PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ NAVAJO NATION, a federally recognized Indian tribe; LORENA ATENE; TOMMY ROCK; HARRISON HUDGINS, a/k/a Harrison Hutchins; WILFRED JONES; ELSIE BILLIE; HERMAN FARLEY, Plaintiffs - Appellees,

v. SAN JUAN COUNTY, a Utah governmental subdivision, Defendant - Appellant.

------------------------------ CITY OF BLANDING, UTAH, Amicus Curiae. No. 18-4005

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:12-CV-00039-RJS)

________________ _________________ Jesse C. Trentadue (Carl F. Hue fner, Michael W. Homer, and Britton R. Butterfield with him on the briefs), Suitter Axlan d, PLLC, Salt Lake City, Utah, for defendant-appellant San Juan County. Paul Spruhan (Ethel Branch, Atto rney General, withhim on the b rief), Navajo Nation Department of Justice, Window Rock, Arizona, for plaintiff-appe llee Navajo Nation. Steven Boos, Maynes, Bradford, S hipps & Sheftel, LLP, Durango, Colorado (Maya Kane, Maynes, Bradford, Shipps & Sheftel, LLP, Durango, Colorad o, and Eric Swenson, FILED United States Court of Appeals Tenth Circuit 

### July 16, 2019
Elisabeth A. Shumaker Clerk of Court2 Salt Lake City, Utah, with him on the brief), for plaintiffs-ap pellees Lorena Atene, Tommy Rock, Harrison Hudgins , Wilfred Jones, Elsie Billie, and Herman Farley. R. Blake Hamilton, Durham Jones & Pinegar, P.C., Salt Lake City , Utah, for amicus curiae City of Blanding, Utah.

________________ _________________ Before BRISCOE , MORITZ , and EID , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ In 2012, the Navajo Nation and several of its individual member s (collectively, the Navajo Nation) sued San Juan County, alleging that the elec tion districts for both the school board and the county co mmission violated the Equal P rotection Clause of the Fourteenth Amendment to the United States Constitution and the Voting Rights Act (VRA) of 1965, 52 U.S.C. §§ 10301–14 (transferred from 42 U .S.C. §§ 1973– 1973o). The district court deni ed the county’s motion to dismis s, found that the election districts violated the Equal Protection Clause, and aw arded summary judgment to the Navajo Nation. I t later rejected the county’s p roposed remedial redistricting plan because it conc luded the redrawn districts a gain violated the Equal Protection Clause. The district c ourt then appointed a special master to develop a proposed remedial redistricting plan, directed the county to ad opt that remedial plan, and ordered the county to hold sp ecial elections based on that plan in November
2018. On appeal, the county challenges each of the district court’s d ecisions. For the reasons explained below, we affirm.3 Background San Juan County occupies the sout heastern corner of Utah. Geogr aphically, it’s the largest county in the s tate. The county seat is Montic ello, and the county’s largest city is Blanding. Approx imately 52% of the county’s pop ulation is Native American. Most Native American r esidents live in the southern p ortion of the county, on the Navajo Nation Reservati on; the northern portion of the c ounty contains “most of the non-Hispanic [w]hite pop ulation.” App. vol. 43, 8420. As of the 2010 census, 14,746 people lived in the county. A three-member county commission governs the county. Until the early 1980s, the county elected its commissi oners in at-large elections. Butin 1983, the United States sued the county , alleging that the at-large elections vi olated the Constitution and § 2 of the VRA because they de nied Native American resident s “an equal opportunity to participate in the [c]ounty political process an d to elect candidates of their choice.” 1 App. vol. 2, 277. In its complaint , the United States pointed out that although the county had a substantial Native American populatio n, it had never elected a Native American repre sentative to the county commissi on. 2

1 Section 2 provides that “[n]o voting . . . standard, practice, or procedure shall be imposed or applied by any [s ]tate or political subdivision i n a manner which results in a denial orabridgement of the right of any citizen of the United States to vote on account of race or color.” § 10301(a). At-large voting may violate § 2 of the VRA if it has a discriminatory effect. See Thornburg v. Gingles , 478 U.S. 30, 43–44, 46 (1986). 2 Historically, voting discrimina tion against Native Americans l iving in Utah wasn’t limited to San Juan Coun ty. Until 1957, a Utah statute d enied Native Americans the right to vote. That year, the state repealed the discriminatory law4 Rather than going to trial, the c ounty entered into a consent d ecree with the United States. The district court accepted the parties’ agreeme nt and entered a settlement order. The settlementorder acknowledged that the co unty’s at-large election system “fail[ed] to com ply fully with the requirements of [§] 2 of the [VRA].” Id. at 223. As such, it provided th at the county would adopt “fair ly drawn single[-]member districts.” Id. Accordingly, the county establis hed three single-member county- commission districts: Districts 1, 2, and 3. A former county official who helped design the districts “testified that she understood that District [3] ‘was to be heavily loaded with Navajo voters.’” App. vol. 49, 9 836 (quoting App. vol. 30, 5580 ). Thus, when the county first created the single- member districts in the 1980s, Native Americans made up 88% of District 3’s populati on. And in the years since the c ounty adopted singlemember districts, “the commissioners elected from Districts [1] and [2] have been white, and the commissioners elect ed from District [3] have bee n Native American.” App. vol. 3, 450. As the district court put it, “[i]n this way, the [c]ounty moved from a system that historically denie d representation to a minority group to one that allowed th[e] group greater parti cipation in the political proc ess.” App. vol. 49, 9834. In 2011, the Navajo Nation aske d the county to redraw the count y-commission districts in response to the 201 0 census. It argued that Distri ct 3, which was now over 92% Native American, had “an inor dinately large population of N ative Americans.”

while a case challenging its cons titutionality was pending in t he Supreme Court. See Allen v. Merrell , 353 U.S. 932 (1957).5 App. vol. 3, 450. The county declin ed to change District 3’s bo undaries, and it made only a few small changes to Dis tricts 1 and 2 to equalize the p opulation of those districts. In response, the Nav ajo Nation brought this action a gainst the county in federal district court. The Navaj o Nation alleged that the boun daries of the countycommission districts, specificall y the boundaries of District 3 , were unconstitutionally based on race in violation of the Equal Prot ection Clause. Additionally, the Navajo Nation challenged the constitutionalit y of the county’s school-board districts. By state law, the school board has “five members, each elected from a single[-]memb er district.” App. vol. 43, 83 44; see also Utah Code Ann. § 20A-14-202(1)(a), ( h). As of the 2010 census, the t otal population deviation among the five school- board districts was around 38%. In other words, the districts weren’t equally populat ed; some districts contained s ubstantially more voters than other districts. The Navajo Nation contended that t his high population deviation resulted in vote dilu tion in violation of the Equal P rotection Clause’s guarantee of one person, one vote. See Avery v. Midland Cty. , 390 U.S. 474, 478 (1968) (explaining thatright to vote “is in fringed when legisl ators are elected from districts of substantia lly unequal population”). 3 The county moved to dis miss the Navajo Nation’s claim related t o the countycommission districts, arguing thatit was an impermissible coll ateral attack on the

3 The Navajo Nation further alle ged that the county-commission a nd schoolboard districts diluted the voti ng power of Native Americans in violation of § 2 of the VRA. The district court didn’t de cide these two VRA claims, and they aren’t before us on appeal.6 1984 consent decree and settlemen t order. It also argued that t he United States was an indispensable party to any lit igation related to the consentdecree and settlement order. The district court disagr eed and denied the county’s mot ion. 4 The parties then cross-moved for summary judgment on the Navajo Nation’s two Equal Protection claims: (1 ) that District 3 of the county- commission districts was unconstitutionally based on r ace; and (2) that the populati on deviation among the school-board districts caused unconstitutional (although not ra ce-related) vote dilution. The district court f ound that both the school-board a nd county-commission districts violated the Equal Pr otection Clause and were therefo re unconstitutional. Accordingly, it awarded summary judgment to the Navajo Nation o n both claims. The district court then ordered the county to develop a remedia l redistricting plan. 5 See Large v. Fremont Cty. , 670 F.3d 1133, 1138 (10th Cir. 2012) (noting that when court declares election dist ricts unconstitutional, it sho uld allow legislature to create new plan). It stated that “it woul d adopt [the county]’s proposed remedial plan[] if [the plan] cured the identified violations and [was] otherwise legally sound.” App. vol. 54, 10825–26; see also Large , 670 F.3d at 1138 (notin g that district court should adopt legislature’s reme dial plan “unless it, too, is ch allenged and found to

