Are mail-in ballots unfair to Navajo voters?: The question spawns conflicting suits in San Juan County

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An ongoing dispute about voting rights in San Juan County, Utah, has spawned a second federal lawsuit by the Navajo Nation Human Rights Commission – as well as a counterclaim from the San Juan County commissioners.

A previous lawsuit resulted in a U.S. District Court judge’s order that the county’s districts for county commissioner and for the school board be redrawn.

The latest suit, filed in February in federal court in Salt Lake City, involves the county’s implementation of mail-in ballots in 2014.

NAVAJO MOUNTAIN CHAPTER HOUSE ENTRANCE SIGN

This sign at the entrance to the chapter house for Navajo Mountain, one of the remotest areas of the Navajo Nation, indicates its isolation. Photo by Lynn Arave.

The suit – by the Navajo commission and seven Navajo individuals as plaintiffs – claims San Juan County’s vote-by-mail procedures violate the Voting Rights Act, as well as the Fourteenth Amendment to the United States Constitution. According to court documents, the mail-only voting system puts a disproportionate burden on Navajo voters’

ability to participate fully in elections. Proponents of the mail-in system cite numerous benefits: It puts the ballot directly in the hands of the voter, and gives the elector a long period to consider candidates and issues. They say it creates early voting options, and is more inclusive of folks who live or work away from home or are in the military and use absentee ballots. The result, supporters say, should be higher voter turnout for the county in general.

But the suit alleges that numerous factors affect the Native American population, which, according to the 2010 census, makes up about 50 percent of the county’s nearly 15,000 residents and a slight majority of eligible voters.

The vast majority of Native American residents in the county are Navajo, and many of them live in remote rural homes accessed by lengthy drives on unpaved roads that are often precarious in bad weather. There is no mail delivery to such places; residents use post-office boxes, usually found near local chapter houses.

English only

The mail-in system “is a deliberate effort by San Juan County to suppress Navajo voting strength,” charged Leonard Gorman, director of the Navajo Nation Human Rights Commission, in a January 2016 update posted on the NNHRC website. “Mail-in ballots violate the rights of Navajo speakers who do not speak English well,” because translation of the information on a ballot is difficult.

Gorman further explained in an interview with the Free Press in February that mail-in ballots are a particular concern for the elders, who now feel disenfranchised by the language and format of the procedure.

“Interpretation of English ballot language to the Navajo or other native languages for native-language-only speakers is extremely difficult, especially referendums, or text-based explanations,” he said.

At the time the suit was filed, San Juan County citizens could still vote in person on Election Day by traveling to the county seat in Monticello in lieu of using the mail ballot.

But that option can pose a severe hardship, Gorman said, citing “the 202-mile, eight-and-a-half-hour round-trip drive in good weather from Navajo Mountain in the western side of San Juan County to Monticello, located between Blanding and Moab in the eastern side.”

The post-card test

The plaintiffs contend that using the Postal Service can be risky for Navajo voters. If, on the last possible day to mail the ballot, the voter doesn’t get there in time for the daily pick-up of the mail, usually around 1 p.m. in rural post offices, the stamped date may show the next day.

In July 2015, Gorman asked officials at the post office in Montezuma Creek, Utah, if they date-stamp the mail at that location. They assured him that they did. But in a trial mailing, Gorman’s staff sent itself a postcard from the Montezuma Creek post office, mailing it at noon. He said when it arrived at their offices in St. Michaels, Ariz., the date was correct, but the place stamp was Provo, Utah. Thus, Gorman said, voters can’t assume that a ballot will be delivered from such rural places on the reservation in time to be counted in the election.

San Juan County attorney Kendall Laws told the Free Press that the state of Utah requires mail-in ballots be sent out no later than 21 days prior to the election. “To be counted they must be postmarked the day before Election Day – I presume so that the vote can be counted on Election Day.”

The drive to the post office to pick up the ballot becomes problematic when families do not pick up their mail on a regular schedule. Ease of voting by mail is also compromised because a significant number of Navajo residents lack access to reliable transportation. There is also no public transportation and limited family resources must be used to pick up and return the ballot into the U.S. mail system in a timely manner. In addition, there is very little connection to internet and cell phone coverage in these areas, making it challenging to get information posted on websites, or contact services in the county clerk’s Monticello office.

A seat at stake

FORMER SAN JUAN COUNTY COMMISSIONER MARK MARYBOY

Mark Maryboy, a former county commissioner in San Juan County, is one plaintiff in a suit against the county over voting. Photo by Sonja Horoshko.

