See Response to ¶ 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.


Plaintiffs’ Reply: Because Defendants failed to produce any experts of their own or to

depose Plaintiffs’ experts, Defendants have no basis to dispute the fact asserted. Their reference

to their previous response concerning the Utah code is not responsive. Plaintiffs have responded

to the hearsay objection above, and incorporate that response herein.

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

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

early vote opportunities or to get assistance.

Defendants’ Response: Disputed. See Response to ¶ 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.

Defendants’ 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.

Plaintiffs’ Reply: Plaintiffs admit that Mr. Whitehat has voted by absentee ballot in the

past, but this fact is irrelevant to Mr. Whitehat’s current preferences. Defendants do not dispute

the limited time in-person voting was available for Mr. Whitehat.

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.

Defendants’ 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.

Plaintiffs’ Reply: None. Plaintiffs note that Defendants do not provide any evidence for

their assertion that “this is true for both Indian and non-Indian voters.”

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.

Defendants’ Response: Undisputed. But again, these residents without street addresses

include both Indian and non-Indian voters.


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.

Defendants’ 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.


Plaintiffs’ Reply: Plaintiffs rely on their discussion of the evidentiary objections above

and incorporate that discussion herein.

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

office than white voters.


is based 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.

Plaintiffs’ Reply: See Reply to ¶ 19. In addition, Defendants have no basis to dispute the

fact asserted, because they have not offered expert evidence to dispute Dr. Webster’s

calculations. Moreover, whether Defendants have “control” over where residents in San Juan

County choose to live is immaterial.

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”).


is based 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.

Plaintiffs’ Reply: See Reply to ¶ 19. Furthermore, Defendants cite to no source—expert

or otherwise—for the assertion that this fact applies “equally to Indian and non-Indian residents.”

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

extensive and severe.



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

Plaintiffs’ Reply: Defendants purport to dispute this fact but cite to no source. In

addition, Defendants claim Plaintiffs’ expert report is hearsay, but as explained above it is

admissible for the purposes of this motion.

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.

Defendants’ 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.

Plaintiffs’ Reply: Defendants cite no support for their response.

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.

Defendants’ 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.


Plaintiffs’ Reply: Defendants purport to dispute this fact but cite to no source and did

not depose Plaintiffs’ experts. Plaintiffs rely on their response to Defendants’ evidentiary

objections and incorporate that discussion herein.

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.


insofar as it is 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.

Defendants’ 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, and paragraph 18 of Plaintiff Leonard Gorman’s Declaration. But all Mr. Whitehat

says is: “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

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

to 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-in-ballots.

Plaintiffs’ Reply: Defendants fail to cite to any sources to dispute this fact. Mr. Whitehat

states that he avoids going to Monticello and Blanding because it feels like he is racially targeted

there. Defendants cannot dispute Mr. Whitehat’s perception that he is targeted in these majority

white parts of San Juan County, nor can they dispute the fact that results in him avoiding travel

there. The fact that Mr. Whitehat and other Navajo are hesitant to go to the majority white town

of Monticello is relevant as that is the only location early in-person voting and assistance is

offered during the month before an election. See Deposition of John David Nielson (“Nielson

Dep.”) 67:20–68:11, Sept. 26, 2016, attached hereto as Ex. G (describing how a secure ballot

box for returning completed ballots is available in Monticello only during the period leading up

to Election Day). Furthermore, 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 founded on his experience as Executive Director of

the Navajo Nation Human Rights Commission. As detailed in Exhibit 4 of his Declaration, Mr.

Gorman and his staff conducted sixteen meetings with Navajo chapters and residents of San Juan

County to collect facts regarding the County’s election practices. As part of these meetings,

Navajo residents described the long distances and difficulties they encountered in traveling to

Monticello to vote. Declaration of Navajo Nation Human Rights Commission of Leonard

Gorman, Ex. 4 at 16–17, ECF 94-1, attached hereto as Ex. H.


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.

Defendants’ 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.

Plaintiffs’ Reply: Again, as stated above, Defendants cannot dispute Mr. Whitehat’s

perception that he is a target in Monticello and that he therefore avoids going there.

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

appeals.



Plaintiffs’ Reply: Defendants purport to dispute this fact but cite no source. Plaintiffs

rely on and incorporate herein their opposition to Defendants’ evidentiary objections.

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.”



Plaintiffs’ Reply: Defendants purport to dispute this fact but cite no source, and did not

depose Plaintiffs’ experts. Plaintiffs rely on and incorporate herein their opposition to

Defendants’ evidentiary objections.


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 . . .”



Plaintiffs’ Reply: Defendants purport to dispute this fact but cite to no source. Plaintiffs

rely on and incorporate their opposition to Defendants’ evidentiary objections.

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

commission or school board.


Plaintiffs’ Reply: This fact is relevant as it goes to the totality of the circumstances and

supports the existence of a history of discrimination against the Navajo in San Juan County.

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.


insofar as it is based upon the unsworn “Expert Reports” of Dr. Dan McCool, and that of Richard

L. Engstrom, which are hearsay.

Plaintiffs’ Reply: Defendants purport to dispute this fact but cite to no source. Plaintiffs

rely on and incorporate their opposition to Defendants’ evidentiary objections.


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.

Defendants’ 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.

Plaintiffs’ Reply: Defendants do not dispute this fact. Plaintiffs rely on and incorporate

their opposition to Defendants’ evidentiary objections.

