Elections Outline

• For cases relating to issues of sovereign immunity, separation of powers and operation of the government, see Government Outline.

• For cases relating to civil rights in elections, see Civil Rights Outline.

Contents

I.  Diné Bi Beenahaz’áanii .......................................................................................................... 1 

A.  Right to select leader of your choice ................................................................................ 1 

B.  Right to run for office ...................................................................................................... 1 

C.  Participatory democracy ................................................................................................... 1 

D.  Community may reasonably regulate political process consistent with Diné Bi Beenahaz’áanii ........................................................................................................................... 2 

II.  Election regulations ................................................................................................................ 3 

A.  Interpretation of election statutes ..................................................................................... 3 

B.  General cases relating to election regulations .................................................................. 3 

1.  Purpose of election statutes .......................................................................................... 3 

2.  Right to regulate ........................................................................................................... 3 

3.  Reasonableness standard .............................................................................................. 4 

4.  Balance against the rights of the people ....................................................................... 4 

C.  Role of the Navajo Board of Election Supervisors .......................................................... 4 

1.  Oversight of elections ................................................................................................... 4 

2.  Adopting rules and regulations ..................................................................................... 4 

3.  Interpreting election laws ............................................................................................. 5 

4.  Authorizing poll officials ............................................................................................. 5 

5.  Responsible only to the Council ................................................................................... 5 

6.  Must discharge its statutory duties ............................................................................... 5 

D.  Role of the Navajo Election Administration .................................................................... 6 

E.  Petitions ............................................................................................................................ 6 

F.  Ballots .................................................................................................................................. 6 

G.  Residency requirement ..................................................................................................... 6 

H.  Loyalty requirement ......................................................................................................... 7 

I.  Criminal record requirement ................................................................................................ 8 

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1.  General description of disqualifying offenses .............................................................. 8 

2.  Offenses relating to children ........................................................................................ 8 

3.  Prior conviction required – no retrials to evaluate past offenses .................................. 9 

4.  Vagueness ..................................................................................................................... 9 

5.  Power of Council ........................................................................................................ 10 

6.  Time for disqualification ............................................................................................ 10 

J.  Certification of election ..................................................................................................... 10 

K.  Recount .......................................................................................................................... 10 

III.  Recall elections .................................................................................................................. 10 

A.  Purpose of recall provisions ........................................................................................... 10 

B.  Process must be free from impropriety .......................................................................... 11 

C.  Responsibilities of the Recall Committee ...................................................................... 11 

D.  Recall petitions ............................................................................................................... 11 

E.  Amended petitions ......................................................................................................... 12 

F.  Review of petitions ............................................................................................................ 13 

G.  Names may not be filed in segments .............................................................................. 13 

H.  Chapter official recall hearings [repealed] .................................................................... 13 

IV.  Educational elections ......................................................................................................... 14 

A.  Apportionment ............................................................................................................... 14 

1.  Role of the Education Committee .............................................................................. 14 

2.  Necessity of proper consultation ................................................................................ 15 

3.  Factors to be considered ............................................................................................. 15 

4.  Arbitration provision [repealed] ................................................................................ 15 

B.  School board elections ................................................................................................... 15 

V.  Election disputes ................................................................................................................... 17 

A.  Standing to challenge elections ...................................................................................... 17 

B.  Purpose of a hearing ....................................................................................................... 17 

C.  Presumptions and burden of proof ................................................................................. 17 

1.  Standards for election disputes ................................................................................... 17 

2.  Clear and convincing evidence ................................................................................... 17 

3.  Presumption of validity of election ............................................................................ 18 

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4.  Must show irregularity would impact results of election ........................................... 18 

5.  Requirement of fundamental unfairness ..................................................................... 19 

D.  Procedures for challenging election results .................................................................... 19 

1.  Procedures must be strictly followed ......................................................................... 19 

2.  Filing the complaint .................................................................................................... 19 

3.  Allegations of the complaint ...................................................................................... 20 

4.  Reviewing the complaint for sufficiency ................................................................... 21 

5.  Scheduling a hearing .................................................................................................. 22 

6.  Investigations .............................................................................................................. 22 

7.  Issuing the final written decision ................................................................................ 22 

E.  Challenges to recall petitions ......................................................................................... 22 

F.  Disqualification of candidates ........................................................................................... 23 

G.  Standards for invalidating elections ............................................................................... 23 

H.  Procedures ...................................................................................................................... 23 

I.  Remedies ............................................................................................................................ 24 

I. Diné Bi Beenahaz’áanii

A. Right to select leader of your choice

• Under Fundamental Law, voters have the right to choose leaders of their choice. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• There is a basic right, highlighted in the Fundamental Law statute, that the Dine’ have the right to choose leaders of their choice. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

B. Right to run for office

• Candidates have a Fundamental Law right to participate in the political system by running for office. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• Under Dine’ Bi Beenahaz ‘aanii, Navajo candidates have a liberty interest to participate in the political process by running for office. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Vagueness of the election law and its loose and unequal application lead to a denial of a party’s right to participate. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• In Navajo tradition, government and governing was a matter of the consensus of the people. Therefore, there is a strong and fundamental tradition that any Navajo can participate in the processes of government, and no person who is not otherwise disqualified by a reasonable law can be prohibited from holding public office. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• Navajo common law acknowledges that there is a strong and fundamental tradition that any Navajo can participate in the processes of government, and no person who is not otherwise disqualified by a reasonable law can be prohibited from holding public office. This creates a mere reasonableness standard that is less stringent than the American standard. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

C. Participatory democracy

• Navajo common law speaks to consultation as giving participants ample freedom to speak, be heard, and opportunity to present written comments. The Navajo doctrine of k’e underlies all transactions between and among Navajos, and it likewise frames our view of consultation under the Election Code. Consultation is far more than giving unilateral testimony under oath for a limited number of minutes. It must encompass complete discussion of Navajo values, concepts, and diversity of opinion in an atmosphere of k’e (including equality and respect), ultimately leading to a consensual solution. This is the heart of Navajo due process embedded in Navajo participatory democracy. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• The traditional Navajo common law doctrine that applies to jury process is Navajo participatory democracy. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• Navajo participatory democracy guarantees participants their fundamental right to speak on an issue, and discussion continues until the participants reach consensus. In this sense decisions are a product of agreement among the community rather than a select few. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• Status, wealth and age are not determinants of whether a person may participate in the decision-making process. Furthermore, no one is pressured to agree to a certain solution, and persuasion,

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not coercion, is the vehicle for prompting decisions. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• In Navajo tradition, government and governing was a matter of the consensus of the people therefore, there is a strong and fundamental tradition that any Navajo can participate in the processes of government, and no person who is not otherwise disqualified by a reasonable law can be prohibited from holding public office. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

