Month: October 2014

Navajo Board of Elections in contempt of court; Nov. 4 elections to go forward except presidential election; Deschene likely off ballot

ALBUQUERQUE — Two members of the Navajo Nation Supreme Court – Chief Justice Herb Yazzie and Associate Justice Eleanor Shirley – ruled Friday in Chinle, Arizona that the Navajo Election Board of Supervisors were in contempt of court for not adhering to its demands to postpone the Nov. 4 election and remove Chris Deschene from the ballot.

At the adherence of Executive Director of the Navajo Election Administration Edison Wauneka, who was not held in contempt, the court determined that the Nov. 4 elections will go forth as planned except the presidential election, which will be held in a special election at a later date. Continue reading

Navajo Board of Elections in contempt of court; Nov. 4 elections to go forward except presidential election; Deschene likely off ballot

ALBUQUERQUE — Two members of the Navajo Nation Supreme Court – Chief Justice Herb Yazzie and Associate Justice Eleanor Shirley – ruled Friday in Chinle, Arizona that the Navajo Election Board of Supervisors were in contempt of court for not adhering to its demands to postpone the Nov. 4 election and remove Chris Deschene from the ballot.

At the adherence of Executive Director of the Navajo Election Administration Edison Wauneka, who was not held in contempt, the court determined that the Nov. 4 elections will go forth as planned except the presidential election, which will be held in a special election at a later date.

The court said that Wauneka had asked for legal advice on how to proceed with the prior election rulings but had not received any.

Deschene will be removed from that presidential ballot, as per Wauneka’s adherence to the Supreme Court’s order, effectively ending his presidential hopes.

It is unclear whether or not Leonard Tsosie’s petition to override President Ben Shelley’s veto of the language fluency requirement would do anything to change this outcome, even if the Navajo Nation Council can obtain a two-thirds vote to override the veto. The overriding veto would still have to be applied retroactively to the special election.

Chief Justice Herb Yazzie brought Wauneka before the court before ruling on the issue, asking him whether or not he would adhere to the court’s orders, lest he be held in contempt as well.

Wauneka said 97,000 ballots have already been mailed to polling places across the Navajo Nation, and that it would cost $285,000 to conduct the special election for presidency at a later date. He said that there is already legislation in the hands of the Speaker Pro-Tem’s Office for him to sponsor the bill.

“The court will not order detention [for the board], and quite frankly, when you have a situation like we have now, open defiance and very public statements that the board doesn’t bow to the courts…this court will not further a political atmosphere to it. We won’t create martyrs here, because there has to be an end to this problem that we’ve got,” Yazzie said in his ruling.

“We cannot allow that to occur if this society is allowed to live by the rule of law.”

Yazzie noted the seriousness of the contempt of court proceedings as well.

“Whenever high-level government officials are called to the court in a contempt proceeding, you know and we know that there’s a governmental crisis, and the consequences have to be meaningful for the creation of that crisis,” Yazzie said.

“We have heard in this show-cause hearing the motion and the response. We find that the government did not show cause why the government should not be held in contempt. They offered nothing that would demonstrate that they made an effort to comply with the order.”

Yazzie also said at a hearing 20 minutes later to discuss attorney’s fees that a newer law says that Wauneka, as director of the election administration, will have to send official letters to each Board of Elections member notifying them their seat will be declared vacant.

“The Navajo Nation Election Administration, upon adequate documentation, shall provide written notice to officials that he/she has failed to maintain the qualifications of office, and that his or her position will be declared vacant.”

He added that this law means some of the election board supervisors who are running for re-election could be disqualified as they have not “maintained [their] qualifications.”

PETITIONING ATTORNEY GIVES PASSIONATE ARGUMENT

David R. Jordan, the attorney for petitioner Dale Tsosie, gave oral arguments for the petitioners. He demanded the Supreme Court uphold its own previous decisions in a passionate display to the packed courtroom.