C. Plaintiffs’ Reply to Defendants’ 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

the poll workers.

Defendants’ Response: Disputed.

Plaintiffs’ Reply: The factual assertions cited by Defendants in their footnote to dispute

this fact do not meet the substance of this undisputed fact. Mr. Nielson and Mr. Francom,

without stating that they were at every polling place on Election Day to confirm, merely assert

that a translation was “available” on a laptop, not that the laptops or recordings were properly

functioning. See Fourth Declaration of John David Nielson (“Fourth Nielson Decl.”)¶ 15, Mar.


24, 2017, ECF No. 151-2, attached hereto as Ex. I; Second Declaration of James Francom ¶¶

28–29, Mar. 23, 2017, ECF No. 151-3, attached hereto as Ex. J. Indeed, one of the workers at the

Navajo Mountain polling place stated that, although a “county official showed [her] an audio

version of the ballot on his computer[] [] when he tried to play it, it wouldn’t play.” Affidavit of

Terva Begay (“Begay Aff.) ¶ 14, ECF No. 150-24, attached hereto as Ex. K. Another worker

stated that she “was never made aware of or given a Navajo audio recording of the ballot.”

Affidavit of Marietta Stevens ¶ 8, ECF No. 150-25, attached hereto as Ex. L.

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.

Defendants’ 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 the details of the 2016 General Election.

Plaintiffs’ Reply: Defendants’ objection is not well taken, given that Ms. Farley

certainly has foundation to know what radio station she listens to and when. Whether Ms. Farley

heard the radio ads is relevant to the effectiveness of Defendants’ efforts to provide Navajo

language assistance. Defendants’ speculation about what her non-Navajo speaking attorneys did

or did not inform her of is irrelevant. Additionally, Plaintiffs rely on their discussion of the

evidentiary objections above and incorporate that discussion herein.

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.

Defendants’ 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.

Plaintiffs’ Reply: The efficacy of the Defendants’ language assistance efforts, including

radio advertising, is of relevance to this case.


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.

Defendants’ Response: Objection. Irrelevant.

Plaintiffs’ Reply: Navajo voters’ experience with the Defendants’ language assistance

and publicity efforts around elections is relevant.

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.

Defendants’ Response: Disputed. This is also one of the “Affidavits” that Defendants

have 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.”

Plaintiffs’ Reply: Defendants do not dispute the substance of this fact. Plaintiffs rely on

their discussion of the evidentiary objections above and incorporate that discussion herein.


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.

Defendants’ Response: Objection, irrelevant.

Plaintiffs’ Reply: The efficacy of the Defendants’ language assistance efforts is relevant

to this case.

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

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

Defendants’ 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.

Plaintiffs’ Reply: The question of the efficacy of Defendants’ election system is relevant

to this case. Plaintiffs rely on their discussion of the evidentiary objections above and incorporate

that discussion herein.

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.”

Defendants’ Response: Undisputed. Moreover, that is apparently what happened.

Plaintiffs’ Reply: None necessary.

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.”

Defendants’ Response: Undisputed. See also response to paragraph 15 above.

Plaintiffs’ Reply: None necessary.

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.

Defendants’ Response: Disputed. Mr. Tapaha said that translating legal terms in to

Navajo can be challenging.

Plaintiffs’ Reply: In the context of Mr. Tapaha’s testimony on this point, quoted in full

below, it is clear that he is talking about translating ballot issues, which sometimes include

“lawyers’ terms,” and not generally about legal terms, as Defendants purport in their response.


Q. What kind of voter assistance is typically needed out on the res? A. Present time? Q. Well, in 2002, back when the monitoring ended. A. Explaining the ballots and who – explaining the candidate. And previously it would be the translation of the amendment and proposition. That was a challenge. Q. Why was it a challenge? A. Hard to interpret lawyers’ terms. Q. You mean translate them into Navajo? A. Yeah. Q. Is that a very involved process? A. It is, yes. I have to think real hard how to translate words. And I had to have help from other folks how to translate. Q. What kind of other folks did you have help? A. Meaning the other outreach worker from the other state of the other county. Q. Which other state or other county? A. Arizona, New Mexico. Apache County, Navajo County, Coconino County. Q. Were those Navajo folks? A. Yes. Q. Have they received training in how to translate complicated election documents into Navajo? A. No, but we had a person that is there that was fluent in writing Navajo. Q. Who was that; do you recall? A. Harold Noble. And he is the one that -- he was Apache County outreach worker. So, at the beginning we work with him in translating the words, how to say – what is the proper way of saying it. And he help us – we worked together with him to translate that information. Q. Was he fluent in the traditional sense of that? A. Yes. Q Maybe we should go into that a little bit. I have always understood that there are people who I -- I am not a Navajo speaker. I might hear them speaking Navajo, and it might sound like they are speaking fluent Navajo, but especially to elderly Navajos they would say, "That person isn't very fluent," isn't that right? A. Yes.

Deposition of Edward Tapaha, June 24, 2015 36:3-37:21, attached hereto as Ex. M.

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.


Defendants’ 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.

Plaintiffs’ Reply: The efficacy of Defendants’ language assistance efforts is relevant.

Defendants do not support their contention that there was an audio recording of the ballot at any

Chapter House, nor have they established that their translation was accurate or effective; it was

not. Ex. D, Ex. 1, Manygoats Report 2–3.

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.