4 After the district court denied the motion to dismiss, the cou nty filed a motion to reopen the 1983 litigati on and consolidate the 1983 l itigation with this case. The district court al so denied that motion. 5 The district court ordered the Navajo Nation to submit a redis tricting plan as well. But it ultimately declined t o review that plan because “a dopting [the] Navajo Nation’s proposed redistricting pl an[]—[which was] the product of an adversarial, litigation-driven process—could jeopardize, and possibly underm ine confidence in, the legitimacy of the [c]ounty’s new legislative districts.” Ap p. vol. 54, 10864.7 violate the Constitution” (quoting Wise v. Lipscomb , 437 U.S. 535, 540 (1978) (plurality opinion))). After the county submitted its p roposed remedial redistricting plan, the district court found that the remedial pl an was also unconstitutional. S pecifically, it found that some districts in the remed ial plan were based on race anddidn’t survive strict scrutiny. So the district court rejected the county’s plan and appointed a special master. After the special maste r created several proposed redis tricting plans, the district court conducted two public hearings and accepted inputfrom the parties. The special master then drafted a f inal plan, and the district court ordered the county to adopt it. The district court furt her ordered the county to holdspecial elections utilizing the new districts in November 2018. The county appeals. Analysis The county raises five challe nges; we examine each in turn. We first address the county’s argument that the d istrict court erred in denying its motion to dismiss the Navajo Nation’s claim relati ng to the 2011 county-commissio n districts. Second, we consider whether the district court erred when it ruled thatthe county lacked a compelling interest to justify th e racially drawn boundaries of county-commission District 3. Third, we review the county’s assertion that the di strict court erred in rejecting the county’s justificat ions for the population deviat ion in the 1992 schoolboard districts. Fourth, we ask wh ether the district court erre d in finding that the county’s proposed remedial redist ricting plan was predominantly based on race and8 failed to satisfy str ict scrutiny. Last, w e consider whether, a s the county contends, the district court erroneously orde red the county to adopt the spec ial master’s remedial redistricting plan. 6 I. The County’s Motion to Dismiss The county first argues that the district court erred in denyin g its motion to dismiss. In particular, it argues that (1) the 1984 consent dec ree and settlement order bar the claim related to the c ounty-commission districts becaus e the court that approved the consent decree and en tered the settle ment order re tained jurisdiction over the matter; and (2) the Unit ed States, as a party to the c onsent decree and settlement order, is indispensabl e to this action. Neither argu ment succeeds. When a court accepts a consent d ecree and enters an accompanyin g order, it often retains jurisdiction over the matter. If it does so, othe r courts necessarily lack subject-matter jurisdiction over suits seeking to modify that d ecree. See Culbreath v.
Dukakis , 630 F.2d 15, 22 (1st Cir. 1980) (noting that “only the distri ct court supervising implemen tation of the decree will have subject[-]ma tter jurisdiction to modify the decree”). That typica lly means parties to a consent decree can’t collaterally attack the judgm ent in a separate action. See Floyd v. Ortiz , 300 F.3d 1223, 1225 n.1 (10th Cir. 2002) ( noting that party to consent j udgment can’t

6 The county also argues that the d istrict court erred in orderi ng special elections based on the new dist ricts. But these elections took place in November 2018, before oral argument in thi s appeal. As such, this argume nt is moot, and we do not consider it. See Fleming v. Gutierrez , 785 F.3d 442, 445 (10th Cir. 2015) (“[B]ecause the election has pa ssed and we cannot grant any eff ective relief, the appeal is moot.”).9 collaterally attack consent judgment); Barfus v. City of Miami , 936 F.2d 1182, 1185 (11th Cir. 1991) (citing cases “ holding that a party or privy t o a consent decree cannot launch a collateral a ttack upon the decree”). And that’s what the county urges happened here: it contends tha t this case is an impermissible collateral atta ck on the consent decree and se ttlement order. The district court rejected this subj ect-matter-jurisdiction argume nt for two reasons. First, it found that because the Navajo Nation wasn’t a party to the c onsent decree and settlement order, the rule that “ parties to a consent decree ma y not collaterally attack the judgment in a separate actio n” didn’t apply. App. vol. 3, 4 52. Second, it determined that “the present s uit does not address the subject matter of the 1984 [consent decree and settlement order].” Id. at 453. Specifically, t he district court noted that the consent decree andsettlement order aimed to eli minate at-large elections but said nothing about s pecific boundary lines or the makeup of any singlemember district. And in this case, the Navajo Nation didn’t see k to return to at-large elections; instead, it sought to redraw certain boundaries. Thu s, the district court concluded that although the court that approved the consent dec ree and entered the settlement order “retain[ed] jur isdiction for all purposes,” th is case didn’t implicate “th[e] matter” over which jurisdiction was retained. Id. (quoting App. vol. 2, 224). On appeal, the county challenges bot h of these rationales. “We review de novo the district court’s denial of a motion to dismiss for lack of subject[-]matter jurisdiction.” Opala v. Watt , 454 F.3d 1154, 1156–57 (10t h Cir. 2006). The county first contends that the Navajo N ation was a party to the consen t decree and settlement10 order because the United States brought the 1983 lawsuit “on be half of [the] Navajo Nation.” Aplt. Br. 37. But this argument misses the mark becaus e the 1983 complaint plainly states that it was br ought “on behalf of the United Sta tes of America,” not the Navajo Nation. App. vol. 2, 273. Resisting this plain language, t he county points out that the 1 983 complaint identifies 25 U.S.C. § 175 as one of the statutes authorizing t he lawsuit. Section 175 provides that “[i]n all [s]tates . . . where there are reservat ions or allotted Indians[,] the United States [A]ttorney sha ll represent them in all suits at law and in equity.” Traditionally, Native American l itigants invoke this statute wh en they wish to have the United States Attorney represe nt their interests in court. See, e.g. , Oviatt v. Reynolds , 733 F. App’x 929, 931 (10th Cir . 2018) (unpublished) (exercis ing discretion to deny § 175 motion to appoint United States Attorn ey); Siniscal v. United States , 208 F.2d 406, 410 (9th Cir. 1 953) (holding that § 175 “is not mandatory and that its purpose is no more than to [e]nsure [Nat ive Americans] adequate representation in suits to which they might be parties ”). But the county cites no authorit y for the proposition that the United States’ mere mention of § 175 somehow mad e the Navajo Nation a party to the 1983 lawsuit or brought the Navajo Nation into privity with the United State s. Nor does it point to any fact tending to show that th e Navajo Nation invoked § 175 a nd asked the United States to bring th e 1983 lawsuit on its behalf. Indeed, althoug h the 1983 complaint cites § 175, it plainly relies on the VRA as authority for the action. The VRA permits the United States to institute a civil action whenever “any per son has engaged or11 there are reasonable grounds to believe that any person is abou t to engage in any act or practice which would deprive any other person of” the right to vote. § 10101(c). In line with this authority, the 1983 complaint alleges violations of the VRA and requests relief under the VRA. Accordingly, we conclude that th e mere reference to § 175 on th e first page of the 1983 complaint doesn’t estab lish that the United States act ed as a representative of the Navajo Nation in bringing the 1983 lawsuit. Thus, we rej ect the county’s argument that the Navajo Nation wa s a party to the earlier laws uit simply because the United States used the VRA to pro tect the voting rights of Nati ve Americans living in San Juan County. And because the Navajo Nation wasn’t a party t o the consent decree and settlement order, the collateral-attack doctrine doe sn’t bar this action. Cf. Floyd , 300 F.3d at 1225 n.1 (prohibiti ng collateral attack by party or person in privity with party to set tlement order). The county next argues that the Navajo Nation’s suit seeking to redraw the boundaries of the county-commissi on districts implicates the 19 84 consent decree and settlement order because thos e documents required the Unite d States to approve the county’s new single-member d istricts. The district court fo und it “reasonable to infer from the record that the [c ]ounty presented a final plan to the [United States] before enacting it.” App. vol. 4 9, 9834 n.34. We accept this in ference. But the county takes this inference too far, i nsisting that (1) the county cre ated District 3’s boundaries “at the insistence of the” United States, and (2) th ese boundaries are12 permanent and can’t be changed without involvement and permissi on of the United States. Aplt. Br. 37. Yet we see no support for these additional inferences in the re cord. Even if the United States approved the origi nal single-member district boun daries, nothing in the 1984 consent decree and settlemen t order prohibits the county f rom altering those boundaries over time. The reco rd does indicate that one county official testified that she believed the consent decree and settlement order (1) establ ished District 3’s boundaries such that the distric t would be packed with Navajo v oters and (2) locked those boundaries. But those docum ents simply do not support the official’s testimony. Indeed, the county’s ope ning brief at one point conc edes that the consent decree and settlement order “do [] not dictate that the boundari es of District[ ]3 remain unchanged or even that Dis trict[ ]3 be a Navajo-majority ” district. Aplt. Br. 42. Accordingly, the district c ourt correctly det ermined that t he Navajo Nation’s claim seeking to modify Distric t 3’s boundaries doesn’t implica te the consent decree and settlement order. As a resu lt, we conclude that although th e district court retained jurisdiction over the 1983 consen t decree and settlement order, that fact didn’t deprive the district court in th is case of jurisdiction over th e Navajo Nation’s claim related to the county-commission districts. 7

