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Navajo Nation Human Rights Commission v. San Juan County

United States District Court, D. Utah

September 7, 2017

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 NELSON; 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.

         MEMORANDUM DECISION AND ORDER DISMISSING CERTAIN CLAIMS AS MOOT, DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DENYING DEFENDANT BENALLY'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          Jill N. Parrish United States District Court Judge.

         Before the court is a Motion for Partial Summary Judgment filed by Plaintiffs Navajo Nation Human Rights Commission, Peggy Phillips, Mark Maryboy, Wilfred Jones, Terry Whitehat, Betty Billie Farley, Willie Skow, and Mabel Skow, (Docket No. 144); a Motion for Summary Judgment filed by Defendants San Juan County, John David Nelson, Phil Lyman, Bruce Adams, and Rebecca Benally (collectively, “County Defendants”), (Docket No. 141); and a Motion for Partial Summary Judgment filed by Defendant Rebecca Benally, (Docket No. 127).

         I. BACKGROUND

         San Juan County is a sparsely populated and geographically vast political subdivision of the State of Utah, occupying the state's southeastern corner. The County's southern boundaries encompass a large section of the federally established Navajo Reservation. As a result, approximately half of the County's residents are members of the Navajo Nation, a federally recognized Indian tribe. Most of the County's Navajo residents live within the boundaries of the Reservation. Much of the rest of the County's residents are centralized in the northern half of the County. This geographic segregation has often resulted in significant political tension between Navajo and white residents, which has played out in numerous cases before this court. See, e.g., Navajo Nation v. San Juan Cty., 162 F.Supp.3d 1162 (D. Utah 2016) (addressing voting rights and election districts in San Juan County).

         These motions for summary judgment come before the court in the context of a lawsuit initiated by the Navajo Nation Human Rights Commission and several named plaintiffs[1] who allege that the voting procedures in place in San Juan County violate the Voting Rights Act (“VRA”) and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The voting procedures at issue here span several years of elections. Prior to 2014, the County conducted elections through nine polling places open on Election Day. Each polling place provided some form of language assistance to Navajo-speaking voters. In 2014, the County transitioned to a predominantly mail-in voting system, leaving a single physical polling location operating at the County Clerk's office in Monticello, Utah. Ballots were distributed to voters through available mailing addresses approximately one month prior to Election Day. This system was in place for the 2014 election cycle.

         During 2014 and early in 2015, the Navajo Nation and the Navajo Nation Human Rights Commission officially opposed the mail-in system, asserting that the closure of polling locations and switch to mailed ballots burdened rural Navajo voters. The County acknowledged the opposition, but indicated that it would continue to utilize the mail-in system for upcoming elections. Sometime thereafter, the Commission contacted the United States Department of Justice's Voting Rights Section (the “DOJ”), requesting an evaluation of the County's mail-in voting system.[2] In October of 2015, a DOJ representative met with both Commission and County officials and inspected the voting procedures then in place. Evidently, the DOJ did not come to any definitive conclusions regarding the mail-in voting system or the Commission's concerns.

         After some unfruitful back-and-forth between the County and various civil-liberties organizations opposed to the mail-in ballot system, the Commission filed the Complaint underlying this Motion on February 25, 2016, alleging that the mail-in ballot system violated the VRA and the Equal Protection Clause. (Docket No. 2). Shortly thereafter, Defendants filed their Answer, which asserted that the County was making significant changes to its election procedures in anticipation of the June 2016 primary elections.[3] (Docket No. 41 at 3-4). For the June 2016 elections, the County maintained the predominantly mail-in voting system, but also opened three physical polling locations on the Navajo Reservation in addition to the election center in Monticello, for a total of four physical polling locations. The County also provided language assistance to voters through Navajo-speaking interpreters at all four locations on Election Day. In October 2016, the court denied a motion for preliminary injunction filed by Plaintiffs seeking to enjoin these procedures and impose new procedures prior to the general election. (Docket No. 129). As a result, essentially the same procedures (with some modification) were in place for the general election in November 2016.