At stake in the county’s first mail-in election in November 2014 was the commission seat for District 3, which has a 93 percent American Indian constituency. Commissioners in San Juan County are not chosen at-large, but by district, the result of a 1987 federal consent decree that eliminated at-large voting. Since then, District 3 has always elected a Native American, while the other two commission seats have always been held by Anglos.

Rebecca Benally, a former Montezuma Creek Elementary principal, succeeded in winning the District 3 seat in 2014, defeating Manuel Morgan of Aneth, Utah, and write-in candidate Kenneth Maryboy, Montezuma Creek. One of the two men or Maryboy’s brother Mark Maryboy had previously held the District 3 seat since 1988.

Shortly after the election, complaints from community members surfaced concerning the difficulty of mail-in voting, and possibly some fraudulent signatures on the envelopes. According to the NNHRC website, the U.S. Department of Justice has a memorandum of understanding with the Navajo Nation to promote and encourage effective enforcement of federal civil-rights laws.

The complaints merited an investigation. By October 2015 a 10-day DOJ assessment visit was under way to examine the grievances. Although the Human Rights Commission had no formal feedback from that examination, Gorman said in February that figures from the county clerk’s public records indicate that the mail-in ballots produced a low voter participation among registered Native voters in San Juan County in the 2014 elections: “23 percent of registered Native voters in the latest elections, while non-native turnout was 53 percent –– just what they wanted, a dilution accomplished by a mail-in ballot.”

But San Juan County disputes that. In the counterclaim – filed March 31 by the three county commissioners and the county clerk against the Navajo Nation Human Rights Commission and the seven individual plaintiffs in the original suit – the county says, “Furthermore, the results from the 2014 election showed a substantial increase in voter turn out as a result of allowing voters the option of voting by mail, especially among Navajo voters. In fact, during the 2014 election the number of Navajo voting actually doubled compared to previous elections without the vote-by-mail option.

“This significant increase in voter participation occurred despite the fact that the 2014 election was not a national election which tends to produce a higher number of voters.”

Laws said while there is no way to identify a voter’s race from the ballot, the census numbers in certain communities “make it possible to predict or ascertain with higher probability the turnout of Navajo, or native voters, such as White Mesa, which is a Ute Mountain Ute community [20 miles from Blanding]. We certainly have no way to know exactly because the process is, of course, confidential.”

Increasing access

A recent Montana voting-rights case has inspired the introduction of the Native American Voters Rights Act, legislation crafted in the spring of 2015 by the U.S. Department of Justice and sponsored by Tom Udall, D-N.M., and Sen. Jon Tester, D-Mont.

Udall’s website says the bill will increase voter protections and access to the polls for Native Americans. “… According to the National Congress of American Indians, Native American voter turnout was 17 percent less than non-natives in 2012.”

The Native American Voting Rights Act would require states to establish polling locations on reservations upon request from a tribe, and direct state election administrators to mail absentee or mail-in ballots to the homes of all registered voters if requested by a tribe.

Udall is a member of the Senate Committee on Indian Affairs, and Tester is the committee vice chairman.

Mail ballots are sent to all active voters, not all registered voters, in San Juan County. Active voter status is determined by the Utah Lieutenant Governor’s Office, Laws told the Free Press, “where ballots, registration lists, etc., are maintained. The county can highlight a possible inactive status for determination if there is a reason to indicate the recipient is not at the address – returned mail, or moved, as an example. There are numerous reasons people are inactive.”

A look at the count in sparsely populated San Juan County illustrates the potency of lost or gained active voters and their turnout between the elections in 2010 and 2014. The combined active-voter decline in five Navajo communities — Montezuma Creek, Aneth, Red Mesa, Oljeto and Navajo Mountain — since the 2010 election was 311 people. While the combined 2014 active voter turnout in Montezuma Creek and Aneth increased by 164 people over the 2010 election, the total active voter turnout in Oljeto, Navajo Mountain and Red Mesa declined by 294, a net loss of 130.

Results posted on the county clerk’s website show a decline in active voter turnout at three locations. Oljeto, near Monument Valley, lost 26 percent, Navajo Mountain 11 percent, and Red Mesa 6 percent, all of them considered the most remote native communities in the county. Both towns in Benally’s home chapter gained in turnout percentage. Aneth increased 19 percent, as did Montezuma Creek with 15, most likely the result of heavy campaigning by supporters there and a closer proximity to the county offices in Monticello.

Taking steps

The county’s counterclaim asks for declaratory and injunctive relief and a trial by jury. It challenges the testimony of the individual plaintiffs in the original suit, accusing them of misrepresenting facts and acting in bad faith.

