Cherokee debates election laws
Attorney General Mike McConnell explains proposed elections ordinance changes to Tribal Council during a July 23 work session. EBCI image
The Eastern Band of Cherokee Indians is in the midst of an effort to overhaul its elections laws, with a Sept. 30 deadline to take a final vote if the new rules are to apply for the September 2019 elections.
The revised ordinance was initially submitted in April, with multiple work sessions and discussions held since to comb through the various regulations contained in the 27-page document. The most recent work session, held Monday, July 23, focused on candidate residency requirements and campaign finance reporting.
Requirements for residency
Currently, Cherokee law states that Tribal Council candidates must have resided in the township they’re running to represent for at least 90 days before the primary election and continue to live there during their term in office; for school board candidates, residency is required for one year before the primary election and during the term of office; for chief and vice chief, two years before the election and during the term of office. However, the law does not define what residency means.
In his proposed revision to Tribal Council, Attorney General Mike McConnell added a paragraph that states a candidate’s primary residence must be on Cherokee trust land and that the person must spend the majority of overnights there.
“You might have a condo at Myrtle Beach. You might have a house in Georgia, but it allows you to have that second home and make your commonplace visits to that second home, but your primary residence would have to be on Cherokee trust land,” McConnell explained. “The way you would measure that would be by overnights.”
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A residency protest would trigger a hearing before the Board of Elections, which would decide whether the overnight threshold had been met using records such as utility bills, the candidate’s registered mailing address and school records.
Some councilmembers indicated that they’d like to see a stricter requirement than a mere majority of overnights on the Qualla Boundary.
“We all understand that we can go somewhere on vacation. We know that, but I think that 99 percent or 100 percent, you ought to be here and available,” said Councilmember Tommye Saunooke, of Painttown. “Now that’s my opinion. I don’t know what anyone else feels. If I have a second home that’s fine, but my people are here and this is where we need to serve.”
According to the draft McConnell presented, even candidates who meet the overnight threshold would be required to report any second homes to the election board, as well as whether that address has been listed as their primary residence at any point in the past five years.
“We want to be able to know that to say, ‘Why did you claim primary residence in Buncombe County and now you’re claiming it here on Cherokee trust land?’” McConnell said, giving an example.
The new version would also require that candidates affirm, in writing and under oath, that the information they’ve provided is true.
“If it turns out that you are knowingly misrepresenting this to the election board, you can be disqualified from the election,” McConnell said.
Reporting financing
Perhaps the most significant election ordinance change proposed is five pages detailing campaign finance reporting requirements. Current law has no mention of campaign finance and does not require any disclosure as to where campaign funding comes from.
“On the legal side, we’re looking at this saying, ‘What if, what if,’” McConnell said. “It’s possible that with the financial status of the tribe and the interest of say businesses and other people to come in and say I really want this thing to happen. Say it’s some different activity at the casino and if I contribute a bunch of money to this group of candidates and they win and they’re able to sway the TCGE, that will benefit my business by thousands of dollars. We’re trying to get ahead of that.”
The proposed ordinance revisions would require candidates to file finance reports monthly, with the first report due upon filing for office and the final one due no later than five days before the Board of Elections certifies general election results to Tribal Council. Any contributions given within six months of the election would be reported in a revised final report. Failure to file would result in disqualification from the race, and no candidate would be able to take office until the final campaign finance report was filed. Reports would detail the name, mailing address and occupation of each contributor, as well as categories of campaign expenditures.
Failing to disclose required information would be considered a crime for referral to the tribal prosecutor and could subject the candidate to disqualification from office or removal from office.
Candidates would only be required to report contributions from people who gave $250 or more, with no one person able to give more than $2,000 to a single candidate. The proposed language would prohibit anonymous donations of $250 or more and donations from corporations.
“A donation has to be attached to a person, to an individual person,” McConnell said.
Various councilmembers had different reactions to the recommendations and to the overall idea of regulating campaign funding. Saunooke, for example, told McConnell that the proposed changes looked “a little cumbersome” and seemed unnecessary given how little she has typically spent on campaigns during her nearly two decades in office.
“I must be different. Nobody ever offers me anything. If they did I wouldn’t take it,” Saunooke said. “It’s ridiculous. It’s a tribal election and if you don’t have the money to fund your own campaign, people, you don’t need to be sitting here if you’re going to take from Tom, Dick and Harry.”
Chairman Adam Wachacha, of Snowbird, had a different reaction.
“I understand it. It’s basically a smaller version of how the federal and state campaigns are on disclosures and saying how maybe their votes may be persuaded,” he said.
Election Board Chair Denise Ballard affirmed to Tribal Council that Cherokee does indeed need legislation on this topic.
“This is something we hear from the community every year, every election, and it’s something that’s needed,” she said.
After some discussion by councilmembers as to the proposed limits and the amount of money spent on tribal campaigns, McConnell suggested an alternative to the currently proposed language — that the tribal government designate a certain amount of campaign money that can be used in each race and then provide that money to the campaigns.
“Essentially the tribe would be funding the election race,” McConnell said. “That creates a financial burden for the tribe. It might not be a big one if what I’m hearing is typically our races are funded on a shoestring. But what it does is allow you to control what is spent, and you know where the money is coming from.”
Some councilmembers felt that could be a worthwhile option to pursue, but Councilmember Jeremy Wilson, of Wolfetown, said it could bring some major issues with it. Elected for the first time in 2017 at age 28, Wilson is the youngest member of council and didn’t have the benefit of an existing voter base when he decided to run for election.
“I think you’re going to have some major growing pains with this amount limit,” he said. “One of the issues is when you’re a new candidate coming in and not too many people know about you and you don’t have a big political background.”
While Saunooke, a veteran councilmember, had said earlier in the discussion that her campaign costs were pretty minimal — $500 for the filing fee, ads in the Cherokee One Feather, campaign signs and bookmarks — Wilson said it took more than that for him to get elected. For instance, he said, sending a piece of mail to reach every person in his community cost more than $2,000.
Saunooke acknowledged that disparity and affirmed that she didn’t want to see laws adopted that would exclude political newcomers.
“I don’t want to knock somebody out that’s new and running,” she said.
The discussion was part of a work session, not a business meeting, so no action was taken or changes made to McConnell’s proposed version, and the 75-minute meeting wasn’t enough time to discuss the entire 27-page document. However, the election ordinance is on the agenda for Council’s Aug. 2 meeting, and the body will need to vote on a final version by Sept. 30 if the changes are to take effect for the 2019 Tribal Council elections.