         After the parties unsuccessfully attempted to resolve the case through settlement in early 2017, the instant motions for summary judgment were filed. (Docket Nos. 141, 144). Each party filed a response and a reply to the respective cross-motions. (Docket Nos. 149, 151, 154155). A previously filed motion for partial summary judgment on behalf of Defendant Benally alone is also before the court for resolution. (Docket No. 127). Both a response and a reply were filed to that Motion as well. (Docket Nos. 130, 133). The court heard oral argument on July 26, 2017. (Docket No. 170). The court now rules on the Motions under jurisdiction granted by 28 U.S.C. § 1331.

         II. MOOTNESS CHALLENGES

         Before addressing the merits of Plaintiffs' claims, the court must address certain challenges to its subject-matter jurisdiction raised by County Defendants. Specifically, County Defendants assert that any controversy regarding the 2014 procedures is no longer live and, as a result, any claims based thereon are moot. As the party asserting that claims regarding the 2014 procedures are moot, the County “bears the burden of coming forward with the subsequent events that have produced the alleged result.” Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008) (internal quotations omitted).

         To that end, the County explains that it has abandoned the 2014 procedures in favor of the 2016 procedures for an entire election cycle and that the County Clerk has “no intention to return to the 2014 procedures.” (Docket No. 154, at 48). Plaintiffs respond that the County's shift from the 2014 procedures to those used in 2016 occurred “under mysterious circumstances, ” (Docket No. 149, at 5), and assert that the shift was “a temporary move[] intended to derail this litigation, ” (id. at 50). As explained below, the court concludes that Plaintiffs' claims regarding the 2014 procedures are indeed moot and must be dismissed for lack of subject-matter jurisdiction. However, the court also holds that Plaintiffs' newly-minted claims regarding the legality of the 2016 procedures are fit for resolution and may be added to the complaint. Additionally, the court concludes that Plaintiffs' claims for injunctive relief are not mooted by the implementation of the 2016 procedures and may also proceed.

         A. PLAINTIFFS' CLAIMS REGARDING THE 2014 PROCEDURES ARE MOOT.

         In general, “a federal court cannot give opinions absent a live case or controversy before it, ” In re Overland Park Fin. Corp., 236 F.3d 1246, 1254 (10th Cir. 2001) (citation and quotations omitted), because “the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction, ” Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005) (internal quotations omitted) (quoting McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)). Thus, “[m]ootness is a threshold issue, ” see id., that must be decided before addressing the merits of Plaintiffs' request for declaratory relief, Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109-10 (10th Cir. 2010) (“Declaratory judgment actions must be sustainable under the same mootness criteria that apply to any other lawsuit.”).

         In evaluating whether a claim for declaratory judgment is moot, “[t]he crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” See Id. at 1110 (internal quotations and emphasis omitted) (quoting Wyoming v. U.S. Dep't of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)); Overland Park, 236 F.3d at 1254 (“A case is moot when it is impossible for the court to grant any effectual relief whatever to a prevailing party.” (citation and quotations omitted)); Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999) (“The core question in mootness inquiry is whether granting a present determination of the issues offered . . . will have some effect in the real world.” (citation and quotations omitted)). The court must “look beyond the initial controversy which may have existed at one time and decide whether the facts alleged show that there is a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Chihuahuan Grasslands, 545 F.3d at 891 (quoting Beattie v. United States, 949 F.2d 1092, 1094 (10th Cir. 1991)).

         Here, the court concludes that the County's abandonment of the 2014 procedures has mooted Plaintiffs' claims for declaratory relief regarding those procedures. The County has not used the 2014 procedures for an entire election cycle, choosing instead to implement entirely different procedures for both the primary and general elections in 2016. Moreover, neither the current County Clerk nor the County government has openly expressed any intention to reinstitute the 2014 procedures. (See Docket No. 141-2, at 6). Given these circumstances and the fact that Plaintiffs only seek prospective relief, there is no “substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” regarding the 2014 procedures. See Chihuahuan Grasslands, 545 F.3d at 891. Because Plaintiffs seek only prospective relief, they “have no legally cognizable interest in the constitutional [or statutory] validity of . . . obsolete” voting procedures. See Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000); Schutz v. Thorne, 415 F.3d 1128, 1138 (10th Cir. 2005) (“Constitutional mootness exists when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” (quotations omitted)). Consequently, there is no “actual controversy” to adjudicate, see Mocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015) (explaining that a district court must “decide whether a case of actual controversy exists” before issuing declaratory relief), and the court must conclude that Plaintiffs' claims for declaratory relief regarding the 2014 procedures are now moot.[4]