D. Community may reasonably regulate political process consistent with Diné Bi Beenahaz’áanii

• The rights of candidates and voters are not absolute, but that they may be reasonably regulated when necessary for the election system to function or when required by another Fundamental Law principle. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• The Council may establish requirements for elected offices, but such requirements must conform to Dine’ Bi Beenahaz’áanii. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• If an election requirement defeats the ability of the people to elect leaders of their choosing and candidates to run for office, it must yield. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Though the rights to choose leaders and to participate in the Navajo political process are fundamental, they are not absolute. A broad reading of these rights might invalidate any perceived limitation on candidates, including filing deadlines, reporting requirements, or restrictions on campaigning. Therefore, absent some regulation of those rights, the Navajo election system cannot function. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Other principles of Dine’ Bi Beenahaz’áanii may preclude certain candidates from running for office, and therefore restrictions based on such principles do not improperly burden those rights. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• There are election rules that justifiably limit candidate eligibility to allow the election system to function or further other principles of Dine’ Bi Beenahaz’áanii. Such rules can be harmonized with the fundamental rights of voters and candidates, and are therefore valid. This Court has stated that these rights are protected by requiring that restrictions on the rights must meet a reasonableness standard. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Navajo laws which restrict fundamental rights in the election area must be based upon reasonable public policy. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• The use of the definition of the Navajo Nation’s modem territorial jurisdiction to demarcate the land upon which one must reside if he or she desires to run in an election unreasonably restricts the fundamental rights of a significant number of Dine’. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

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II. Election regulations

A. Interpretation of election statutes

• If any ambiguities exist in an election statute, the presumption lies in favor of the candidate. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Election statutes are mandatory when enforcement is sought prior to an election, but they are directory when enforcement is sought after an election. This law encourages candidates to bring their challenges prior to an election, and it presumes that elections which have been held are valid. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• There are unique rules of statutory interpretation for election laws. The rules arise from the unique circumstances attendant to elections, such that the situation prior to an election is far different from that after an election. That is, it is easier to correct errors when they surface before an election than it is when they are raised after an election, when the electorate has already made its choice. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• Election statutes are mandatory when enforcement is sought prior to an election, but they are read to be directory only when challenges are raised after an election. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• The Navajo Election Code (Title Eleven) governs all appeals of elections decisions made by the Office of Hearings and Appeals [formerly the Board of Election Supervisors]. Secatero v. Redhouse, 6 Nav. R. 312 (Nav. Sup. Ct. 1990).

• All provisions of the election law are mandatory if enforcement is sought before election in a direct proceedings for that purpose; but, after election, all should be held directory only, in support of the results, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element to the validity of an election, or that its omission shall render it void. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

B. General cases relating to election regulations

1. Purpose of election statutes

• The new election laws were passed to assure public confidence in the integrity of the Navajo Nation Government. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

• The new election laws were passed to exercise the power to pass laws for regulating and superintending elections, and secure for the purity thereof, and the rights of citizens to vote there at peaceably and without molestation. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

2. Right to regulate

• Though the rights to choose leaders and to participate in the Navajo political process are fundamental, they are not absolute. A broad reading of these rights might invalidate any perceived limitation on candidates, including filing deadlines, reporting requirements, or restrictions on campaigning. Therefore, absent some regulation of those rights, the Navajo election system cannot function. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

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3. Reasonableness standard

• There are then election rules that justifiably limit candidate eligibility to allow the election system to function or further other principles of Dine’ bi beenahaz’áanii. Such rules can be harmonized with the fundamental rights of voters and candidates, and are therefore valid. This Court has stated that these rights are protected by requiring that restrictions on the rights must meet a reasonableness standard. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Navajo laws which restrict these fundamental rights must be based upon reasonable public policy. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

4. Balance against the rights of the people

• It is not for the Council to restrict the People’s ability to judge the value of the candidate’s message, merely because he or she did not, prior to the election, live within a statutorily-defined boundary for three years. The People can, and will, make that judgment. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

C. Role of the Navajo Board of Election Supervisors

1. Oversight of elections

• The Board has the power to administer, implement and enforce the Navajo Election Code, and the power to oversee and supervise generally all tribal elections. Navajo Nation v. Redhouse, 6 Nav. R. 305 (Nav. Sup. Ct. 1990).

2. Adopting rules and regulations

• Rules and regulations to be considered by the Navajo Board of Election Supervisors must be consistent with the Election Code and other Navajo Nation laws. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• Navajo law requires that the Navajo Board of Election Supervisors follow its own rules, regulations, and procedures. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• One of the enumerated powers of the Board is to establish rules and regulations and to interpret the Election Code consistent with Tribal laws. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The Board of Election Supervisors shall have the authority to make and enforce rules and regulations not inconsistent with the Election Code concerning any matter within the jurisdiction of such Board. Such regulations shall have the force and effect of laws of the Navajo Nation. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• The Navajo Tribal Council authorized the Board of Election Supervisors to establish and enforce rules and regulations governing Navajo Nation elections. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• Title 11 of the Navajo Tribal Code does not contain specific rules of procedure for meetings of the Navajo Board of Election Supervisors. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

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• The Board of Election Supervisors has the authority to adopt rules and regulations for deciding disputes arising in connection with Tribal elections. Begay v. Board of Election Supervisors, 2 Nav. R. 120 (Nav. Ct. App. 1979).

3. Interpreting election laws

• The Navajo Nation Board of Election Supervisors has discretion to apply election laws, but such discretion is limited. The Supreme Court can decide whether the Board acted within its discretion. These limitations are imposed by due process and the statutory language of the Election Code and Ethics Law. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

• One of the enumerated powers of the Board is to establish rules and regulations and to interpret the Election Code consistent with Tribal laws. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The Board’s power to interpret election laws is limited by the requirement that such interpretation be consistent with Tribal laws. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• If the Board arrives at a conclusion of law which is not consistent with the law of the Navajo Nation, that conclusion is beyond the power of the Board, as granted by the Navajo Nation Council. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The Board of Election Supervisors is empowered to interpret the Navajo Election Code consistent with Tribal laws. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

4. Authorizing poll officials

• The Board of Election Supervisors has the discretionary power to authorize the Navajo Election Administration to serve as poll officials. Morris v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 75 (Nav. Sup. Ct. 1993).

5. Responsible only to the Council

• The Navajo Board of Election Supervisors is an independent entity within the legislative branch of the Navajo Nation government, responsible only to the Navajo Nation Council. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The Board of Election Supervisors is an independent entity, responsible only to the Navajo Nation Council. Navajo Nation v. Redhouse, 6 Nav. R. 305 (Nav. Sup. Ct. 1990).

• A vote of two-thirds of a quorum of the Navajo Nation Council is necessary to modify or change the powers of the Board of Election Supervisors. Navajo Nation v. Redhouse, 6 Nav. R. 305 (Nav. Sup. Ct. 1990).

