High court upholds vote to reduce council to 24

By Bill Donovan
Special to the Times

WINDOW ROCK, June 3, 2010

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(Times photo - Leigh T. Jimmie)

The Navajo Nation Supreme Court delivers the decisions in two high-profile cases to the public May 28 at Veterans Memorial Park in Window Rock.

The Navajo Nation Supreme Court, in the most wide-ranging rulings in its history, on May 28 upheld the special election reducing the Navajo Nation Council to 24 members, stripped the council of authority to suspend the president, and repulsed the council's effort to restrict the use of Diné Fundamental Law in court decisions.


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It was a day of firsts for the high court - the first time it has delivered a decision by reading it aloud, the first time it has announced a ruling outdoors (at Veterans Memorial Park), and the first time it has broadcast a ruling live over radio.

Although not a first, the court took on issues not directly raised in the suit being decided. In this case, the three justices addressed matters collateral to reducing the council, saying there was a need to bring closure to the issue.

""If we don't provide finality on an issue of such governmental importance, animosity and conflict will likely continue in some form at the expense and well-being of the people," the ruling stated.

In all, the two decisions issued Friday - on the election challenge and the council's Oct. 26 vote to put the president on administrative leave (see separate story) - involved more than 20 rulings on everything from time lines to setting up procedures for one branch of the government to file a lawsuit against another.

In its decision upholding the Dec. 15, 2009, election to reduce the council's membership, the Supreme Court declared invalid a law that says ballot referendums require a majority of registered voters in every chapter to vote "yes."

"The supermajority requirement is not simply a supermajority," the court stated. "It is an extraordinary majority impossible to be obtained judging from voter turnout in any previous Navajo Nation election, plus reading the provision as requiring unanimity in all precincts is bound never to be achieved in modern voting."

In 2002 Navajo voters chose a 24-member council in a ballot referendum, but not by a large enough majority to satisfy the standard set by the council, so the reduction was never implemented.

The new ruling re-enforces the right of Navajos to make changes in their government through ballot initiatives.

"We affirm today," the court said, "that the council may not use its power to frustrate the will of the people."

The ruling said that in the future, all that would be required to pass a ballot initiative is a simple majority of registered voters taking part in that particular election.

The court stated that a 24-member council is to be sworn in Jan. 11, 2011.

It said the council had "ample time" to develop a reapportionment plan after the December election and did not do so. Now the primary is just two months away, and there is not enough time to develop, debate and approve a reapportionment plan from the many that have been submitted, the court said.

So the court chose to bypass the council and instead ordered the president's office to choose one of the reapportionment plans it had presented at a series of community meetings earlier this year, and present it to the Navajo Board of Election Supervisors by June 11.

The court gave NBOES one week, until June 18, to approve the plan. The ruling left out mention of the council, which under tribal law must approve the plan adopted by NBOES or send it back for further work.

The Supreme Court noted in its ruling that normally it does not concern itself with the operation of elections, but said it did so in this case "to comply with the will of the people."

Candidates who want to run for the council can start filing after June 11 and the election board will have until July 12 to certify them as a candidate, the court said.

"Appeals, if any, shall be handled expeditiously," the ruling stated.

Election officials had planned to send ballot information to the printers by June 9 so the ballots would be ready when early voting begins in July. The new filing deadline calls into question whether the primary can take place Aug. 3, as currently scheduled. The court did not address the point in its ruling.

The court also overturned a provision in the Navajo Nation Code that allowed the council, by a three-fourths vote, to declare invalid the results of a ballot referendum or initiative.

"The council may not interfere with the people's choice," the ruling stated, adding that "the people have the sole authority to change the size of the council."

As for the second question that voters approved in the Dec. 15 special election - whether to give the president line-item veto authority over council spending measures - the court ruled that the president is free to start exercising that new authority immediately.

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