A Writ of Mandamus was filed by the attorneys of presidential candidates Dale Tsosie and Hank Whitethorne with the Navajo Nation Supreme Court today, Oct. 14, 2014, to order the Navajo Board of Election Supervisor, the Navajo Election Administration and disqualified presidential candidate Chris Deschene to comply with the Oct. 9, 2014, order of the Office of Hearings and Appeals.
On Oct. 9, 2014, the OHA disqualified Deschene as a presidential candidate and stated to the tribal election board that “OHA expects the Navajo Election Administration to follow 11 N.N.C. section 44 by automatically placing the candidate who received the next highest votes in the primary election preceding the general election as the new candidate on to the official ballot in the general election.”
But yesterday, Oct. 13, 2014, the election board unanimously voted to defy the OHA decision by reaffirming their Sept. 9, 2014, vote to continue with the Nov. 4, 2014, general election and to have voting ballots printed with the presidential and vice presidential tickets of Deschene and Fannie Etcitty and Joe Shirley Jr. and Dineh Benally.
Deschene, who attended the Oct. 13, 2014, election board meeting, issued a press release after the OHA disqualified him, in which he explained why he refused to be cross-examined by opposing attorneys David Jordan and Justin Jones and why people needed to “continue to vote. My name remains on the ballot and voting continues without delay, as reaffirmed today (Oct. 9, 2014) by the Navajo Board of Election Supervisors in a majority decision. Stay with me. We are continuing to fight for our nation. We have a presidential election to win.”
Jordan and Jones stated in their Oct. 14 writ to the Supreme Court, “This case finds the Navajo Nation in a state of crisis. This crisis is directly caused by the contempt that the respondents (election board and office) and the real party in interest (Deschene) have for this court and the Office of Hearings and Appeals (OHA).
“At this juncture, there is a very real risk that this court could lose its jurisdiction over this dispute if affirmative action is not taken,” the petitioners’ attorneys stated. “Affirmative steps are necessary to preserve the jurisdiction of this court over this dispute.”
They recalled how Deschene acted “in direct defiance of both the OHA and this court” by not cooperating with the OHA as it carried out its duty.
Deschene refused to take a fluency test ordered by the OHA and agreed to by his attorney, Jordan and Jones stated. And even though, the OHA gave Deschene several opportunities, he refused to answer questions about his fluency during the final hearing.
And because of his refusal to obey the orders of the Supreme Court and the OHA, the OHA “ultimately” ruled against him, the attorneys stated.
But they stated the election board and office refused to comply with Navajo law that “mandates” that they “automatically” put the third place winner of the primary election on the Nov. 4 general election ballot as the new presidential candidate.
“In violation of Navajo law, respondents (election board and office) have refused to remove RPI (Deschene) from the ballot and to place the third place finisher from the primary on the ballot,” Jordan and Jones stated. “Also in violation of Navajo law, the RPI (Deschene) continues to campaign, as a candidate for election to the Office of the Navajo Nation President, although he was declared and ordered by OHA that he is not qualified to be a candidate for the Office of the Navajo President.”
The petitioners’ attorneys noted that they did not file their writ with the district court because by the time that they complied with tribal Sovereign Immunity Act, the Nov. 4 general election would be over.
“Failing to issue the writ will reward the respondents (election board and office) and the RPI (Deschene), who have openly defied this court, Navajo law and the authority of the OHA,” they argued. “Moreover, this election dispute needs to be brought to a speedy end. The Navajo people deserve to know, once and for all, who will be the candidates for president in this upcoming election. The conduct of the respondents (election board and office) and RPI (Deschene), in defying this court, Navajo law and the OHA, has created much disharmony on the nation. This court, as the final arbiter of law on the Navajo Nation, needs to step in to give finality to this dispute and to inform the Navajo people who the proper candidates are going to be.
“Respondents have no legal right to take the actions they are taking,” Jordan and Jones stated. “Further, RPI (Deschene) has been openly defying this court and the OHA by continuing to make public appearances and making public speeches as if he was still a qualified candidate.”
They added that Tsosie and Whitethorne would directly benefit from the writ because they are not third place finishers.
“They are bringing this action to vindicate the fundamental right of the people to preserve the language, to stop respondents (election board and office) and RPI (Deschene) from further unlawful behavior, and to give the Navajo people finality as to this dispute,” Jordan and Jones stated.
After the election board reaffirmed their vote on Oct. 13 to continue with the Nov. 4 general election and to keep Deschene’s name on the ballot, they had Election Office Director Edison Wauneka read the names of the presidential and vice presidential candidates. Wauneka read off the names of Deschene-Etcitty and Shirley-Benally.
Deschene held a brief press conference after the election board meeting on Oct. 13 and announced that he supported the election board’s decision because “they stood up to protect the voice of the people. And that’s what I’ve been saying along, let the people decide.”
He also said that he would continue with his campaign schedule, which included a stop at Teesto Chapter that afternoon and at his home chapter, LeChee, that evening.
Deschene added that he was surprised by Shirley’s challenge to debate him entirely in the Navajo language because Shirley has turned him down four times to debate in the Navajo language.
Presidential candidates Tsosie and Whitethorne filed separate election complaints with OHA against Deschene for lying on his candidacy affidavit that he met the presidential candidacy requirement for speaking the Navajo language fluently.
The OHA initially dismissed the complaints because they were filed after the primary election instead of ten days after Deschene filed his candidacy affidavit.
Tsosie and Whitethorne appealed to the tribal Supreme Court, which reversed the OHA dismissal because the election office didn’t make Deschene’s affidavit available to the public during the ten days after Deschene filed his affidavit and so its contents were only known to Deschene.
The Supreme Court also ordered the OHA to hold a hearing on the election complaints by Tsosie and Whitethorne by Oct. 3.
According to the OHA Chief Hearing Officer Richie Nez final order on Oct. 9, 2014, the OHA has the inherent right to enter default when a party, in bad faith, refuses to participate in pre-trial proceedings order by a tribunal.
Nez recalled that the tribal Supreme Court’s Oct. 8, 2014, decision mandated, “Deschene shall cooperate with the OHA as it carries out its duty.”
But Nez stated, “From the moment that the OHA received this case back on remand, respondent (Deschene) refused to cooperate with the OHA. He refused to take the test that would have provided an objective measure of his fluency, even though his own prior counsel had agreed to the test.
“He refused to answer questions at the deposition ordered by the OHA. He refused to answer questions posed by petitioners (Tsosie and Whitethorne) at the final hearing. Despite being given several opportunities, he refused to answer a direct “yes” or “no” question posed to him by the OHA,” Nez explained.
“The open defiance by respondent (Deschene) cannot be tolerated,” Nez stated. “It defies the authority of the Supreme Court and of this tribunal. Petitioners (Tsosie and Whitethorne) have the burden of proof, but respondent (Deschene) does not have the right to refuse to answer simple questions posed by the petitioners (Tsosie and Whitethorne).”
Nez stated, “Because of respondent’s repeated refusal to answer questions and to comply with the authority of the Supreme Court and the OHA, the OHA finds clear and convincing evidence that respondent (Deschene) cannot meet the standards of fluency announced by the Supreme Court on September 26, 2014.
“Respondent (Deschene) is hereby disqualified from the election,” Nez stated. “The OHA expects the Navajo Election Administration to follow 11 N.N.C. section 44 by automatically placing the candidate who received the next highest votes in the primary election preceding the general election as the new candidate on the official ballot in the general election. All parties shall have ten days to appeal this final order to the Navajo Nation Supreme Court.”