7 Because we may reject the county’ s argument on these bases alo ne, we need not and do not address whether, a s the Navajo Nation alternativ ely argues, the district court’s order refusing to reope n the 1983 litigation has some s ort of preclusive effect in this case.13 Relatedly, and briefl y, the county argues that the district cou rt abused its discretion when it ruled that the United States wasn’t an indis pensable party under Federal Rule of Civil Procedure 19. See N. Arapaho Tribe v. Harnsberger , 697 F.3d 1272, 1277 (10th Cir. 2012) (no ting that we review Rule 19 dete rminations for abuse of discretion). The county sugg ests that because the consent de cree is a contract, all parties to that contract—includi ng the United States—must be in volved in any litigation related to that contra ct. But as we’ve just detailed , the Navajo Nation’s claim related to the county-co mmission districts doesn’t implic ate the consent decree and settlement order . As such, the district court didn’t abuse its discretion in concluding that the United States wasn’t indispensable to this action. In sum, because this case doesn ’t implicate the 1984 consent de cree and settlement order, we affirm the district court’s order denying the county’s motion to dismiss. II. The 2011 County-Commission Districts Next, the county argues that the district c ourt erred in granti ng summary judgment to the Navajo Nation on the claim that the boundaries of District 3 of the 2011 county-commission district s were unconstitutionally based on race in violation of the Equal Protection Clause. “We review a grant of a motion for summary judgment de novo, applying the sa me legal standard used by the district court.” Adarand Constructors, Inc. v. Slater , 228 F.3d 1147, 1161 ( 10th Cir. 2000) (quoting McGarry v. Bd. of Cty. Comm’rs , 175 F.3d 1193, 1198 (10th Cir. 1999)). Under that legal standard, summary judgment is appropriate if there are no genuine issues of14 material fact and the moving part y is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Fourteenth Amendment’s Equa l Protection Clause “limits raci al gerrymanders in legislativ e districting plans.” Cooper v. Harris , 137 S. Ct. 1455, 1463 (2017). That means a state cannot, “in the absence of ‘suf ficient justification,’ . . . ‘separat[e] its citizens in to different voting districts on the basis of race.’” Id. (quoting Bethune-Hill v. Va. State Bd. of Elections , 137 S. Ct. 788, 797 (2017)). In racial gerrymandering cases, the initial burden is on the plain tiff to “prove that ‘race was the predominant factor motiv ating the legislature’s decisio n to place a significant number of voters within or wit hout a particular district.’” Id. (quoting Miller v. Johnson , 515 U.S. 900, 916 (1995)). It ma kes no difference whether “th e reason for the racial classification is ben ign or the purpose remedial.” Shaw v. Hunt , 517 U.S. 899, 904–05 (1996). If a plaintiff proves that race was the pre dominant factor, “the design of the district must w ithstand strict scrutiny.” Cooper , 137 S. Ct. at 1464. Under strict scrutiny, “[t]he burden . . . shifts to the [gover nment] to prove that its race-based sorting of voters serv es a ‘compelling interest’ and is ‘narrowly tailored’ to that end.” Id. (quoting Bethune-Hill , 137 S. Ct. at 800). Here, the parties largely agr ee on the underlying material fact s. Most critically, the county “admit[s]” that it dr ew District 3’s boundaries “bas ed on race.” Aplt. Br. 41. Thus, we need not consider w hether the Navajo Nation suffic iently proved that race predominated in the creation of District 3; the county has conceded as much. Instead, we need only determine wh ether, as the county argues, the district court15 erred in concluding that it coul dn’t satisfy the strict scrutin y applied to that racebased decision. In reaching that conclusion, the d istrict court rejected the co unty’s argument that it had a compelli ng interest in adhering to the terms of t he 1984 consent decree and settlement order. Specifica lly, the district court acknowle dged that county officials subjectively believed that the consent decree and set tlement order required packing Navajo voters into Distr ict 3. But it found that this s ubjective belief wasn’t enough to establish a compelling interest. In particular, the d istrict court stated that “subjective beliefs cannot supply legal requirements . . . that are not found in the documents themselves.” App. vol . 49, 9855. It further noted tha t nothing in the consent decree or settlement ord er established specific distric t lines or provided that such lines must exist, unchang ed, in perpetuity; nor did those documents refer to packing Native American voters in to a single district. As such, the district court concluded that complying with t he consent decree and settlementorder did not provide a compelling interest to justify District 3’s race-base d boundaries. Thus, the district court granted summary ju dgment in favor of the Navajo Nation on its claim that the boundaries of District3 of the 2011 county-commission districts were unconstitutionally based on race in violation of the Equal Prot ection Clause. We review that ruling de novo. See Concrete Works of Colo., Inc. v. City & Cty. of
Denver , 321 F.3d 950, 958 (10th Cir. 2003) (noting that we review de novo whether party satisfies str ict scrutiny).16 In seeking reversal of this ru ling, the county first contends, as it did below, that the 1984 consent decree andsettlement order required it t o maintain District 3’s race-based boundaries. But the county fails to “explain . . . w hy the district court’s decision was wrong.” Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015). In fact, the county advan ces no argument on this front, and it goes as far as to admit that the consent decree andsettlement order don’t “dicta te that the boundaries of District[ ]3 remain unchangedor even that District[ ]3 be a Navajo-majority” district. Aplt. Br. 42. Thus, we find this argument waived thro ugh inadequate briefing and decline to address it. See Fed. R. App. P. 28(a)(8) (requiring argument section of appellant’s opening brief to c ontain “appellant’s contentions a nd the reasons for them, with citations to the au thorities . . . on which the appe llant relies”); Nixon , 784 F.3d at 1369 (declining to consid er argument inadequately brief ed on appeal). Rather than challenging any asp ect of the district court’s soun d analysis of the language of the consent decree a nd settlement order, the county instead advances a new compelling-interest argument: it asserts that it has a comp elling interest in complying with § 2 of the VRA. Although we assume that “compl[y ing] with § 2 of the VRA constitutes a compelling government interest,” we never theless reject the county’s argument. Sanchez v. Colorado , 97 F.3d 1303, 1328 (10th Cir. 1996); see also Cooper , 137 S. Ct. at 1464 (assuming that complying with VRA is compe lling interest). That’s because the compelling interest is only half the battle of strict scrutiny. And the county doesn’tsurvive the other half because , for the reasons17 discussed below, it can’t show t hat District 3’s race-based bou ndaries were narrowly tailored to further that interest. 8 Narrow tailoring in the context of VRA compliance means that th e county must show “it had ‘a strong basi s in evidence’ for concluding t hat the [VRA] required its action,” or, stated differently, “that it had ‘goo d reasons’ to think that it would transgress the [VRA] if it did not draw race-based distri ct lines.” Cooper , 137 S. Ct. at 1464 (quoting Ala. Leg. Black Caucus v. Alabama , 135 S. Ct. 1257, 1274 (2015)). On appeal, the county as serts that the consent decree and settlement order provide the required strong evid ence and good reasons for its r ace-based line drawing. But this argument ignor es the context and language of the consent decree and settlement order. As discus sed, the county entered into the consent decree to remedy potential VRA violations r esulting from its at-large ele ctions. But the consent decree and settlement order them selves didn’t mandate the compo sition of the singlemember districts. Nor did they set the boundaries of those dist ricts. So complying with the 1984 consent decree andsettlement orde r didn’t supply the county with a good reason to pack Native Americ an voters into District 3 in 2 011. Indeed, there’s no evidence that w hen redistricting in 2011, th e county ever attempted to determine what § 2 required. Instead , the evidence shows that (1) the county mistakenly believed it wasn ’t permitted to modify Distri ct 3’s boundaries, and