“As we sit here today, on the brink of Election Day, the election has not been postponed, ballots have not been reprinted, and [the Board of Elections] intend to keep Mr. Deschene on the ballot,” Jordan said. “Today, they continue in defiance of your order; there must be consequences.”

Jordan suggested Board of Elections members had violated their oaths of office by not adhering to the court’s orders and suggested the Supreme Court remove every one of them from office and direct the Election Administration to continue the court-ordered election demands without interference.

“The credibility of the court is at stake,” Jordan told the courtroom. “The Navajo Nation is a nation of laws, not a nation run by the mob.”

“The time for talking has passed; the time for deliberation has passed,” Jordan said. “The court’s credibility is only going to be validated if it takes steps today to ensure that, as the highest court of the land, to ensure careful details are honored, obeyed and followed, and if they are not, that consequences – strong consequences – follow.”

RESPONDENTS’ ATTORNEY RESPONDS

Steven C. Boos, a Durango, Colorado-based attorney representing the Board of Elections, Election Administration, and Deschene in this hearing, was then given 15 minutes to address the court.

Boos, who was retained just this week for this specific hearing, began by talking about his previous experience with Navajo Nation law, though he admitted he was inexperienced.

“How awkward it makes me feel as a non-Indian to discuss Navajo Nation law,” Boos said to begin.

He then dug in to his response to the contempt of court motion filed Monday.

“When I first saw the order for a motion to show cause, I was shocked,” Boos said. “Because here, in a system that has tried as hard as it can to be different, to not have same western mentality of punishment rather than finding harmony, there was this coercive document…to strong-arm them into making this choice in a way that is totally inconsistent with what I understand to be the free will of the Navajo people.”

“[This is] the same mistake. The law is not a machine that you can throw something in a machine, crank it, and get a result. And if they don’t like it, throw [the board] in jail and strip them of their offices,” Boos continued.

He then argued that the action of the court to postpone the election was “deeply wrong,” and said, “This isn’t about a postponement, it’s about the termination of an election already taking place. So the board is being asked for those thousands of Navajos who already made their choice and exercised free will.”

He also said that the court’s prior decisions had established that fluency should be up to each individual voter.

But Yazzie fired back, asking Boos if “the Supreme Court’s order is a mere opinion,” to which Boos replied, after some hesitation, “No.”

“The order said the election had to be postponed,” he continued. “The problem is it’s already going on. How can you order the postponement of something that is already happening?”

Associate Justice Eleanor Shirley stumped Boos when she asked him when early voting began and he said he didn’t know. He said about 8,000 people had already voted.

“The right to choose leaders and participate in Navajo Nation political processes are fundamental; they are not absolute,” Shirley said.

ATTORNEY’S FEES SETTLEMENT

The hearing that took place 20 minutes after was the continuation of a hearing from earlier Friday, in which attorney’s fees stemming from Hank Whitethorne and Dale Tsosie’s original petition against Deschene’s fluency were assessed.

David R. Jordan and Justin Jones, the attorneys representing the two petitioners, agreed with Deschene’s attorney that Deschene will pay both Jordan and Jones $3000 each for fees assessed.

STATEMENT FROM DESCHENE

Chris Deschene’s presidential campaign released a statement Friday afternoon following the ruling on the ‘Chris Deschene for Navajo Nation President’ Facebook page:

“Supporters, I’m very disappointed in today’s Supreme Court decisions. This isn’t about the $6,130.83 I was absurdly ordered to pay to remove myself from the ballot by covering my opponents legal fees. Or the presidency I was striving to earn. This is about the message the court sent to you.

This ruling could have a chilling effect on the future of our elections. It sends a dangerous message that your vote doesn’t count.

This upsets me most. Because as Dine, we have an election Tuesday, despite the uncertainty of my candidacy. We have a congressional representative to elect. We have a governor to choose. We have council positions to fill. We have school board and chapter positions to fill. It’s our responsibility to vote.

As far as the future of my presidency, we have one remaining option, and that’s the pending veto override. Call your delegates. Voice your support.