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

Plaintiffs’ Reply: Defendants purport to dispute this fact but cite to no source and did

not depose Plaintiffs’ experts. Plaintiffs rely on their response to Defendants’ evidentiary

objections and incorporate that discussion herein.

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.

Defendants’ Response: Objection, irrelevant.

Plaintiffs’ Reply: The effectiveness of the Defendants’ language assistance efforts is

relevant.


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.

Defendants’ Response: Undisputed but irrelevant.

Plaintiffs’ Reply: Ensuring the accuracy of the translations implicates the effectiveness

of Defendants’ language assistance efforts is relevant.

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

required to have any relevant qualifications.

Defendants’ Response: Disputed. They are required to be fluent in both English and

Navajo.

Plaintiffs’ Reply: Defendants do not cite any part of the record for this requirement, and

even assuming it is correct, they have not established who determines fluency for the purposes of

translating election materials and have not established what level of fluency in English and

Navajo means that the interpretation will be effective.

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.

Defendants’ Response: Objection, irrelevant. It is irrelevant because there is a difference

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

who had served this function for years.


Plaintiffs’ Reply: Disputed as Mr. Nielson earlier testified that “[t]he poll workers that

we had also served as interpreters.” Ex. G, Nielson Dep. 50:17–21. The effectiveness of

Defendants’ language assistance efforts is relevant. Moreover, Plaintiffs have established that

Mr. Tapaha’s interpreter training was at best a cursory one-time conversation with no ballot-

specific training or instruction.

Q. Okay. Can you tell me what the training was? A. Training is that to explain the position that is on the ballot and who they are, and also trained what to say for the Utah State House of Representative, the U.S. Senate, governor's position translation. Q. Who trained them? A. I do. Q. You trained them? A. I did. Q. Okay. When did you train them? A. I guess depending on their train of thoughts from previous training that I did with them, and I talk to them briefly as I communicate with them that we will use them as poll workers. Q. So when was the first time you ever trained them for Navajo-language assistance? A. All these years that I work as training the election process; so that's like 2014, 2012, 2010. I did have a brief discussion as I went and find them, saying that "We would like to utilize you our poll workers." Deposition of Edward Tapaha, June 24, 2016 (“Tapaha 2016 Dep.”) 52:17-54:1, attached hereto as Ex. N. As Mr. Tapaha himself has acknowledged, in his capacity as the Defendants’ 30(b)(6)

most knowledgeable person for the election procedures in the southern portion of San Juan

County, he worries that jis failure to train those providing language assistance may lead to

ineffective translations, a concern he shared with other County officials:

Q. Okay. But you agree that there is really no formal training or process for their provision of Navajo-language assistance; right? A. No. No. Q. You don't agree with me, or you do agree with me? A. I do agree. Q. Does that concern you at all?


A. Yes. Q. Why does it concern you? A. Maybe miswording, miswording some information. Q. Have you ever raised those concerns to anyone in the county? A. I did talk to the county clerk, and I also talked to the polling official. Ex. N, Tapaha 2016 Dep. 99:9-24. 26. Mr. Tapaha likewise did not provide training to poll workers working in the

predominantly Navajo precincts for the 2016 general election.

Defendants’ Response: Undisputed but irrelevant. See also Response to ¶ 25 above.

Plaintiffs’ Reply: The effectiveness of the Defendants’ language assistance efforts is

relevant. Moreover, Plaintiffs have established that Mr. Tapaha’s interpreter training was at best

a cursory one-time conversation about how to translate some offices, and thereafter was simply

informing interpreters that they would work again with no ballot-specific training or instruction.

See also Ex. H, Tapaha 2016 Dep. 52:17-54:1, 99:9-24, as cited 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.

Defendants’ Response: Undisputed for purposes of this Motion.


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

was on the ballot.

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

Defendants have asked to be stricken for lack of foundation.

Plaintiffs’ Reply: Defendants’ evidentiary objection lacks merit. Plaintiffs rely on their

reply to Defendants’ evidentiary objections and incorporate that discussion herein.


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.

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

have asked to be stricken for lack of foundation.

Plaintiffs’ Reply: Defendants’ evidentiary objection lacks merit. Plaintiffs rely on their

reply to Defendants’ evidentiary objections and incorporate that discussion herein.

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

2016 general election as Navajo is his first language.

Defendants’ 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.

Plaintiffs’ Reply: Mr. Francom’s speculation concerning Mr. Jones’ supposed

confusion, which lacks evidentiary value, does not call into dispute the fact that Mr. Jones sought

language assistance from a County interpreter of a County ballot. For example, Mr. Jones

describes propositions and amendments that were only included on County ballots. (See

Affidavit of Wilford Jones ¶ 16, ECF No. 150-23, attached as Ex. O.) Furthermore, the fact that

Mr. Jones’ affidavit is in English is irrelevant to whether the language assistance for a ballot

which included three complicated constitutional provisions was effective (sample ballot for the


2016 election, available at

http://www.sanjuancounty.org/documents/2016%20General%20Election%20Sample%20Ballot.

pdf), attached hereto as Ex. P.

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.”

Defendants’ Response: See Response to ¶ 30 above.

Plaintiffs’ Reply: See Reply to ¶ 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.

Defendants’ Response: See Response to ¶ 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

not legally answer.

Plaintiffs’ Reply: See Reply to ¶ 30 above. Further, Defendants have no evidence to

support their speculation that in asking “who am I voting for?” Mr. Jones was asking for advice

as to which candidate to vote for, rather than simply asking which offices were on the ballot.