6. Must discharge its statutory duties

• A member of the Board of Election Supervisors [formerly the Navajo Election Commission] shall not knowingly and willfully fail or neglect to perform its duties. Williams v. Nav. Election Comm’n, 5 Nav. R. 25 (Nav. Ct. App. 1985).

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D. Role of the Navajo Election Administration

• The Navajo Election Administration’s sole responsibility with recall petitions is to certify that “it appears” that sixty percent of the registered voters who voted in the last election signed the recall petition. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

• The Navajo Election Administration cannot inquire into alleged fraud or other improprieties. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

• The Board of Election Supervisors has the discretionary power to authorize the Navajo Election Administration to serve as poll officials. Morris v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 75 (Nav. Sup. Ct. 1993).

E. Petitions

• The payment of, or promise to pay, anything of value for the circulation of a petition or for procurement of any signature shall invalidate the entire petition. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

F. Ballots

• The rules of the Board of Elections Supervisors state that sample ballots cannot be marked upon, written on, or altered by anyone under any circumstances, and that such ballots are neither meant for campaign purposes by candidates nor for the purposes of supporting a candidate by any member of the general public. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• Ballots are the property of the Navajo Nation for purposes of the Criminal Code. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• The rules promulgated by the Board of Election Supervisors and the language of the sample ballot anticipate possible criminal prosecution for destruction of ballots. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

G. Residency requirement

• The use of the definition of the Navajo Nation’s modern territorial jurisdiction, 7 N.N.C. § 254, to demarcate the land upon which one must reside if he or she desires to run in an election is itself unreasonable. Section 254 generally establishes the lands upon which the Navajo Nation government has authority, a purpose totally different and distinct from the fundamental rights at issue. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Rule that requires candidate to reside and be continually present within the Navajo Nation for three years prior to seeking to run for president is not a justifiable limitation and therefore is in irreconcilable conflict with the fundamental rights of voters and candidates. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• A candidate for President must reside and be continually present within the Navajo Nation for three years prior to seeking to run for President. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002). Note: this holding is presented in strikeout format because the residency requirement was invalidated in Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

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• “Permanent residence” for the purpose of the residency requirement, is defined as: “The place where a person physically lives with the intent to remain for an indefinite period of time. The permanent residence is a person’s fixed and permanent home. Permanent means lasting, fixed, stable and not temporary, part time, or transient. A person cannot have more than one permanent residence at the same time.” Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002). Note: this holding is presented in strikeout format because the residency requirement was invalidated in Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• “Continually present” for the purpose of the residency requirement, is defined as: “Being actually physically present within the Navajo Nation or living on Navajo Country in a fixed and permanent home without any significant interruption. An extended absence from Navajo Country in the course of employment or pursuit of a trade or business or for purposes as attending school and serving in the military service is not significant interruption.” Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002). Note: this holding is presented in strikeout format because the residency requirement was invalidated in Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• A candidate for Council Delegate must reside and be continually present within the Navajo Nation for three years prior to seeking to run for the office. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999). Note: this holding is presented in strikeout format because the residency requirement was invalidated in Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• “Permanent residence” for the purpose of the residency requirement, is defined as: “The place where a person physically lives with the intent to remain for an indefinite period of time. The permanent residence is a person’s fixed and permanent home. Permanent means lasting, fixed, stable and not temporary, part time, or transient. A person cannot have more than one permanent residence at the same time.” Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999). Note: this holding is presented in strikeout format because the residency requirement was invalidated in Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• “Continually present” for the purpose of the residency requirement, is defined as: “Being actually physically present within the Navajo Nation or living on Navajo Country in a fixed and permanent home without any significant interruption. An extended absence from Navajo Country in the course of employment or pursuit of a trade or business or for purposes as attending school and serving in the military service is not significant interruption.” Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999). Note: this holding is presented in strikeout format because the residency requirement was invalidated in Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

H. Loyalty requirement

• Two sections of the Navajo Nation Code prohibit council delegates from also serving as members of a state legislature. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• The oath for council delegates explicitly requires an incoming delegate to swear that “I will support, obey, and defend the Navajo Nation and all the laws of the Navajo Nation.” Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• The oath is absolute, and allows no conflict in loyalty. This requirement of absolute loyalty is reiterated in the Election Code itself, as one of the qualifications for a council delegate is that he or

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she must “maintain unswerving loyalty to the Navajo Nation.” Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• A person may not swear allegiance to obey and serve simultaneously the laws of the Nation and the State of New Mexico. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

I. Criminal record requirement

1. General description of disqualifying offenses

• To run for Council Delegate, a person must not have been convicted of any misdemeanor involving crimes of deceit, untruthfulness and dishonesty, including but not limited to extortion, embezzlement, bribery, perjury, forgery, fraud, misrepresentation, false pretense, theft, conversion, or misuse of Tribal funds and property, and crimes involving the welfare of children, child abuse, child neglect, aggravated assault and aggravated battery within the last five (5) years. The person must not have been found in violation by a trial court or the Ethics and Rules Committee of the Navajo Nation Council of the Navajo Ethics in government or Election Laws. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

• To run for Council Delegate, a person must not have been convicted of any misdemeanor involving crimes of deceit, untruthfulness and dishonesty, including but not limited to extortion, embezzlement, bribery, perjury, forgery, fraud, misrepresentation, false pretense, theft, conversion, or misuse of Tribal funds and property, and crimes involving the welfare of children, child abuse, child neglect, aggravated assault and aggravated battery within the last five (5) years. The person must not have been found in violation of the Navajo Ethics in government or Election Laws. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• To run for President or Vice-President, a person must not have been convicted of any misdemeanor involving crimes of deceit, untruthfulness and dishonesty, including but not limited to extortion, embezzlement, bribery, perjury, forgery, fraud, misrepresentation, false pretense, theft, conversion, or misuse of Tribal funds and property, and crimes involving the welfare of children, child abuse, child neglect, aggravated assault and aggravated battery within the last five (5) years. The person must not have been found in violation of the Navajo Ethics in government or Election Laws. This limitation is independent of any sanctions power which the Council may have. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

2. Offenses relating to children

• A person cannot become a council delegate if he or she has been convicted of a misdemeanor involving the welfare of children, child abuse, or child neglect. Howard v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 380 (Nav. Sup. Ct. 1991).

• The plain meaning of the statute is that individuals who have been convicted of misdemeanors “involving the welfare of children,” for example, “child abuse” or “child neglect,” are disqualified. This means, at minimum that the criminal statute used to charge a defendant must have injury to a child as an element of the offense. The criminal statute must be designed to promote the welfare of children by providing that actions which endanger or compromise a child’s welfare are offenses. The terms of the election statute clearly do not include situations where children may happen to be present. Howard v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 380 (Nav. Sup. Ct. 1991).