         B. THE VOLUNTARY CESSATION EXCEPTION DOES NOT APPLY TO PLAINTIFFS' CLAIMS REGARDING THE 2014 PROCEDURES.

         Plaintiffs insist that an exception to the mootness doctrine readily applies to their case. Plaintiffs argue that the County's shift to new voting procedures for 2016 is simply a voluntary cessation of challenged conduct and that County officials “should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” (Docket No. 149, at 50 (quoting Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1149 (10th Cir. 2007)).[5] As explained below, the court concludes that the voluntary cessation exception to the mootness doctrine is inapplicable.

         “An exception to the mootness doctrine can occur when a defendant voluntarily ceases a challenged action. This exception traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (quotations and citations omitted); Chihuahuan Grasslands All., 545 F.3d at 892 (“[T]his exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.”). Nevertheless, a government defendant's voluntary cessation moots a case when the challenged policy or procedure “is repealed and the government does not openly express intent to reenact it. But a case is not moot if a challenged [procedure] is repealed and there are clear showings of reluctant submission by government actors and a desire to return to the old ways.” Citizen Ctr. v. Gessler, 770 F.3d 900, 908 (10th Cir. 2014) (brackets and quotations omitted); see also Brown v. Buhman, 822 F.3d 1151, 1167 (10th Cir. 2016). In other words, “[v]oluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.” Rio Grande, 601 F.3d at 1115 (citation omitted). “The party asserting mootness bears the ‘heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again.” Id. (internal alteration omitted).

         Still, this “heavy burden” often falls more lightly on government actors.[6] See Id. at 1116; Brown v. Buhman, 822 F.3d 1151, 1167 (10th Cir. 2016) (explaining that the “formidable burden” on those claiming mootness because of voluntary cessation “is not insurmountable, especially in the context of government enforcement”). In practice, the burden “has not prevented governmental officials from discontinuing challenged practices and mooting a case.” Rio Grande, 601 F.3d at 1116. Indeed, the Tenth Circuit has indicated that “government ‘self-correction provides a secure foundation for mootness so long as it seems genuine.'” Brown, 822 F.3d at 1167-68 (alteration omitted) (quoting Rio Grande, 601 F.3d at 1118). Thus, “withdrawal or alteration of [governmental] policies can moot an attack on those policies.” See Rio Grande, 601 F.3d at 1117 (alteration and quotations omitted). “And the ‘mere possibility' that a[] [governmental] agency might rescind amendments to its actions or regulations does not enliven a moot controversy.” Id.; Sossamon, 560 F.3d at 325 (“We will not require some physical or logical impossibility that the challenged policy will be reenacted absent evidence that the voluntary cessation is a sham for continuing possibly unlawful conduct.”). Ultimately, “[m]ost cases that deny mootness following government officials' voluntary cessation rely on clear showings of reluctant submission by government actors and a desire to return to the old ways.” Brown, 822 F.3d at 1167 (quotations and brackets omitted, emphasis in original).

         Here, County Defendants assert that the implementation of 2016 procedures shortly after this lawsuit was filed was not a litigation tactic, but a response both to “comments by voters about the [2014] vote-by-mail process” and an October 2015 meeting with DOJ officials from the Civil Rights Division who evidently evaluated the 2014 procedures. (Docket No. 154, at 9). The County Attorney and County Clerk have further testified that the decision to reopen certain polling places was made sometime in January or February of 2016-i.e., shortly before this litigation began. (Id. at 9-10).

         Plaintiffs dispute this narrative, arguing that the only support for these assertions are the “self-serving” statements of County Officials. (Docket No. 149, at 12). They further assert that a contemporaneous County Commission meeting held on February 16, 2016 indicated that the “decision as to whether to retain the mail-only system [w]as still . . . [an] open [question].” (Id. at 13). Moreover, Plaintiffs point out that the first public announcement of a change in voting procedures came approximately a week after County Defendants were served with the operative complaint. (Id.).

