CHIEF JUSTICE HERB YAZZIE
Has there ever been a rule or a regulation promulgated by the Election Board on this rule to move the next presidential candidate up into second place.

JUSTIN JONES, plaintiff for Hank Whitethorne
the election board has the authority to enforce, interpret election code and be consistent. what is happening now, if make rule that is inconsistent with election code, then that is illegal.

CHIEF JUSTICE
i read the brief and chief legislative counsel henry will pick up on this. the brief says until the appeal period expires, the board doesn’t have to act. it will act when it expires. and implying that we will make up our mind when that period expires and what i read into it is implication that there has to be lawsuit to force ministerial entity. law says third place individual be placed on ballot when disqualification. is it necessary for a lawsuit in order to enforce section 44?

JUSTIN JONES
why is the navajo board of election supervisors treating this candidate like he is qualified. There is no law that allows that. they are in noncompliance.

Chris Deschene is no longer qualified. People cannot fathom that he is no longer a candidate and they treat him like he is a candidate. And the thinking is that the appeal to the supreme court today will revive him.

CHIEF LEGISLATIVE COUNSEL LEVON HENRY for Election Board & Office
there were two parts to this argument that court wanted to hear – jurisdiction and merits. court said talk about jurisdiction so i want to get us back on that issue. lot said about qualifications of deschene and what has happened in various forums. no disrespect to deschene, his wife and supporters but this does not involve him. this issue directed at election board and office, in particular the election office. the reason we are is the OHA issued final order and that goes to merits.

we are here to decide is whether this court has jurisdiction to grant writ of mandamus. this court lacks jurisdiction to issue writ. it cannot do. the only problem here is that election board and office are not party to this case. they have never been party. they were not in discussion in qualifications if met.

now coming to this court for writ and they are saying we want court to issue alternative writ to election board to do duty, in section 44. but sticking to jurisdiction issue, under title 7, section 302 and 303A that petitioners arguing. 302 is court jurisdiction over extraordinary writs. what court said in NDOJ versus Begay, that supreme court not issue writ until go to district court.

petitioners said they don’t want to go to district court and they use necessary and proper clause which protects court. but again problem and problem is that election office is not party to case. so when talking of issuig writ under 302A, they cannot ask for that.

they rely on Bennett case, Jordan also talked about Chuska Energy where supreme court looked at power and found that could review lower district decisions but not issue injunction.

what they are asking for is a writ against a nonparty. go back to section 303A, under original jurisdiction, it found that it could issue injunction against lower courts.

CHIEF JUSTICE YAZZIE
you are arguing that there needs to be lawsuit for election board and office to enforce election code that mandates that next qualified candidate moves up when there is a disqualification.

CHIEF LEGISLATIVE COUNSEL HENRY
the board agrees, in this particular instance, when candidate disqualified then third place candidate moves up. what we have said is that there is process that has to be followed and starts with OHA decision and OHA stated that parties have ten days to appeal.

ASSOCIATE JUSTICE ELEANOR SHIRLEY
SECTION 44, uses word “shall” so couldn’t say that this provision is explicit and mandatory and triggered once OHA issued its order to point that it followed through by the board without question.

CHIEF LEGISLATIVE COUNSEL HENRY
i agree section 44 automatic but disagree and that read with another section of law regarding parties to appeal in ten days. That appeal ends today and if deschene doesn’t then we are not saying election board will continue to ignore OHA order.

CHIEF JUSTICE YAZZIE
i am trying to understand your logic. you are clear that election process/timelines and public expects an election on Nov. 4. i don’t think there will no dispote that public expects valid election. you mentioned in your brief that there is need for timelines to preserve Nov. 4 election. but then you said that the sovereign immunity act timelines which involves 30 days must be respected but then that would take this request way beyond Nov. 4 election.

CHIEF LEGISLATIVE COUNSEL HENRY
yes, public expects Nov. 4 election and during this process when petitioners filed complaints then they should have brought in election board and office. let’s discuss how sovereign immunity act applies. but election coming up on Nov. 4 and election board and office has been following timeline which started in February.

CHIEF JUSTICE YAZZIE
i would point out to you that if critically important, whether sovereign immunity act applies, your answer in the brief is that it would be evoked if brought in district court. with that in mind, the inference strongly made, is that election going to go on with the ballot as is. if people are required to to through lawsuit which you say is mandated, how can that be?