• The intent of the Council in addressing crimes of deceit, untruthfulness, and dishonesty is clear, and it intended to list only a few examples of the crimes which fall into that category. While the

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offenses of aggravated assault and aggravated battery follow closely the crimes involving the welfare of children, it is reasonable to conclude that the Council intended them to be independent of injuries to children. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

3. Prior conviction required – no retrials to evaluate past offenses

• If the Office of Hearings and Appeals [formerly the Board of Election Supervisors] had the power to conduct retrials of criminal charges in order to ascertain whether a given conviction affected children, there would be a great potential for abuse. Obviously, the Navajo Nation Council did not intend that convictions for offenses other than the ones plainly set out in the statute can disqualify a candidate. The agency does not have the power to look behind criminal convictions by conducting new mini-trials upon the original facts. Howard v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 380 (Nav. Sup. Ct. 1991).

• Only individuals who have been convicted of a misdemeanor offense, where neglect, abuse or endangerment of children is an element of the offense, can be disqualified from holding public office as a Navajo Nation Council delegate. Howard v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 380 (Nav. Sup. Ct. 1991).

• The general flow of the statute is, as to these offenses, that upon conviction of any such crime, a person is disqualified from being a candidate for council delegate for five years. The opening words of the sentence, “convicted of any misdemeanor,” are plain, and they require only proof of a conviction. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• While the declaration of candidacy form asks about Navajo Nation convictions only, it is clear that the Council intended that a conviction for any such misdemeanor in any court of competent jurisdiction is a bar to office. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• Only courts of law have jurisdiction to convict an individual of a misdemeanor. The Office of Hearings and Appeals [formerly the Board of Election Supervisors] cannot, as a matter of law, retry individuals for offenses or initiate original quasi-criminal proceedings. Therefore, there is no jurisdiction to look behind District Court contempt and battery judgments. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

4. Vagueness

• 11 N.N.C. § 8(B)(4), which lists crimes that disqualify a candidate from running from office, is vague, ambiguous, and inconsistent. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• 11 N.N.C. § 8(B)(4) lists crimes that disqualify a candidate from running from office. The first category, crimes of deceit, untruthfulness and dishonesty, has examples of such crimes, but the category is not limited to the enumerated offenses. The second category, crimes involving the welfare of children, could be limited to child abuse and child neglect. The aggravated assault and aggravated battery offenses could be interpreted to relate only to crimes involving the welfare of children, given their placement in the first sentence of the section. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• It is unclear what procedure must be followed to determine that a prospective candidate has been found in violation of the ethics or election codes. It is also unclear what the period of disqualification may be. The statute is obviously vague and only reasonable interpretations of it by

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5. Power of Council

• The Navajo Nation Council has the power to provide that the commission of crimes of moral turpitude may disqualify one from being a candidate for public office. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The Navajo Election Code has long had provisions which bar convicted felons from holding public office. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

• The Council may decide that persons convicted of certain crimes manifesting moral turpitude are disqualified from holding public office. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

6. Time for disqualification

• A person convicted of a misdemeanor under this chapter [the ethics law] shall not be a candidate for elective public office, nor be eligible for any appointive office of the Navajo Nation, nor any of its governmental entities or political governing bodies, for four (4) years following the date of conviction. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

J. Certification of election

• Election results must be certified not less than ten days following an election. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• Conditional or “subject to recall” certification is neither expressly nor impliedly authorized by the Election Code. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

K. Recount

• It is clear that the statutory concept of a “recount of votes cast” is not limited to the mechanical process of counting ballots, but embraces at least the adjudication of whether a vote is illegal by reason of the non-residence of the voter. Begay v. Board of Election Supervisors, 2 Nav. R. 120 (Nav. Ct. App. 1979).

• The purpose of a recount is to determine whether or not a ballot is legally cast. Begay v. Board of Election Supervisors, 2 Nav. R. 120 (Nav. Ct. App. 1979).

III. Recall elections

A. Purpose of recall provisions

• The recall process is set up to allow the Navajo people to remove an elected official they feel is not properly upholding his or her responsibilities as a naat’áanii. The Election Code creates a quick and efficient process to allow the people’s voice to be heard, absent some proven fraud .or other impropriety. The Court will not impede that process without a compelling reason. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

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• Recall provisions are a means through which the public voice their dissatisfaction with their elected officials who are subjected to removal from their elected offices. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

B. Process must be free from impropriety

• The statutes relating to recalls require strict adherence to a process free from fraud, misrepresentation, and other improprieties. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

• A person who has ascended to public office through a democratic election has every right to expect fairness during his or her recall. To allow more than two petitions to be filed, or to have signatures filed in “segments” would not only tax the Election Administration’s limited resources, but would spur claims that the election officials are helping a recall committee in reaching its goal. The latter would trigger denial of equal protection and due process of law claims. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

C. Responsibilities of the Recall Committee

• The burden of knowing and following the laws and rules on the recall process rests with a validly formed recall committee. It is common Dine’ knowledge that one does not undertake a monumental task, such as recall of a naat’aanii, without preparation, planning, and understanding the process to accomplish that end. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• The Election Code requires a recall committee to be “responsible for circulating and filing a recall petition.” 11 N.N.C. § 241(B). Knowing and following the laws on the recall process is part of that responsibility. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• The Rules of Recall place the responsibility for the recall effort on the Recall Committee. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• It is the ultimate responsibility of those pursuing the recall of elected officials to ensure that all legal requirements for recall are followed. Recall Petitioners’ Committee shall ensure that all required documents are filed and all time lines followed. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

D. Recall petitions

• An elected official may be removed by a recall petition if sixty percent (60%) of the registered voters who voted in the last election for the office subject to recall sign the petition. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

• Each member of the recall committee must provide an affidavit stating that he or she personally circulated the petition copy; that all signatures were affixed in the circulator’s presence; and to the best of the circulator’s knowledge, that each signature is a genuine signature of the registered voter; and that each voter read or had read to him or her, or translated for him or her the full statement of grounds for recall. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

• Only recall committee members are allowed to circulate petitions and only registered voters of the chapter qualify as recall committee member. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

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• Rule 5(C) of the Navajo Election Recall Rules and Regulations requires Recall Committees to circulate only forms approved by the Navajo Election Administration. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

• A petition for recall shall be filed with the Navajo Election Administration no later than one hundred eighty (180) days after the filing of the affidavit of the committee initiating recall proceedings. Failure to file a petition within this period shall render the recall null and void. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• A single petition is required for each elected official to be removed. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

E. Amended petitions

• The Election Code and the rules require that an amended recall petition be filed fifteen days after the withdrawal of the original petition by the Recall Committee. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

• The Election Code requires the re-filing of an amended petition. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

