Navajo Nation Supreme Court says election petition case requires 'due deliberation'; issues no ruling

Noel Lyn Smith
The Daily Times

TSÉ BONITO, N.M. — The Navajo Nation Supreme Court has yet to decide whether to issue a decision that would force the tribe's election board and election office to replace Chris Deschene as a presidential candidate on the general election ballot.

The court did not reach a decision after listening to more than two hours of oral arguments on Monday. Instead Chief Justice Herb Yazzie explained that the "complicated nature" of the case called for "due deliberation."

"Therefore, we would take the matter under advisement and given that this is an election case, we will be as prompt as we can to announce a decision," Yazzie said.

The court held a hearing at the Navajo Division of Transportation building in Tsé Bonito for the petition filed last week by attorneys for former presidential candidates Dale E. Tsosie and Hank Whitethorne.

The five-page petition asked the high court to force the Navajo Board of Election Supervisors and the Navajo Election Administration to replace Deschene's name with the third place finisher from the Aug. 26 primary election.

Deschene was disqualified by default judgment on Oct. 9 in a decision by the Navajo Office of Hearings and Appeals.

The judgment was issued after Deschene refused to take a test to determine his ability to speak the Navajo language fluently, a qualification for the presidency.

The official results from the primary election show former president Joe Shirley Jr. finishing first with 11,052 votes followed by Deschene with 9,831 votes and Navajo Nation Council delegate Russell Begaye finishing in third place with 7,453 votes.

The Oct. 14 petition was filed after election board members reaffirmed their decision to keep Deschene on the Nov. 4 general election ballot despite tribal law mandating the third place finisher replace a disqualified candidate.

David Jordan, Tsosie's attorney, said the election board's continued defiance of the Office of Hearings and Appeals order has led the tribe into a state of "crisis" as well as involved it in a "sham election."

Jordan also said the election board does not have the authority to operate outside of tribal law.

"They are not independent of this court's interpretation of Navajo law and if they think they are, then they are sadly deluded," Jordan said.

Justin Jones, Whitethorne's attorney, said the election board is "obligated by law to enforce the Navajo Nation Code."

Chief Legislative Counsel Levon Henry represented the nine members of the election board and the election office.

Henry argued that the election board and the election office were not parties to the grievances filed last month by Tsosie and Whitethorne with the Office of Hearings and Appeals, so they were not present to hear information related to Deschene's qualifications.

He also argued that the election board was only following the tribe's election process.

"There is a process here that needs to be followed to finality," Henry said.

He said the election board concludes that tribal law does explain that the third place finisher could replace a disqualified candidate but the order by the Office of Hearings and Appeals stated it "expects" the election office to replace Deschene. It also stated, Henry said, that all parties have 10 days to appeal and the board was not taking removal action until a decision was reached on any appeals filed.

In previous statements, Deschene said he would appeal decision made by the Office of Hearings and Appeals, which was due at 5 p.m. on Monday.

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636. Follow her @nsmithdt on Twitter.