The document says that Justice Department representatives met with county and Utah state officials in October to review voter complaints. As a result of those discussions, San Juan County has adopted and is implementing additional vote-by-mail procedures for 2016 and future election cycles.

They include additional satellite inperson polling places at Montezuma Creek, Navajo Mountain and Oljeto, all within the Navajo Nation and a onehour drive or less from Navajo homes. Language assistance to explain the election processes and ballot information will be available at the polling places and at county telephone number.

The plan also calls for Navajo-language ballots in audio form at all four polling locations, announcements on Navajo language radio stations, and at a link on the county’s website. Laws assured the Free Press that the polling places will be open the same hours as every Utah polling place on election day, 7 a.m. to 9 p.m., because the hours are set by state statute.

A conspiracy?

Additional charges in the counterclaim challenge the individual testimony of the seven Navajo plaintiffs in the underlying claim. For example, the document asserts that plaintiff Peggy Phillips alleged in the original lawsuit that she is not comfortable voting in English. The counterclaim states that prior to the county vote-by-mail election system Phillips had acted as a Navajo interpreter for in-person voting as well as an election judge, for which services she was paid by San Juan County.

Other accusations are that the plaintiffs gave inaccurate mileage for the distance from their homes to the polling location in Monticello and local post office locations; and that those who claimed a preference for voting in-person actually used the 2014 mail-in system even though they stated they didn’t want to. (Mail ballots make it possible to track voter participation by name because the envelope requires a voter signature on the outside before it can be counted.)

According to the counterclaim, the Maryboy brothers, Manuel Morgan and Gorman conspired in the spring of 2015 to suppress participation of many Navajo voters in the future in order to control the election for commissioner from District 3.

The document claims that Benally has been harmed by derogatory comments and is entitled to an award of punitive damages. The county also seeks compensation for its attorney fees.

The countersuit alleges that in 2014, “Commissioner Benally was able to defeat Kenneth Maryboy and Manual Morgan as a direct result of the increased voter participation due to mail-in-ballots” and therefore, “Counterclaim Defendant Mark Maryboy, his brother Kenneth Maryboy and Manual Morgan met and agreed between and among themselves to challenge the County’s use of vote-by-mail. . . for the express purpose of controlling the election of the County Commissioner from District Three by denying Navajo voters the right to vote-by-mail, thereby reducing the number of voters in future elections for the office of County Commissioner from District Three.”

It continues, “In the Summer of 2015, Gorman joined in and became part of this conspiracy by agreeing to have the Navajo Human Rights Commission fund the Underlying Action for the purpose of suppressing the participation of many Navajo voters by interfering with and/or otherwise depriving them of their right and ability to vote-by-mail.

“Thereafter, Counterclaim Defendant Mark Maryboy, Kenneth Maryboy, Manual Morgan and Leonard Gorman set about fabricating a sham lawsuit to challenge San Juan County’s use of vote-by-mail.”

No reply

Repeated requests for comment via telephone messages, texts and email from commissioner Benally were not answered. Commission chair Phil Lyman did reply to a text, saying he had been unavailable previously, but he could not then be reached for further comment.

County Commissioner Bruce Adams said he didn’t have anything to add to what is already in the document. “The counterclaim is self-explanatory.” Mark Maryboy referred a request for comment to John Mejia, an attorney with the American Civil Liberties Union offices in Salt Lake.

“The plaintiffs brought this action to vindicate the voting rights of Navajo voters in San Juan County,” said Mejia, who represents the plaintiffs in the original lawsuit. “This lawsuit is not the appropriate place to attempt to bring the kind of allegations and claims attempted in the counterclaim. Keep in mind that what we are talking about in the lawsuit are very important questions about constitutional rights. The counterclaims only distract from those vital questions.”

Manuel Morgan spoke with the Free Press in a personal interview at his home in San Juan County four weeks after the counterclaim filing. “It’s the first I’ve heard about this conspiracy theory. If the county has an issue with me they must have sent it through the mail. I haven’t received it. Kind of like the mail-in ballot issue.”

Delay in redrawing

Laws explained that the recent ruling requiring the county to redraw its county-commission districts allows the county to conduct the 2016 general election using the districts as they presently exist. The school districts precincts are to be based on the changes adopted by the county in January 2016.“If we had to define commission precincts by November of this year, the process would be in disarray for the election. But in this ruling it’s possible to avoid turning it into a disastrous process.”If all goes as the lawyers for the counterclaim hope, a declaration from the court that San Juan County’s vote-by-mail procedures fully comply with both the Voting Rights Act and the Fourteenth Amendment of the United States Constitution the general election will be decided by a mail-in ballot procedure, as was instigated by the county in 2014.

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