• The first filing of a recall petition is the initial petition and a subsequent filing is an amended petition. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• Rule 9(C) of the Recall Rules and Regulations states that a recall petition may only be amended/supplemented and refiled once. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• In the event a recall petition is insufficient, the director shall simultaneously notify the board and the petitioners’ committee of his or her findings and reasons why the petition is insufficient. The committee may withdraw the petition and within fifteen (15) days thereafter, refile the amended petition as an original petition. The fifteen (15) day period shall be in addition to the 180 day period set out at 11 N.N.C. § 242(A). Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• After the Election Administration completes verification of signatures on the initial petition, finds the petition insufficient, and informs the recall committee, the committee has fifteen (15) days to cure the defects in the initial petition or refile the petition with additional names. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• Petitions determined insufficient may be withdrawn by the Committee, provided it is done within 180 days of the filing of the affidavit referred to at 11 N.N.C. §§ 241 and 242. Once the Petition is withdrawn, the Recall Committee may seek additional names, or otherwise correct any problems, and resubmit the Petition within 15 days of the withdrawal. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• A Petition for Recall may only be amended/supplemented and refiled once, even if 180 days has not elapsed since the beginning of the Recall effort. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• The Election Code and its implementing rules clearly state that a recall committee has only one opportunity to submit additional names upon a finding of insufficiency. A recall committee is given a single opportunity to make up the insufficiency. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• Rule 9(C) of the Recall Rules and Regulations clearly states that a recall petition cannot be supplemented more than once, even if 180 days has not elapsed. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

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• Giving a recall committee one opportunity to cure an insufficient petition is reasonable considering that elected officials have procedural and substantive rights to Navajo due process. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• The word “may” does give a recall committee options: 1) either quit the recall effort after an initial finding of insufficiency; 2) withdraw the initial petition to correct errors on the petition; or 3) do not withdraw the petition but continue the recall effort by filing a second petition containing more names. If the latter two are chosen, the recall petition must be made sufficient within fifteen days. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

F. Review of petitions

• From the date the recall petition is filed, the Navajo Election Administration has thirty days to review the petition for sufficiency. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• Rule 8 of the Recall Rules and Regulations gives the Navajo Election Administration the duty of reviewing the petition for sufficiency. Review for sufficiency involves scrutinizing each signature for certain requirements: “The Administration shall review the petition for purposes of verification of registration of those signing the petition, as well as ensuring that they all voted in the last election for the same office involved.” Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

• 11 N.N.C. § 242(B) states that signatures must be verified and a recall petition is sufficient “when it appears to be signed by the requisite number of registered voters as set out in 11 N.N.C. § 241(A) and each signatory has complied with the requirements of 11 N.N.C. § 241(E)(3).” Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

G. Names may not be filed in segments

• The Election Administration does not have the discretionary function of accepting more than two recall petitions and permitting a recall committee to file names in segments. Arthur v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 340 (Nav. Sup. Ct. 1998).

H. Chapter official recall hearings [repealed]

• Once the Board of Election Supervisors has verified a removal petition, it must notify the affected chapter officials and schedule a hearing at the affected chapter, at which both the affected official and the signers of the petition shall have the opportunity to present their case. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• Where a party was not allowed to view the recall petition or attend the verification process, he did not have an adequate opportunity to prepare his case. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• Fairness and due process are best served by requiring that the Board give an affected official or his authorized representative adequate notice and an opportunity to attend the verification process. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in

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strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• At the conclusion of the hearing, a secret ballot shall be taken to determine whether or not the official shall be removed. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• A majority vote of those present and voting shall be required for removal. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• By scheduling the recall election ten days after the hearing, instead of conducting a secret ballot of those present immediately after the hearing, the Board failed to follow Navajo law on removal of chapter officials. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• The procedures established in 2 N.N.C. § 4005 for removal of chapter officials were not intended to be followed at the Board’s discretion. They function to protect the due process rights of signatories of a removal petition and affected chapter officials. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• In recall situations, an official’s due process rights are derived from 2 N.N.C. § 4005, which gives him the right to explain to his constituents the grievances against him and to be voted out of office, or retained, by persons who were present during his explanation. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

• The Board’s failure to follow 2 N.N.C. § 4005, as it relates to a special recall election, denied the official due process. Section 4005 requires a vote by secret ballot at the conclusion of the hearing to determine whether the official should be removed. The law does not allow a vote to be taken ten days after the chapter hearing. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989). Note: this holding is presented in strikeout format because the statute quoted by the Court has been vacated. Removal of chapter officials is now governed by 11 N.N.C. § 240, et seq.

IV. Educational elections

A. Apportionment

1. Role of the Education Committee

• The Election Code requires the Education Committee of the Navajo Nation Council to promulgate rules and regulations necessary and proper to carry out the purposes of the Election Code. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• The Navajo Nation Council, on April 6, 1991, mandated the Education Committee to develop an apportionment plan “in consultation” with the people and entities who would be affected by the plan. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

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• It is clear that the Navajo Nation Council has delegated the Education Committee as the appropriate body to finally approve all school board apportionment plans. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• The Education Committee renders a final decision on the apportionment plan. Its delegation to a subcommittee of the authority to develop the plan and provide for consultation was proper. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• The Education Committee of the Navajo Nation Council is required to set the size of each school board and apportion the number of school board seats among the Chapter or Chapters represented on each school board. From this language, it is clear the Navajo Nation Council has delegated the Education Committee as the appropriate body to finally approve all school board apportionment plans. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Courts should not impose their own reapportionment plans when those adopted by the legislature satisfy the minimum standards of applicable local and federal law. Yazzie v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 213 (Nav. Sup. Ct. 1978).

2. Necessity of proper consultation

• Proper consultation for apportionment plan did not occur where (1) there was lack of discussion in an arena of equality and mutual respect; (2) there were unnecessary time limits on discussion; (3) a plan was adopted that did not meet the needs of the schools and their communities. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

3. Factors to be considered

• Any plan adopted for the Navajo Nation must take into account chapter boundaries, agency boundaries, district grazing boundaries and other geographic symbols of the traditional clan relationship of the Navajo people. To do otherwise is to impose alien concepts of the Navajo people in total disregard of their proud, historic and unique character. Furthermore, the at-large election scheme embodied in the Council plan would cause utter confusion among the people and would immeasurably damage the acknowledged value of constituent identification with specific representatives. Yazzie v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 213 (Nav. Sup. Ct. 1978).

4. Arbitration provision [repealed]

• The Navajo Board of Election Supervisors is required to arbitrate any disputes among the entities arising from any apportionment plan. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998). Note: this holding is presented in strikeout format because the statute it relies upon has been amended to eliminate this provision. See 11 N.N.C. § 11.

• The Navajo Board of Election Supervisors violated the arbitration clause of the Election Code when it failed to follow its own rules. Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998). Note: this holding is presented in strikeout format because the statute it relies upon has been amended to eliminate this provision. See 11 N.N.C. § 11.

