The Eastern Band of Cherokee Indians Board of Elections released its ruling ordering a runoff late afternoon Thursday, Sept. 28, just before the deadline to decide following a hearing Thursday, Sept. 21. The board concluded that a recount of the ballots “has not determined the accurate vote count” and ordered that a runoff election between the two candidates be held Tuesday, Oct. 10. The runoff election will not include opportunities for absentee or early voting.
The issue stems from a recount that Sessions requested when preliminary results showed her trailing Rose by 12 votes, a margin of 0.7 percent — tribal law permits any candidate to request a recount when the margin is less than 2 percent.
During the recount, election board members discovered a large number of ballots that had gone uncounted during the machine tabulation on election night. Rose picked up 12 votes, while Sessions gained 29 votes — enough for her to defeat Rose by five votes.
“I was kind of dumbfounded looking at that,” Election Board Chair Denise Ballard said during a recount of the Snowbird election Sept. 18. “I didn’t understand.”
The unprecedented increase in votes led the Election Board to conduct hand counts of all races, even those not within the 2 percent margin.
Diagnosing the problem
Upon investigation and discussion with Automated Election Services, the company the tribe contracts with to handle its elections, a picture began to form. Nearly all of the surplus votes came from early voting, which the tribe offered for the first time this year.
“We didn’t anticipate such a turnout,” Ballard said Sept. 18.
On that last day of early voting, poll workers ran out of early voting ballots. So, they decided to use blank absentee ballots instead, crossing out the word “absentee” and designating the ballots as early voting ballots instead.
“The machine did not read any votes on those substitute ballots,” Ballard said. “It read the ballot, counted the ballot, but did not read any marks on the ballots.”
It’s possible that the pens used to mark those early voting ballots could have been at fault as well, Mario Ruîz of AES told Tribal Council Sept. 27.
“It looks like there was an issue with contaminated ink or old pens in the batch, which weren’t rendering a dark enough mark for the machine to read,” Ruîz told Council.
According to findings in the board’s written decision ordering the runoff, the machine tabulator counted only 148 early votes in the Birdtown race when it should have counted 155. Of those 155 ballots, 55 were absentee ballots altered to serve as early voting ballots. They were not all votes for Rose or Sessions. During a hand count of votes for the other two candidates, Boyd Owle picked up 30 votes and Travis Smith gained seven.
When questioned, Ruîz told Tribal Council that he’d never seen anything close to the 4 percent increase in votes discovered in the Rose-Sessions contest during his 10 years in the business. However, he was also unequivocal on how best to find the true vote totals.
“I stand here before you to say I think our best move and the best thing to get the truth and utmost results is to do the hand count, and that’s what the election board had done,” he said.
Several councilmembers questioned that conclusion.
“It just doesn’t make sense to me,” said Councilmember Tommye Saunooke, of Painttown. “If it (the ink) is contaminated they just have to guess which one’s right?”
Ruîz explained that the marks made by contaminated ink are invisible only to the machine, not to the human eye.
“It to the human eye is 100 percent dark,” he said. “I’ve actually been part of a recount here years ago. I’ve been part of that so I have 100 percent faith in the election board that the election was done correctly.”
“Mr. Rose asked you if you’d ever seen such a discrepancy,” Saunooke replied. “If you see such a discrepancy, what’s your recommendation? Another election, or what?”
“We usually do a recount,” Ruîz repeated.
Councilmember Travis Smith, of Birdtown, had the next question after reading an online article about rejected ballots.
“It says a rejected ballot is one that has made its way to a ballot box and has been rejected at the counter,” he said, continuing to read that it’s a ballot that “doesn’t clearly reflect the choice of the voter.”
“If it doesn’t clearly reflect that that’s a choice, why would you count it?” he asked.
Ruiz explained that ballots that don’t clearly reflect the voter’s intent are not included in election results. The previously uncounted early voting ballots, meanwhile, had clearly reflected voter intent — the machine just hadn’t read them.
“If the ballot gets kicked out on Election Day you say, ‘Ma’am, sir, your ballot kicked out. Let’s guide you to a new ballot.’ In absentee and early voting you take that away and we hope that the voters are doing their part away from there when they mail it in,” Ruîz said.
“If a ballot kicks out and you can’t tell the intent, it has to be rejected,” he continued. “You can’t guess for a voter. You cannot make a decision based on that maybe looks right.”
“We know that better than you do,” said Chairman Bill Taylor, of Wolfetown.
“And that’s what I’m getting at,” said Smith. “If it’s a rejected ballot, why would you even hand count it if it’s not clear that that’s a mark?”
Smith’s comments continued from there, and Ruiz did not have the opportunity to answer that question for the second time.
Later in the conversation, Smith questioned Ballard as to security measures inside the Board of Election offices, asking about the possibility that ballots had been tampered with.
“Is there security cameras in the office?” he asked.
“I don’t think there’s even security cameras in our hallway,” Ballard replied.
“If someone had a key they could have gone in there and fixed these ballots?” said Smith.
“That’s a possibility. I guess that’s always a possibility,” Ballard said.
