Shirley asks for election complaint to be thrown out

President Joe Shirley Jr. is seeking dismissal of the sole complaint filed against the Dec. 15 special election in which voters approved his government reform initiatives.

In a motion filed Monday, Shirley said the complaint filed by Tim Nelson, a voter from Leupp Chapter, was misdirected. Nelson's complaint listed Shirley and his initiative committee as the target of the grievance.

Shirley argued that Nelson had failed to include key stakeholders that had authority over some of the things he is complaining about.

He asked the Office of Hearings and Appeals to dismiss the complaint "with prejudice," a legal term meaning it cannot be changed to correct shortcomings and then filed again.

Nelson's grievance lists several aspects of the election that were outside Shirley's control, the president's motion said.

"The president and the initiative committee did not make those decisions nor did they conduct the special election," Shirley states in his motion. "They cannot adequately defend the Navajo Board of Election Supervisors and Navajo Election Administration's decisions, actions and failures to act."

Nelson should have included the Navajo Election Administration and the Navajo Board of Election Supervisors in his complaint, Shirley said.

Ironically, this is the same issue that derailed efforts by Speaker Lawrence Morgan to stop Shirley's voter initiatives last year. Morgan filed a complaint that the initiative petitions did not comply with the law, but he failed to include the Navajo Board of Election Supervisors as a defendant. The NBOES had approved the petitions, which allowed Shirley to start circulating them for signatures.

Months later, hearing officer John Chapela threw out Morgan's complaint on grounds that it failed to include key parties to the dispute.

Nelson, 44, said Diné For Fairness in Government, a grassroots group comprised of voters mostly from the Western Agency, said the group is moving forward despite Shirley's motion.

The Office of Hearings and Appeals has scheduled a hearing on his complaint Jan. 21 in Window Rock. At press time Wednesday it had not issued a ruling on Shirley's motion.

Results of the Dec. 15 election cannot be certified until the complaint is resolved.

Law not followed?

Nelson's complaint challenges the validity of the election, citing a law passed by the council in 1989 that sets the size of the council at 88 members and states that a supermajority of voters is required to change the law.

Nelson states that the Dec. 15 election changes tribal law. Because it had such high stakes, the election should have required approval from a majority of all precincts and all registered voters, he stated, alluding to the 1989 law. This means that all chapters and a majority of all registered voters were needed to pass the initiative, he said.

Of the 91,799 registered voters, 41,624 went to the polls Dec. 15. Roughly 60 percent of them voted for council reduction.

"The intent (of the election code) was to make it difficult for people to change the laws of government for a reason," Nelson said. "There's a reason it's hard. It's not supposed to be easy for someone to, one weekend, go out and get a bunch of people together."

This same law was cited in 2000, when the council overturned the results of a voter referendum that would have reduced the council to 24 members. However, that was a referendum, a measure the council voted to refer to the ballot.

The most recent election was an initiative, driven by voters who had to gather signatures of 16 percent of the tribe's registered voters in order to place the question on a ballot. The difference is a major one.

Last summer Attorney General Louis Denetsosie issued an opinion stating a voter initiative does not have the same voting requirements as a referendum. An initiative could be passed with a simple majority of participating voters, he stated.

The opinion reinforced a ruling by the Navajo Nation Supreme Court, which in essence said laws that make it impossible for the Navajo people to decide the shape of their government are not valid.

Nelson's other grievances include the lack of police officers at polling sites, voters rejected for not voting in the previous election, timelines stated in the signature petitions but not on the ballot, and the lack of an "adequate plan" for the impacts of the reduction.

Shirley's motion states that he and his initiative committee had no say in any of those matters. They were entirely in the hands of the election officials.

"Any complaint that attacks the conduct of the special election must join the Navajo Board of Election Supervisors and the Navajo Election Administration as parties," the motion states. "They must be given an opportunity to defend themselves, their actions and their decisions."

Nelson said he has yet to get a call from the Office of Hearings and Appeals regarding Shirley's motion. But he said it should be a given that the NEA and NBOES are included in his complaint because they coordinated the election.

"We're using the election office as forums, we are filing on our behalf against the election office," Nelson said. "It was their forums, their documents, their process. I don't feel it was necessary to write them down, it's understood they oversee the whole process."

In his complaint, Nelson also accused Shirley of influencing tribal employees by granting an extra two hours leave to vote, which he compared to a bribe from the president.

Nelson, who drafted the complaint himself, has no legal representation. However, he said he would retain a lawyer if a $150,000 grant in aid from the council came through. The council's Intergovernmental Relations Committee approved the grant in late December.

However, the council, which over the past couple of years spent the tribe's cash reserves into the red to the tune of $22.3 million, has its own money troubles and the transaction has been delayed.

"If it boils down to the fact that we need to argue this case on our own, I guess we can do that," Nelson said.

Delegate Leonard Tsosie (Pueblo Pintado/Torreon/Whitehorse Lake) said he disagreed with the IGR's decision to finance Nelson's effort to overturn the election, and planned to write a memorandum to the controller and the attorney general with his concerns.

"It bothers me, what my colleagues did," Tsosie said during a public meeting Tuesday. "They gave $150,000 of your money to a private person to fight your vote. They appropriated money to fight you."

Still, Nelson vows to press on. He said he is looking for voters who were turned away at the polls, or who felt influenced to vote because of the extra time off granted by Shirley.

"We've had people approach us with these arguments, but getting them to commit to an affidavit is another matter," Nelson said. "We have to find people willing to follow through with the complaint. Finding people is a little harder than it seems."

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