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

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.

Defendants’ Response: Objection. Defendants object to this asserted fact insofar as it is

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

Plaintiffs’ Reply: Defendants’ evidentiary objection lacks merit, and they make no effort

to contradict the substance of Ms. Manygoat’s opinions. Plaintiffs rely on their discussion of the

evidentiary objections above and incorporate that discussion herein.

D. Reply to Response to Relevant Undisputed Facts Bearing on Foundational Right to Vote Claim Under the First and Fourteenth Amendments

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.)

Defendants’ 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.

Plaintiffs’ Reply: The effectiveness of the mail system in San Juan County is relevant to

this case, which challenges a voting system reliant on the mail. Moreover, Defendants do not

provide any evidence to support their assertion that 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).

Defendants’ 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.” Furthermore, the alleged delay in mail delivery applies to Indians and non-Indians

alike.

Plaintiffs’ Reply: The effectiveness of the mail system in San Juan County is relevant to

this case, which challenges a voting system reliant on the mail. Moreover, it is relevant to

Plaintiffs’ Equal Protection Clause claim as it is more burdensome for residents in remote areas

to retrieve mail from post office boxes than those in less remote areas. Moreover, Defendants do

not provide any evidence to support their assertion that the delay 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.

Defendants’ 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! 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. In addition, Defendants object to this asserted fact insofar as it is based upon the unsworn

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

Plaintiffs’ Reply: Plaintiffs cite to Jones’ affidavit concerning the 2016 elections and

McCool’s report to support this assertion. The effectiveness of the mail system in San Juan

County is relevant to this case, which challenges a voting system reliant on the mail. Further,

Defendants’ evidentiary objection lacks merit, and they make no effort to contradict the

substance of Dr. McCool’s opinions. Plaintiffs rely on their discussion of the evidentiary

objections above and incorporate that discussion herein.

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.

Defendants’ Response: Objection. See Response to ¶ 3 above.

Plaintiffs’ Reply: See Reply to ¶ 3 above.

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

from Phoenix, Arizona, and Albuquerque, New Mexico.

Defendants’ Response: Undisputed, but irrelevant.

Plaintiffs’ Reply: The fact that rejected ballots had out-of-state postmarks goes to show

ballots from remote areas of the County must make multiple stops and be mailed earlier than

ballots from less remote areas and is relevant to Plaintiffs’ Equal Protection claim.

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

AM.


Defendants’ Response: Undisputed. However, the ballot shortage was due to the

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

importantly, however, voting continued via electronic means.

Plaintiffs’ Reply: The fact that the Oljato Senior Center ran out of paper ballots and had

to rely on a touchscreen voting machine—which, as the County Clerk admits, malfunctioned at

another location3—is evidence the County was unprepared for Election Day and failed to provide

adequate voting facilities at a polling location in a remote part of the Navajo Reservation.

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

Defendants’ 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.

Plaintiffs’ Reply: The fact that there were long lines at the Oljato Senior Center is

relevant to this case as evidence the County was unprepared for Election Day and failed to

provide adequate voting facilities at a polling location in a remote part of the Navajo

Reservation.

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

poll workers, leaving some voters confused.

3 See Ex. I, Fourth Nielson Decl. at ¶¶ 9, 11, ECF 151-2.


Defendants’ 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- 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 was 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

Plaintiffs’ Reply: Each of the Affidavits Plaintiffs cited for this proposition are evidence

the County was unprepared for Election Day and failed to provide adequate voting facilities,

including language assistance. Moreover, Defendants do not provide any support for disputing

the assertions of Mr. and Ms. Skow and merely speculate as to what Mr. Jones may have known

about the recording. Plaintiffs rely on their discussion of the evidentiary objections above and

incorporate that discussion herein.

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

an hour roundtrip to a polling place in 2016.


Defendants’ 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.

Plaintiffs’ Reply: Defendants are conflating how long the roundtrip took with how far

the trip was (which is odd given their repeatedly stated goal of under-an-hour drive-times), and

thus do not put this fact in dispute.

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.

Defendants’ 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.


Plaintiffs’ Reply: Plaintiffs object to the purported “other benefits.” This compound

statement is a conclusory opinion, speculative, and lacks foundation and evidentiary support.

Plaintiffs dispute that these “benefits” to a vote-by-mail system are benefits “over” an in-person

voting system. Defendants appear to rely on Mr. Nielson’s First Declaration for these assertions,

but Mr. Nielson has no personal knowledge on which to make them. He is not an expert on the

causal effects of what drives voter participation, nor is he an expert on the history or socio-

economic status of Navajo or where they work and go to school. Defendants have provided no

expert or other evidence regarding the number of Navajo voters who work away from their

homes “due to the limited availability of jobs in San Juan County.” In addition, Defendants have

no evidence that “candidates’ campaign efforts in close proximity to polling places” were illegal

or put undue pressure on voters. Ex. G, Nielson Dep. 86:18–87:3. Indeed, Mr. Nielson testified

that he had been told that some Navajo voters prefer to vote in person because there is frequently

food at polling places because of “campaign efforts.” Ex. G, Nielson Dep. 87:4–23. Finally, Mr.

Nielson has no basis for his assertion that one of the benefits of a vote-by-mail system includes

“allowing limited-English proficiency voters to seek assistance from family members… rather

than relying on interpreters provided by the Clerk/Auditor” and testified that he had never heard

from any voters expressing a preference for translations done by family members rather than

official interpreters. Ex. G, Nielson Dep. 86:24–87:3 (“Q. And have you ever heard from voters

or residents that they prefer assistance from family members rather than from interpreters

provided by the county? A. I have not heard that.”).


