The Navajo Nation’s presidential election has officially been postponed.
With only four days to spare before the scheduled election, the Navajo Supreme Court on Friday ordered the Navajo Election Administration to postpone the vote and remove Chris Deschene’s name from ballots. The order came as election officials were preparing to deliver 97,000 ballots to polling places in time for the November 4 general election.
A special election will cost the Nation about $285,000, Edison Wauneka, executive director of the election administration, told the court. He estimated $102,000 has already been spent.
Wauneka, who faced being held in contempt – and possible arrest – if he failed to comply with the court’s order, said he would split the upcoming election, postponing the presidential vote but moving forward with all other candidates. He also agreed to reprint the ballots.
“I have no choice,” he told the court during the hearing held in Chinle, Arizona. “I have to comply with law.”
In principle, however, Wauneka said he still agrees with the Board of Election Supervisors, which has defied the court’s orders, claiming Navajo fundamental law allows voters to select their leaders.
Friday’s action was the latest in a case that began after the August primary election when two former candidates challenged Deschene, who finished second, over his claims that he speaks fluent Navajo. Dale Tsosie and Hank Whitethorne, who finished 10th and 15th, respectively, in the primary, pointed to election law, which requires presidential candidates to be fluent in both English and Navajo.
A lower court disqualified Deschene from the presidential race when he refused to take a fluency test, despite his claims that such a test was unfair and unprecedented. The Supreme Court on October 23 upheld the disqualification and ordered election officials to postpone the vote and immediately replace Deschene’s name on ballots with Russell Begaye, who finished third in the primary election.
Yet the Board of Election Supervisors and the Navajo Election Administration refused to comply with the order, prompting attorneys representing Tsosie and Whitethorne to file a motion with the Supreme Court earlier this week asking all election officials to be held in contempt. The motion further requested that election officials explain to the court why they did not comply with the earlier order.
In his explanation in front of the court Friday, Steven Boos, attorney for election officials, argued that an election cannot be postponed if it is already under way. He estimated 8,000 people already have voted by early or absentee ballot.
“This isn’t about a postponement, it’s about a termination of an election that’s already taking place,” Boos said. “For those thousands of Navajo who already made their choice, who already exercised their free will, it was saying take those ballots that you cast, take those choices, put them through a shredder and send them out to the landfill. We don’t care what your choice was. We don’t care that you already made your choice.”
David Jordan, attorney for the petitioners, appealed to the justices in his argument, claiming the credibility of the court was at stake. Calling attention to protestors outside the courtroom and ongoing intimidation tactics, Jordan told the court it had an obligation to make “careful and concerted” decisions based on the “collective wisdom” of the tribe.
“The credibility of this court is being directly challenged in favor of mob rule,” he said. “The Navajo Nation is a nation of laws. It is not a nation that is run by the mob.”
The hearing Friday had nothing to do with the question of fluency, but rather election officials’ alleged violations of election code, Jordan said. He urged justices to impose serious consequences – including possible incarceration – on individuals who disregarded the court’s orders.
After deliberating for an hour, Chief Justice Herb Yazzie and Associate Justice Eleanor Shirley ruled in favor of petitioners and found that the nine members of the Board of Election Supervisors were in contempt of court orders and Navajo law.
“The board knowingly and willfully neglected to perform its duties under the election code,” Yazzie said.
Yazzie ordered that board members be removed, their positions be declared vacant immediately and that they be ineligible to run for other elected office for five years. He also ordered financial sanctions, telling the tribe’s controller to refrain from processing payments for the board.
In their motion, petitioners also requested the court to hold Wauneka and the Navajo Election Administration in contempt. During the hearing, however, Yazzie called Wauneka to the front of the courtroom and asked him if he, specifically, would postpone the election and reprint the ballots.
“Yes,” Wauneka said. Based on that answer, the court denied the request to hold him in contempt.
The November 4 general election will continue as planned, with polls open from 6 a.m. to 7 p.m. Although the presidential candidates remain on the ballots, the votes will not be tallied.
A new date for the presidential election has not yet been determined, but Russell Begaye is expected to face off against Joe Shirley Jr., the tribe’s only two-term president and the first-place finisher in the primary.