With only 10 days to spare before Navajo voters are scheduled to elect a new president, all three branches of the government are wrangling over who has final authority of the ballots.
The Navajo Supreme Court on Thursday, October 23, ordered the election to be postponed and for election officials to immediately reprint ballots without Chris Deschene’s name on them. Deschene, who came in second during the August 26 primary, was disqualified when he failed to prove he speaks fluent Navajo, a requirement for the position.
The high court’s opinion, which it deemed final and permanent, upheld a lower court’s decision to disqualify Deschene. It also called for the November 4 general election, during which voters will select a variety of local, state and federal leaders, to continue as planned – minus the presidential candidates.
It is unavoidable that the presidential election be postponed in order to ensure valid results, Chief Justice Herb Yazzie wrote in the justices’ 2-1 opinion.
“Decisions have to be made to provide finality to this dispute and to ensure a lawful election,” states the opinion, signed by Yazzie and Associate Justice Eleanor Shirley. Associate Justice Irene Black dissented, arguing the matter should have gone first to a tribal district court.
In the wee hours of the morning Friday, however, the Navajo Nation Council narrowly approved emergency legislation to amend election law. The legislation, written to be retroactive and apply to the pending election, does not discard the fluency requirement, but it allows voters to choose their leaders and determine candidates’ language proficiency.
The bill next goes to President Ben Shelly, who has 10 days to approve or veto it.
The Council’s 11-10 vote came after a spirited, hours-long debate in front of a packed house. Delegates opposing the legislation argued the timing was inappropriate and that changing the rules benefited only one person.
“You don’t change the rule in the middle of a basketball or football game,” said delegate Katherine Benally, who spoke passionately in a mixture of Navajo and English and argued against relaxing the language requirements for the tribe’s highest elected position.
“Not on my watch,” she said.
Other delegates raised questions about whether the Council had the authority to make laws that conflict with Supreme Court rulings. It was not immediately clear how – or if – the bill changes the upcoming election.
Speaker Pro Tem LoRenzo Bates, who cast the tie-breaking vote in favor of amending election law, emphasized the language in the bill.
“We are not diminishing the Navajo language in any way, form or fashion,” he said during a phone interview. “There seems to be a misconception that we’re doing away with fluency, but that requirement is still in the law. The language makes it up to the people to decide whether or not a candidate is qualified.”
Bates said his decision was based on Navajo fundamental law, which clearly outlines the peoples’ right to choose their leader.
“It had nothing to do with individuals,” he said. “It had everything to do with respecting the peoples’ vote.”
Meanwhile, Deschene continues to campaign across the 27,000-square-mile reservation, urging people to vote by early or absentee ballot. He also is threatening a class-action lawsuit if the election is halted or the ballot changed, claiming the Nation is violating the people’s right to select a leader.
In a statement released on Facebook this week, Deschene declared that his candidacy is not over.
“I respect the Supreme Court, but given the recent legal proceedings I question whether it was a fair and impartial proceeding,” Deschene said in the statement. “I want to be your president. I am qualified to be your president. And I remain on the ballot as a presidential candidate. You must continue to vote. “
Phone calls to Deschene’s campaign manager were not immediately returned.
The challenge against Deschene began shortly after the primary election when two of his 16 opponents filed grievances claiming he lied on his candidacy application when he asserted he was fluent in Navajo. The case is the first to challenge a candidate’s language skills since the election law was established in 1990.
Deschene, who spoke openly about his struggles with the language, has called his skills “proficient” and promised that he will be fluent by the end of his first term.
Thursday’s opinion marks the second time the high court has considered the case. On September 26, the court in an appeals opinion declared that fluency is a “reasonable requirement” for president and remanded the decision back to a lower court, which disqualified Deschene on default judgment.
The latest opinion did not address whether Deschene meets the language requirement to run for president, but rather whether to uphold the disqualification. According to the opinion, Deschene’s disqualification is permanent because he failed to file proper documents with his appeal.
However, justices in their opinion echoed their previous sentiments about a language spoken by about half of the tribe’s 300,000 members.
“This is a matter of our sovereign right to exist as a nation with its own language,” the opinion states. “Our sacred language defines us as individuals and as a nation.”
The court’s opinion orders Deschene’s name to be replaced on ballots with the third-place finisher in the primary election, Russell Begaye. The court expects Begaye to face off against Joe Shirley Jr., who earned the most votes in the primary and previously served two terms as president. Begaye, a Council delegate, voted against the bill to strike the fluency requirement from election law.
It is not yet clear when the presidential election will be held or whose names will be on the ballot.
“It’s a very complex situation,” Bates said of the election. “There are a lot of decisions still to be made, a lot of puzzle pieces that still need to come together.”