8 The district court reached the s ame conclusion when it address ed, “[o]ut of an abundance of caution,” any su ggestion that the county drew r ace-based boundaries in an attempt to comply with § 2. App. vol. 49, 9850 n.103.18 (2) it maintained this belief de spite being unsure of what the consent decree and settlement order required. The c ounty’s mistaken understanding simply doesn’t provide “a strong basis in evide nce” or a “good reason[]” to be lieve that § 2 required this racially dra wn boundary. Cooper , 137 S. Ct. at 1464 (quoting Ala. Leg. Black
Caucus , 135 S. Ct. at 1274). Thus, even assuming VRA compliance provi des the county with a compelling intere st, the county fails to establis h—for purposes of narrow tailoring—that it had go od reasons or a strong basis in evidence to believe that the VRA required maintaini ng District 3’s race-based bound aries. Accordingly, we affirm the distr ict court’s order granting summ ary judgment to the Navajo Nation on its cla im that the county created county-commission District 3 based on race in violation of the Equal Protection Clause.
III. The 1992 School-Board Districts The county next challenges the district court’s order granting summary judgment to the Navajo Nation on its claim that the school-boar d districts violate the Equal Protection Clause because t he districts contain substanti ally unequal populations, in violation of the o ne-person, one-vote principle . The same summaryjudgment standard of review app lies to this issue, and the part ies again agree on the underlying facts. In addition to prohibiting race-ba sed classifications that fail to survive strict scrutiny, the Equal Protection Cl ause of the Fourteenth Amendme nt “prohibits states from restricting or diluting vot es in violation of the ‘one per son, one vote’ principle.” City of Herriman v. Bell , 590 F.3d 1176, 1185 (10th Ci r. 2010). The Supreme Court19 first described this principle in Reynolds v. Sims , 377 U.S. 533 (19 64), and extended it to local governments in Avery , 390 U.S. 474. Under the one-person, one-vote principle, the right to vote “is infringed when legislators are elected from districts of substantially unequal population.” Avery , 390 U.S. at 478. Or, as the district court in this case put it, “election dist ricts must be of substantially equal population, to avoid over[]representing members of one district (whose votes count p roportionally more) or under[]representing members of another (whose votes count pr oportionally less).” App. vol. 43, 8351. At the same time, “it is a prac tical impossibility to arrange l egislative districts so that each one has an identical number of residents, or citiz ens, or voters.” Reynolds , 377 U.S. at 577. Recognizing this reality, the Court has heldthat “a maximum population deviation un der 10%” is a “minor deviation[] ” that doesn’t “make out a prima facie case of invidious discrimination under the Fourteenth Amendment.” Brown v. Thomson , 462 U.S. 835, 842 (1983). C onversely, a plan with population disparities over 10% “creates a prima facie case of discrimination and therefore must be justified by the [redistricting entity].” Id. at 842–43. Here, the deviation is around 38%—well over the 10% threshold. Indeed, th e county didn’t argue below and doesn’t argue on appeal that the Navajo Nation failed to make out a prima facie case of unconstituti onal vote dilution. Instead, th e question is whether the county can adequately jus tify the disparity. Initially, the parties disagree about the level of scrutiny we should apply to the county’s justifications for dev iating from the one-person, one- vote principle. The20 Navajo Nation argues that we s hould apply strict scrutiny, and the county suggests that we should instead follow th e district court’s lead and use the intermediate balancing test the Court articulated in Anderson v. Celebrezze , 460 U.S. 780 (1983), and Burdick v. Takushi , 504 U.S. 428 (1992) (the Anderson-Burdick test). 9 Compare Carlson v. Wiggins , 675 F.3d 1134, 1139 (8th Cir. 2012) (“[D]eviations from [one person, one vote] are subjectto strict scrutiny.”), with Daly v. Hunt , 93 F.3d 1212, 1218 n.8 (4th Cir. 1996) (“The one[-]person, one[-]vote princip le is apparently not subject to strict scrutiny . . . .”). But we need not decide, in th is case, which level of scrutiny applies to all one-perso n, one-vote challenges. That’s because even under the lower standard o f the intermediate Anderson-Burdick test, the county’s justifications fail. Under the Anderson-Burdick test, we “weigh ‘the cha racter and magnitude of the asserted injury’ . . . against‘the precise interests put f orward by the [government] as justifications for t he burden imposed by its rule,’ taking i nto consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’”
Burdick , 504 U.S. at 434 (quoting Anderson , 460 U.S. at 789). This test provides a sliding scale under which “the r igorousness of [the] inquiry in to the propriety of a

9 Below, the county argued for rati onal-basis review. And on app eal, the county occasionally hints at a ra tional-basis argument: it stat es that the district court “applied the wrong test” and thatthe county’s proffered justif ications were a

