Election board found in contempt; Deschene to pay attorney fees
ABOVE: Former Navajo Nation presidential candidate Chris Deschene receives hugs from his supporters and voters alike on Friday in Chinle, Ariz. “For all intents and purposes for me, we can’t do anything more. They won’t allow anything else,” Deschene said after the Navajo Nation Supreme Court’s verbal ruling. (Times photo – Donovan Quintero)
Two justices of the Navajo Nation Supreme Court — the third having declined to participate in the proceedings — found the Navajo Nation Board of Election Supervisors in contempt of court Friday for failing to remove Christopher Clark Deschene’s name from the presidential ballot and failing to postpone the election as the court had previously ordered.
They did not, however, find Election Administration Director Edison Wauneka in contempt, noting that he was following a directive from his board and, although he had asked for it, had not received legal advice from tribal attorneys who might have steered him toward following the high court’s directive.
In a separate proceeding, the court ordered Deschene to pay more than $6,000 in legal fees for Dale Tsosie and Hank Whitethorne stemming from their Supreme Court appeal of the Office of Hearings and Appeals’ decision to keep Deschene on the ballot in spite of the fact that he is not fluent in the Navajo language (a requirement for running for Navajo Nation president).
A second fee hearing, stemming from the plaintiffs’ request for a writ of mandamus, was settled, with Deschene agreeing to pay each of the plaintiffs’ attorneys $3,000.
Saying the court did not want to “make martyrs” of the election board members, Chief Justice Herb Yazzie and Associate Justice Eleanor Shirley declined to fine or incarcerate them, but did order Wauneka to inform them in writing that they are removed from office. Those whose terms are up this year will not be allowed to run for re-election.
Asked directly by Yazzie if he would now comply with the court’s order and remove Deschene’s name from the ballot, Wauneka replied, “It almost puts me in a position where I have no choice.”
Wauneka said he would follow the court’s order, but noted, “In principle, I do agree with the board.”
Asked by Yazzie whether he would postpone the election, Wauneka said that, since about 10,000 Navajos have already voted early or by absentee ballot and about $102,000 has already been spent on the election, he would rather hold the election for Council offices Tuesday as planned and plan a special election for president at a later date.
Yazzie said the court would be agreeable to that.
Associate Justice Irene Black, who had sat in on the legal fee hearing, was not present for the contempt hearing. According to the order setting the hearing, Black had declined to participate in the proceedings after writing a dissenting opinion when Tsosie and Whitethorne had asked the court for a writ of mandamus to order the election board to remove Deschene.
Black at that time wrote that she believed the court lacked the authority to issue the writ.
During the hearing on the contempt order, Tsosie’s attorney, David Jordan, argued that the justices must rule against the election board to preserve “the rule of law” on the Navajo Nation as opposed to “mob rule.”
The board’s attorney, Steve Boos, said he was “shocked” after reading the motion for the board and election administration to be found in contempt.
“In a system that has tried so hard to be different” from Western law, “strong-arming (the board) into making this choice (to remove Deschene from the ballot) is totally inconsistent with the will of the Navajo people,” Boos said.
Speaking to a crowd of several hundred supporters outside the courtroom after the hearings, Deschene called the court’s decision “a blatant insult.”
“We can’t do anything more,” he said. “It’s up to the people now.”
Election board member Lenora Fulton told the crowd the board was not cowed by the court decision, and continued to believe they had done the right thing to uphold the rights of the people to elect the leader they desire.
“We won the battle,” she said. “Your voice was heard.”
Actually, Deschene has one last chance. If the Navajo Nation Council is able to get a two-thirds majority on Monday to override President Ben Shelly’s veto of recent legislation to let the voters decide whether a candidate is fluent in Navajo, the Supreme Court’s decision to oust Deschene will be void and he could be put back on the ballot.
Meanwhile, since Deschene’s backers can no longer campaign, they have formed a Navajo Voters’ Rights Coalition and are continuing to raise money, circulate petitions to fill Supreme Court vacancies with law school graduates, and are contemplating a class action human rights lawsuit.