         But such circumstantial evidence does not in fact controvert County Defendants' general assertion that County officials made the decision to reopen polling places “on or before February 16, 2016.” (See Docket No. 154, at 10). County officials may very well have concluded directly after their discussion of options at the County Commission meeting on February 16, 2016 that the best option would be to abandon the 2014 procedures for the upcoming elections. Indeed, the Commissioners seemed to rely on the County Clerk for information regarding the decision during the February meeting, and it appears that he made the final call. (See Docket No. 149, at 12-13; Docket No. 141, at 6-7). Moreover, assuming the decision to alter voting procedures was made sometime directly after that meeting, the timing of the press announcement is not at all suspicious-three weeks seems about right to draw up county-wide plans and secure new polling locations. While it is possible to construe this all as very convenient timing, there must be a “clear showing[] of reluctant submission” by County officials in order to avoid mootness. See Brown, 822 F.3d at 1167. There is simply insufficient evidence on the record to indicate that the County's abandonment of the 2014 procedures was a sham meant “merely to defeat the district court's jurisdiction” or to avoid adverse judgment. See Rio Grande, 601 F.3d at 1117; Brown, 822 F.3d at 1170 (“To find this voluntary cessation is a sham for continuing possibly unlawful conduct, we would have to conclude the highest-ranking law enforcement official in Utah County had engaged in deliberate misrepresentation to the court. We see no basis for this conclusion.” (quotations and citation omitted)).

         Plaintiffs protest that the County Clerk has testified that he may unilaterally change the voting procedures at any time and that the County Defendants have sought a declaration from this court that the 2014 procedures complied with the VRA. Plaintiffs argue that these facts, taken together, indicate a cognizable threat of a “return to the old ways.” See Brown, 822 F.3d at 1151. But the fact that the County has sought to reserve the right to return to the 2014 procedures does not mean that it will certainly take that course, or even that it is likely to do so. Nor does the fact that the County Clerk has the authority to reinstitute the 2014 procedures mean that those procedures are likely to be reenacted. See Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (“[T]he mere power to reenact a challenged policy is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists.” (brackets omitted)). As a result, the possibility of the County's reversion to the 2014 procedures is merely theoretical, see Unified Sch. Dist., 491 F.3d at 1150, and the theoretical possibility of reversion is simply not “sufficient to warrant application of the voluntary-cessation exception” in this case. Rio Grande, 601 F.3d at 1119; see also Id. at 1117 (“A case ceases to be a live controversy if the possibility of recurrence of the challenged conduct is only a speculative contingency.” (internal quotations and alterations omitted)); Ala. Hosp. Ass'n v. Beasley, 702 F.2d 955, 961 (11th Cir. 1983) (explaining that the “mere possibility that the state might rescind its recent amendment does not, for purpose of mootness, enliven the controversy”); Moore v. Thieret, 862 F.2d 148, 150 (7th Cir. 1988) (“If the likelihood [of recurrence] is small (it is never zero), the case is moot.”). For this court to opine on the legality of a discontinued election practice on the off-chance the practice might be reinstituted would be “a textbook example of advising what the law would be upon a hypothetical state of facts.” See Nat'l Advertising Co. v. City & Cty. of Denver, 912 F.2d 405, 412 (10th Cir. 1990) (internal quotation omitted). Thus, the voluntary-cessation exception is not applicable to Plaintiffs' claims for declaratory relief regarding the 2014 procedures, and the claims are moot.

         At oral argument, Plaintiffs also seemed to argue that the controversy regarding the 2014 procedures is not moot because the replacement procedures still allegedly violate the VRA and the Fourteenth Amendment. Plaintiffs appear to rely on the following rule: “Where a new statute ‘is sufficiently similar to the repealed statute that it is permissible to say that the challenged conduct continues, ' the controversy is not mooted by the change, and a federal court continues to have jurisdiction.” Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (quoting Northeastern Fla. Chapter of Associated Gen. Contractors of Amer. v. City of Jacksonville, 508 U.S. 656, 662 & n. 3 (1993)).

