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Election protest denied in Cherokee

After coming up short in the General Election Sept. 5, principal chief candidate Teresa McCoy filed an election protest Sept. 12 that the Eastern Band of Cherokee Indians Board of Elections dismissed in a Sept. 30 decision.

McCoy’s complaints “fail to show that but for the alleged irregularities the actual outcome of the election has been affected or would have been different,” reads the board’s decision. “Even viewing the evidence in the light most favorable to McCoy leaves McCoy with a 364-vote deficit to Sneed that she is unable to bridge.”

McCoy, a longtime councilmember representing Big Cove, left office in 2017 and this year ran against incumbent Principal Chief Richard Sneed for the tribe’s top office. Her campaign had a rocky start, with the election board initially declining to certify her to stand for election based on allegations that she had “defrauded the tribe,” which stemmed from a 1996 incident that had been publicly reviewed and dismissed by the Tribal Council sitting at the time. McCoy has run for office in every election after 1996 and never had an issue with certification until this year. She appealed the election board’s decision to the Cherokee Supreme Court, which ordered the board to certify her.

That victory, won on April 29 — nearly one month after other candidates had been certified — left McCoy with a truncated campaign season ahead of the June 6 Primary Election, which featured a field of five candidates for principal chief. However, she overcame that hurdle to emerge as the top vote-getter, edging Sneed by 15 votes.

The General Election, however, saw a different result. McCoy lost by 395 votes, with Sneed beating her in every township save her home community of Big Cove.

On Sept. 12, McCoy filed a protest of “actions and inactions” by the Board of Elections, naming Shirley Reagan and Denise Ballard as the principal subjects of her complaint.

“Had it not been for the conduct and actions of the BOE and others, the outcome of the election would have been different,” McCoy wrote in her protest letter.

The election board held a Sept. 23 hearing on McCoy’s protest, at her request issuing subpoenas to Lori Taylor, Ashley Sessions, John McCoy and Becky Walker. McCoy had also requested that subpoenas be given to election board members Shirley Reagan, Annie Owen and Roger Smoker, but the board declined to issue them, saying that its members would attend the meeting voluntarily in relation to their responsibilities on the board, rendering subpoenas unnecessary.

According to the 12-page decision document issued by the board, McCoy’s arguments hinged on alleged absentee voting irregularities and negative impact on her campaign from the board’s initial refusal to certify her for candidacy.

The early voting complaint stemmed from the fact that Reagan and fellow Board Member Pam Straughn went to the Tsali Care Center Aug. 28 to collect absentee ballots from residents, the same day that some elected officials, including Sneed and Birdtown Councilmembers Albert Rose and Boyd Owl, were present to play bingo with the elders. That constituted an election irregularity, McCoy argued, as the elected officials’ presence could influence the elders’ votes. She also took issue with a Facebook comment Reagan made on Sneed’s Facebook page.

“I was at Tsali Care today with some of the patients absentee voting,” read the comment, according to the decision document. “They were excited about the Chief and some of the Council coming to play Bingo today.”

Reagan testified that her comment did not mean she’d been trying to persuade voters one way or another — they were just happy that someone from tribal government was coming to spend time with them. Further, according to an email Attorney General Mike McConnell sent in response to McCoy’s former attorney James Kilbourne on Sept. 3, election board members and elected officials were not at Tsali Care at the same time that day. The election board members were there for less than half an hour beginning at 9:30 a.m., McConnell wrote, with the elected officials arriving at some point after 2 p.m. that day.

Only three absentee ballots were collected that day, the election board said, and overall only 42 absentee ballots were cast for principal chief in the General Election. Eleven of those votes went to McCoy and 31 went to Sneed.

“McCoy presented no evidence of any irregularities with the absentee ballots retrieved at Tsali Care or with absentee voting more generally … Regardless, even if McCoy had presented evidence of irregularities sufficient to show that all absentee ballots which were cast for Sneed were invalidly cast, and that those 31 votes should be subtracted from Sneed’s vote total, this would only reduce the margin of victory for Sneed from 395 votes to 364,” the decision reads.

McCoy’s protest also alleged that the board’s initial denial of certification ended up changing the outcome of the entire election.

“I can bring people in here that will tell you and the Council and whoever they need to that they chose not to vote for me because you called me a thief,” McCoy said at the protest hearing, according to the election board’s decision document. “You allowed it and you condoned it.”

The certification denial cost McCoy significant time on the campaign trail as well as a significant amount of money in attorney’s fees. However, as the board’s decision points out, the issue did not appear to hamper her performance in the Primary Election, in which she beat Sneed to become the top vote-getter. In the General Election, however, the top two spots reversed.

The board decided with a unanimous 5-0 vote to deny McCoy’s protest. At McCoy’s request, Reagan recused herself from the vote.

The election board office did not respond to multiple requests for McCoy’s protest, the hearing transcript and the decision document. This story was reported using documents provided by The Cherokee One Feather.

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