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Tribal Council debates election law changes

Tribal Council is likely to meet Thursday, Sept. 29, to finalize election law changes. File photo Tribal Council is likely to meet Thursday, Sept. 29, to finalize election law changes. File photo

Term limits could be on the chopping block in Cherokee’s updated election ordinance due to legal advice arguing that the current law, which restricts chiefs and vice chiefs to two consecutive four-year terms, conflicts with the tribe’s Charter and Governing Document.

“If you want to change the election ordinance, you can do that,” Attorney General Mike McConnell told Tribal Council during its Sept. 1 meeting. “You cannot change the charter by changing the ordinance. The charter change requires a referendum. The opinion of the assembled attorneys in my office is that this attempt at term limits is ineffective and violates the charter.”

The current language term-limiting the tribe’s top executives was approved in 2016, through an ordinance submitted by then-Principal Chief Patrick Lambert. However, the Charter, which serves as the tribe’s highest legal authority analogous to a constitution, does not set out term limits and merely states that chiefs and vice chiefs must be at least 18 years old, enrolled members of the tribe, and serve four-year terms after winning an election. 

“If the voters want term limits, it should be done by referendum or in a constitution,” McConnell said. 

For years, a committed group of tribal members has been working to create a constitution to propose for approval from Cherokee voters, but getting the document to the finish line has proven a monumental task. A resolution aimed at bringing Tribal Council term limits to a referendum vote in the September 2023 election is under discussion and currently tabled — the document could be amended at a later date to include questions seeking to limit consecutive terms for chiefs and vice chiefs as well. 

McConnell’s position elicited fierce pushback from some on Tribal Council. The amendment Yellowhill Rep. David Wolfe proposed to remove term limits from the ordinance failed to pass, earning a weighted vote of 31 in favor and 45 against, with 24 absent. Among the five councilmembers who opposed the amendment was Big Cove Rep. Teresa McCoy, who engaged McConnell in a protracted back-and-forth over the issue. 

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“To me, that’s not contrary to anything in the charter, Mike,” McCoy said. “It’s just an additional housekeeping deal maybe.”

“I think it would be a mistake to leave it in because this ‘additional housekeeping deal’ could be interpreted by somebody who’s not in this room down the road to say, ‘I’m going to take this issue to court,’” McConnell responded. “And we want to avoid that if we can.”

“I would leave it in there and wait and see if it’s challenged,” McCoy said. “I don’t think it’s been challenged, and I personally don’t think it’s going to be challenged. I think it’s been an accepted practice by the community since 2016 and I think that it’s something we need to hold onto.”

“It hasn’t been challenged because it hasn’t been triggered,” McConnell said. “We’re about to enter a time when it could be triggered. So I’m saying this language is wrong. We should take it out, and if you want to put it in a referendum, then that’s the voters’ choice.”

After Lambert was impeached and removed in 2017, then-Vice Chief Richard Sneed was sworn into the principal chief role, and Alan “B” Ensley, then representing Yellowhill on Tribal Council, became vice chief. However, their first full terms didn’t begin until 2019, when they both won election to their seats. Should they both run again and win in 2023, the term limit question likely wouldn’t kick in until four years later, in the 2027 election. McConnell offered Tribal Council multiple legal arguments to support the conclusion that partial terms like the ones Sneed and Ensley served after the 2017 impeachment wouldn’t count when calculating term limits. 

Tribal law states that any changes to the election ordinance must take place by Sept. 30 because Oct. 1 marks the start of a new election year. The election ordinance can’t be changed during an election year. In an email, Chairman Richard French said he’s trying to schedule a final vote on the ordinance for 8:30 a.m. Thursday, Sept. 29. 

Though Tribal Council voted against striking term limits from the existing law, the proposed ordinance features several other changes, most of them minor amendments. 

“It’s our opinion that the changes that are proposed are procedural and not contentious issues,” McConnell told Tribal Council during a follow-up work session on the ordinance Wednesday, Sept. 7. 

The proposed ordinance makes permanent the longer early voting period put in place as a temporary pandemic response measure and takes out language that limited curbside voting to “elderly, handicapped or infirm” people who are “unable” to enter the polling place. Curbside voting will now be available to anybody who is “unable or unwilling” to go inside. 

The ordinance also clarifies the conditions in which an election recount may take place. The current law says that an unsuccessful candidate may request a recount “if defeated by no more than 2% of the total number of votes cast for that particular office or seat” — making it appear as though the 2% margin may be calculated based on the entire field of candidates. 

The new language states that a recount may be held if the margin is within 2% of the total number of votes cast “between the unsuccessful candidate and the immediately closest successful candidate.” Compared to the other method, this would reduce the number of votes by which two candidates could be separated while qualifying for a recount. 

“What we’ve tried to do is make the language more airtight so it’s clear about when somebody can request a recount and when the board is mandated to do a recount,” said Chris Siewers, an attorney in McConnell’s office.  

On Sept. 1, Tribal Council also adopted an amendment proposed by Wolfe that would change the start date for Board of Election terms from Sept. 1 to Sept. 30. 

“With the fiscal year starting in October, I think that would be a better date because they would come on in the new budget year,” Wolfe said. 

Additionally, he said Tribal Council’s September meeting frequently falls after Sept. 1, so changing the date would provide more time for the body to make appointments decisions. 

The start of the election year Oct. 1 kicks off a period during which all 12 Tribal Council seats, both chief offices and three School Board positions will be up for election. Filing will occur in March, with the Primary Election held Thursday, June 1. The General Election Thursday, Sept. 7. 

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