         While Plaintiffs are correct that their claims regarding the 2016 procedures arise under the same provisions of the VRA and the Constitution, it cannot be said that the new procedures differ “only in some insignificant respect” from the 2014 procedures. See Ne. Fla. Chapter of Associated Gen. Contractors of Amer. v. City of Jacksonville, 508 U.S. 656, 662 (1993). The voting procedures in San Juan County have “changed substantially” and “there [is] therefore no basis for concluding that the challenged conduct [is] being repeated” by implementation of the 2016 procedures. See Id. at 662 n.3. The new procedures, which place approximately equivalent focus on mail-in and in-person voting, are fundamentally different from the 2014 procedures, which essentially confined the County's voting opportunities to mail-in ballots.

         Evidence of this fundamental difference can be seen in the legal deficiencies Plaintiffs attribute to the 2016 procedures. Plaintiffs allege that the new procedures result in disproportionate in-person early-voting opportunities for whites and Navajos, and that the County provided inadequate language assistance during the 2016 election cycle. By contrast, the clear focus of Plaintiffs' original complaint against the 2014 procedures was not early-voting inequities or the inadequacy of language assistance, but the wholesale elimination of in-person polling locations on Election Day and the concomitant elimination of language assistance for Navajo-speakers. Thus, the new procedures do not allegedly disadvantage Navajos “in the same fundamental way” as the old procedures, see Id. at 662, and it cannot be said “that the challenged conduct continues, ” see Id. at 662 n.3. This is not an instance where the same allegedly harmful practice is simply being repackaged with superficial changes and reinstated under another name. The County's conduct “has been ‘sufficiently altered so as to present a substantially different controversy from the one that existed when suit was filed.'” Am. Freedom Def. Initiative v. Metro. Transp. Auth., 815 F.3d 105, 109 (2d Cir. 2016) (citing Ne. Fla. Chapter, 508 U.S. at 671 (O'Connor, J., dissenting)); Kan. Judicial Review v. Stout, 562 F.3d 1240, 1246-47 (10th Cir. 2009) (holding that a change between old and new rules was “fundamental to a degree that impacts our jurisdiction over the plaintiffs' challenges to the old” rules).

         All told, there are significant factual and legal disconnects between what Plaintiffs have alleged regarding the 2014 procedures and the reality of the situation in San Juan County. As a result, Plaintiffs' claims for declaratory relief regarding the 2014 procedures are moot and, as explained above, the voluntary cessation exception is inapplicable. In short, any declaration by this court as to the validity of the 2014 procedures would have “no effect in the real world and [would] essentially be an advisory opinion.” See Unified Sch. Dist. No. 259, 491 F.3d at 1150 (quotations and citations omitted). The court therefore lacks subject-matter jurisdiction over Plaintiffs' claims for declaratory relief under both the VRA and the Fourteenth Amendment regarding the 2014 procedures. Those claims, designated as the First, Second, and Third Claims for Relief found in Plaintiffs' complaint, (Docket No. 2), are hereby DISMISSED without prejudice, see Brown, 822 F.3d at 1179 (“[D]ismissal for lack of jurisdiction is not an adjudication on the merits and therefore dismissal must be without prejudice.”).

         C. CERTAIN CLAIMS REGARDING THE 2016 PROCEDURES SURVIVE THE COURT'S FINDING OF MOOTNESS.

         Although Plaintiffs' claims for declaratory relief regarding the 2014 procedures are plainly moot, those are not the only claims Plaintiffs have raised at the summary judgment stage. As described above, the cross-motions for summary judgment also extensively address the validity of the 2016 procedures under the VRA and the Fourteenth Amendment. However, Plaintiffs have made the presumably strategic decision not to amend their complaint to describe or otherwise challenge the 2016 procedures. At oral argument, Plaintiffs made several unsuccessful attempts to link ambiguous language in their complaint with the deficiencies they allege characterized the 2016 procedures. But “the liberal pleading standard for civil complaints under Federal Rule of Civil Procedure 8(a) . . . does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004) (per curiam). And, more fundamentally, the complaint simply cannot allege or challenge procedures that did not exist at the time of filing.