And know that regardless of the outcome, I appreciate your ongoing support. I’m proud of what we have accomplished, together.

Vote Tuesday. It’s critical.”

Navajo Nation delegate motions to override president’s veto; contempt of court hearings to be live-streamed Friday

Navajo Nation Council Delegate Leonard Tsosie filed a motion Tuesday evening to override Navajo Nation President Ben Shelley’s veto of the language requirement resolution to the Navajo Nation Election Code. The motion was released to KOB Thursday.

Shelley vetoed the resolution Tuesday after it was passed by the Navajo Nation Council Oct. 23. The veto can be overridden by a two-thirds vote by the Navajo Nation Council.

The motion is now open for a comment period, which will last through Nov. 2. The motion is eligible for action Nov. 3, the day before the scheduled Navajo Nation election.

The Navajo Nation Supreme Court will also live stream the contempt of court hearing Friday that will determine if presidential candidate Chris Deschene, the Navajo Board of Election Supervisors and the Navajo Election Administration should be held in contempt for not adhering to the Supreme Court’s ruling that Deschene be removed from the presidential ballot and the election be postponed.

The live stream for the hearing can be viewed starting at 10 a.m. Friday here.

Dale Tsosie and Hank Whitethorne, the two men petitioning against Deschene’s candidacy, filed that motion Monday.

But the Navajo Nation Election Board Commissioner, Wallace Charley, was adamant that the elections board will not follow those orders.

The Navajo Nation Election Board Commissioner, Wallace Charley, told KOB Tuesday that the board will go to jail before it removes Chris Deschene from the presidential ballot for the upcoming election.

“The Navajo are citizens of the United States; there is a constitution that gives the principle that people have a right to vote, and their votes cannot be denied,” Charley told KOB. “So based on that, the Navajo Board of Elections Supervisors will not back off on this principle. Whether that means going to jail – fine. We’ll go to jail and see what comes out of this.”

Navajo Election Board Commissioner: ‘We’ll go to jail’ before removing Deschene’s name from ballot

ALBUQUERQUE — The Navajo Nation Election Board Commissioner, Wallace Charley, told KOB Tuesday that the board will go to jail before it removes Chris Deschene from the presidential ballot for the upcoming election.

Charley said the board members will act in opposition to the Navajo Supreme Court’s ruling to remove Deschene from the ballot last Friday, as well as Navajo President Ben Shelley’s Tuesday veto of the resolution that would have removed the language fluency requirement for multiple government positions, including the president. Continue reading

Navajo Election Board appeals to Navajo Attorney General to clarify upcoming election steps

The Navajo Nation Election Board passed a motion Monday with an 8-0 vote to continue with the November 4 election, but the motion has asked Navajo Attorney General Harrison Tsosie to give legal opinion on how to comply with the Navajo Supreme Court’s order to postpone elections and remove candidate Chris Deschene from the ballot.

Levon Henry, the Chief Legislative Council for the Navajo Nation, told KOB Monday that the Election Board asked the attorney general for input on how to proceed with the election and language requirement initiatives.

Henry also said that Dale Tsosie and Hank Whitethorne, the two petitioners against Deschene’s candidacy, have filed a show-cause motion asking the court to bring the three men in front of the court to ask why its orders have not been complied with.

The Navajo Times called it an ‘Order of Contempt.’

The attorney general will have to answer several questions in particular relating to the election. First, he will have to determine the legal process for moving a qualified candidate up when another candidate is disqualified.

Russell Begaye, who took third in June’s presidential primary, would be moved onto the ballot if the ruling disqualifying Deschene goes into effect.

Another question Attorney General Tsosie will have to answer is what happens if the election is stopped, since absentee ballots and early voting ballots have already been submitted with Deschene’s name. He will also have to clarify the process of selecting a vice president and certifying them, as that position is not currently up for vote.

Tsosie said that the Navajo Department of Justice represents the Navajo Nation’s judicial branch, legislative branch and executive branch, and said there would be no conflict of interest in sorting out the law and measures.