IV. PLAINTIFFS’ REPLY TO ADDITIONAL “UNDISPUTED FACTS E NTITLING DEFENDANTS TO SUMMARY JUDGMENT”

As a preliminary matter, although Defendants can include undisputed facts “for the

limited purpose of providing background and context for the case,” nothing allows Defendants to

include additional facts entitling Defendants to summary judgment, as they purport to do in their

opposition brief. Defendants are improperly attempting to buttress Defendants’ motion for

summary judgment here. Despite this improper attempt, Plaintiffs reply below.

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

Montezuma Creek ran out of physical ballots.

Plaintiffs’ Reply: Undisputed.

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.

Plaintiffs’ Reply: Plaintiffs object to this statement as it lacks evidentiary support. Mr.

Nielson does not state that he was at Oljato or Montezuma Creek on Election Day or how he

knows this.

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.

Plaintiffs’ Reply: Plaintiffs object based on a lack of foundation. Defendants rely solely

on the Fourth Declaration of Mr. Nielson for Facts 1 through 20. While Nielson was responsible

for “supervision of the polls on election day,” he does not assert that he visited all polling sites to

confirm the information he alleges, nor does he identify with whom or how he became aware of


the facts he has declared. Instead, he merely asserts that he has “personal knowledge.” Here, Mr.

Nielson fails to allege that he was at the Oljato or Montezuma Creek polling locations.

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.


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.


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.

Plaintiffs’ Reply: Disputed. See Pls.’ Reply to Fact No. 3. Plaintiffs object based on a

lack of foundation. Defendants rely on Nielson’s Declaration to support this fact, but Mr.

Nielson fails to allege either that he was at the Navajo Mountain polling location or how he

knows this fact.

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.

Plaintiffs’ Reply: Disputed. Plaintiffs object on the basis that this “fact” is improper

argument.

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

statements made by some of these affiants.

Plaintiffs’ Reply: Disputed as immaterial.

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.

Plaintiffs’ Reply: Disputed. See Pls.’ Reply to Fact No. 3 above and Pls’ Reply to Fact

No. 2 under the Section 203 facts.

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.

Plaintiffs’ Reply: Disputed. See Pls.’ Reply to Fact No. 3. Plaintiffs also object on the

basis of hearsay.

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.

Plaintiffs’ Reply: Plaintiffs object on the basis that this fact is immaterial.


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

counted. They were counted.

Plaintiffs’ Reply: See Pls.’ Reply to Fact No. 3. Plaintiffs object on the basis that

Defendants fail to provide a foundation for their vague assertions that the affiants’ votes were

counted. Whose votes, specifically, were checked? How? How did Nielson come to know this

information?

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.

Plaintiffs’ Reply: Disputed as immaterial.

14. It also seems 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.

Plaintiffs’ Reply: Disputed as Mr. Nielson earlier testified that “the poll workers that we

had also worked as interpreters.” Ex. G, Nielson Depo. 50:17-21. Disputed as to whether or not

the affiants were confusing poll works with interpreters and/or other election officials, which is

speculative and lacks foundation.


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.

Plaintiffs’ Reply: Undisputed as to Ms. Charley’s statements. Plaintiffs object on the

basis that Nielson is not fluent in Navajo, and makes no affirmation that he is, and is therefore

without proper basis or knowledge to assert that Mr. Tapaha explained the election process. (Ex.

G, Nielson Dep. 68:25–69:1).

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.

Plaintiffs’ Reply: See Pls.’ Reply to Fact No. 15.

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.”


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.


Plaintiffs’ Reply: Undisputed but immaterial.

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.

Plaintiffs’ Reply: Disputed. Defendants have not produced any evidence supporting how

the Clerk/Auditor’s Office purportedly made this “careful” selection. Mr. Nielson testified that

no one did an “analysis on how long it would take to get to [the] polling locations,” (Ex. G,

Nielson Dep. 115:17–20), and therefore has no credible grounds to make the assertion that this

was the reason for his decision as to where to locate polling places. See Declaration of Dr.

Gerald R. Webster in Resp. to Defs.’ Mot. for Summ. J., Mar. 16, 2017, at 1–3, ECF 150-15,

attached hereto as Ex. Q.

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.

Plaintiffs’ Reply: Undisputed but immaterial.

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

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

Plaintiffs’ Reply: Undisputed. Plaintiffs note that Defendants have cited only to a single

Declaration of Mr. Francom in support of their facts numbered 21 through 53. In sum, combined

with their assertions numbered 1 through 20 which only refer to Mr. Nielson’s Declaration,

Defendants are relying on two officials self-serving statements to assert facts that are at times

baseless, at times vague, and at times wholly immaterial to the case. Plaintiffs’ object to the


entirety of these facts as they only serve to confuse the issues considered in their Motion for

Summary Judgment.

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

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


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.



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%.

Plaintiffs’ Reply: Undisputed but immaterial. Further, Plaintiffs object insofar as this

fact is based upon unauthenticated and unidentified records.


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

voted.




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

voted.



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

voted.



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

voted.



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.



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

voted.




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

voted.


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.


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.

Plaintiffs’ Reply: Undisputed. Plaintiffs note that this fact repeats Fact No. 4 above.