“With those questions being asked and the possibility being there, it don’t sound good. It don’t sound good,” Smith replied.
Ballard said that Election Board members, the board’s employee and the building manager all have keys to the office. However, she told The Smoky Mountain News in a Sept. 14 interview, only one person had the key to the box where the used ballots were kept. Blank early voting ballots were kept in an unlocked box.
“Everybody’s saying, ‘Oh, nothing’s secure,’ which I disagree with,” Ballard said Sept. 14.
On Sept. 28, Smith asked that tribal leaders consider an investigation into how the election was conducted, saying that, “there needs to be some clarity to what’s happened here.” Councilmembers seemed to agree that an independent third party would best do the investigation with oversight by the executive office, whose leaders were not up for election this year.
Principal Chief Richard Sneed said that he would bring in a resolution during next month’s council meeting.
Election results certified
New councilmembers were sworn in as planned on Monday, Oct. 2, taking their oaths of office surrounded by family members on the stage at the Cherokee Indian Fair Grounds. However, Birdtown was short one representative on that stage, as neither Rose nor Sessions will be sworn in until the runoff results are tabulated.
Some in Cherokee were worried that new members wouldn’t be sworn in at all following comments from several councilmembers in the Sept. 27 session.
During that meeting, Taylor had pointed out that tribal law charges Council with certifying election results — implying that the body could refuse to recognize new members — with Smith and Saunooke both expressing hesitance at certifying results before all results were final.
“During the 15 days (before the runoff election) the old council would remain, is that correct, until a new council is seated?” Saunooke asked.
“That’s up to you whether you decide to certify the election,” Ballard said.
“Travis (Smith) is right, we can’t certify till we know for sure,” Saunooke said.
Smith then pointed out Section 2 of the tribe’s Charter and Governing Document, which outlines qualifications for elected offices and says that, “all officers shall hold office until their successors are duly qualified.”
However, during Council’s cleanup session the next day, both Taylor and Smith said that their comments shouldn’t be construed to mean they’re trying to get their seats back. Both men came in last in their respective elections, more than 100 votes behind the second-place winning candidate.
“I was outvoted and I’m going to the house,” Taylor said Sept. 28. “I’m not going to sit here and make accusations. I get beat, I’ll go to the house. I’ll live to fight another day.”
“I want to be clear, if there was something done wrong, they need to be held liable for it,” Smith said. “And that’s the bottom line. I don’t want no votes changed, I don’t want no seats changed.”
Ultimately, the 2015-2017 Tribal Council voted unanimously to certify the election results before closing out the term Monday morning, with 11 representatives sworn in shortly thereafter.
Hearing before the Election Board
The election protest hearing between Rose and Sessions carried with it echoes of the divide that’s persisted in Cherokee since Tribal Council first began publicly discussing the impeachment of former Principal Chief Patrick Lambert in February.
Rose had been pro-impeachment; Sessions was anti-impeachment. During the hearing, Sessions was represented by attorney Scott Jones, who had represented Lambert during the impeachment proceedings. And Rose was represented by Rob Saunooke and Chris Siewers, both of whom had been hired to present the case for impeachment before Tribal Council.
Rob Saunooke’s central claim was that, because the absentee ballots used in place of early voting ballots weren’t read by the machine, the machine’s ticker tape — which is supposed to produce a record each time a ballot is cast — couldn’t accurately show how many ballots had been cast. Therefore, he said, it’s impossible to know whether the 41 extra votes that the recount revealed for Sessions and Rose are legitimate votes.
“I don’t think, and no one can prove, any illegal act, that someone did or didn’t do something,” Rob Saunooke said in the hearing, according to a transcript provided to The Smoky Mountain News. “That’s not the issue here. But it — you know, the question is: Is this vote the clear and accurate vote of those who participated? And that three-day window between the end of the election, the initial, the final tally, and then a recount creates that suspicion.”
For his part, Jones argued that Rob Saunooke hadn’t proven what the law required he prove in order to hold a runoff election.
“What they have to show is that the things they’re complaining about changed the positions, not that they think it did, not that maybe it could have, but that it actually changed the outcome,” he said. “It didn’t. You folks hand counted all the Birdtown ballots twice. You came to the same results with Ms. Sessions being the second place candidate when you did the actual hand recount of all the ballots.”
Rob Saunooke replied that the absence of an accurate ticker tape is enough to call the election’s legitimacy into question.
“If I snuck in somehow with a key and put 100 more ballots in that box, you have no way of knowing if I did or didn’t,” he said.
Jones rejected that premise.
“The ballot boxes were sealed and the seals were numbered and the seals were cut off at the time. So nobody stuffed 100 extra ballots in the ballot boxes,” he said.
The board agreed that Rose had failed to prove that election irregularities changed the outcome. However, its decision continued, the board conducted its own fact-finding investigation and decided to order the runoff election based on those findings.
The decision to call a runoff election hinged on three findings: that one person who was not a registered Birdtown voter was found to have voted in the election; that boxes with blank early voting ballots were not locked; and that the 55 absentee ballots hand-changed for use as early voting ballots “cannot be relied upon, and should not have been used.” However, the decision did not elaborate as to what made these substitute ballots unreliable.