The Election Board’s decision is based off Navajo people’s continuing support of Deschene, despite him being ruled off the ballot, according to board members. 

Navajo council votes to remove language requirement, should have final decision Monday; Deschene says voters’ voices heard

ALBUQUERQUE — After the Navajo Nation Council voted 11-10-1 to amend the tribe’s election code’s language requirements early Friday morning to allow voters to determine a candidate’s fluency, the fate of this year’s general election, originally scheduled for Nov. 4, is even more up in the air than it was Thursday.

If signed by the president the measure would apply retroactively, meaning it could still apply to the upcoming election, whenever it should happen.

Navajo Nation President Ben Shelly is meeting with lawyers this weekend in Albuquerque, according to Wallace Charlie, with the Navajo Nation Election Commission. Charlie said the commission hopes to have either a veto or signature from Shelly by Monday.

Charlie said the commission has also requested the Navajo Nation Attorney General’s Office give it legal advice on all the matters that have been brought by the commission and Supreme Court this week.

The Election Commission will meet again Monday at 9 a.m., and Charlie said the commission hopes it will have a decision about if the legislation will apply to the upcoming election or not then.

During Friday morning’s proceedings, council members argued that the Navajo law that establishes retroactive decisions cannot be applied in the middle of an election and should not apply, if passed, until the next election.

“I never expected it would rise to this, but it’s a good thing,” Chris Deschene said in an interview with KOB Friday afternoon. “It’s absolutely something that we needed to talk about. You’ll find that this is consistent with a lot of different cultures and their journeys with their respected languages.” 

The Navajo Nation Supreme Court ruled Thursday to remove Chris Deschene from the presidential ballot and postponed the Nov. 4 election indefinitely. Its ruling comes after an appeals court ruled Deschene could not seek the office because he would not demonstrate he knew the Navajo language fluently, something that had been required for most major Navajo posts.

However, the Supreme Court’s decision hinges solely on a procedural misstep by Deschene, as the court said he failed to file his appeal to the court properly.

“I am qualified. I have gone and I have acquired all kinds of experience and knowledge,” Deschene said. “I believe that my nation is in trouble. I want to help, and personally, I believe I have a right to help my people.”

Friday’s ruling on the language requirements means Deschene could still end up on the ballot through a complicated series of steps. He and his campaign will have to navigate through the election commission, the Supreme Court and the tribe’s president if he is to remain on the ballot.

“This legislation does not take the fluency off – it’s still required for the candidates of the Navajo Nation president and vice president,” said Council Delegate Danny Simpson. “This whole legislation is to protect the voting rights of our Navajo people and to let them decide who’s going to be their leader.”

First, Navajo President Ben Shelly will have ten days to approve the council’s ruling on the language requirements.

The Navajo Election Commission is sitting on the Supreme Court’s writ of mandamus that postponed the elections and called for ballots to be re-printed, and has yet to act on any of the Supreme Court’s orders since Friday’s ruling, if signed by Shelly, could effectively block the court’s decision. Requests for comment from the election commission have gone unreturned.

Absentee ballots with Deschene and Joe Shirley Jr., the two candidates who received the most votes in a primary earlier this year, have already been sent to some voters, and some Navajos have already voted.

“They have the right to protect their vote,” Deschene told KOB. “That’s one of the things I’ve been saying.’Honor our Voice,’ and our voice has been casted at the ballot box. They have the right to bring a complaint, a lawsuit, a legal action on their own merits [in order] to protect their own rights.”

According to The Associated Press, an attorney representing a group of Navajos who support Deschene said a general election can be postponed before it begins, but not halted once Navajos have casted ballots. It’s unclear if the Supreme Court’s ruling would overrule this law.

“We respect the process, but I also know that I have some rights and that those are strengthened, especially if the president signs new legislation that changes essentially the fact pattern,” Deschene said.

If the Supreme Court’s ruling is upheld, Russell Begaye, who was third in the primary, would replace Deschene on the presidential ballot.