“ rational . . . policy that justified the g reater-than-10% deviation.” A plt. Br. 47 (emphasis added). But because the county expressly invokes the Anderson-Burdick test as the applicable standard, we do not interpret these othe r statements as a renewed argument for ra tional-basis review.21 state election law de pends upon the extentto which a challenge d regulation burdens” individual rights. Id. We begin with “the character and m agnitude of the asserted inju ry.” Anderson , 460 U.S. at 789. On this point, t he county takes no issue with the district court’s conclusion that “[t]wo decades o f significant non[]compliance w ith the one-person, one-vote principle on its own st rongly suggests an arbitrary ab dication of constitutional responsibilities. ” App. vol. 43, 8363. Indeed, w hen the county first drew the districts in 1992, the deviation was 18.7%. And the co unty never attempted to correct this deviation. In f act, it failed to redistrict eve ry 10 years as required by state law. See Utah Code Ann. § 20A-14-201(2 )(a)(i). This “stark and dramatic population deviation . . . rende r[s] the apportionment more con stitutionally suspect than a deviation closer to the 10% safe harbor.” App. vol. 43, 8362; see also Mahan
v. Howell , 410 U.S. 315, 329 (1973) (noti ng that deviation of 16.4% “may well approach tolerable limits”); cf. Daly , 93 F.3d at 1218 (“[T ]here is a level of population disparity beyond whic h a [districting entity] can of fer no possible justification.”). Likewise, the county doesn’t dis pute that the seriousness of th e injury increases “the rigorousness of [the] inquiry into the propriety ” of the county’s justifications. Burdick , 504 U.S. at 434. Instead, the co unty primarily challenges the manner in which the district c ourt analyzed the county’s proffe red justifications for the population disparity. See id. (directing court to revie w “precise interests put forward by the [government] as j ustifications for the burden imposed” (quoting22 Anderson , 460 U.S. at 789)). In particul ar, the county asserts that the district court erred by considering its proffe red justifications individually, rather than collectively. Yet it provides no authority forthe proposition that a court m ust consider the justifications as a whole. Cf. Chapman v. Meier , 420 U.S. 1, 24–25 (1975) (considering and rejecting proffe red justifications one by one) . Nor is it clear that the district court in fact failed to consider the factors together; it merely discussed them one at a time. See id. But even if we accept both the county’s premi ses—that the district court must consider the justifications collectively an d failed to do so here— we nevertheless reject the count y’s argument and affirm the dis trict court. That’s because even considered collectiv ely, the county’s justificatio ns don’t satisfy the intermediate Anderson-Burdick test. The county’s primary justifica tion on appeal is its school-comm unity philosophy. Under this philosop hy, the school-board “districts are essentially drawn around the[] schools, creating communities of interest” to “ens ur[e] that each school . . . has specific representati on on the [s]chool [b]oard by pl acing voters who are within the school’s boundaries i n the voting district for that school’s board member.” Aplt. Br. 48. The county argues that this philosophy, in combin ation with the county’s geography and sparse pop ulation, justifies the 38% pop ulation deviation. The county’s argument suffers fr om several flaws . First, “spars e population is not a legitimate basis for a de parture from the goal of equalit y.” Chapman , 420 U.S. at 24. In fact, the Court indicated in Chapman that sparse populati on actually cuts the other way because “in a [s]ta te with a small population, each i ndividual vote may be23 more important to the result of an election than in a highly po pulated [s]tate.” Id. Nor do geographic considerations typi cally justify significant devi ations: “Modern developments and improvements in transportation and communicati ons make rather hollow . . . most claims that devi ations from population-based representation can validly be based solely on ge ographical considerations.” Reynolds , 377 U.S. at 580. One example of such improvements in communications is the count y’s own vote-bymail system, which negates con cerns about the location of polli ng places in the county. As such, we conclude tha t the county’s geography and sp arse population aren’t persuasive justifications , even considered collectively, for the 38% population deviation. Nor does the addition of the sc hool-community philosophy change this analysis. Like the district court, we accept that the school-co mmunity philosophy could potentially justify the population deviation. 10 But the county’s method of implementing this philosophy runs contrary to state law. By sta tute, Utah mandates three considerations for drawing school-board districts, one of which is that the districts must be “substantially equal in population.” § 20A-14 -201(1)(b). State law says nothing about a school-comm unity philosophy. Thus, the cou nty’s goal of prioritizing the school-community philosophy over a state-manda ted factor that

10 The Navajo Nation suggests tha t because the school-community p hilosophy is a post hoc justification lacki ng support in the historical r ecord, we shouldn’t consider it. But even assuming th at the school-community philos ophy is a post hoc justification, that fact is irre levant. In this context, we ass ume it’s “enough that good reasons can be given for the ac tion, whether or not they were a rticulated in advance of the action.” Frank v. Forest Cty. , 336 F.3d 570, 574 (7th Cir. 2013).24 mirrors the Fourteenth Amendmen t’s one-person, one-vote guarant ee fails to justify vote dilution, even when consider ed in combination with the cou nty’s sparse population and geography. In any event, even assuming these justifications carry some wei ght and could explain part of the population di sparity, the county failed to demonstrate below and likewise fails to demonstrate on appeal the extent to which the unequal districts are a necessary result of its school-c ommunity philosophy, sparse pop ulation, and geography. In the absence of suc h a showing, we can’t determine the “extent to which” the school-community philo sophy “make[s] it necessary to burden” the voting rights of the county’s residents. Burdick , 504 U.S. at 434 (quoting Anderson , 460 U.S. at 789). In other words, even if we accept that the co unty drew unequal districts in an effort to implem ent its school-community philos ophy, the county fails to show that the substantial 38% deviation was an unavoidable c onsequence of this goal. Of course, the county neednot demonstrate that the unequ al districts were

necessary to implement its school-community philosophy. See Mahan , 410 U.S. at 326 (noting that in one-person, one-vote cases, “the proper equ al[-]protection test is not framed in terms of ‘govern mental necessity’” (quoting Reynolds , 377 U.S. at 580–81)). But even unde r the intermediate Anderson-Burdick test, the county must show something more than a rati onal motivation for drawing uneq ual districts; it must provide a reason or reasons that are strong enough to just ify the significant dilution of its citizens’ right to vote.25 In a final attempt to p ersuade the court that it has made this showing, the county relies on Frank , 336 F.3d 570. There, two of the 21 county-supervisor districts in a sparsely populat ed Wisconsin county varied in po pulation by 18%.
Frank , 336 F.3d at 572. In a vote-dilu tion challenge arising under t he one-person, one-vote principle, the Seventh Circuit affirmed summary judgme nt for the county because the high number of distric ts combined with the low popu lation made it impossible to draw more equal di stricts without creating odd sh apes and crossing local government boundaries. See id. at 573. This case is distinguishable from Frank based solely on the number of districts involved—five here, compared to 21 in Frank . Critically, it’s fa r more difficult to equally divide a county’s resident s into 21 districts than it i s to equally divide them into only five districts. See id. at 571, 573 (noting that“the more numerous the districts,” the “harde r [it is] to create districts of equal po pulation”). Thus, the high number of districts at issue in Frank gave the county a sufficiently strong justification for the populati on variance. And that justificati on is entirely lacking here. Further, the 18% deviation in Frank is far less than the 3 8% deviation at issue in this case. See id. at 572. Thus, we find Frank unpersuasive. In summary, the county’s reasons f or its substantially unequal school-board districts fail to adequately jus tify the heavy and longstanding burden on its residents’ right to vote. We therefore affirmthe district court’s order g ranting summary judgment to the Navajo Nation on its claim that the school-boar d districts violate the Equal Protection Clause.26 IV. The County’s Proposed R emedial Redistricting Plan The county argues that the distr ict court erred when it determi ned that the county’s proposed remedial redist ricting plan was predominantly based on race (a factual finding we review for cl ear error) and that the plan di dn’t survive strict scrutiny (an analysis we review de novo). See Cooper , 137 S. Ct. at 1465 (noting that we review racial-predomination factual finding for clear error) ; Concrete Works of Colo. , 321 F.3d at 958 (noting that we review de novo whether party can satisfy strict scrutiny). Because “[f]ederal-court review of districting legislation repr esents a serious intrusion on the most vita l of local functions,” Miller , 515 U.S. at 915, a plaintiff alleging racial discrimination in this context faces a “demandi ng” burden of proof, Cooper , 137 S. Ct. at 1479 (quoting Easley v. Cromartie , 532 U.S. 234, 241 (2001)). Specifically, “[t]he plaintiff’s burden is to show, either thro ugh circumstantial evidence of a district’ s shape and demographics or more direct evidence going to legislative purpose , that race was the predominant factormotivating the legislature’s decision to place a significant number of voters within or with out a particular district.” Miller , 515 U.S. at 916 (emphasis added); accord Cooper , 137 S. Ct. at
1479. “To make this showing, a plainti ff must prove that the legislat ure subordinated traditional race-neutral distr icting principles, including but not limited to compactness, contiguity, and re spect for political subdivisions or communities27 defined by actual shared interes ts, to racial considerations.” 11 Miller , 515 U.S. at 916 (emphasis added). That is, it’s not enough to show that a redis tricting entity is “aware of racial demographics.” Id. Nor is it enough to show that th e redistricting entity had a “policy of prioritizing mechan ical racial targets above all o ther districting criteria (save one-person, one-vote).” Ala. Leg. Black Caucus , 135 S. Ct. at 1267. Such a policy is “evidence that race mo tivated the drawing of particul ar lines,” but it isn’t conclusive proof that race predom inated over traditional redist ricting principles in any particular district. Id. If a plaintiff shows that race p redominated the districting pro cess, then the district court will subject the r acially drawn lines to strict scrutiny. See Miller , 515 U.S. at 920. And as discussed ear lier, “[t]o satisfy strict scrutiny,” the county “must demonstrate that its d istricting legislation is narrowly tailor ed to achieve a compelling interest.” Id. Here, the district court found th at racial considerations predo minated over traditional districting principl es in the county’s redistrictin g of both the school-board and county-commission districts . To reach this conclusion, the district court first noted that the county’s primary goal, after adhering to the one -person, one-vote principle, was complying with § 2 of the VRA. But rather than r ely on any

