Navajo leader says referendum improperly on ballot

By Felicia Fonseca
Flagstaff, Arizona (AP) October 2010

Navajo President Joe Shirley Jr. says a referendum to elect judges on the reservation is improperly being placed on the ballot, and he’s asking a judge to step in.

The tribe’s attorney general has said the legislation passed by the Tribal Council calling for the referendum is invalid because it wasn’t sent to Shirley for consideration. The legislative counsel disagrees.

Shirley cites the attorney general’s opinion in a complaint filed this week in tribal court. He also says the ballot language approved by election supervisors doesn’t fully explain the potential impacts of the vote and the council has not appropriated any money for public education.

“It’s clear they didn’t want to give the president the opportunity to opine on this issue as he does in his veto messages,” said Shirley spokesman George Hardeen. “Anything they can to do diminish the power of the president, they take advantage of.”

The tribe’s elections office already has ordered more than 2,000 absentee ballots that was supposed to be sent out this week unless the court granted a temporary restraining order, said elections director Edison Wauneka. The referendum asks Navajos whether district court judges and Supreme Court justices should be elected instead of appointed starting in 2012.

A challenge to the referendum was anticipated. The Navajo Nation Council and the Election Board of Supervisors, who are named as defendants, were served with the complaint last week.

Council Delegate Thomas Walker, who sponsored the legislation, said he was advised by attorneys that the measure didn’t need the president’s approval to let voters decide. He said Navajos have government reform in mind and want the chance to decide how judges should be seated.

“At the end it is changing the government and the power structure,” he said. “We don’t all agree what those changes should be, clearly. I think that’s the backdrop to all of this.”

Legislation to fund public education of the referendum could go on the council’s fall agenda, giving election officials two weeks for an information campaign if it passes, Walker said. The council would have to look for another funding source since the one identified is dry.

If the referendum is approved, all sitting judges and justices would have to resign in January 2013 and would lose their retirement benefits. It also would enact set salaries for the elected positions that previously were determined by a council committee based on experience and other criteria.

Election board Chairman Larry Biltah said the board treated the conflicting legal opinions of the attorney general and the legislative counsel simply as opinions. It’s the first time the lawyers have issued legal opinions on the same matter since the council gave its top lawyer the ability to do so earlier this year.

Biltah said the board did its job in approving the ballot language, sending the referendum to the Nov. 2 ballot. Vote-counting machines could be reprogrammed not to include the referendum, depending on what a court decides, he said.

“We’re prepared to deal with it, whichever way it goes,” he said.