On Thursday, the Navajo Supreme Court ordered the Navajo Nation presidential election scheduled to coincide with Election Day delayed for the printing of new ballots after removing candidate Chris Deschene from the ballot, because he allegedly does not meet a requirement for proficiency in the Navajo language.
The Daily Times reports, Navajo Nation Supreme Court orders Chris Deschene off off the general election ballot:
The Navajo Nation Supreme Court today ordered the Navajo Election Administration to comply with tribal law and replace Chris Deschene with Navajo Nation Council delegate Russell Begaye as a presidential candidate on the general election ballot.
That action likely will delay the Nov. 4 election.
Deschene was disqualified as a candidate on Oct. 9 by the Navajo Office of Hearings and Appeals. But members of the Navajo Board of Election Supervisors decided to keep him on the ballot and not to postpone the Nov. 4 general election.
“The ballots are to be immediately reprinted without the name of the disqualified candidate, Christopher C. Deschene,” the opinion states.
Chief Justice Herb Yazzie and Associate Justice Eleanor Shirley also entered a permanent writ of mandamus against the election office and the election board.
“It is unavoidable that the November 4, 2014 election must be postponed as agreed to by the chief legislative counsel, and as permitted by 11 N.N.C. 3 to ensure a valid election,” the opinion stated.
That section of tribal law authorizes the election board to postpone an election for up to 60 days for the purpose of printing new ballots because of a change in circumstances.
Associate Justice by Designation Irene Black wrote the minority dissenting opinion. In it, she stated the petition for a writ of mandamus filed last week by former presidential candidates Dale E. Tsosie and Hank Whitethorne was “insufficient” because it contained no copy of any order or resolution by the election board or any other information to support the “allegation” that both the board and the office refused to remove Deschene from the ballot and replace his name with Begaye.
Black wrote that in her opinion, the Supreme Court lacked jurisdiction to issue the writ. She added that the high court does not have unlimited jurisdiction.
Read the Navajo Nation Supreme Court Opinion (Scribd).
Under Navajo law, an individual must fluently speak and understand the Navajo language and read and write the English language to qualify for the presidential office.
The Arizona Capitol Times (subscription required) reports that shortly after midnight last night, the Navajo Nation Council voted to scrap this longstanding requirement for the tribe’s president to be fluent in the Navajo Language. Navajo Nation Council passes emergency language requirement repeal:
The eleventh-hour vote, approved 11-10 with one abstaining, clears a path for Chris Deschene to remain on the ballot. His qualifications had been challenged over his admittedly limited ability in speaking the Navajo language.
Tom Platero, executive director of the Navajo Nation’s office of legislative services, said the bill, passed with an emergency clause, has not yet been sent to Navajo Nation President Ben Shelley. He will have 10 days to decide whether to sign or veto the legislation once it reached his desk. [The reality is that President Shelley must act immediately. 10 days would take us to Election Day.]
The bill would essentially invalidate the requirement that a candidate for Navajo Nation president must speak the native language by declaring that the language proficiency is determined by the vote of the people.
The Navajo Supreme Court’s decision comes after a lower court blocked Chris Deschene from seeking the tribe’s top elected post because he refused to show whether he could speak Navajo fluently, a requirement for presidential candidates under tribal law. His campaign has been overshadowed by a debate about the role the Navajo language plays in the tribe’s culture and tradition.
Deschene appealed his disqualification, but the high court dismissed Wednesday because he failed to file the proper documents.
The presidential election was scheduled for Nov. 4, but the Supreme Court said it must be postponed to ensure valid results. Absentee ballots giving voters a choice between Deschene and former President Joe Shirley Jr. have already gone out, and early voting is underway.
[The Navajo Supreme Court ruling is in direct conflict with the 2006 U.S. Supreme Court decision in Purcell v. Gonzalez: courts should be reluctant to change election rules just before an election. Early voting is already underway; it is too late to order a “do over” election with new ballots. The “Purcell Principle” has been in play in a series of recent U.S. Supreme Court rulings on election law challenges.]
An attorney representing a group of Navajos who support Deschene sent a letter to the board Thursday threatening a lawsuit if the Nov. 4 election is stopped or the official ballot is changed. The group said a general election can be postponed before it begins but not halted once Navajos begin casting ballots.
Election officials asked attorneys Thursday for clarification on the Supreme Court order, including whether the entire general election should be postponed or just the presidential election. The order requires that the third-place finisher from the presidential primary be moved up to replace Deschene.
The Navajo Board of Election Supervisors was scheduled to reconvene Friday.
Deschene has declared that his candidacy is not over and said he’s looking to the Navajo Nation Council to keep it alive. Lawmakers have an emergency bill on their agenda this week to make voters the sole decision-makers when it comes to determining a presidential candidate’s fluency.
The legislation is written to apply retroactively to the 2014 election. It’s unclear whether it could undo a tribal Supreme Court ruling.
“This really has set the stage for a battle between the legislative and the judicial branches, and certainly Chris is hopeful that the legislative branch enacts a fix, and he prevails,” Deschene spokeswoman Stacy Pearson said.
Navajo voters overwhelmingly vote Democratic. Any delay in the Navajo Nation election will impact voter turnout in the congressional race in CD 1 and statewide races, and even some legislative races. Navajo Nation President Shelley needs to resolve this immediately.