         At least the First, Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits have held “that a plaintiff may not raise new claims after discovery has begun without amending his complaint.” Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009) (collecting cases from the Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits); Asociacion de Suscripcion Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe-Jimenez, 659 F.3d 42, 53 (1st Cir. 2011) (First Circuit so holding); Taylor v. Sanders, 536 F. App'x 200, 203 (3d Cir. 2013) (Third Circuit so holding). However, the Tenth Circuit has emphasized that “a plaintiff should not be prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits.” Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991) (quotations omitted). Thus, under Tenth Circuit law, the advancement of claims not contained in the complaint at the summary judgment stage “may be considered a request to amend the complaint, pursuant to Fed.R.Civ.P. 15.” See Viernow v. Euripides Dev. Corp., 157 F.3d 785, 790 n.9 (10th Cir. 1998). Accordingly, the court must now decide whether to allow Plaintiffs to amend their complaint to include claims regarding the legality of the 2016 procedures so they can be evaluated at this late stage. As explained below, the court concludes that 1) Plaintiffs' new claims under the VRA may be added to the complaint, but 2) Plaintiff's new claims under the Equal Protection Clause of the Fourteenth Amendment may not be added to the complaint at this stage.

         1. NEW CLAIMS UNDER THE VRA MAY BE ADDED TO THE COMPLAINT.

         At the summary judgment stage, Plaintiffs present two new claims under the VRA regarding the County's 2016 voting procedures. The first is a claim that the County's early-voting procedures provide unequal opportunity to Navajo voters in violation of Section 2 of the VRA. The second is a claim that the language assistance provided by the County to Navajo-speaking voters is ineffective in violation of Section 203 of the VRA. The court concludes that Plaintiffs should be granted leave to amend their complaint to include these claims so that the court may address them at the summary judgment stage.

         Rule 15 provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). “The purpose of the Rule is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). Thus,

[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rule requires, be “freely given.”

Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed.R.Civ.P. 15(a)(2)). Under ordinary circumstances, Plaintiffs' inexplicable delay would provide ample reason to refuse leave to amend. See Minter, 451 F.3d at1206 (“We have held that denial of leave to amend is appropriate when the party [seeking amendment] has no adequate explanation for the delay.” (quotations omitted)); Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987) (“[C]ourts have denied leave to amend where the moving party was aware of the facts on which the amendment was based for some time prior to the filing of the motion to amend.”). However, the circumstances of this case are not entirely ordinary.

         As an initial matter, the new claims here arise from the unilateral conduct of County Defendants during litigation, who appear to have participated in the litigation with the understanding that the 2016 procedures were now the animating issue in the case. The court has already entertained-without objection-a preliminary injunction motion that addressed Plaintiffs' claims regarding the 2016 procedures under the VRA. The extensive briefing and subsequent memorandum decision issued regarding this motion likely provided the court and County Defendants with a sufficient understanding of the general contours of Plaintiffs' claims. (See generally Docket Nos. 94, 108, 112, 129).

         And while the court is absolutely mystified by Plaintiffs' failure to properly amend their complaint to reflect the change in voting procedures during the course of litigation, County Defendants do not appear to oppose a ruling on the 2016 procedures. Nor do they claim prejudice from a lack of notice regarding any of the claims for declaratory relief dealing with the 2016 procedures. Instead, County Defendants limit their mootness challenge to Plaintiffs' claims regarding the 2014 procedures, (see Docket No. 154, at 48-49), and make substantive arguments regarding the validity of the 2016 procedures as if the claims were properly before this court, (see Docket Nos. 141, at 31-39; 154, at 49-54). In fact, it appears from the parties' briefing that discovery has proceeded as if these claims were part of the operative complaint, and each side has presented extensive evidence and made substantive arguments as to the legality of the 2016 procedures.