B. School board elections

• The Election Code defines “School Board Members” as: “Members of a local school board who are elected during chapter and/or special elections. Officers organized under the laws of the Navajo Nation charged with the administration of the affairs of the Bureau of Indian Affairs and

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other schools excluding private, parochial, and state schools.” Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• School board candidates must meet certain eligibility requirements: they must be enrolled Navajos; be registered voters in the chapter they wish to represent; be at least 21 years old; must not have been convicted of a felony within five years prior to their candidacy; must not have been convicted of certain misdemeanors involving children; and “[m]ust have demonstrated interest, experience and ability in Educational Management and must be able to communicate such to Navajo communities.” Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995). Note: the language presented in strikeout format because the statutory provision at issue was later abrogated by the Council.

• Supreme Court will not reverse District Court’s determination that schools were not “private” where (1) the schools do not provide education that is a substitute for instruction that is otherwise required in public schools; (2) independent individuals do not financially support or manage the schools; (3) the schools receive 100% of their financial support from the federal government; (4) although the schools use their own policies and procedures to hire their employees, and purchase their own equipment and classroom materials, local community organizing efforts spawned the creation of the schools, and the respective chapter resolutions authorized the schools’ initial plans prior to operation; (5) the school board elections have been held at chapter meetings; (6) the school board members are ultimately responsible to the chapter; and (7) the Navajo Nation Council had to certify the schools as “tribal organizations” to receive federal grants under the Indian Self-Determination and Education Assistance Act of 1975. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Section 8.D.4(i) of the 1990 Election Code, with its “Educational Management” requirement, unreasonably restricts that grass-roots participation. Parents and community members certainly have a significant stake in the education of their children. It is thus is an unreasonable restriction which denies Navajos the right to seek election to Navajo school boards. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995). Note: this holding is presented in strikeout mode because the statutory provision at issue was later abrogated by the Council.

• The portion of the Election Code which is challenged here as vague requires that school board candidates “[m]ust have demonstrated interest, experience, and ability in Educational Management . . .” How can a candidate or the Board of Election Supervisors know who possesses such qualities? While we hold that the Navajo Nation has the authority to regulate school board elections for the Appellant schools, and while the vesting of discretion in public bodies is a fundamental element of administrative law, the problem is that while the statute vests discretion, it also permits abuses of that discretion. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995). Note: this holding is presented in strikeout mode because the statutory provision at issue was later abrogated by the Council.

• “Indian control,” as a matter of Navajo Nation public policy, means the Navajo Nation Council, in election law, may set reasonable qualifications for school board members. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• The “Educational management” requirement for school board candidates is void for vagueness. The standard was not objective but instead delegated unregulated discretion which could lead to manipulation and abuses of authority. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995). Note: this holding is presented in strikeout mode because the statutory provision at issue was later abrogated by the Council.

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V. Election disputes

A. Standing to challenge elections

• A voter does not have standing to complain of a lack of a candidate’s qualifications. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995).

• A voter may not challenge an election. Fulton v. Redhouse, 6 Nav. R. 333 (Nav. Sup. Ct. 1991). • The Office of Hearings and Appeals [formerly the Board of Election Supervisors] may not initiate

an election contest. Benally v. Lancer, 1 Nav. R. 312 (Nav. Ct. App. 1978). • If the Office of Hearings and Appeals [formerly the Board of Election Supervisors] did possess the

power to initiate disqualification’s and decide them, the agency would be the prosecutor, investigator and judge. Benally v. Lancer, 1 Nav. R. 312 (Nav. Ct. App. 1978).

B. Purpose of a hearing

• The purpose of a hearing before the Office of Hearings and Appeals [formerly the Board of Election Supervisors] is not to retry issues previously decided by a trial court or an administrative agency such as the Ethics and Rules Committee, but to explain to the candidate the precise reason for the proposed action to be taken and to have the candidate respond. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

C. Presumptions and burden of proof

1. Standards for election disputes

• On appeal, the following standards are applied to election disputes: 1. Election results are presumed to be regular and proper; 2. Irregularities or misconduct in an election which does not tend to effect the result or impeach the fairness of the result will not be considered; 3. Elections will not be set aside unless the facts definitely show such fraud and that there was no fair election. 4. After an election, election provisions are to be seen as directions unless the violations obstructed a free and intelligent vote, affected an essential element of a valid election or an omission of a direction voids the election. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

2. Clear and convincing evidence

• The 1990 Election Code also imposes a burden of proof on the aggrieved party, which is to present clear and convincing evidence to prove the allegations in his or her statement of grievance. Morris v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 75 (Nav. Sup. Ct. 1993).

• After the Office of Hearings and Appeals [formerly the Board of Election Supervisors] has held a hearing, it must use a two-step test to reach a decision. The first step is whether the aggrieved party has proved the allegations in his or her statement of grievance with clear and convincing evidence. The second step is whether the aggrieved party has overcome the presumption of a valid and proper election. Irregularities that do not affect the election results or impeach the fairness will not succeed in overcoming the presumption. Morris v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 75 (Nav. Sup. Ct. 1993).

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3. Presumption of validity of election

• The law presumes that elections which have already been held were conducted regularly and validly. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• Election results are presumed to be regular and proper and that the contestant must overcome that presumption by showing that the alleged misconduct or irregularity was of such a nature that the outcome of the election was changed or a fair election was prevented. Williams v. Nav. Election Comm’n, 5 Nav. R. 25 (Nav. Ct. App. 1985).

• The standard for setting aside a tribal election must be at least as restrictive as that applied in non-Indian local election cases under the Constitution. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

• There is a presumption that an election which has been held has been held regularly and validly. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

4. Must show irregularity would impact results of election

• Where no single irregularity, nor all the irregularities about which the witnesses testified combined, would have been sufficient to alter significantly the plurality of votes for the winning candidate, the election shall not be voided. Morris v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 75 (Nav. Sup. Ct. 1993).

• Absent a showing that there would have been a change in the outcome of the election or that there was evidence of fraud which prevented a fair election, the presumption that an election which has been held has been conducted regularly and validly, controls. Fulton v. Redhouse, 6 Nav. R. 333 (Nav. Sup. Ct. 1991).

• Speculation over the numbers of voters who may have been deterred by an error in conducting an election is insufficient to show that the election results would have been different, but for the error. Fulton v. Redhouse, 6 Nav. R. 333 (Nav. Sup. Ct. 1991).

• Irregularities or misconduct in an election which does not tend to affect the result or impeach the fairness of the result will not be considered. Brown v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 139 (Nav. Sup. Ct. 1987).

• Once an allegation has been proven or established, the one contesting the election must then show by sufficient evidence that the misconduct or irregularity actually changed the result of the election or prevented a fair election. Nav. Election Comm’n v. Lancer, 5 Nav. R. 59 (Nav. Ct. App. 1985).

