Judge states Clerk did not follow state law when investigating candidacy claim

by Bill Boyle
San Juan Record Editor
A federal judge has ruled that San Juan County Clerk John David Nielson did not follow state statute and improperly removed candidate Willie Grayeyes from the ballot.
With a preliminary injunction, Judge David Nuffer reinstated Grayeyes on the November 6 general election ballot in the race for the Second District seat on the San Juan County Commission.
While the ruling puts Grayeyes back on the ballot, it is not a determination of his residency status. Nuffer writes, “This is an interim order for injunctive relief pending trial. It is not a final decision.”
Nuffer ruled that during the process of investigating a residency complaint against Grayeyes, Nielson “ceased to be a neutral actor and combined the roles of investigator and prosecutor, depriving... Grayeyes of due process.”
State law requires that an objection to candidacy be filed within five days of the candidacy filing period, that the affected candidate be notified immediately, and that a decision be made within 48 hours.
A timeline outlined by Judge Nuffer shows that Nielson did not meet these requirements and, as a result, Nielson’s “action on …Grayeyes’s candidacy… is void and without legal authority.”
Questions regarding the difference between a candidacy challenge and a voter challenge may be at the heart of the issue. Nuffer states that Nielson “acted contrary to the law” when he used a voter challenge to invalidate …Grayeyes’s candidacy.”
Blanding resident Wendy Black submitted a candidacy challenge on March 20, 2018, suggesting that Grayeyes “may live outside of the county and state of Utah.”
The following day, Nielson reported the complaint to Sheriff Rick Eldredge and suggested that an investigation be made. Deputy Colby Turk investigated and determined that the home listed as Grayeyes’s residence is not inhabited on a regular basis.
In his ruling, Nuffer said that rather than initiating an investigation, Nielson should have made a determination on the complaint using the evidence submitted with the objection.
Nuffer outlined the process Nielson used to notify Grayeyes of the challenge and suggested it did not follow statute. In fact, Nuffer said Nielson “intentionally misled Grayeyes regarding the complaint.”
Perhaps the most serious statement made by Nuffer about Nielson is that Nielson falsified the date on a subsequent challenge submitted by Black.
On April 16, nearly one month after the initial candidacy challenge, Black submitted a voter registration challenge form to Nielson. Both Black and Nielson dated the document to March 20, which was the date of the initial candidacy challenge.
San Juan County released a statement regarding Nielson and his handling of the residency challenge.  It states that on March 20, “for the first time in his three-year tenure as County Clerk, Nielson was contacted by a citizen making a residency challenge.
“Within 48 hours, Mr. Nielson asked for the challenge in writing, sought the advice of the Lt. Governor’s office about which Utah statutes governed the challenge, followed the previous Clerk’s practice of contacting the Sheriff’s office to assign an investigator to the matter, and decided to proceed under Utah’s voter challenge statute.
“Nielson then discovered that, under the state statute in effect at the time, the challenger needed to fill out a form and the Clerk had discretion to provide them with a form.  
“He contacted the citizen and asked her if she wanted to fill out the form, which she did on or around April 16. However, she dated the form March 20. Nielson, believing the document was simply formalizing the previous challenge of the same date, also dated the document with that date.  
“While Nielson and the County recognize that this was a serious lapse in judgment, it had no impact on the outcome of the residency challenge.
“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, 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.”
The statement closes by adding, “Nielson and the County have always been committed to professionally administering the duties of their offices and remain committed to ethically discharging those duties in the future.”

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