         As the court and the parties are essentially familiar with these claims, the prejudice typically associated with the summary adjudication of claims not pled in the complaint is lacking. See Minter, 451 F.3d at 1208 (“Courts typically find prejudice only when the amendment [to the complaint] unfairly affects the defendants in terms of preparing their defense to the amendment.”) (quotation omitted); cf. Gilmour, 382 F.3d at 1315 (refusing to entertain new claims at summary judgment because the defendant “had no notice of a contract claim based on the tort claims set forth in the complaint”); Desparois v. Perrysburg Exempted Vill. Sch. Dist., 455 F. App'x 659, 667 (6th Cir. 2012) (unpublished) (“Because the new claims are factually distinct from the original claims, [defendant] had no notice that it would have to defend against such allegations.”); Hexion Specialty Chem., Inc. v. Oak-Bark Corp., No. 7:09-cv-105-D, 2011 WL 4527382, at *8 (E.D. N.C. Sept. 28, 2011) (unpublished) (explaining that the general prohibition on new claims raised after discovery without amendment to the operative complaint aligns with the fundamental purpose of a complaint, which is to put the party's “opponent and the court on notice of the claims in the case.”). And, again, County Defendants have not claimed any particular prejudice to their defense from the new claims and do not otherwise oppose a summary ruling on the legality of the 2016 procedures.

         For these reasons, the court concludes that the claims for declaratory relief under the VRA regarding the 2016 procedures, as outlined in Plaintiffs' briefing, are fit for resolution at this stage and will be treated as if raised in the complaint. Cf. Fed. R. Civ. P. 15(b)(2).

         2. NEW CLAIMS UNDER THE FOURTEENTH AMENDMENT MAY NOT BE ADDED TO THE COMPLAINT.

         In addition to their new claims under the VRA, Plaintiffs also assert new claims under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs make a two-tiered argument regarding the legality of the 2016 procedures under the Equal Protection Clause. First, they claim that the County's 2014 vote-by-mail procedures burdened the right of rural County residents to vote. Second, they claim that the voting facilities provided to rural County residents were so inadequate as to abridge the fundamental right to vote. This court “may deny leave to amend where amendment would be futile.” Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (quoting Jefferson Cty., 175 F.3d at 859). Thus, a district court is “clearly justified in denying [a] motion to amend if the proposed amendment could not have withstood a motion to dismiss or otherwise failed to state a claim.” Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992). Here, the court concludes that neither tier of Plaintiffs' new Equal Protection claim could survive a motion to dismiss and therefore amendment to allow the claim would be futile.

         The first tier of Plaintiffs' equal protection claim argues that “[t]he County's reduction of polling places and practice of relying on primarily vote-by-mail election system” impermissibly burdens rural County residents' right to vote. (Docket No. 144, at 39). In support of this argument, Plaintiffs present a great deal of evidence regarding the relative reliability and accessibility of mail service in rural areas of the County. This argument is little more than a vestige of Plaintiffs' now-moot arguments regarding the 2014 procedures-procedures that eliminated all polling places except the election center in Monticello and relied almost exclusively on mail-in voting. But the 2016 procedures that now animate this lawsuit do not restrict voting to mail-in ballots, they provide mail-in voting as one option among several. Even assuming that mail-in voting is as difficult for rural residents as Plaintiffs allege, the mere existence of an option that is less accessible for certain voters is not a cognizable burden on those voters' rights. Cf. McDonald v. Bd. of Election Comm'nrs of Chi., 394 U.S. 802, 807-08 (1969) (explaining that laws that prevented certain detainees from receiving absentee ballots were “designed to make voting more available to some groups who cannot easily get to the polls” and did “not themselves deny appellants the exercise of the franchise”). Were mail-in voting the only option or even the only accessible option to cast a ballot, then the County's failure to provide other options could arguably be burdensome to rural voters. But that is simply not the current scenario in San Juan County, where rural voters may choose from four total in-person voting locations on Election Day, early voting in Monticello, or mail-in voting in order to cast their ballot.

         Insofar as Plaintiffs argue that rural voters are unduly burdened by the number or location of polling locations available on Election Day and must therefore rely on the allegedly burdensome mail-in option, they have not adduced any evidence to that effect. Plaintiffs have not pointed to any statistical evidence or even a well-pled allegation that would indicate that rural voters as a class have less access to in-person voting on Election Day or otherwise. In other words, there is no indication in the record or in Plaintiffs' briefing that the four polling locations available on Election Day are so inaccessible that rural voters must rely on the mail-in voting system and are therefore burdened by its alleged deficiencies. All told, Plaintiffs have failed to identify or plausibly allege a cognizable burden on rural residents' right to vote resulting from mail-in voting or from the relative number or location of polling places.

