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Council nixes proposed penalties for campaign law violations

Principal chief candidate Teresa McCoy explains her opposition to the proposed ordinance. EBCI photo Principal chief candidate Teresa McCoy explains her opposition to the proposed ordinance. EBCI photo

A proposed ordinance that would have laid out the criminal penalties for violating laws regulating election campaign practices was withdrawn in Tribal Council May 2 following criticism about the timing of the proposal. 

“It always gets me anytime you’re talking about campaigns or elections at this time in the year and you’re a month away from the primary,” said Councilmember Richard French, of Big Cove. “It should have been brought in with the election ordinance stuff which came back in and was voted on.”

The ordinance would have amended the tribe’s criminal code, Section 14, to state that violations of the unlawful campaign practices code, found in Section 161-24, could be punished by up to a $5,000 fine and one year in prison.

“It’s really just kind of closing the loop that is necessary if a prosecution were to occur,” said Interm Attorney General Mike McConnell. “This language is necessary for it to occur.”

Without passing the ordinance, he said, it would be impossible to prosecute campaign practice violations, which include actions such as buying and selling votes, tampering with ballots, intimidating voters, voting more than once in an election, altering the ballot of another person, giving false information when registering or voting, or campaigning within 100 yards of a polling place. 

Principal chief candidate Teresa McCoy lost no time in requesting an opportunity to voice her opinion on the matter. 

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“There is a primary in a month. I’m going to give you some advice. No. Do not do this,” she said. 

McCoy went on to remind council that she’d just been through a court hearing that dealt with Indian Civil Rights Act and due process issues related to the election law. The Eastern Band of Cherokee Indians Board of Elections initially declined to certify McCoy for election on the basis that she had defrauded the tribe, upholding that decision following a quasi-judicial hearing before its members April 9. 

However, the Cherokee Supreme Court, following a four-hour hearing April 29, overturned that decision and ordered the board to certify McCoy as a candidate. A written opinion outlining the court’s reasons for that ruling is forthcoming, but McCoy’s arguments in the hearing hinged on issues of due process, equal scrutiny of candidates and standards of proof, in addition to the question of whether she had actually committed the alleged fraud — McCoy contends that none of her actions constituted fraud. 

The issue is not dead for McCoy. On May 2, the election board received a protest of McCoy’s certification, submitted by tribal member Robert Saunooke (see story on page 9) and dealing with the same alleged events as the April 9 hearing.

McCoy, along with tribal member Lori Taylor, told council that they should not pass the ordinance in part because they didn’t have authority to do so. A provision in the election code bans changes to that code during an election year — because the ordinance referenced the election code, she said, it could not be enacted until after the new Tribal Council is seated in October. 

McConnell took issue with that interpretation. 

“I respect Teresa and Lori coming to the podium. I do disagree with them on this point of law,” he said. “Section 161-24 was passed by Tribal Council and is part of the election ordinance. Yes, the election ordinance says you can’t change Chapter 161 during an election year. The proposed ordinance that’s in front of you right now is going in the criminal code. That’s Chapter 14.”

Birdtown resident Becky Walker said that while that might be so, it’s still a bad idea to vote on the ordinance now. 

“It’s a slippery slope and I think you are creating the appearance of impropriety,” she said. “Would it just be convenient that this gets put in the criminal code now and two months later one of you gets accused of unlawful campaign practices?”

Walker, McCoy and Taylor all referred to a statement made by Chris Siewers, the attorney representing the Board of Elections before the Cherokee Supreme Court, in citing their skepticism about the law as presented. During his argument, Siewers said that, “You could violate her (McCoy’s) process all day long, and that doesn’t make her eligible to be certified as a candidate.”

“Nobody that works for this tribe should ever say anything like that,” said McCoy. 

McConnell, however, said that contrary to McCoy’s interpretation, Siewers was not saying that it’s OK to violate tribal members’ due process rights. Siewers made the statement while making his argument to the court that the facts surrounding whether or not McCoy had defrauded the tribe were all that should be pertinent to its ruling on certification and that any violation of due process rights should not be relevant to that decision.

“The attorney was giving a legal argument which in that context was sound,” said McConnell. 

Nevertheless, Tribal Council agreed with the perspective that, regardless of whether it would be legal to pass the ordinance right now, it wouldn’t be wise to do. 

“The people, they’re listening,” said French. “They want to know why we’re doing what we’re doing. I want to make sure the people understand that when they go to the polls, that it means something. I’m trying to give that back to them because a lot of them got discouraged after the last election, and I can understand why.”

Councilmember Lisa Taylor, of Painttown, said the discussion underscores the statement she made when voting against the election ordinance in December — the ordinance still had issues and was not ready for a vote, she said. 

“Mr. Chairman, it’s apparent that this issue is too controversial,” said McConnell. “It’s political. I understand that. I respect that. My point in coming to the podium is just to make clear that this ordinance is legally appropriate but it’s not politically well received right now, and I understand that. I will ask to withdraw it.”

Council unanimously approved that request to withdraw. 

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