The decision did not have unanimous support from board members. Board member Margaret French, of Big Cove, wrote the word “disagree” underneath her signature on the document. Phone calls requesting comment on that stance were not returned.
Supreme Court ruling sought
Sessions is asking the Cherokee Supreme Court to overturn the board’s decision, arguing that Rose’s protest should have been dismissed when he failed to meet his burden of proof and that the board’s conclusion that a runoff is necessary is not supported by its own findings of fact.
Cherokee law allows the Board of Elections to call a runoff election between “all candidates that the Board deems as necessary to resolve any issues concerning the accuracy of the vote count” if it determines that “a recount of ballots would not determine the accurate vote count.” However, Jones argued in the brief he filed on Sessions’ behalf, “the Board’s conclusion that ballots which were actually cast and which they physically viewed and counted twice cannot be relied upon is illogical, and not supported by evidence.”
Further, Jones said, even if the use of absentee ballots as early voting ballots made the hand count unreliable, it wouldn’t make sense to limit the runoff election to Rose and Sessions.
“All four candidates in Birdtown (and indeed all 24 candidates for Tribal Council) received early votes that the Board now concludes, without any factual basis, are suspect,” he wrote in his brief.
While Birdtown certainly picked up the most new votes in the recount — between all four candidates, 78 additional votes were counted — candidates in every community picked up votes when the issue with early voting was discovered and the election board decided to hand count every race. Birdtown has the most registered voters of any township, as well as the most people voting in the race. However, Wolfetown/Big Y, which had 87.8 percent the number of ballots as Birdtown, had 24 additional votes. The smaller communities of Big Cove, Yellowhill, Snowbird/Cherokee County and Painttown had gains of 18, 6, 16 and 13, respectively.
The Rose-Sessions race was not the only one to finish by a thin margin. Following the recount, Perry Shell of Big Cove beat Fred Penick by 11 votes, and Lisa Taylor of Painttown beat Terri Henry and Yona Wade by seven votes.
As of press time, neither Interim Attorney General Mike McConnell nor Rose’s attorney Rob Saunooke had filed their response briefs. However, in an interview conducted before announcement of the lawsuit, Rose said that he agrees with the Election Board’s decision and believes that the runoff should be restricted to him and Sessions, as theirs were the only results under discussion at the protest hearing.
“The 4 percent swing (in vote counts), that’s unheard of. That doesn’t happen. So the runoff’s the right decision,” Rose said. “It gives a clear winner in Birdtown. That way whoever’s sitting there the next two years is not going to be told, ‘Oh, you’re not supposed to be there.’”
The case is scheduled for a hearing at 1 p.m. Wednesday, Oct. 4.
Council elects new leadership
Following the inauguration of new members Oct. 2, Tribal Council made its way to the councilhouse for a brief session in which it elected its new chairman and vice chairman.
Both Adam Wachacha and Richard French were nominated for the chairman’s seat, with Wachacha winning 57-31. Voting for Wachacha were Tommye Saunooke, David Wolfe, Bo Crowe, Tom Wahnetah, Perry Shell, Boyd Owle and Wachacha. Voting for French were Lisa Taylor, Jeremy Wilson, Bucky Brown and French.
During the previous term, Wachacha had been consistently for the impeachment and French had been consistently against it.
David Wolfe was chosen as vice chairman with no opposing nominations. Wolfe has previously served on the Tribal Council but did not run for re-election in 2015 in order to run for principal chief.
Revised election results
Following discovery of uncounted ballots during a recount in the Birdtown Tribal Council race, all votes were recounted. The new totals below were certified by Tribal Council Oct. 2.
• Richard French, 241 (increase of 5 from preliminary results)
• Perry Shell, 177 (+3)
• Fred Penick, 166 (+4)
• Lori Taylor, 139 (+6)
• Boyd Owle 536, (+30)
• Ashley Sessions, 448 (+29)*
• Albert Rose, 443 (+12)*
• Travis Smith, 330 (+7)
• Tommye Saunooke, 210 (+2)
• Lisa Taylor, 167 (+7)
• Terri Henry, 160 (+1)
• Yona Wade, 160 (+3)
• Bucky Brown, 240 (+3)
• Adam Wachacha, 239 (+5)
• Larry Blythe, 212 (+2)
• Janell Rattler, 199 (+6)
• Bo Crowe, 508 (-5)
• Jeremy Wilson, 393 (+8)
• Sam “Frell” Reed, 357 (+13)
• Bill Taylor, 244 (+6)
• David Wolfe, 255 (+1)
• Tom Wahnetah, 214 (+2)
• Charles Penick, 149 (+1)
• Anita Lossiah, 104 (+2)
• Karen “French” Browning, 207 (+1)
• Tammy Bradley, 169 (+2)
• Isaac “Ike” Long, 294 (+4)
• Chelsea Taylor Saunooke, 282 (+6)
• Gloria “Punkin” Griffin, 512 (+7)
• Sasha McCoy Watty, 406 (+9)
* The Board of Elections found these vote totals unreliable and ordered a runoff election between the two candidates. These numbers have not been certified.