Should the San Juan County clerk face criminal charges for falsifying a document in a failed attempt to boot a Navajo candidate from the November ballot? An outside prosecutor said no late last month. But that won’t be the final word, as the county attorney is seeking a second review of the controversy.
The move comes after pressure from local residents, as well as a statewide advocacy group, which condemned the decision not to charge Clerk John David Nielson as part of a “long string of hidden or brazen acts of corruption” in the southeast corner of the state.
San Juan County Attorney Kendall Laws has asked Davis County’s top prosecutor to take another look at the case against Nielson, who a federal judge said in August abused his role as the county’s top election official when he backdated a complaint against then-candidate Willie Grayeyes and used that to remove him from the race for an open commission seat.
Andrew Fitzgerald — then the attorney for Grand County but who has since left the office to work in private practice — first reviewed the case and declined to file charges against Nielson in December. He has said the changed date on the document, which accused Grayeyes of not being qualified to run for office because he allegedly wasn’t living in San Juan County, “didn’t change anything materially” for him.
A judge ruled that Grayeyes, a Navajo and Democrat, be reinstated in the race. He later won election to the County Commission, creating the first Native American-majority government in modern Utah history.
“It wasn’t like backdating was a smoking gun that allowed the clerk to exclude Mr. Grayeyes,” Fitzgerald told The Salt Lake Tribune earlier this week. He could not be reached for further comment Friday.
But some have questioned whether that was the right call or if Nielson should have faced a misdemeanor charge for abuse of office or felony charge for false or inconsistent material statements — both of which Fitzgerald considered but declined.
Some have said that Nielson’s actions were, in fact, made to exclude Grayeyes from the election even after he sought several times to prove he lived on the Navajo reservation in San Juan County. Without the intervention of the courts, they say, Nielson would have succeeded.
“That backdating was essential to the process that the county was using at the time to boot Mr. Grayeyes off the ballot,” said Steven Boos, Grayeyes' attorney, on Friday. “Really, they were trying to game the process.”
Election complaints have to be filed and acted on within a short timeframe. If Nielson had not backdated the complaint, which was emailed to him by a Republican resident who ran for the same seat as Grayeyes but lost in the primary, it wouldn’t have been actionable, Boos said.
Nielson used the backdated complaint to initiate an investigation with the sheriff’s office. And he decided Grayeyes was ineligible to run or vote in San Juan County because he had property in Arizona.
Nielson, who is still county clerk, was out of the office Friday and could not be reached.
San Juan County has acknowledged the backdating; its attorneys have defended Nielson’s actions, as has he.
“I realized that that was probably not what I should have done,” Nielson later testified, “but the thought in my head was that the original challenge was done on March 20, and so that’s what we were making this, to March 20.”
In evaluating the case, Fitzgerald said he couldn’t find a criminal statute that applied. It’s possible the case is forwarded to the Utah attorney general’s office for further review, but a spokesman there would not confirm or deny any involvement.
San Juan County has now asked Davis County Attorney Troy Rawlings to re-examine the case, which he confirmed.
“They did ask us to review what Grand County did with this case,” Rawlings said, declining further comment.
A second review will likely be a challenge. If Rawlings’ office were to decide to file charges against Nielson, the clerk’s defense could point to Grand County’s denial as evidence to throw out the case.
But the Alliance for a Better Utah, a liberal government advocacy and watchdog organization, welcomes the second look.
“We’re glad that they’re reviewing it again,” said spokeswoman Katie Matheson. Earlier this week the group criticized Grand County’s decision to decline charges. “Citizens have to trust that their government officials are acting with the utmost degree of honesty and ethics," she added.
Boos agreed and said he has concerns about Nielson remaining in office: “The clerk is the official in county government who’s responsible for making accurate records concerning the business of the county. If you’ve got someone who’s got that responsibility but is backdating documents, how do you know they’re being forthright and honest about all of the other documents they’re responsible for?”
Laws, the San Juan County attorney, previously asked Rawlings to review a potential criminal case against Grayeyes for running for office while allegedly living out of state. The Davis County attorney declined to file any election fraud charges at that time. And Laws did not return a voicemail Friday.
Meanwhile, Laws’ father, Kelly Laws, ran as the Republican candidate against Grayeyes and lost. He has filed a suit again questioning the Navajo man’s residency and legitimacy to hold office. A judge will hear arguments on that case Tuesday. Grayeyes had earlier provided a map of his house in Utah and documents that show he’s been registered to vote here for at least 34 years. He won by 159 votes.
November’s controversial — and historic — election was the first since a federal judge redrew San Juan County’s voting districts in an attempt to reverse the historic political domination by whites over Americans Indians there. The new boundaries gave Navajos, who tend to affiliate as Democrats, a significant majority of voters in two of three commission districts and three of five school board seats.
But it has riled Republicans, who for three decades were the favored political party in the county, and for the first time, lost their hold over it when Grayeyes and Kenneth Maryboy, also Navajo, were elected. Additionally, it has dredged up the fight over the former Bears Ears National Monument, which the previous GOP-majority commission wanted reduced and the current Democrat-majority commission supports in its original designation.
The county, according to the most recent census data, is at least 50 percent American Indian and 47 percent white.