Appeal certain in reform ruling

A hearing officer has ruled in favor of ballot initiatives backed by President Joe Shirley Jr. and has given the Navajo Election Administration six months to hold a special election at which voters can decide whether to reduce the tribal council and expand the veto power of the president.

However, the ruling faces certain appeal and will likely end up being decided by the Navajo Nation Supreme Court.

On June 25, Judge Carol Perry overturned last year's decision by the elections office to reject Shirley's voter initiatives, which would cut the number of council seats from 88 to 24, and would give the president authority to veto specific items in council spending measures (called a line-item veto).

Shirley hailed the decision and immediately began work on the next steps in his effort to reform the government.

"Government reform has been a big issue with this administration," Shirley said in a press conference Monday. "This has been tied up in the judicial process but now it's sprung forward."

Perry was appointed by the Supreme Court after the Office of Hearings and Appeals failed for six months to name a hearing officer for Shirley's appeal, effectively leaving the ballot questions dead in the water.

After hearing from both sides, Perry declared that the council-size question has enough valid signatures to go before voters.

On the line-item veto petitions, Perry said the Navajo Board of Election Supervisors, using standards that ran counter to the tenets of Diné Fundamental Law, had rejected many signatures that it should have allowed.

The elections board is part of the legislative branch, whose size and power would be dramatically altered if voters support Shirley's reform ideas.

The Navajo Election Administration has 10 business days, or until next Wednesday (July 8), to file an appeal.

Edison Wauneka, elections office director, would not comment on Perry's ruling, but he did confirm that his office will appeal it. Frank Seanez, chief legislative counsel, will handle the appeal.

Joshua Lavar Butler, spokesman for Speaker Lawrence T. Morgan, issued a statement Monday reiterating that the legislative branch will fight on.

"There is no question of an appeal," Butler stated.

In particular, Butler said, legislative branch leaders are concerned with Perry's decision to invoke Diné Fundamental Law in Shirley's request for line-item veto authority.

Back to basics

If her interpretation prevails, it could require a rewrite of the law on signature validation in voting matters. The elections office maintains that it only followed the law, which contains a specific list of criteria for determining if a signature on a petition is valid.

Shirley, however, argued that the elections office used a cramped interpretation in an effort to rule out as many signatures as necessary to keep the questions off the ballot.

In doing so, he argued, elections officials violated the basic Navajo value of including all voices in decision-making.

In order to get his reform proposals on the ballot, Shirley needed to collect 16,530 valid signatures for each question.

In October, he presented over 36,000 signatures but the elections administration threw out more than 4,000 of them, leaving Shirley short on both ballot questions.

The elections office claimed that the rejected signatures lacked required details or did not match the signature on voter registration rolls.

Upon doing a recount for the May hearing before Perry, however, the elections office showed that the first question, on council size, did have enough valid signatures.

Elections officials tried to argue that they must have made a math mistake in the recount, but when they were unable to produce testimony showing where the mistake was, Perry granted Shirley's motion for summary judgment and ruled that the question should go before voters.

On the second question, Perry took additional testimony and then asked for written briefs before rendering her decision June 25.

Shirley was represented by Window Rock attorney Albert Hale, a state senator and former tribal president who, ironically, helped craft the current governmental system that his client now seeks to change.

Hale argued that under Diné Fundamental Law, using technicalities to invalidate voter signatures unfairly deprives tribal members of their right to participate in decisions affecting the tribe.

He argued that when faced with a minor discrepancy between a person's signatures, for instance, the elections board should have erred in favor of including it.

Perry agreed that Diné Fundamental Law - a Navajo traditional form of law included in the tribal code - had a role to play in the issue.

Even granting the tribal law's specifics for vetting voter signatures, she said it "cannot be permitted to disqualify as many initiative petition signatures as it has." To do so would "undermine the critical role of the Diné in participating in and directing their governance."

Foreshadowing its likely arguments before the high court, the legislative branch said fundamental law was being misapplied here.

"There is great concern regarding the expansion of the use of Diné Fundamental Law in areas where it was not contemplated to be used," Butler said in his statement.

He also questioned Perry's qualifications to act as hearing officer because she is not a member of the Arizona State Bar Association. Perry is a member of the Navajo Nation Bar.

Full speed ahead

For now, Shirley said he plans to move forward on his plan.

"I was glad to hear Judge Perry's decision," Shirley said. "Elections need to happen within (six months) of the order. Hopefully it will go just that way."

If it does go that way, the elections would have to be held before the end of the year.

If voters agree to reduce the council, Shirley said the council itself would have to approve a new redistricting plan in time for the 2010 election.

Currently, 54 of the 88 council members represent more than one chapter. Seven delegates represent four chapters each, a number that is certain to rise if voters decide to eliminate three of every four council seats.

In addition, large communities that now have several delegates would probably only have one.

In 2000, voters passed a referendum to reduce the council to 24 members. However, tribal law requires that referendums be passed by a majority of chapters. Although voters approved the plan nearly 3-to-1, the breakdown by chapter did not meet the requirement.

This time around, voters will be deciding on a voter-driven initiative, which doesn't follow the same rules as a referendum. A referendum is initiated from within the tribal government and doesn't have the same requirements, such as signatures.

Butler said the speaker's office is concerned that the public will lose its voice if the council is reduced.

"The Navajo people will lose their individual chapter representations by the council reduction," he said in his statement. "If that is taken away, then they are no longer connected to their government."

Shirley said in reality, little would change. "We have that kind of representation already," he said.

He pointed out that in Congress, just two senators represent the state of Arizona, which has 6.5 million people.

"We are still represented in the halls of the U.S. Senate," Shirley said.

He added that the tribe has to work to ensure that its state representatives are aware of Navajo concerns and needs.

"We don't have one representative for every chapter, it doesn't work like that," Shirley said.

Back to top ^