CHIEF LEGISLATIVE COUNSEL HENRY
I can be certain be that there will not be election for president on Nov. 4 and election board planning for that. it depends on Deschene’s appeal and if granted but election around the corner. however provision in election code for election board to move Nov. 4 election down the road 60 days. and there are procedures to put third place candidate on ballot and then there is time for candidate to select running mate and for absentee ballots. we are not saying election go forward. we are saying there is a process.

CHIEF JUSTICE YAZZIE
election board and office created confusion by not preparing for such issues.

DAVID JORDAN
the election board not as honorable as Henry. they said they would not take election off calendar. they said deschene would not be taken off ballot. we’ll go to district court but can’t unless go to sovereign immunity act and more than 30 days, more like 45-50 days. we believe very disrespectful to navajo people for election board to say the nov. 4 election will be between shirley and deschene. if deschene appeal then okay. but election board refused to take the position of no election on nov. 4. and then we have deschene waiting until the very last second to appeal. we are concerned about having no sham election. if deschene wins, fine. but he loses, then bring in third place winner. once deschene disqualified, law says deschene barried from ballot but election board said we are independent. Henry respectful but Board disrespectful.

CHIEF JUSTICE YAZZIE
we read all briefs and nothing that says that election board tribunnal so where does power come from to interpret law.

DAVID JORDAN
here is what statute says and council did not do good job in taking tribunal authority. election board use to interpret in resolving disputes. council should have amended. of course they should look at law in carrying out its daily work. they have no power to decided election dispute. council clear that board has no power in resolving disputes.

does a party have to file lawsuit? absolutely not. we should not have to come to court to have election board comply with mandated law, you do not leave disqualified candidate on ballot.

this court has asserted jurisdiction over this case and has power to issue writ against party that refuses to comply order. they say they were not parties but there was no provision to bring in election board as third party defendent. but they don’t have to be party because statute is automatic, when candidate disqualified, the third party moves up.

if had time, we would have gone to district court.

BRIAN LEWIS, attorney for Chris Deschene
if the jurisdictional arguments from petitioners is true about bringing writ then court cannot assert subject matter jurisdiction over deschene. this case would be dismissed. sovereign immunity act. clean way to deal with this issue which is to allow deschene to file appeal, which will be filed today. and then all parties would be bound by appeal. that all parties would be bound to fines and jail times if parties do not abide by appeal order. and so petitioners should go to district court for lawsuit against election board and office and abide by sovereign immunity act.

CHIEF JUSTICE YAZZIE
i wish to call Chief legislative counsel henry back for question. you represent government and legislative branch on this question. as to the application of the sovereign immunity act. all of the discussion , including your’s implies that SIA can be applied to election dispute cuz thur mandamus question between OHA and other part of government, election board and office. this court in previous case, shirley v morgan, faced a similar situation of government entities suing each other in supreme court and using Sovereign immunity act and we made decision. we strongly indicated to everyone that SIA not intended for internal government disputes and that was several years ago. and council has not addressed how to resolve intergovernmental disputes.

CHIEF LEGISLATIVE COUNSEL HENRY
i agree when court talked about internal governmet disputes and for OHA and election board and office dispute, council has not addressed. OHA can enforce action by going to district court but in this instance and talking about private party applying for writ and then arguments begin. but since council has not addressed issue in shirley versus morgan, your question may be addressed by council now, especially since two delegates here.

but i don’t know why council not addressed. it is the council’s perogative to say what is important to me. there are host of issues that demand attention from delegates.

CHIEF JUSTICE YAZZIE
Does your client have authority to interpret the law that are delegated to courts or quasi-judicial bodies?

CHIEF LEGISLATIVE COUNSEL HENRY
that question comes from arguments made by petitioners that election board independent body and made to look bad but independent body keeps certain influences from outside out. they have to make decisions on process and reason for being independent body. when talking independent body…

CHIEF JUSTICE YAZZIE
as to this case, doesnt that mean that their primary function is to present to public a valid ballot?

CHIEF LEGISLATIVE COUNSEL LEVON HENRY
yes, though the process.

CHIEF JUSTICE HERB YAZZIE
court recess for few minutes and try to be prompte as can.

IT IS NOW 3:04 PM