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.”