         Plaintiffs attempt to salvage their equal protection claim by insisting that although the polling locations may be equally accessible to rural voters, the in-person polling locations provided by the County on November 8, 2016 were so inadequate as to place an impermissible burden on rural residents' right to vote. (Docket No. 144, at 42). Plaintiffs allege the following polling place inadequacies during the general election: 1) the Oljato Senior Center polling location ran out of paper ballots by 10 a.m. and voters there had access to only one functioning electronic voting machine; 2) “long lines” resulted from the limitation to a single voting machine; 3) “poll workers . . . were not trained;” and 4) Navajo interpreters were not trained resulting in inadequate translations of the ballots, “leaving some voters confused.” (Docket No. 144, at 42). The first two allegations are clearly intertwined, as there is no discernible argument from Plaintiffs that the lack of paper ballots, by itself, burdened rural voters. Instead, it appears that Plaintiffs' theory is that the lack of an adequate amount of paper ballots, coupled with the malfunction of two out of three available voting machines, created “long lines, ” which impermissibly burdened rural voters in the exercise of their rights. (See Docket No. 144, at 42). As explained below, the court concludes that these allegations cannot support an equal protection claim on behalf of rural San Juan County residents and therefore any amendment to include them in the complaint would be futile.

         The court notes first that many of these allegations are not clearly the result of any identifiable regulation, policy, or practice at the County level. Rather, they appear to be the result of inadvertent human error (misapprehending the number of paper ballots needed for a particular location) and unanticipated mechanical failure (the breakdown of two out of three voting machines). Issues of inadvertent error do not fit neatly into the established framework for evaluating typical voting-related equal protection violations set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), and reaffirmed in Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008). There are no laws, regulations, rules, or restrictions for the court evaluate and, by extension, no “precise interests” that the municipality may “put forward . . . as justifications for the burden imposed.” See Burdick, 504 U.S. at 434; see also Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980) (“Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause.”). Thus, every time an inadvertent error that burdens certain voters in their exercise of the franchise occurs, the error would be essentially indefensible. Accordingly, the court believes that the Anderson/Burdick framework is essentially inapplicable to Plaintiffs' claims here.

         Instead, it appears that the appropriate analysis of an equal protection claim alleging a government entity's failure to provide some voting service or facility (as opposed to a claim alleging that a particular rule or law impermissibly burdens the right to vote) must be tied to unequal treatment among different groups. See Citizen Ctr., 77 F.3d at 917-18; League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (“If true, these allegations could establish that Ohio's voting system deprives its citizens of the right to vote or severely burdens the exercise of that right depending on where they live in violation of the Equal Protection Clause.”) (emphasis added); Ury v. Santee, 303 F.Supp. 119, 125 (N.D. Ill. 1969) (“The overcrowded condition in certain of the consolidated precincts on April 15, 1969, resulted in the effective deprivation of plaintiffs' right to vote . . . and was a consequence of the consolidation . . . of the [municipal body's] failure to provide adequate and equal voting facilities for all of the qualified voters who desired to cast their ballot on such date.” (emphases added)). But Plaintiffs have not provided any colorable evidence or well-pled allegation that would indicate that rural voters suffered these particular deficiencies at a rate higher than the general voting population of San Juan County. In the context of voting-rights cases, the Equal Protection Clause of the Fourteenth Amendment provides that “citizens enjoy a constitutionally protected right to participate in election on an equal basis with other citizens in the jurisdiction.” Citizen Ctr., 770 F.3d at 917-18 (quotations omitted). In other words, there must be some evidence or at least a well-pled allegation that the County imposed these burdens on one class of citizens and not the other. Plaintiffs have utterly failed to demonstrate or even allege that non-rural voters were able to vote without the delays or untrained poll workers that rural voters encountered. The court can find no discernible disparity in Plaintiffs' allegations or arguments regarding these inadequacies, fatally undermining any equal protection claims based thereon. See Cordi-Allen v. Conlon, 494 F.3d ...


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