• Ordinarily, an election may be contested only for matters that would impeach the fairness of the result. Thus, mere irregularities or misconduct on the part of the election officers which do not tend to effect the result of the election are not ordinarily of themselves either a ground for contest, or proper matters of inquiry. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

• The true policy of the law is to sustain elections, and they will not be set aside on the ground of fraud unless the facts are such as to definitely show that there has been such fraud in the conduct of the election that neither candidate can be adjudges to have been fairly elected. To set aside an election is to deprive all the voters who voted at the election of their ballot, and it is to deprive the person who is successful at the election of the office which he won. The result, therefore, of the election should not be lightly set aside. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

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5. Requirement of fundamental unfairness

• Due process and other constitutional claims must establish that there has been “patent and fundamental unfairness” in the election process, “purposeful deprivation” of clear rights, or “intentional wrongful acts” in order to void an election. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• The standards for overturning elections are strict, as they should be in the absence of a clear showing of unfairness. Johnson v. June, 4 Nav. R. 79 (Nav. Ct. App. 1983).

• Where there was no showing any fraud or intimidation, bribery or violence occurred, and in the absence of such proof, the validity of the election results must be upheld. Nakai v. MacDonald, 1 Nav. R. 107 (Nav. Ct. App. 1975).

• Since election laws are only directory after an election, the Office of Hearings and Appeals [formerly the Board of Election Supervisors] (and the Supreme Court on appeal) must read the election laws in such a way as to support the results of the election, unless a candidate shows that the asserted errors were such as to obstruct a free and intelligent vote, obstruct ascertainment of the results of the election, deny an essential element required for a valid election, or otherwise void the election. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

D. Procedures for challenging election results

1. Procedures must be strictly followed

• The procedures established for resolution of election contests and disputes were not intended to be discretionary with the Office of Hearings and Appeals [formerly the Board of Election Supervisors]. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• The Tribal Council, for reasons of due process and speeding resolutions of election contests and disputes, intended that procedures for election challenges be followed. There are other obvious reasons: election ballots for the general election must be printed well in advance of the general election; resolution of a primary election contest is limited to the time between the primary and general elections; delaying resolution of the contest results in reduced campaign time for candidates; and the parties often incur unnecessary financial expenses. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

2. Filing the complaint

• Within ten days of the incident complained of or the election, the complaining person must file with the Office of Hearings and Appeals [formerly the Board of Election Supervisors] a written complaint setting forth the reasons why he or she believes the Election Code has not been complied with. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999).

• Supreme Court will not dismiss a challenge to a candidate’s satisfaction of the residency requirement for failure to raise the challenge within ten days. Residency is a difficult legal concept, and it is difficult to learn the facts necessary for a challenge. Supreme Court will not permit potential candidates to make statements in public documents where they have almost exclusive knowledge of the facts and then escape the consequences of their declaration by a failure to contest it within ten days. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999).

• Within ten days of the incident complained of or the election, the complaining person must file with the Office of Hearings and Appeals [formerly the Board of Election Supervisors] a written

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complaint setting forth the reasons why he believes the Election Code has not been complied with. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• Within ten days of the incident complained of or the election, the complaining person must file a written complaint setting forth the reason why he believes the Election Code has not been complied with. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• A disputed election for any office shall be appealed in writing within 10 calendar days following the election. Appeal shall be made by the aggrieved candidate. Fulton v. Redhouse, 6 Nav. R. 333 (Nav. Sup. Ct. 1991).

• A disputed chapter election for any office in a chapter shall be appealed in writing within 10 calendar days following the election by the aggrieved candidate. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989).

• An election contestant must file a statement which contains reasons why the contestant believes the election law was not complied with. Brown v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 139 (Nav. Sup. Ct. 1987).

• Within ten days of the incident complained of or the election, the complaining person must file with the Office of Hearings and Appeals [formerly the Navajo Election Commission] a statement setting forth the reasons why he believes the election law has not been complied with. Williams v. Nav. Election Comm’n, 5 Nav. R. 25 (Nav. Ct. App. 1985).

3. Allegations of the complaint

• To challenge an election, candidate had to show that the election errors obstructed a free and intelligent vote, obstructed ascertainment of the results of the election, denied an essential element required for a valid election, or otherwise voided the election. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999).

• “Aggravating factors,” including racial discrimination, fraudulent interference with a free election by ballot-box stuffing, or other unlawful conduct which interferes with the individual’s right to vote deny due process of law. To establish such a claim, a challenger must establish patent and fundamental unfairness in the election process, purposeful deprivation of clear rights, or intentional wrongful acts to void an election. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999).

• The Office of Hearings and Appeals [formerly the Board of Election Supervisors] determines whether the Statement of Grievance sufficiently states a violation of the election law. This means that the grievance must specify what election law was violated. It must also contain sufficient facts that if proven to be true would indeed constitute a violation of the law. Further, these facts must tend to rebut the presumption that the election was fair and show that but for the violation of the election law the result would have been different. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• A Statement of Grievance will be sufficient on its face if it specifies which election law was violated, and if it contains enough facts to raise the issue that the election results were not regular and proper. These facts, as they appear in the Statement, must support the allegation that an election law was violated. Finally, the Statement taken as a whole, which shall include all attached documents, must raise a possibility that the election results will be impeached. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• A statement will be sufficient on its face if it specifies which election law was violated and if it contains enough facts to raise the issue that the election results are not regular and proper. These facts, as they appear in the statement, must support the allegation that an election law was violated. Finally, the statement taken as a whole, which shall include all attached documents,

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must raise a possibility that the election results will be impeached. Brown v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 139 (Nav. Sup. Ct. 1987).

• The Office of Hearings and Appeals [formerly the Navajo Election Commission] determines whether the Statement of Grievance sufficiently states a violation of the election law. This means that the grievance must specify what election law was violated. It must also contain sufficient facts that if proven to be true would indeed constitute a violation of the law. Further, under Johnson these facts must tend to rebut the presumption that the election was fair and show that but for the violation of the election law the result would have been different. Williams v. Nav. Election Comm’n, 5 Nav. R. 25 (Nav. Ct. App. 1985).

4. Reviewing the complaint for sufficiency

• If, on its face, the complaint is insufficient under the Election Code, the complaint shall be dismissed. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999).

• While Election Code provisions having to do with the certification of candidates and other procedures leading up to and through the election are to be considered directory in post-election review, the review procedures set forth at 11 N.N.C. § 24 [formerly 11 N.N.C. § 321(B)(1)-(4)] are mandatory. This conclusion retains the protectiveness of the will of the people (expressed through their vote) and reaffirms the principal that the obligation to conduct all governmental proceedings with fundamental fairness makes the procedures delineated in 11 N.N.C. § 24 [formerly 11 N.N.C. § 321(B)(1)-(4)] necessarily mandatory. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• If, on its face, the complaint is insufficient under the Election Code, the complaint shall be dismissed. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• The preliminary review for sufficiency must be confined to the allegations made by a grievant on the Statement. If the Office of Hearings and Appeals [formerly the Board of Election Supervisors] is unable, upon such a review, to determine that those allegations necessarily fall short of providing a basis for relief, a summary dismissal of the Statement is inappropriate. That is, if the Office of Hearings and Appeals [formerly the Board of Election Supervisors] must look to evidence beyond what is proffered by a grievant on the Statement to determine that his or her Statement is insufficient, it clearly does not meet the criteria for dismissal as being a Statement “insufficient on its face.” Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• The options available to the Office of Hearings and Appeals [formerly the Board of Election Supervisors] when reviewing a complaint are to either dismiss it for being facially inadequate or schedule a hearing. The agency is not empowered to conduct its own investigation, and, based upon that investigation, dismiss the complaint. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• The statement must be dismissed if, on its face, it is insufficient under the election laws. Brown v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 139 (Nav. Sup. Ct. 1987).