11 Complying with the one-person, one-vote requirement isn’t a tr aditional districting principle. Instead, “ it is part of the redistrictin g background, taken as a given, when determining whether race, or other factors, predomi nate in a [redistricting entity’s] determin ation as to how equal[-]popula tion objectives will be met.” Ala. Leg. Black Caucus , 135 S. Ct. at 1270.28 particularized § 2 analysis, the county aimed for overall racia l proportionality “as a proxy for compliance with [§] 2 o f the [VRA].” App. vol. 54, 10 852. That proportionality goal effectivel y created one county-commission district with a “safe [w]hite majority,” one county-co mmission district with a “safe Native American majority,” and one county-commissi on district with “a slim Nati ve American majority.” Id. at 10853–54. For the school-board districts, the county create d two districts “with a safe majority of [w]hite voters,” two distric ts “with a safe majority of Native American voters,” and one district with “a slim Nativ e American majority.”
Id. at 10853. The county’s proposed r emedial redistricting plan wa s meant to mirror the overall racial demographics o f the county, which is just ov er half Native American. Based on this informati on, the district court conclud ed that the county “adopted a countywide policy of p rioritizing racial targets abo ve all other redistricting criteria.” Id. at 10850. The district court next consider ed whether and how this proport ionality policy impacted the individual districts. See Ala. Leg. Black Caucus , 135 S. Ct. at 1267. It concluded that race predominatedin the drawing of school-board District 3 (but not in any of the other school-boarddistricts). In support of its conclusion that race predominated in that district, t he district court pointed to (1 ) the racial demographics showing a narrow racial split t hat mirrored the county as a who le; (2) the odd and noncompact “horseshoe[-]lik e” shape of the district; 12 and (3) the four precinct

12 In particular, the district c ourt described how school-board D istrict 3 “wrapp[ed] completely around [sc hool-board] District 4.” App. v ol. 54, 10855.29 splits 13 in this district (out of eight s uch splits in the county as a whole). App. vol. 54,
10855. It likewise concluded that race p redominated in the drawing of countycommission Districts 1 and 2 (butnot District 3). For District2, it pointed to (1) testimony from the county’s expert that he specifically mov ed voters from District 1 into District 2 in or der to increase the percentage of Native Americans in District 2; (2) testim ony from the county’s expert that he spli t a precinct in order to complete that increase; and (3) the racial demographics showing a narrow racial split that mirrored the county as a whol e. For District 1, the distri ct court noted that the same expert testimony supported a finding that race predominate d in creating its boundary, as did evidence showi ng that the county’s expert grou ped disparate communities from the far north a nd the far south of the county into District 1. Having concluded that race predom inated in creating these distr icts, the district court then determined that the county could not satisf y strict scrutiny. It did so primarily because the county c hose “to stand on its argumentthat its consideration of race in redistricting was pe rmissible” rather than attemptin g to meet strict scrutiny.
Id. at 10859. But the district court nevertheless interpreted the county’s purported attempts to comply with § 2 of t he VRA as a compelling interest

. See Sanchez , 97

13 One “traditional districting objective” is to avoid “splitting . . . precincts” into multiple districts. Ala. Leg. Black Caucus , 135 S. Ct. at 1263. So the decision to split a voting precinct into two o r more districts (rather than keeping the whole precinct in one district) runs c ounter to traditional districti ng principles and can therefore be evidence that a r edistricting entity subordinated those traditional principles to raci al considerations. See id. at 1270.30 F.3d at 1328 (holding that VRA compliance is compelling interes t). It then applied the “relaxed version of narrow tailoring” that applies when a r edistricting entity asserts VRA compliance as a compelling interest. App. vol. 54, 10860; see also Ala. Black Leg. Caucus , 135 S. Ct. at 1274 (noting thatredistricting entity may have “strong basis in evidence to use racial classifications in orde r to comply with a statute when they have good r easons to believe such use is required”). In so doing, the district court determined that “the [c]ounty provi ded no eviden ce that there was a potential [§] 2 violation to rem edy as to Native American voter s.” App. vol. 54, 10861. Accordingly, the district court found that the county la cked “a strong basis in evidence” or “good reasons” fo r its race-based choices. Cooper , 137 S. Ct. at 1464 (quoting Ala. Leg. Black Caucus , 135 S. Ct. at 1274). Having concluded that racial considerations predominated in c reating certain districts and that those race-based decisions didn’t withstand strict scrutiny, the district court rejected the county’s proposed remedial redistricting plan. On appeal, the county contends tha t the district court’s factua l finding—that race predominated the drawing of t hese districts—was clearly erroneous. See id. at 1465 (noting that we review fac tual finding about “whether raci al considerations predominated in drawing districtlines” for clea r error). But i t fails to point to any part of the district court’s an alysis as unsupported by the rec ord. See id. at 1474 (noting that under clear-error re view, we affirm court’s findin g so long as it’s “plausible,” and “we reverse onl y when ‘left with the definite and firm conviction that a mistake has bee n committed’” (quoting Anderson v. City of Bessemer City , 47031 U.S. 564, 573–74 (1985))). Inst ead, the county a sserts that it drew these boundaries to meet the goals of adhering to t he one-person, one-vote princ iple; complying with the VRA; and maintaining precinc t boundaries. None of these ass ertions convince us that the district court clearly erred in concluding that racial considerations predominated in creating the count y’s proposed remedial redistr icting plan. First, the one-person, one-vote principle is “taken as a given[ ] when determining whether race, or other factors, predominate.” Ala. Leg. Black Caucus , 135 S. Ct. at 1270. That the count y was following this principl e isn’t relevant to the question of whether race predomin ated in creating these distric ts. Second, it’s true that complying with the VRA can b e a compelling interest that j ustifies the racebased boundaries of an election district. See Sanchez , 97 F.3d at 1328. But this, too, is irrelevant to the question at hand. That’s because we aren’tconcerned, at this point in the analysis, with the reasons forthe county’s race-based r edistricting; instead, we are concerned with whether race- based redistricting in fact occ urred. Third, as to maintaining precinc t boundaries, the district cour t specifically and correctly found that race predomin ated over this goal. The raci ally proportionate school-board District 3 included four of eight total precinct s plits, and the county offered no other justifi cation for these splits. 14 Also, the county’s e xpert testified that he intentionally split a preci nct between county-commission Dis tricts 1 and 2 to

