Navajo Supreme Court orders immediate presidential election

Court throws out council resolutions for new summertime election

Update: after the Navajo-Hopi Observer went to print:

Following Friday's decision by the Navajo Nation Supreme Court, the Navajo Election Administration has scheduled an election for the Office of the President and Vice President to occur on Tuesday, April 21. The two presidential candidates will be Russell Begaye and Joe Shirley, Jr.

The election timeline is as follows:

March 23: Voter registration closes/absentee ballots become available upon request

April 6: mailed absentee ballot applications must be physically in NEA offices

April 17: Last day for walk-in absentee voting

See next week's Navajo Hopi Observer for more on this story.

WINDOW ROCK, Ariz. - The chaos around the Navajo Nation presidential election grew Feb. 20 when the Navajo Nation Supreme Court threw out council resolutions, which called for new elections next summer. The court ordered a general election to take place immediately.

The general election would include two presidential candidates: former president Joe Shirley Jr. and Russell Begaye, the third place primary finisher, who the court ordered placed on the ballot after second place finisher, Chris Deschene was disqualified by the Office of Hearings and Appeals when he refused to answer questions in Navajo to prove that he was fluent, a requirement for the presidential office.

The court also ordered that the Speaker of the Navajo Nation Council convene a special session for the council to address how the election would be funded. The presidential general election will also include the six vacant Board of Election supervisor positions. The election supervisors who were held in contempt would be prohibited from running.

One of the council resolutions called for a new primary and general election to take place in June and August with the 17 candidates who were certified for the primary election held last year, including Deschene.

The other resolution pardoned the board of election supervisors who were held in contempt of court after they refused to replace Deschene's name with Begaye's on the ballot after the Supreme Court had ordered them to do so.

Two former presidential candidates Dale E. Tsosie and Hank Whitethorne originally challenged presidential candidate's Chris Deschene's candidacy on the basis of whether he was fluent in Navajo. They also filed motions with the court in January to overturn the council resolution of Dec. 30 that called for a new primary and general election and another resolution that pardoned the Navajo Nation Board of Election supervisors.

The court order said that Navajo Nation election law does not allow changes to be made without consultation from the Navajo people. The court said what the council referred to as an emergency situation already had a solution.

"In the event of a disqualification of a candidate after the primary election is held, the candidate receiving the next highest votes in the primary election shall be placed on the official ballot in the general election," the order read.

Further, the court said all powers not delegated are reserved for the Navajo people and those rights cannot be denied or disparaged except by a vote of the people, that amendments to the Navajo Nation code must be made in a manner that does not undermine checks and balances, separation of powers, accountability to the people and acknowledgement of the people as the source of Navajo Nation governmental authority.

"The Navajo Nation Supreme Court reiterated that all powers not delegated are reserved to the Navajo people," the order read. "Because of the self-interested actions of the board [of election supervisors] and the council to disregard Navajo laws, the presidential election is now more than three months late. The initial effort of this court to have the election by Jan. 31, 2015 has been further delayed by the council's most recent grab for power."

In addition the court said there is no statutory provision for the power to pardon in the Navajo Nation Code. The court's order said that in 1995, then attorney general and then chief legislative counsel cautioned the council on pardoning an individual. The council was advised to establish a law to give it the power to pardon but has not done so since then.

"Navajo Nation courts have the inherent power to punish someone who shows contempt for the judicial process, orders or proceedings," the order said. "Simply put, the council cannot control or affect the result of litigation by legislation passed after causes of action have been submitted to the courts for judicial determination."

LoRenzo Bates, speaker of the Navajo Nation Council, fired back at the Supreme Court on Feb. 21. He said the court's decision to invalidate the council resolutions was troublesome because it greatly undermines the legislative authority of the council.

"For the Supreme Court to say that the Navajo people are the governing power is accurate," Bates said. "However, the people have elected the members of the council who serve at the will of the people to be a voice of the people."

Bates said the council has the absolute right to introduce legislation, especially when it feels a large number of people have been disenfranchised.

"By introducing legislation to address the election issues, the council members were simply acting at the overwhelming will of the Navajo people," Bates said.

He said while the 22nd council was acting to address ambiguities in Navajo Nation law, he implored the 23rd council to continue to address the gray areas of law and to continue to be a voice of the people.

"It is the Council's intent to bring a resolution to this issue and for the court to invalidate the action of the legislature is beyond the authority of the judicial branch," Bates said. "The offer of "talking this out" is not acceptable by the court and so we have no choice but to review the decision of the court. Together, the 23rd Navajo Nation Council will consult with one another and determine the path that is best for the Navajo people."

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