The council’s ruling Friday morning also would put the decision of whether or not a presidential candidate is fluent in voters’ hands.

According to a release from the council, the amended language says, “Language proficiency shall be determined by the People voting in favor of the person upon the right and freedom of the Diné to choose their leaders.”

Council Delegate Leonard Tsosie argued during the session early Friday morning that the language requirement legislation “was necessary to avoid disenfranchising voters who have already submitted their ballots, particularly those who voted for presidential candidate Chris Deschene.”

“The main thing is just we thank the people’s interest. We know this is important. I know that the best thing is language, and preservation is critical to our people, and that I’ve always been there to advocate for that,” Deschene said.

“I’ve never advocated for the removal of it. I think that the legislation that was passed last night not only protects the language, because it doesn’t remove anything. It protects the voters and incorporates fundamental law, and it defines a standard that says the people have the right to choose their leadership in the election.”

The council is scheduled to continue meetings through Friday. Speaker Pro Tem LoRenzo Bates said in the release following Friday’s decision that the Navajo Nation “understands and respects the many differing views on the language fluency issue,” and asked the public to “remain respectful at this time as the circumstances play out.”

Navajo Nation’s high court orders Deschene off ballot

A candidate for president of the Navajo Nation lost another round in a language fluency dispute Wednesday, all but ending his bid for office.

The Navajo Nation Supreme Court upheld a ruling from a lower court that said Chris Deschene was not qualified to seek the tribe’s top elected post after he declined to demonstrate whether he is fluent in Navajo. Continue reading

Navajo Nation Council to discuss proposed language fluency legislation next week

The Navajo Nation Council will discuss legislation proposed earlier this week that would change the laws requiring people who hold office to speak Navajo fluently next week during the Navajo Nation fall council meetings.

The legislation would try and remove language fluency requirements in the Navajo Nation Election Code for the nation’s president, vice president, council delegates, land board members, farm board members and district grazing committee members.

The legislation comes on the heels of a spat between potential Navajo Nation presidential candidates, who have attacked candidate Chris Deschene for not being able to “fluently” speak Navajo.

The Navajo Elections Board of Supervisors ruled 7-1 Monday that Deschene will be allowed on the ballot despite the challenges.

Oct. 21 will be the first day the council will discuss the proposed legislation. If approved, the measure will be sent to the president for authorization. If he doesn’t sign the measure, the council could override his veto.

It is still unclear how the measure would affect this November’s ballot if the measure is not passed, since the elections board already approved Deschene to be on the ballot.

There is also still an outstanding court case filed by several of Deschene’s opponents that could affect whether or not his name is on the ballot if the measure is not passed.

Read the original measure here, and Wednesday’s memo announcing the council’s decision to act on the measure here.

Legislation filed to remove Navajo fluency requirement for many official positions

A Navajo Nation Council Delegate has introduced legislation that will try and remove language fluency requirements in the Navajo Nation Election Code for the nation’s president, vice president, council delegates, land board members, farm board members and district grazing committee members.

The legislation will be eligible for committee action on Oct. 19. The public will be able to submit comments during a five-day comment period.

The legislation comes on the heels of a spat between potential Navajo Nation presidential candidates, who have attacked candidate Chris Deschene for not being able to “fluently” speak Navajo.

However, the Navajo Elections Board of Supervisors ruled 7-1 Monday that Deschene will be allowed on the ballot despite the challenges.

To view the legislation in whole, click here.

Navajo elections board: Deschene will be on ballot; elections will go forth as planned

The Navajo Nation election will go forth as planned and Chris Deschene will be on the ballot, despite objections to his candidacy, according to Edison Wauneka, the Executive Director of the Navajo Election Administration.

Deschene will run against Joe Shirley, Jr. in the election, which is scheduled to be held Nov. 4.

Wauneka said there had been no court order to remove Deschene from the ballot, and the Navajo Elections Board of Supervisors voted 7-1 Monday to proceed with the ballot as planned. Continue reading