14 Nor did the county offer any ex planation for the noncompact, h orseshoe shape of school-board District 3. The county likewise entirely ignores the district court’s noncompactness finding on appeal, failing to discuss orchallenge it in any way.32 increase the Native American popul ation in District 2. In short , the county’s challenge to the district court’ s conclusion that race predomin ated the county’s redistricting process doesn’t l eave us with “the definite and f irm conviction that a mistake has been committed.” Cooper , 137 S. Ct. at 1474 (quoting City of Bessamer City , 470 U.S. at 573). We thus hold th at the district court did no t clearly err when it ruled that race predominated the c reation of these districts. The county next argue s that assuming race d id predominate, the districts nevertheless survive strict scrut iny. We review the application of strict scrutiny de

novo. See Concrete Works of Colo. , 321 F.3d at 958. As we did earlier, we assume that complying with § 2 of the VRA is a compelling interest. See Cooper , 137 S. Ct. at 1469 (assuming that VRA complia nce can be compelling interes t); Sanchez , 97 F.3d at 1328 (holding that VRA compliance can be compelling int erest). But the county must also meet the n arrow-tailoring requirement. See Cooper , 137 S. Ct. at 1464. On that front, the county asserts that (1) the 1984 conse nt decree and settlement order and (2) the dist rict court’s redistricting ins tructions provide the required “good reasons” or “stro ng bas[e]s in ev idence” for the race-based boundaries. Id. (quoting Ala. Leg. Black Caucus , 135 S. Ct. at 1274). Yet as we previously discussed atlength, this case doesn’t imp licate the consent decree and settlement ord er. That the county entered in to the agreement to remedy an alleged § 2 violation doesn’t change the analysis; th e violation alleged in the 1983 lawsuit resulted from an at-large election system that ’s no longer in place. So the § 2 concerns that led to t he 1983 lawsuit and the consen t decree and settlement33 order aren’t relevant to whetherthe remedial single-member ele ction districts create any § 2 issues. Next, we reject the cou nty’s contention thatthe district court ’s instructions in this case provided the necessary good reasons to believe that t he new single-member districts might violate § 2. The district court mentioned in pa ssing, from the bench, that the county’s remedial redis tricting plan should comply wit h § 2: “The county is going to develop a plan, and it can be constitutionally infirm if the county chooses not to take into accountthe [§ 2] issues that might arise . . . .” App. vol. 58, 11273. But as the Navajo Nation points out, acknowledging that § 2 iss ues “might arise” isn’t the same as advising the co unty that its plan would or di d violate § 2. Id. This casual comment about a source of law relevant to redistricting simply isn’t “‘a strong basis in evidence’ for concluding that the [VRA] required” stri ct proportionality and the resulting race-based boundary lines. Cooper , 137 S. Ct. at 1464 (quoting Ala. Leg. Black Caucus , 135 S. Ct. at 1274). Moreover, the county acknowledges t hat its expert did not condu ct a § 2 analysis. And in the absence of a ny investigation into what § 2 might require, the county lacks any basis to argue t hat it had good reasons to bel ieve § 2 of the VRA required strict proportionality and race-based boundaries. Inde ed, the Supreme Court tends to reject strict-scrutiny arguments based on § 2 complian ce when “the [redistricting entity] c[an] pointto ‘no meaningful legislativ e inquiry’ into ‘whether a new, enlarged’ district, ‘creat ed without a focus on race, . . . could lead to § 234 liability.’” Abbott v. Perez , 138 S. Ct. 2305, 2334–35 (20 18) (omission in original) (quoting Cooper , 137 S. Ct. at 1471). 15 Last, the county arg ues that it used strict proportionality to avoid any potential § 2 violations because “[a] trul y proportional plan” is the bes t way to ensure that “minority voters . . . [can] elec t the candidates of their choi ce.” Rep. Br. 17. But the Supreme Court has previously r ejected strict proportionality as a safe harbor from § 2 of the VRA. See Johnson v. De Grandy , 512 U.S. 997, 1017–18 (1994). In Johnson , the Court concluded that such “[ a]n inflexible rule would run c ounter to the textual command of § 2, [which is] that the presence or absence of a vi olation be assessed ‘based on the totality of circumstances.’” Id. (quoting § 1973(b)). Accordingly, we reject the county’s assertion th at it had good reasons for usin g strict proportionality to avoid potential § 2 liability. In sum, we conclude that the di strict court didn’t clearly err when it found that race predominated over traditiona l districting principles in th e county’s proposed remedial redistricting plan. Fur ther, we agree with the distric t court that the county’s race-based plan doesn’t survive s trict scrutiny. We therefore a ffirm the district court’s order rejecting the c ounty’s proposed remedial redistri cting plan.

15 Perhaps because the county recogn izes the critical absence of any § 2 inquiry on its part, it points th e finger at the Navajo Nation, arguing that the Navajo Nation refused to turn over certa in data the county’s expert ne eded to complete a § 2 analysis. But as the Navajo Nation argues , the county (1) doesn ’t identify this data or explain why it was needed and (2 ) failed to renew a motion to c ompel the Navajo Nation to turn over this data af ter the district court denied t he motion without prejudice. As such, we reject the county’s argument that the Na vajo Nation is to blame for the county’s failure t o undertake a § 2 analysis.35 V. The District Court’s R emedial Redistricting Plan Last, the county argues that the district court erred when it o rdered the county to adopt the remedial redistrictin g plan of the court-appointedspecial master, Bernard Grofman, a professor of political science at the University of California, Irvine. To more fully address the county’s specific arguments, we begin ou r analysis by reviewing Grofman’s process and the details of Grofman’s plan. Grofman took the following appro ach: he used census blocks to e nsure compliance with the one-person, one-vote principle; 16 he chose to draw new boundaries rather than relying on the county’s former, unconsti tutional districts; he aimed to avoid the use of race as a predominant factor; he didn ’t consider partisanship; he focused on k eeping census places and cities wh ole; he aimed for contiguity and compactness; and he tried to unpair incumbents. At the final stage, he reviewed the racial makeup of the resulting districts for any p otential § 2 problems. He believed that packing minorit ies into single districts can v iolate § 2, so he adjusted one school-board distric t to reduce its Native America n population from over 96% to less than 90%. See Voinovich v. Quilter , 507 U.S. 146, 153 (1993) (explaining that racial packing can result in vote dilution in violation of VRA if

16 A “[c]ensus block[] [is] a relatively small geographical unit compared to a city or county unit.” Fla. House of Representatives v. U.S. Dep’t of Commerce , 961 F.2d 941, 944 n.2 (11th Cir. 1992) . The Census Bureau creates c ensus blocks “in consultation with local planning officials using clearly observ able boundaries,” and it relies on these blocks to countpeople during a decennial censu s. Askew v. City of Rome , 127 F.3d 1355, 1363 (11th Cir . 1997). As a result, census blo cks provide the most accurate population informa tion. Using those blocks to dra w election districts therefore improves compliance with the one-person, one-vote pri nciple.36 minority group has “sufficient numbers to constitute a majority in three districts” but is “packed into two districts in which it constitutes a super[] majority”). G rofman also incorporated the county’s objections when possible. The resulting districts have po pulation deviations of less than 2%. Two of the three county-commission district s and three of the five school- board districts are majority Native Ameri can. Nevertheless, Gro fman stated that in his plan, the county commission and the school board each contain a true swing distr ict. That is, although the Native American population in those so-called swing distric ts was around 65%, expert testimony and empirical data on voter turnout indicated that such a percentage didn’t make the districts safe Native American seats. Additiona lly, the countycommission plan “keeps Monticello whole, splits th e [c]ity of B landing in only two parts, splits [the] Navajo Nati on [Reservation] in only two par ts, and keeps all census places whole.” App. vol. 56, 11096 . Likewise, the school-board plan “keeps Monticello whole, splits the city of Blanding into only the two mathematically required parts, splits [the] Nava jo Nation [Reservation] into o nly the three mathematically required parts , and keeps all census places whol e.” Id. In the district court, the count y argued that Grofman’s remedia l redistricting plan violated the Equal Protec tion Clause because it was uncons titutionally based on race, violated § 2 of the VRA, a nd ignored traditional district ing principles. The district court rejected each of the county’s arguments and orde red the county to use the new districts and hold speci al elections in November 2018. On appeal, the county37 renews two of its three challenges (it doesn’t argue that Grofm an’s remedial plan violates § 2). The county first argues that, i n rejecting the county’s argumen t that Grofman’s plan was unconstitutionally basedon race in violation of the E qual Protection Clause, the district court relied on a cl early erroneous factual findin g. That is, the county asserts that the district court clearly erred when it concluded that race was not the predominant factor in Grofman’s plan. See Cooper , 137 S. Ct. at 1463–65 (noting that clear-error review applies to question of whether race pre dominated in districting plan; explaining that to establis h equal-protecti on violation, party must first show that race predominated in creati on of election district). In su pport, the county baldly states that “[n]o plan[] drawn s olely on race-neutral districti ng principles could achieve” the “significant Navajo m ajorities in two-thirds of th e election districts.” Aplt. Br. 62. But the county point s to no evidence that in redi stricting, Grofman was racially motivated or that race predominat ed his process. The d istrict court specifically found that “[r]ace entered into . . . Grofman’s li ne[-]drawing calculation only at the final sta ge and only with resp ect to the [s]chool[- b]oard districts.” App. vol. 56, 11083. The county points to nothing in the record to r efute that finding on appeal. 17