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

touch screen voting machine also did not operate properly.

Plaintiffs’ Reply: Undisputed. Plaintiffs note that this fact repeats Fact No. 5 above.

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.

Plaintiffs’ Reply: Undisputed, but immaterial.

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.


Plaintiffs’ Reply: Undisputed as immaterial.

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.

Plaintiffs’ Reply: Plaintiffs object based on Defendants’ failure to provide an adequate

foundation as to what led Mr. Francom to conclude that affiants are referencing conditions at the

Navajo Nation elections on November 8, 2016.

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.

Plaintiffs’ Reply: Plaintiffs object based on Defendants’ failure to provide an adequate

foundation as to what led Mr. Francom to conclude that none of the poll workers were running

for local elected office.

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.

Plaintiffs’ Reply: Plaintiffs object to this fact as immaterial and because Mr. Francom

has no basis upon which to assert this statement, and has provided no foundation for the same.

He apparently solely relies on his reading of affiants’ attestations, which are documents that

speak for themselves.


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.

Plaintiffs’ Reply: Undisputed that voters requested assistance.

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.


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.

Plaintiffs’ Reply: Undisputed as to Mr. Yellowman’s statements. Plaintiffs object based

on Defendants’ failure to provide a foundation as to how Mr. Francom knew that Mr.

Yellowman was called. Mr. Francom does not assert that he called Mr. Yellowman.

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.

Plaintiffs’ Reply: Undisputed that affiants state that no audio recording was made

available to them. Disputed that Mr. Francom has foundation to know what was and was not

made available to individual affiants at various polling places.

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.


Plaintiffs’ Reply: Disputed. See Reply to Fact 2 under Section 203 facts. Furthermore,

the statement lacks foundation, is speculative, and is a conclusory opinion.

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.

Plaintiffs’ Reply: Disputed. See Pls.’ Reply to Fact No. 44.

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.

Plaintiffs’ Reply: Disputed. One of the poll workers at Navajo Mountain states

specifically that it was the “audio version of the ballot” that did not work. Ex. K, Begay Aff.

¶ 14. The statement lacks foundation, and is speculative.

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

connectivity problems.

Plaintiffs’ Reply: Disputed. Plaintiffs object that this statement lacks foundation.

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

provided language assistance to the voter.

Plaintiffs’ Reply: Disputed. Plaintiffs object that this statement lacks foundation. It is

unclear who “the voter” is.

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



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 approximately 139 miles.


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

Utah and Halls Crossing, Utah.


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

Monticello, Utah.

Plaintiffs’ Reply: Undisputed. However, Plaintiffs note that Google maps puts the time

to travel from Halls Crossing to Monticello at 1 hour and 49 minutes and from Navajo Mountain

to Monticello at 3 hours and 49 minutes.

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

Monticello, Utah.

Plaintiffs’ Reply: Undisputed. But see Pls.’ Reply to Fact No. 52.

V. ARGUMENT

A. San Juan County’s Election Practices Violate Section 2 of the Voting Rights Act

1. San Juan Election Procedures Disadvantage Navajo Voters

Defendants’ response to Plaintiffs’ motion for partial summary judgment on their Section

2 claim ignores the over-arching fact that mandates a grant of that motion: in both 2014 and

2016, Defendants provided in-person early voting opportunities for white voters that were not

equally accessible to Navajo voters. Defendants’ do not dispute this fact.


Unable to rebut the inequality of opportunity for in-person early voting, Defendants bet

all on a wrong-headed legal theory, i.e., that liability rests on a complete denial of opportunity to

vote. (See Defs.’ Opp’n 42.) That is not the law.4 “No authority supports requiring a showing of

lower turnout, since abridgement of the right to vote is prohibited along with denial.” Veasey v.

Abbott, 830 F.3d 216, 260 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017) (finding

discriminatory effects in vote suppression case challenging photo ID law). Defendants’ argument

“conflates abridgement and denial: in previous times, some people paid the poll tax or passed the

literacy test and therefore voted, but their votes were still abridged.” Id. n. 58.5 Section 2

involves a comparative standard: whether political processes “are not equally open to

participation” by minority voters because those voters are given “less opportunity” than white

voters to participate in elections and elect their representatives of choice. 52 U.S.C. § 10301; see

also Navajo Nation Human Rights Comm’n v. San Juan Cty., No. 2:16-cv-00154-JN:P-BCW,

2016 WL 6068125, at *14 (D. Utah Oct. 14, 2016) (recognizing that inequality of opportunity as

the basis of a Section 2 claim).

4 See, e.g., Miss. State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991) (registration restriction violated Section 2 even though voters could overcome restriction); Spirit Lake Tribe v. Benson Cnty., N.D., No. 2:10-cv-095, 2010 WL 4226614, at **1–2 (D.N.D. Oct. 21, 2010) (granting a preliminary injunction based on a Section 2 claim enjoining the county from closing polling places on the Reservation even though mail-in balloting was available); Brown v. Dean, 555 F. Supp. 502, 504 (D.R.I. 1982) (enjoining relocation of a polling place where plaintiffs allege difficulty, but not impossibility to vote). 5 Further, Defendants’ reliance on data purportedly showing increased turn-out in 2016 elections is meaningless, particularly where, as here, Defendants provide no expert or other analysis of the data. As the Fifth Circuit has observed in declining to require lower turnout to prove a Section 2 violation, “An election law may keep some voters from going to the polls, but in the same election, turnout by different voters might increase for some other reason . . . That does not mean the voters kept away were any less disenfranchised.” Veasey, 830 F.3d at 260.