• The Office of Hearings and Appeals [formerly the Board of Election Supervisors] must be careful not to make a decision on the merits of the allegations while reviewing a statement on its face for sufficiency. The only purpose of face review is to determine if the statement contains sufficient facts to raise an issue which would require a hearing. Brown v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 139 (Nav. Sup. Ct. 1987).

• One of the duties of the Board is to hear and resolve all election contests and disputes arising from Navajo Nation elections. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct.

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1987). Note: this holding is presented in strikeout format because election disputes are now heard by the Office of Hearings and Appeals.

• The Office of Hearings and Appeals [formerly the Board of Election Supervisors] is required to review the Statement of Grievance on its face for sufficiency under the election law upon presentation. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• After reviewing the statement for sufficiency, the Office of Hearings and Appeals [formerly the Board of Election Supervisors] then must either dismiss the statement, or if the statement is not dismissed, schedule a hearing on the merits of the allegations contained in the statement. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• If, on its face, the statement of election contest is insufficient under the election law, the statement shall be dismissed. Williams v. Nav. Election Comm’n, 5 Nav. R. 25 (Nav. Ct. App. 1985).

• The Office of Hearings and Appeals [formerly the Board of Election Supervisors] shall review the Statement of Contest to determine whether or not the statement meets the requirements of the statute. The Office of Hearings and Appeals [formerly the Board of Election Supervisors] shall also determine whether or not the allegations contained in the statement are sufficient as a matter of law; that is, would the allegations, if true, cause a change in the apparent result of the election being contested. Begay v. Wero, 4 Nav. R. 104 (Nav. Ct. App. 1983).

5. Scheduling a hearing

• Navajo election law requires a hearing only if the statement is not dismissed for insufficiency. Brown v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 139 (Nav. Sup. Ct. 1987).

6. Investigations

• The Office of Hearings and Appeals [formerly the Board of Election Supervisors] may only conduct an investigation if, after the hearing, it is unclear whether the allegations in the statement are true or not. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

7. Issuing the final written decision

• The Navajo Rules of Civil Appellate Procedure require that an appellant attach a copy of the final decision to the notice of appeal. This means that in each case, the Office of Hearings and Appeals [formerly the Board of Election Supervisors] must enter a final written decision. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

E. Challenges to recall petitions

• If the elected official believes improprieties occurred with regard to a recall petition, it is his or her responsibility to file a challenge to specific signatures on the petition. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

• If the official challenges the recall petition, the Navajo Election Administration holds it pending the outcome of the challenge, and the official must present evidence to the Office of Hearings and Appeals. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

• The statute places a high burden on the elected official to present to the Office of Hearings and Appeals clear and convincing evidence that the recall petition is insufficient. In re Recall Petition Challenge by Morgan, No. SC-CV-11-06, slip op. (Nav. Sup. Ct. May 25, 2006).

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• Upon making a determination that challenges to recall petitions may go forward, the Office of Hearings and Appeals is required to schedule a hearing for each challenger no less than three days nor more than ten days from the date of the determination. Barton v. Dilkon Recall Committee, 8 Nav. R. 195 (Nav. Sup. Ct. 2001).

• The Office of Hearings and Appeals [formerly the Board of Election Supervisors] shall certify a hearing decision regarding a recall election to the party or parties initiating the challenge and the Recall Committee within ten (10) days of the hearing. Secatero v. Redhouse, 6 Nav. R. 312 (Nav. Sup. Ct. 1990).

F. Disqualification of candidates

• One of the enumerated powers of the Board is to initiate disqualification of candidates who do not meet the requirements and to initiate recounts of ballots, where necessary. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991). Note: the language presented here in strikeout format is no longer in the statute.

• The Board’s assumption that it has the power to decertify elected officials is not supported by a reading of any of the statutory basis for its authority to act. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• There is no express or implied authority granted to the Board to decertify an elected official of the Navajo Nation. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• When there is a remedy already fashioned in the Election Code, the Board cannot elect to fashion one (decertification) more to its liking. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The Navajo Tribal Council did not give the Board of Election Supervisors disqualification powers. Benally v. Lancer, 1 Nav. R. 312 (Nav. Ct. App. 1978).

• The Board of Election Supervisors does not possess the authority to disqualify any candidate. Deswood v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 306 (Nav. Ct. App. 1978).

G. Standards for invalidating elections

• Invalidation of an election is a drastic remedy that interferes with the will of the Diné people in choosing a naat’áanii. As such, invalidation of an election due to irregularities is only appropriate when clearly stated in the Code and even then only when absolutely necessary to enforce fairness in the Navajo election process. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• The Office of Hearings and Appeals does not have the authority to invalidate an election simply because a candidate is being prosecuted for altering a ballot. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

H. Procedures

• The Election Code gives the Office of Hearings and Appeals [formerly the Board of Election Supervisors] the authority to first review the complaint for sufficiency, and if the complaint is not dismissed, the Office of Hearings and Appeals [formerly the Board of Election Supervisors] must proceed to a hearing to see if the allegations are true and supported by the law. Gishey v. Begay, 7 Nav. R. 377 (Nav. Sup. Ct. 1999).

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I. Remedies

• The appropriate remedy, when candidacy requirements have been unequally applied, is to order the candidate placed on the ballot. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

VI. Initiative and referendum

• The Navajo People have the power to amend the size of the Navajo Nation Council. Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).

• Under Fundamental Law, the Navajo People, as well as the Council, may make laws for the good of the community; the People's authority to make laws is not delegated to them by the Council. The referendum and initiative processes are modern acknowledgments of this authority. Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).

• The power of the people to make laws was recognized by the Dine leaders who approved the Treaty of 1868 when they agreed that future alienation of Navajo land required a three-quarters vote of the Navajo People. Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).

• The Council may reasonably regulate the People's authority to make laws through setting qualifications for voters in such referenda and initiatives, but the ultimate power to govern the Nation always remains with the People. Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).

• The People as “Navajo voters” may amend any law through the referendum or initiative process. Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).

• The Council itself has clearly deferred the power to approve all amendments to 2 N.N.C. § 102(A) to the Navajo People. By its plain words, the Council has agreed that the Navajo People have the sole authority to change the size of the Council. Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).