Gehrke: A county clerk’s deceptive attempt to keep Grayeyes out of the San Juan commission race should lead to criminal charges

Sure, we’ve seen malfeasance in Utah politics — sex scandals, run-of-the-mill corruption, pay-to-play.

But I can’t recall ever seeing a public servant conspiring so ruthlessly to deny a Utahn a fundamental constitutional right as we just saw in San Juan County.

I’m referring to San Juan County Clerk John David Nielson, who helped falsify and backdate an election complaint and used it to disqualify Democrat Willie Grayeyes from the County Commission race, asserting Grayeyes was ineligible to run because he didn’t live in the county.

On Tuesday, U.S. District Judge David Nuffer righted the wrong, ordering Grayeyes’ name be put back on the ballot, basing his decision, in part, on the clerk’s deceit.

Grayeyes’ candidacy was challenged March 20 by Wendy Black, at the time a Republican candidate for the County Commission seat and her complaint was all of three sentences long, stating it had “been brought to my attention” that Grayeyes “may” live outside the county.

Francisco Kjolseth | The Salt Lake Tribune Interior Secretary Ryan Zinke shakes hands with Willie Grayeyes of Utah Dine Bikeyah following a short hike to Butler Wash Indian Ruins by the secretary and members of the Utah delegation during a tour of the Bears Ears National Monument on Monday, May 8, 2017.

That was it. Without a shred of proof, the law is explicit that Nielson should have dismissed the claim on the spot. Instead, he launched an investigation.

That inquiry was already completed a few weeks later when he emailed Black, asking her to refile a formal complaint that would meet the requirements of the law. She wasn’t happy, but came into his office on April 16 anyway.

Here’s the problem: Had they put the actual date on the new complaint, it would have been weeks after the deadline to challenge a candidate. Plus, how would it look to have an investigation completed before a legally valid complaint was filed?

If they wanted Grayeyes off the ballot, the only way to make it stick was to lie. So they did. And we know they did because Nielson admitted it under oath.

In his deposition, Nielson is asked about Black’s April 16 visit to his office.

“The second page of this shows it being completed and signed on March 20, 2018,” said Grayeyes’ attorney, Steven Boos.

Nielson: “Yes.”

Boos: “That is false. Correct?”

Nielson: “Yes.”

Boos: “Did [Black] sign it in front of you?”

Nielson: “Yes.”

Boos: “OK. And she signed it as dating it on the 20th of March?

Nielson: “Yes.”

Boos: “And you signed it as her having signed on the 20th of March?”

Nielson: “Yes.”

Boos: “That was false, too. Correct?”

Nielson: “It was.”

“I realized that that was probably not what I should have done,” Nielson said, “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.”

The form both Black and Nielson signed states that Black understood the information provided was “subject to penalties of perjury.”

Then for weeks, the county withheld Black’s original deficient complaint from repeated records requests from Grayeyes’ attorney, attempting to pass off the backdated complaint as the only one they had.

San Juan County Attorney Kendall Laws (whose father, Kelly Laws, is Grayeyes’ Republican opponent for commissioner) even sent the flimsy file to Davis County Attorney Troy Rawlings to screen for possible criminal charges against Grayeyes. Rawlings’ office declined.

It seems clear on its face that laws were broken here, but not by Willie Grayeyes.

Justin Lee, director of elections for Lt. Gov. Spencer Cox, said they are awaiting Judge Nuffer’s opinion. “If there’s something criminal, we’ll likely send it over to the attorney general’s office to investigate,” he said.

In a broader context, the Grayeyes episode is another chapter in the abysmal treatment of Navajos in San Juan County.

Indeed, the entire reason the seat is even up for election this November is that a federal judge ordered the commission boundaries to be redrawn because for decades they had systematically disenfranchised the Navajo majority.

The Navajos have repeatedly had to go to federal court against the county to demand equal educational opportunities, fair treatment in the justice process, access to the ballot box, and their rightful share of oil and gas royalties.

Grayeyes’ case “fits in altogether too well” with that history, Boos told me.

In court filings, Boos references a 1972 case, where a clerk deliberately gave misleading information to two Navajo residents who wanted to run for office, resulting in them missing a deadline. The federal court in that case intervened and ordered them to be put back on the ballot.

“That was 1972,” said Boos. “The Grayeyes stuff makes it seem as though in the last half century nothing has changed, which is a sad commentary.”

Maybe Nielson and Black weren’t actually trying to stick it to the Navajo candidate. Maybe it was a couple Republicans trying to knock out a Democrat. Or perhaps it was an attempt to stop one of the chief proponents of the Bears Ears National Monument from being elected.

Really, it doesn’t matter. At its core, no matter what his motivation, Nielson violated a public trust.

The job of the county clerk is not a trivial thing. They take an oath to uphold the Constitution and the laws of the state and to “discharge the duties of [the] office with fidelity.”

They are tasked with the responsibility of protecting one of the most cherished, fundamental rights of our democracy — the right to vote and the right to run for public office.

So when we have someone who violates that oath and conspires to break the law in order to deprive even one voter of those rights, that is not someone who deserves to be in a position of trust.

That is someone who deserves to go to jail.