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San Juan County is fighting back against a lawsuit that alleges its vote-by-mail procedures hindered the ability of Navajo citizens to participate on equal terms with white citizens in the 2014 election.
In a counterclaim against the plaintiffs, the county says the suit is based on fabricated claims and an attempt to control the election of the county commissioner from District 3, in the southeastern part of the county. The plaintiffs sued "in bad faith," it adds, insofar as they are challenging the county's use of vote by mail based on the 2014 election, rather than current procedures.
The counterclaim seeks a declaration that San Juan County voting procedures comply with the Voting Rights Act and the U.S. Constitution, and it asks for an award of attorneys' fees and punitive damages.
The plaintiffs are the Navajo Human Rights Commission and seven members of the Navajo Nation. Leonard Gorman, executive director of the commission, declined to comment; other plaintiffs could not be reached. John Mejia, legal director of the American Civil Liberties Union of Utah, one of the organizations representing the plaintiffs, had no comment.
The federal suit names as defendants San Juan County; clerk John David Nielson; and county Commissioners Phil Lyman, Bruce Adams and Rebecca Benally.
The plaintiffs claim postal service is unreliable and limited in rural areas of San Juan County, where many Navajo voters live. Navajo residents often lack access to reliable transportation and face poor road conditions, their suit says. The suit says the county closed all polling places and the only way to vote in person in the 2014 election was to go to the clerk's office in Monticello, which is not on the Navajo Reservation.
The plaintiffs say they prefer to vote in person and several of them are not comfortable voting in English. Plaintiff Peggy Phillips — who said she needs assistance from a translator to vote because there are usually words on the ballot she does not understand — alleged she did not receive her ballot for the 2014 election in the mail and was unable to vote.
The suit seeks an order requiring the county to reopen polling sites not used in 2014 and to provide translation services to Navajo-speaking voters for all future elections.
The defendants now say the U.S. Department of Justice, representing the Navajo Nation, reviewed the county procedures in October 2015 and expressed no concerns.
And the percentage of registered voters casting ballots doubled compared to the previous election, when vote by mail was not an option, the county says.
"The increased voter participation among Navajo voters is attributable in part to the fact that the mail-in-ballot process allows voters who work away from their homes on the Navajo Reservation or who are away at college or in the military, to participate in elections without having to appear at a polling place or make advance application for an absentee ballot," the counterclaim says.
It adds that the mail-in-ballot process allows elderly voters who have no means of transportation to vote from their homes.
It also says San Juan County has adopted additional procedures for 2016 and future elections: Four in-person voting locations will be set up, three of them within the reservation, and every county resident will be within an hour's drive of a polling place. Navajo language ballots in audio form will be available at all four locations and on the county's website.
In addition, the county put paid announcements on two Navajo-language radio stations to explain the vote-by-mail process during the 2014 election cycle and will continue that practice, according to the counterclaim.
It disputes specific allegations, contending plaintiff Peggy Phillips voted by mail-in ballot in the 2014 general and 2015 municipal elections, and that she has acted as a Navajo interpreter for in-person voting and as an election judge. In the suit, she says she did not receive her ballot for the 2014 election in the mail and was unable to vote, and that she needs assistance from a translator to vote.
Plaintiff Terry Whitehat, who said in the lawsuit that he prefers to vote in person, signed an affidavit before the 2014 election, stating that he was employed outside of San Juan County and preferred to vote by absentee ballot in future elections, the county says.
The rise in the number of voters in 2014 led to the election of Rebecca Benally to the District 3 County Commission seat, the counterclaim says. Previously, it alleges, plaintiff Mark Maryboy, his brother Kenneth Maryboy and their political ally Manuel Morgan controlled the election for the seat by, among other actions, distributing food and other items at polling locations on Election Day.
The counterclaim alleges that in 2015, Mark Maryboy, a former commissioner; Kenneth Maryboy, the District 3 incumbent who was defeated by Benally in the Democratic primary; Morgan, another former commissioner who ran in the 2014 general election and lost to Benally; and Gorman, the Navajo Nation Human Rights Commission leader, "set about fabricating a sham lawsuit to challenge San Juan County's use of vote-by-mail."
The four were aided by the human rights commission and the other plaintiffs, the counterclaim says, alleging the group wanted Mark Maryboy, Kenneth Maryboy or Morgan elected to the District 3 spot.
The counterclaim also says the plaintiffs tried to undermine Benally's support among Navajo voters by using "spurious allegations" that she would have to step down as a result of the lawsuit. She is entitled to unspecified, punitive monetary damages, it says.
In February, U.S. District Judge Robert Shelby ruled in another election-related suit that San Juan County must redraw its County Commission boundaries. The Navajo Nation alleged a 2011 redistricting disenfranchised American Indians.
Twitter: @PamelaMansonSLC