17 Below, the county alleged that G rofman lied to the court when he testified that he didn’t consider race. T he county doesn’t repeat this ar gument on appeal; nor would such an argument succeed. A s the district court noted, th is allegation is “conclusory and entirely unsubsta ntiated.” App. vol. 56, 11083.38 Instead, the county contends tha t the district court’s reasonin g was flawed. In particular, it accuses the dist rict court of (1) rejecting the county’s remedial plan because the county tried to compl y with § 2 but (2) accepting G rofman’s plan, which also accounted for § 2 complian ce. The problem with this positi on is that it conflates two very different approaches t o § 2 compliance. The county’s “ efforts to comply with [§] 2 of the [VRA] amounted to nothing more than setting r acial targets for each district” and then making additi onal race-based adjustments to meet those targets. App. vol. 54, 10851. But Grofman drew his lines based on race-n eutral districting principles and then, at the end , accounted for a potential § 2 problem in one of the resulting school-board districts. These approaches are diametri cally opposed: the county began its redistricting with strict racial proportionality in mind a nd made changes to districts to ach ieve that goal, and Grofman ended his process with one individual adjustment based on race. As such, we find no error in the district court’s reasoning, and its factual finding that race didn’t predominate in Grofman’s plan isn’t clearly erroneous. The district court therefore properly reject ed the county’s argument that Grofman’s plan vi olated the Equal Protection Clau se. Next, the county argues that the district court erred in orderi ng the county to adopt Grofman’s redistricting pl an because that plan “ignores” certain “traditional districting principles.” Aplt. B r. 60. On this point, our revie w is for abuse of discretion. See Connor v. Finch , 431 U.S. 407, 415 (1977) (noting that when federal court draws election districts “[ i]n the wake of a legislature’ s failure” to do so constitutionally, “the court’s taskis inevitably an exposed an d sensitive one that must39 be accomplished circumspectly, and in a manner ‘free from any t aint of arbitrariness or discrimination’” (quoting Roman v. Sincock , 377 U.S. 695, 710 (1964))); Large , 670 F.3d at 1139 (noting that in redistricting cases, we review “appropriateness of the district court’s chosen remedy . . . for abuse of discretion”). Applying this standard, we reject each of the count y’s objections in turn. The county first challenges how G rofman’s plan sp lits the city of Blanding. It acknowledges that Blanding’s popu lation is “large enough that i n order to meet the equal-population principle of ‘ one-person, one-vote,’ it must b e divided between two [c]ounty[-c]ommission districts. ” Aplt. Br. 60. But the county asserts that Grofman’s plan unnecessarily splits Blandi ng into three county-commission districts, not just

two. The county’s position is factua lly untrue. As the district cour t noted, Grofman’s redistricting plan s plits Blanding only into two dist ricts, not three. The county tries to avoid this conclu sion by arguing, as it did bel ow, that the city of Blanding includes its suburbs and that Grofm an placed those out lying areas in a third district. 18 But as the Navajo Nation points out, the alleged boundaries of these outlying areas don’t appear anywhe re in the reco rd. As such, th e county cannot reasonably argue on appeal that the district court erred by con sidering only the

18 The city of Blanding makes this argument clearerin its amicus brief. It acknowledges that Grofman “resp ect[ed] the political boundaries of the [c]ity of Blanding by only splitting it into t wo parts,” but it concludes that “the finalized plan[] still split[s] the Blanding [ c ] ommunity into three parts.” Amicus Br. 11 (emphasis added).40 known boundaries of the city a nd not the unknown boundaries of the surrounding

area. Relatedly, the county hints at a partisan-gerrymandering argume nt when it alleges that the city of Blandi ng is heavily Republican and tha t Navajo individuals tend to vote for Democratic candi dates. But Grofman specificall y testified that he didn’t consider any partisan fac tors when drawing his plan. Andlike it did below, the county fails to develo p a partisan-gerryma ndering argument on appeal. Any argument it does make appears only in its r eply brief and in a letter of supplemental authority filed after oral argument. Accord ingly, we decline to consider any such argument. 19
See Bronson v. Swensen , 500 F.3d 1099, 11 04 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments t hat are not raised, or are inad equately presented, in an appellant’s ope ning brief.”). The county’s third point related to Blanding is that one of the school-board districts in the Blanding area co ntains only one school. The co unty doesn’t explain why this fact weighs i n its favor, and we s ee no indication tha t it does. There are only so many ways to divide the count y’s 12 schools among five schoo l-board districts, and it’s not patently unreasonabl e to have one district with on ly one school in it. We therefore find no abuse of discr etion in the decision to acceptGrofman’s plan despite

19 We further note that partisan-g errymandering claims are no lon ger justiciable. See Rucho v. Common Cause , No. 18-422, 2019 WL 2619470, at *10–13 (U.S. June 27, 2019).41 the Blanding split and the school- board district with only one school in it. See Large , 670 F.3d at 1139. The county next suggests that th e district court erred in appro ving a plan with election districts based on censu s blocks rather than on county precincts. Grofman explained that even though the co unty had long relied on voting precincts based on survey lines, he usedcensus blocks because these are “the only units of geography for which we have reliable popula tion estimates.” App. vol. 56, 11072. And Grofman and the district court needed a n accurate population count and distribution to comply with the one-person, one-vote pr inciple—a principle that’s even more important when a court, and not a legisla tive body, creates election dist ricts. See Connor , 431 U.S. at 414 (noting that court-dr awn election districts “must o rdinarily achieve the goal of population equality with little more than de minimis va riation”). The county doesn’t seriously dispute the ne ed for equally populated distri cts; it merely cites its administrative concerns related to switching its system from pr ecincts to census blocks. But the district court didn’t abuse its discretion when it prioritized compliance with the constitutiona lly mandated one-person, one-v ote principle over the county’s administrative burden. To conclude, the district court didn’t clearly err when it foun d that Grofman’s plan wasn’t predominantly basedon race. And because the distri ct court approved Grofman’s plan “in a manner ‘fr ee from any taint of arbitrarine ss or discrimination,’” we affirm its order directing the county to adopt that plan. Id. at 415 (quoting Roman , 377 U.S. at 710).42 Conclusion In summary, we find no error in t he district court’s well-reaso ned rulings. First, the district court corre ctly determined that the 1984 co nsent decree and settlement order have nothing t o do with this action. It theref ore properly denied the county’s motion to dismiss the N avajo Nation’s county-commissio n claim. Second, the district court didn’t err wh en it ruled that the county lac ked a compelling interest to justify the racial ly drawn boundaries of county-commission D istrict 3. Third, the district court correct ly rejected as inade quate the county’s ju stifications for the longstanding and substa ntial population devia tion among the 199 2 school-board districts. Fourth, the record supp orts the district court’s fac tual finding that several of the districts in the county’s re medial redistricting plan were predominantly based on race. And it correctly concluded that the county lacked the req uired good reasons or a strong basis in evidence to jus tify this race-based line drawin g. Fifth, the district court didn’t clearly err when it found that the special master’ s remedial plan wasn’t predominantly based on race; nordid it otherwise abuse its dis cretion in ordering the county to adopt that plan. Accordingly, we affirm the distr ict court’s decisions in all re spects.