Elections office asks high court to reconsider

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The Navajo Election Administration has filed a formal request asking the Navajo Nation Supreme Court to reconsider its July 30 ruling ordering an election within six months on two government reform initiatives proposed by President Joe Shirley Jr.

In its Aug. 19 petition for reconsideration, the NEA argues that the court's  decision was based on inaccurate numbers of signatures on petitions to reduce the council size and expand the president's veto authority. The elections office wants the court to allow updated numbers and reconsider its decision based on them.

"The Election Administration respectfully argues that the court erred in its application of the standard review," the petition states.

Specifically, the petition argues that the original decision by the Office of Hearings and Appeals was not based on sufficient evidence.

In fact, NEA attorney Ron Haven wrote, that original decision was based in inaccurate figures after the hearing officer would not allow the NEA to recalculate what it said was a miscalculation.

NEA asserts that the court also erred by allowing the hearing officer to invoke Diné Fundamental Law in her decision. Hearing officers only have the authority to examine administrative actions in light of rules and regulations in the Navajo Nation Code. They are not empowered to interpret laws as a judge would, the NEA argued.

The high court is not under a deadline to act on the request to reconsider. If it does reopen the case, any new arguments would have to focus on errors that led to the high court's decision, according to tribal law.

In its decision, the court ordered the Navajo Election Administration to place on a ballot both of the president's government reform questions: whether to reduce the tribal council to 24 members and whether to enable the president to trim council spending measures (called a line-item veto).

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The high court ruling went against the NEA's original claim that President Joe Shirley Jr. failed to collect the required amount of signatures, 16,530, or 15 percent of registered voters, for each initiative. Although Shirley collected more than 18,000 for each initiative, the NEA discounted more than 2,000 in each case for technical reasons.

The Supreme Court also appointed a special hearing officer and ordered an expedited hearing of Shirley's appeal after the Office of Hearings and Appeals did not do so for six months.

The special hearing officer, Judge Carol Perry of Window Rock Tribal Court, cited Diné Fundamental Law, which holds that every Navajo has a basic right to be heard in decisions affecting the tribe.

In its petition for reconsideration, the election office focuses on the hearing before Perry when the office purportedly discovered a miscalculation in the number of signatures, and tried to withdraw its earlier position that the numbers were correct.

The numbers showed that, even by the NEA's reckoning, the question of council reduction had enough valid signatures to go before voters. Shirley's attorney, Albert Hale, spotted this and quickly moved for summary judgment on that issue.

Haven, representing NEA, then asked for time so his clients could review their count and try to locate their error, and Perry gave them the lunch break to present witnesses who could explain how the error occurred. When no witnesses were produced, Perry did not allow further time, stating that elections officials had six months to recheck their numbers.

"The hearing officer's ruling to allow further testimony should not have later been withdrawn," the petition states. "The complete record shows that factual disputes still existed."

"The record shows that stipulations were admitted to by mistake," the petition states. "Testimony as to correct figures should have been allowed."

Therefore, the high court erred in ruling that there was sufficient evidence in the record to support the original ruling by Perry, the petition states.

In the high court's July 30 ruling, it noted that the erroneous figures originally presented to the hearing officer had stood for six months by that time. No one had attempted to check or change the numbers during that time.

"It would be absurd to allow the NEA to now attack its own results and present new figures at the eleventh hour," the decision stated. "Especially when no effort was made to amend the results in the intervening six months."

With that, the court let the original decision stand.

The petition for reconsideration notes that the hearing officer initially recognized that the president's initiative seeking line-item veto authority lacked the required amount of signatures. However, Perry then invoked Fundamental Law in finding that NEA relied overmuch on technicalities to throw out valid signatures and thus violated the spirit of inclusion in tribal decision-making.

The Supreme Court upheld this ruling but on different grounds, an error that should be reconsidered, the petition states.

In its decision, the high court noted that the election administration made no attempt to identify voters who had signed the petition and whose signatures were eventually invalidated for technical reasons.

The court should have only considered Perry's decision, the NEA argued. And considering that the hearing officer does not have the authority to invoke fundamental law in administrative cases, the Supreme Court should have then recognized NEA's original determination that the initiative lacked the proper signatures, the election office stated.

"It was error for the Supreme Court to deviate from the standard of review and uphold the hearing officer's ruling on different grounds," the petition states.

As of Wednesday, the high court had given no indication whether it will grant the NEA petition.

The NEA has not set a date for the special election ordered by the rulings, and election officials say it is unclear where the money would come from to hold the election.

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