The San Juan County clerk may be investigated after a federal judge says he crossed the line in illegally dumping Navajo Willie Grayeyes from the ballot

(Francisco Kjolseth | The Salt Lake Tribune) Utah Navajo DineŽ BikŽeyah member Willie Grayeyes in 2018.

The San Juan County officeholder who investigated a Navajo candidate’s residency might now come under investigation himself after a federal judge issued a written ruling late Thursday, concluding that County Clerk John David Nielson falsified an official document to illegally kick the Democratic office seeker off November’s ballot.

Acting on an unsubstantiated complaint filed by a Republican candidate, Nielson had determined that County Commission hopeful Willie Grayeyes was not eligible to vote in San Juan County because he allegedly lived in Arizona.

Virtually no aspect of Nielson’s handling of the matter was legal or within the scope of his role as the county’s top election official, U.S. District Judge David Nuffer wrote in concluding that the county likely violated the rights of Grayeyes, a prominent proponent of the controversial Bears Ears National Monument.

Defendant Nielson ceased to be a neutral actor and combined the roles of investigator and prosecutor, depriving Plaintiff Grayeyes of due process. Aside from soliciting a new voter registration challenge from [candidate Wendy] Black, Defendant Nielson also initiated an outside investigation [by sheriff’s deputies] of Plaintiff Grayeyes’s residence,” he wrote in the 19-page ruling. “This action is not permitted or authorized by statute.”

He issued the ruling after a hearing in Moab earlier in the week on Grayeyes' request for a preliminary injunction to return to the ballot for the fall special election, which will choose commissioners for San Juan County’s redrawn voting districts. Another federal judge had invalidated the old voting districts as the illegal fruit of racial gerrymandering aimed at ensuring the county’s Navajo majority would never hold a majority on the three-member County Commission or five-member school board.

Nielson declined to comment on the ruling, but the county’s court filings defended his oversight of the inquiry into Grayeyes’ residency, while acknowledging he backdated Black’s official challenge to Grayeyes’ candidacy. In his own filings, Nielson said that he was married to a Navajo woman for 15 years and that their children identify as Navajo.

“I love my family and have seen firsthand how racial prejudice and animus has affected them,” he wrote in a declaration, suggesting his action was based on his understanding of the law, not on bias against Grayeyes’ Navajo roots.

In a statement to FOX 13 on Thursday, San Juan County acknowledged that the original complaint about Grayeyes was backdated to match the original complaint.

“While Mr. Nielson and the County recognize that this was a serious lapse in judgment, it had no impact on the outcome of the residency challenge,” Blake Hamilton, an attorney for the county, wrote in a statement.

“Mr. Nielson decided the challenge based on the evidence before him, including the challenger’s statement, the Sheriff’s Deputy’s investigation, and evidence from Mr. Grayeyes," FOX 13 reported, "and based on his understanding of what the state statutes required, not based on the date of the form or Mr. Grayeyes’ race, ethnicity, or political opinions.”

Yet county officials went further than revoking Grayeyes’ candidacy and voter eligibility. San Juan County Attorney Kendall Laws, the son of the candidate who eventually won the Republican nomination for the commission seat Grayeyes seeks, referred the matter to an outside prosecutor, Troy Rawlings of Davis County, to screen for possible election fraud charges. Rawlings declined to pursue a case against Grayeyes.

Grayeyes is vying for the seat held by outgoing Commissioner Phil Lyman, a Blanding accountant who became one of Utah’s most outspoken critics of federal land management during his eight years on the commission. Lyman is now running for the Utah House seat of retiring Rep. Mike Noel, R-Kanab.

Under the court-ordered redistricting, Lyman’s district is now majority Navajo, who tend to affiliate with the Democrats. Grayeyes will face Republican Kelly Laws in what promises to be among Utah’s most closely watched races this November. If Grayeyes were to win, the San Juan County Commission would reverse its position on then-President Barack Obama’s Bears Ears monument designation from bitter opposition to warm embrace.

The county is seeking to intervene in lawsuits challenging President Donald Trump’s order drastically reducing the size of the formerly 1.35 million-acre monument. Long resentful of federal control of the county’s landscapes, officials want to ensure that Trump’s action sticks.

Nuffer’s ruling does not address Grayeyes' residency; it focuses exclusively on whether the county violated due process and state elections laws while processing a terse, detail-free complaint submitted by Wendy Black, the candidate Kelly Laws would go on to defeat at the Republican convention.

The dispute over Grayeyes’ place of residence began March 20, when Black emailed Nielson her suspicions that the Navajo Democrat lived outside the county. That day she submitted a signed statement seeking to challenge his candidacy.

Nearly a month later, Nielson emailed Black a request to fill out a required challenge form, which she reluctantly agreed to do.

“I will do this, but I have to tell you it kind of pisses me off after the way Kelly Laws ran the [April 5] caucus and convention. I don’t want to do anything to help ‘him’ but I will for the county,” she wrote back. “I don’t think Kelly will be beneficial in the County Commission (we already have someone exactly like him, done nothing, promoting himself, rancherish guy) but I REALLY don’t think Willie should be there.”

Her email appears to reference commission Chairman Bruce Adams, a Monticello rancher who is expected to coast to re-election.

Her backdated complaint says this about about Grayeyes' listed San Juan residence at Paiute Mesa: “It is not livable, windows boarded up. Roof dilapidated. No tracks going into home for years.”

Not only is such an assertion inadequate to revoke Grayeyes’ candidacy, court documents say, but there is no evidence Black had even been to Grayeyes' home, located in a remote area near the Arizona line on the Navajo Reservation’s Navajo Mountain chapter lands.

This form is the one Nielson acknowledges backdating to March 20 — despite his signature under penalty of perjury indicating it was produced April 16.

“I realized that that was probably not what I should have done,” Nielson testified at his deposition, “but the thought in my head was that the original challenge was done on March 20th, and so that’s what we were making this, to March 20th.”

However, by the time this document was actually produced, the sheriff’s investigation into Grayeyes’ residence was complete and the deadline for challenging a candidate’s eligibility had passed, along with Nielson’s deadline for rendering a decision, which he issued May 9.

Nielson’s actions drew condemnation from tribal officials and others, who called for his resignation and raised the specter of further scrutiny because Nuffer’s ruling suggests possible perjury.

“If there’s something criminal, we’ll likely send it over to the attorney general’s office to investigate,” Justin Lee, director of elections for Lt. Gov. Spencer Cox, told Salt Lake Tribune columnist Robert Gehrke this week.

On Friday, the Utah attorney general’s office did not return a phone call seeking comment.

Meanwhile, the other federal court order — which redrew what it said were discriminatory political districts in San Juan County and ordered the special election — is on appeal to the 10th Circuit Court of Appeals in Denver.

Jesse Trentadue, outside counsel for the county, acknowledged in a brief filed Thursday that it’s likely too late to halt the upcoming election.

“By the time this case is heard by this Court and an opinion is issued, the special elections will have taken place,” the brief said.

“There will be no remedy” for the elected officials whose terms were cut short and for voters who expected representation to continue as before, the county brief continued. “And there will be no remedy for the County, which will have lost leadership and institutional memory.”

Still, the county asked the appeals court to overturn the lower-court ruling on redistricting and to restore the previous voting districts. It also requested a careful analysis of the significance of special elections — and when they are appropriate — to help guide future cases.

Editor Dan Harrie contributed to this story.