Referendum question on ballot ruled invalid by Judge Sloan

By Noel Lyn Smith
Navajo Times

TUBA CITY, Oct. 29, 2010

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The Navajo Nation's November 2 general election will happen but without the referendum to elect judges and justices.

Judge Allen Sloan concluded Thursday that the referendum was not valid because the measure failed to involve the president's veto review.

"The election cannot happen on that referendum," Sloan said.

The referendum appears on the general election ballot and any votes cast about the measure will not be counted. Only votes for elected positions such as the president and council delegates will count.

"You'll glean from my decision that my biggest concern was taking this away from the people," he said.

The hearing was held on orders from the Navajo Nation Supreme Court, which directed Sloan to hold an evidentiary hearing and issue a final decision by Oct. 28 for the permanent injunction request made by President Joe Shirley Jr. against the Navajo Nation Council and the Navajo Board of Election Supervisors.

The Supreme Court made its order Oct. 25 because it viewed the issue as time sensitive since the general election is Tuesday.

Shirley was present at the hearing, along with Speaker Lawrence T. Morgan (Iyanbito/Pindale) and NBOES chairman Larry Biltah.

Sloan said his written decision would be available today at noon.

After announcing his decision, Sloan asked the parties to decide how to inform the public not to vote on the referendum.

Sloan also allowed Shirley and Morgan to address the court.

Shirley said there is enough time to inform people not to vote on the referendum question and that one way he would help is talking about it during his weekend radio address.

"I think that is all we can do, that is all that can be done," Shirley said. "Knowing my people, I trust them very much and I believe they will understand."

Then it was Morgan's turn to speak.

"The decision today could change a lot of things and it could also increase liabilities in the area of voting rights," Morgan said. "The effort on providing education on the referendum has been ongoing and two weeks ago the decision of the court was different."

On Oct. 11, Sloan denied Shirley's request for a preliminary injunction. Shirley tried to file an appeal to the Supreme Court, which denied the request for procedural reasons.

After a short recess, each side offered suggestions on how not to count the referendum.

Kiersten Murphy, Shirley's lawyer, suggested having poll workers strike out the question.

But Michael Upshaw, lawyer for NBOES, disagreed with that action because ballots would be spoiled if any additional markings were made.

Other ways that voters can be informed, Murphy said, is through radio announcements and press releases, newspaper advertisements, posting the information in Navajo and English at the polling sites, and sending letters to absentee voters to let them know that their vote will not count.

Upshaw reiterated that by telling voters that the referendum is no good, they could mark out the question and ruin the ballot.

A clear decision as to what will be done to inform the public remains under development.

"The most we can do now is to tell the chief poll judges that when they call in to disregard the referendum results," Navajo Election Administration director Edison Wauneka said after the hearing.

Friday was the last day for in person early voting.

Polling officials will meet Saturday in Window Rock to sort and separate absentee ballots by chapter.

When polls open 6 a.m. Tuesday, each chief poll judges will insert those absentee ballots into voting machines to be counted.

This morning the hallway at the Fort Defiance agency election office was covered with yellow sample ballots from each of the 110 chapters.

As people entered to vote, polling officials told them not to answer the referendum question.

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