Spurred by allegations of tampering and mismanagement in the 2017 elections, Tribal Council spent much of 2018 debating changes to its election laws. It passed the final document during a special-called meeting Wednesday, Dec. 19, 2018, running close to the ultimate deadline of Dec. 31. Tribal law forbids making changes to the election ordinance in an election year — during the 2018 discussions, Council changed the definition of “election year” to mean between Jan. 1 and Sept. 30 in years when elections are held. The definition was then changed back to its original timeframe of Oct. 1 through Sept. 30 .
“I know that opening up the election code again is not something that anybody really looks forward to having to do again, but I implore you to please take the time now,” Associate Justice Brenda Pipestem told Council during an Annual Council meeting Oct. 28.
“We’re going to have lots of discussion on this, being a non-election year,” promised Chairman Adam Wachacha, of Snowbird.
Pipestem’s principal concern was the timeline — or lack thereof — laid out for protesting various aspects of the election process.
The current election law allows candidates to protest if the Board of Elections declines to certify them for election, if the board takes away their certification as a result of the decertification process or in the case of alleged irregularities during the election process. In all three cases, the first step is a hearing before the board, which then delivers a decision. If the person protesting is not satisfied with the decision, he or she can appeal to the Cherokee Supreme Court.
However, while the law does provide timelines for the Board of Elections’ handling of protests, it does not state how long a person has to file an appeal with the Supreme Court following the Board of Elections process.
“There are no timeframes in which that person has to appeal to the Supreme Court, so they could wait 30 days, if there’s time, to come file an appeal,” said Pipestem. “These timeframes during an election season as you all know are super important, and there’s not a lot of time.”
Because the certification and decertification processes are separate, the same person could have to deal with both in a single election, as happened to principal chief candidate Teresa McCoy this year. Adding up the timeframes already laid out in code for the Board of Elections to handle such protests, it could take more than 60 days to resolve the issue of whose name should appear on the ballot, and that doesn’t even include any time needed to handle appeals before the Supreme Court. That’s a long time, and it could have serious implications for the overall election process.
“The person who’s trying to get on that primary ballot may not have time to get physically printed on the primary ballot,” said Pipestem.
That very nearly happened in McCoy’s case, which had an April 29 hearing before the court to protest the election board’s decision to deny her candidacy. McCoy prevailed in a same-day decision from the court, and just in time — ordinance requires the election board to have absentee ballots available by May 1.
On May 2, tribal member Robert Osley Saunooke lodged a decertification protest against McCoy that dealt with similar issues to those raised in the election board’s initial denial. In a May 17 order, the Supreme Court declined to hear Saunooke’s protest, but had it sided with Saunooke the decision to deny McCoy’s candidacy at that point would have raised serious questions about how to deal with votes that had already been cast in the Primary Election. By May 17, both absentee and early voting had already begun.
Pipestem also called for Tribal Council to consider the timeframes involved in claims of election irregularities, which happen on the opposite end of the campaign cycle. According to tribal code, protests of election irregularities must be submitted within five business days of the polls closing. If it decides to hold a hearing, the election board must set a date for the hearing within five business days of receiving the protest, and the hearing must be held within 10 business days of the date being set. The board must then issue a written decision within five business days of the hearing.
That means that it could take up to 25 business days after the election for the election board to handle a protest of election irregularities. That doesn’t include any time needed to appeal to and receive a decision from the Cherokee Supreme Court, should the protester not be satisfied with the election board’s decision — the law doesn’t prescribe any timeframe for such an appeal.
The problem is that there is a timeframe for swearing in new elected officials. Tribal law states that the general election will be held on the first Thursday in September with winners sworn in on the first Monday in October. This year, there were only 22 business days between Election Day Sept. 5 and Inauguration Day Oct. 7. The same will be true in 2021, the next election year.
“I’m going to encourage you to please look at these timeframes, not only for the appeal but also within the actual code in regard to how much time the Board of Elections is going to be given to do each of these individual things,” said Pipestem. “There’s opportunities there to reduce these days so that we can get our business done in a timely fashion, because under the charter we don’t have a lot of time between the first Thursday in September and the first Monday in October.”
Twenty-five business days is equivalent to five weeks, observed Councilmember Boyd Owle, of Birdtown.
“That’s a very long time,” he said. “I think we need to decrease that.”
Some councilmembers pointed to a desire to decrease the length of the overall campaign season as well. It begins on March 1 in odd-numbered years, when filing opens, and ends with the General Election held on the first Thursday in September, a total of six months.
“Ours is just too many months to go in between the primary and the general once you are an acknowledged candidate to run,” said Owle. “I’d like to see that cut down as well. It’s a drawn-out process.”
By comparison, Cherokee’s is longer than the election period for municipal offices, for which filing opens in July with an election the first Tuesday in November, but it’s shorter than the season for most other offices. Candidate filing for most 2020 contests in North Carolina will begin on Dec. 2, with that election slated for Nov. 3, 2020.