Similarly, that vote-by-mail may have benefits (Defs.’ Opp’n 41–42) is not relevant. As

previously briefed, the mail-in only procedure discriminates against Navajo voters in favor of

white voters, particularly the exclusive mail-in procedure of 2014. Even were that not so, the

availability of these benefits does not cure the disparate treatment of Navajo voters who wish to

vote in-person early.

2. San Juan County’s Election Practices Violate Section 2 When Considered Within the Totality of the Circumstances

Defendants argue that Plaintiffs’ Section 2 analysis fails to “link” the Senate Factors “to

“the County’s election process.” (Defs.’ Opp’n 49). Although Defendants fail to articulate

coherently what they mean by “link,” Plaintiffs have fully met the Thornburg criteria in their

reliance on the Senate Factors.

First, contrary to Defendants’ implication (id. at 43), the Senate Factors are not limited in

their utility to vote dilution cases.6 Nor, as implied by Defendants (id. at 48,), do they require that

the facts supporting a particular Senate Factor must have “caused” the discriminatory impact. See

Thornburg, 478 U.S. at 69–70 (rejecting argument that racially polarized voting must have been

caused by discrimination as “inconsistent with the purposes of § 2”).7 Here, the undisputed facts

support several of the Senate Factors which provide the required interaction between social and

6 See, e.g., the application of the Senate Factors in the following vote suppression cases, all of which Defendants otherwise rely upon: Veasey, 830 F.3d at 216; see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014); Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 554 (6th Cir. 2014). 7 Thus, the standard adopted by the Fourth, Fifth and Sixth Circuits, and recognized by this Court, discuss the burden on voting being “caused by or linked to” socioeconomic factors. Veasey, 830 F.3d at 244; see also League of Women Voters of N.C., 769 F.3d at 240, Ohio State Conference of N.A.A.C.P., 768 F.3d at 554.


historical conditions and the challenged election practice.

Senate Factor 1

The history of discrimination against Navajos is not disputed. See generally Ex. A, Ex. 1,

McCool First Report at 9–59. Its existence exacerbates the impact of unequal burdens placed on

Navajo voters who attempt to participate in the political process. That some of this history is old

is not a valid objection (see Defs.’ Opp’n 49). “Congress intended that the Voting Rights Act

eradicate inequalities in political opportunities that exist due to the vestigial effects of past

purposeful discrimination. S. Rep., at 5, 40; H. R. Rep. No. 97–227 at 31 (1981).” Thornburg,

478 U.S. at 69.8 Moreover, Plaintiffs rely on undisputed evidence that the discrimination

continues to the present day. See Navajo Nation v. San Juan Cty., 162 F. Supp. 3d 1162, 1183

(D. Utah 2016) (finding County’s redistricting decisions violated the Equal Protection Clause).

Senate Factor 5

Contrary to Defendants’ argument (Defs.’ Opp’n 51), the uncontroverted present-day

effects of discrimination in education, employment, income, and housing are directly connected

to the impact of the challenged election practices. As Thornburg, 478 U.S. at 69, makes clear, the

lingering effects of socioeconomic discrimination “is a factor which may be probative of unequal

opportunity to participate in the political process . . .” The connection between Senate Factor 5

and the challenged election practices is clearer here than in many other cases. The effects of

poverty caused by decades of discrimination makes it more likely that, because of lack of access

8 Nor does it matter that the discrimination might not have been accompanied by racial animus. Navajo Nation v. San Juan Cnty., 162 F. Supp. 3d 1162, 1181 (D. Utah 2016) (concluding that “good intentions alone are not enough to sustain a supposedly benign racial classification.”).


to cars and public transportation, poorly maintained roads, and similar reasons, limiting in-

person early voting to a single inaccessible location in Monticello would increase the

disproportionate burden on Navajo voters. Id.; Ex. C, Ex. 1, Webster Report at 6; Ex. A, Ex. 1,

McCool First Report at 201-06.

Senate Factors 2

Defendants do not dispute the fact of racially polarized voting, but seem to argue that

Plaintiffs must prove that the racially polarized voting was caused by the challenged election

practice. This argument was rejected in Thornburg: “the reasons black and white voters vote

differently have no relevance to the central inquiry of § 2 . . . . only the correlation between race

of voter and selection of certain candidates, not the causes of the correlation, matters.” 478 U.S.

at 63. The adverse effects of racially polarized voting, where a white majority blocks the

opportunities of minority voters to elect candidates of their choice are exacerbated by election

practices, such as those challenged here, which disproportionately burden Navajo voters.

Senate Factors 3, 6, and 7

Defendants do not dispute the proofs offered by Plaintiffs in support of Senate Factors 3

(use of unusually large election districts), 6 (racial appeals), and 7 (the extent to which minorities

have been elected to office), but argue instead that Plaintiffs have not linked these factors to the

challenged election practice. These factors are yet additional evidence of the County’s history of

discrimination and provide context for the County’s recent election changes as part of the

County’s longstanding attempts to make it harder for Navajo to gain political power. See

Veasey, 830 F.3d at 261 (noting that the extent to which minorities have been elected to office

“contextualizes the degree to which vestiges of discrimination continue to reduce minority


participation in the political process.”)

B. Summary Judgment is Appropriate on Plaintiffs’ Section 203 Claim

“The fact that interpreters may inaccurately or inconsistently translate election materials

for language minority groups does not necessarily indicate a violation of Section 203. Instead,

the sheer amount or crucial nature of inaccuracies and inconsistencies must be such that the

language assistance is rendered ineffective.” Navajo Nation Human Rights Comm’n, 2016 WL

6068125, at *35, n.11 (order denying preliminary injunction). Here, Plaintiffs have asserted

facts, which Defendants have not disputed, that go far beyond a few interpreters “inaccurately or

inconsistently translat[ing] election materials.” Incidents in which voters were confused about

voting procedures were not one-off events, but rather stem from the County’s systematic failure

to implement formal processes for ensuring language assistance is done effectively. No one

checks Mr. Tapaha’s translations and, as a result, audio information regarding election

procedures is confusing (Teeasytoh Aff. ¶ 5, Ex. D., Ex. 1, Manygoats Report at 2). Mr. Tapaha

recruits interpreters informally (see Fact 23) and does not provide them any meaningful training

(see Facts 25–26). The County and its interpreters have been unable to completely translate

ballots (Facts 1 and 29–33). There has been at least one “communication problem” within the

County Clerk’s office resulting in a failure of the County to Navajo radio announcements

concerning election procedures (see Fact 5). And, Mr. Tapaha’s attempts to educate Navajo

residents about voting procedures by visiting chapter houses has left voters confused (see Fact

12). As a result, voters needing assistance felt uncomfortable voting a full ballot and were


effectively disenfranchised.9

C. Defendants’ Reliance on a Mail-In Ballot System Unduly Burdens San Juan County Residents’ Right to Vote and Violates of the Equal Protection Clause

Defendants’ argument with respect to Plaintiffs’ Equal Protection claim misses the point.

Plaintiffs do not contend that San Juan County’s voting procedures violate only Navajo

residents’ constitutionally protected right to vote. Rather, Plaintiffs assert that these procedures

violate the rights of all of San Juan County’s rural residents. Perhaps Defendants’ repeated

misstatement of Plaintiff’s position is strategic because it is clear there is no dispute that San

Juan County’s reduction in polling places and reliance on a primarily mail-in ballot system

unduly burdens its rural residents’ right to vote. See Burdick v. Takushi, 504 U.S. 428, 434

(1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), which stated that, given the

fundamental nature of the right to vote, defendants may not place significant burdens on voters’

right to vote without a sufficiently weighty justification for such burden); see also Frank v.

Walker, 819 F.3d 384, 386 (7th Cir. 2016) (noting that “Plaintiffs' approach is potentially sound

if even a single person eligible to vote [faces high hurdles in exercising the right to vote]. The

right to vote is personal and is not defeated by the fact that 99% of other people can [take

required steps to vote] easily”).10

9 Unlike the facts in United States v. McKinley Cnty., 941 F. Supp. 1062 (D.N.M. 1996), where “seven of nine elected county officials in McKinley County [were] Native American,” id. at 1067, the representation of Native Americans in elected office in San Juan County has hit a longstanding, and disappointingly low, plateau. See Pls.’ MSJ at 19–20. 10 Plaintiffs’ claim is distinguishable from the claim in American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008). Plaintiffs in Santillanes made a facial challenge to the charter amendment at issue, while here Plaintiffs are challenging San Juan County’s electoral practices as applied.


Defendants do not dispute the following material facts: (1) many mail-in ballots are

returned due to a high percentage of undeliverable addresses; (2) mail delivery in remote parts is

frequently delayed, such that it may take almost two weeks to receive one’s ballot; and (3) some

of the rejected ballots in the 2016 primary election had postmarks from states other than Utah.

See Defs.’ Opp’n 26–28. These facts demonstrate that the County’s mail system is unreliable and

inefficient, and fraught with delays. Defendants’ reliance on a primarily mail-in ballot voting

system places substantial burdens on rural residents’ right to vote.

RESPECTFULLY SUBMITTED,

/s/ John Mejia John Mejia (Bar No. 13965) Leah Farrell (Bar No. 13696) American Civil Liberties Union of Utah 355 North 300 West Salt Lake City, UT 84103 T: (801) 521–9862 [email protected] [email protected]

M. Laughlin McDonald* American Civil Liberties Union Foundation 2700 International Tower 229 Peachtree Street, NE Atlanta, GA 30303 T: (404) 500–1235 [email protected]

Ezra D. Rosenberg* Arusha Gordon* Lawyers’ Committee for Civil Rights Under Law 1401 New York Ave., Suite 400 Washington, D.C. 20005 T: (202) 662–8600 [email protected] [email protected]

Maya Kane*


10 Town Square, #52 Durango, Colorado 81301 T: (970) 946–5419 [email protected] Raymond M. Williams* DLA Piper LLP (US) One Liberty Place 1650 Market Street, Suite 4900 Philadelphia, PA 19103 T: (215) 656–3300 [email protected] *Admitted pro hac vice


CERTIFICATE OF SERVICE

I hereby certify that on the 7th day of April, 2017, I electronically filed the foregoing

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:

Jesse C. Trentadue (#4961) Carl F. Huefner (#1566)

Britton R. Butterfield (#13158) SUITTER AXLAND, PLLC 8 East Broadway, Suite 200 Salt Lake City, UT 84111

Telephone: (801) 532–7300

Attorneys for Defendants /s/ John Mejia


for the district of utah central division … · county clerk; and phil lyman, bruce adams, and...

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