Candidate Ashley Sessions had filed the suit following a Sept. 21 hearing in which the Eastern Band of Cherokee Indians Board of Elections decided that the early voting ballots that gave her a five-vote lead over incumbent Albert Rose “cannot be relied upon,” and that a runoff election should be held to determine the true winner.
Initial results of the Sept. 7 General Election had placed Rose as the second-place vote-getter, winning the second Birdtown seat over Sessions with a margin of 12 votes. But when Sessions asked for a hand count of votes, election workers discovered a large number of early voting ballots that the machine had failed to read on election night. These votes caused Sessions’ total to increase by 29 and Rose’s to increase by 12 — enough for Sessions’ 12-vote loss to turn into a five-vote win.
However, Rose disputed the legitimacy of the increased vote totals. In a Sept. 14 letter to the Board of Elections, he asserted that election regularities that “unfairly and improperly affected the actual outcome of the election” were to blame for the reversal of the results, and the board held a hearing on the matter Sept. 21. Both Sessions and Rose attended the hearing, along with their attorneys. When the board released its decision one week later, it was to affirm Rose’s assessment that election regularities had made the voting results unreliable and to order a runoff election between Rose and Sessions to determine the winner of the seat. While Rose had not offered evidence to prove the existence or impact of election regularities, the board’s decision said, the board’s own investigation had turned up sufficient evidence to warrant a runoff.
Basis for a runoff
The very next day, Sessions filed an appeal asking the Cherokee Supreme Court to hold an expedited hearing on the issue. She sought an order that the Board of Elections certify the recount results declaring her the winner and cancel the runoff election.
That hearing was held Wednesday, Oct. 4, and lasted for about three hours. Chief Justice Kirk Saunooke had recused himself from the proceedings, leaving Brenda Toineeta Pipestem as presiding chief justice with Sharon Tracey Barrett and Jerry Waddell serving as associate justices by appointment.
The crux of Sessions’ argument, presented by her attorney Scott Jones, was that the election board’s decision did not include any findings of fact to support its conclusion that the recount results were unreliable.
“The board came to the decision it wanted to come to, but it does not have findings — even in their minutes — to support their conclusion,” Jones told the court.
Mike McConnell, interim attorney general for the tribe who represented the Board of Elections in the case, argued that the board’s decision did indeed contain findings of fact supporting its conclusion. The decision states that, while every candidate in every community picked up some votes when the uncounted early votes were found, the Birdtown candidates picked up disproportionately more, a “large discrepancy” that the board cannot explain.
McConnell also pointed to the board’s findings that, while the box containing marked ballots had been locked securely, the box containing unmarked early voting ballots was stored unlocked. In addition, the board discovered that one person who should not have been allowed to vote in Birdtown — a relative of Sessions — voted in the election.
The core finding McConnell pointed to was the finding that, when poll workers ran out of early voting ballots during the last day of early voting, they addressed the issue by relabeling absentee ballots to serve as early voting ballots. Though in most cases the machines recorded these ballots as being cast, they were unable to read the votes marked on them, leading to the discrepancy in vote counts between election night and the recount. In total, 55 absentee ballots were used as early voting ballots in Birdtown, and of the 155 early votes cast in that township the machine recorded only 148 of them as being cast.
“In this case we can show that the actual outcome would have changed, because those 55 absentee ballots that were used as early voting ballots — take those 55 away and that’s almost double the margin of votes that Ms. Sessions gained,” McConnell said. “It’s five times the margin that Mr. Rose gained in the recount.”
Jones disagreed with that assessment.
“Those findings showed nothing more than that the machine count was inaccurate,” he said. “There is nothing in those findings to show that the hand recount of all the ballots livestreamed for everybody to see was inaccurate. Everybody got to see it, and it was accurate.”
Sessions and Rose were not the only candidates to pick up significant numbers of votes following the recount. The discrepancy discovered in that race led to a hand count of ballots in all townships, and every candidate for Tribal Council picked up some number of votes, though the increases were largest in Birdtown. Boyd Owle, the top vote-getter in Birdtown, had the largest increase with 30 extra votes.
Later in the proceedings, Rose’s attorney Rob Saunooke pointed to tribal law requiring early voting ballots to be “marked and distinctly colored from the absentee and regular voting ballots” as a reason why those substitute early voting ballots should be immediately discredited.
“To try to accommodate this desire to vote (when early voting ballots ran out) they made a split-second decision and crossed out an absentee ballot and tried to make that an early voting ballot,” Saunooke said. “Well, that violates the law, and if you break the law in the process of the election, how can you certify and verify the result?”
Jones agreed that the law stipulates that early voting and absentee ballots should look different from each other but disagreed with Saunooke’s view that this mistake on the election board’s part should trigger a runoff election.
“If the statute said you use pink ballots and they end up using green because there was a shortage of pink paper, that doesn’t affect the outcome of the election,” he said. “It just doesn’t affect the outcome, and that’s what matters.”
In his argument, Jones drew heavily from the court’s 2003 opinion in a case regarding the outcome of the Snowbird/Cherokee County Tribal Council election. In that case, the Board of Elections found that at least 100 illegal absentee ballots were counted in the election, prompting it to call a runoff election between three of the four candidates. However, the Supreme Court ruled that the general finding that some people had voted illegally wasn’t enough to trigger a runoff election — the Board of Elections would need to have evidence “showing how each named voter failed to meet the requirements to vote absentee in that township.”
“You have to have findings in the decision that support the decision and conclusion, and that’s not there,” Jones said of the current situation. “If I were a brave lawyer I would have stood up here and said that in the first two or three minutes and sat down.”
While election laws have changed since 2003, Jones said, the sections pertinent to the Kephart case have not. However, in its opinion the Supreme Court said that Jones’ reliance on the Kephart decision was “misplaced” and that the “laws and statutory language governing the Board of Elections in 2004 were very different from the facts in this case and the current statutory language.”
Jones also fought against Saunooke’s description of the initially uncounted early votes as “mysteriously appearing.”
“No ballots mysteriously appeared,” Jones said. “There’s nothing mysterious about this. There were some ballots that had some handwriting on them and the machines didn’t count them. When those ballots are taken and hand counted, you end up with more.”
Further, he said, the ballots that voters had already marked were securely stored. While the unmarked early voting ballots were not locked up, there is no evidence that anybody tampered with them or submitted extra votes.
The attorneys also spoke at length about the board’s authority to conduct investigations and order runoff elections. While all agreed that the board can conduct investigations of its own volition, Jones argued that a runoff election — in a case where candidates are not tied for votes — is an option only when a hearing is conducted on a protest and the party making the protest proves, with evidence, that counting the ballots would not give an accurate picture of the voting results.
The board’s decision stated that Rose “did not present any new evidence at the (protest) hearing. In that regard, he did not meet the burden imposed on him” in the Cherokee code. Therefore, Jones argued, the board had no right to order a runoff election.
McConnell and Saunooke, meanwhile, contended that the code gives the election board broad authority to address election irregularities, and that it could decide to order a runoff regardless of whether the evidence for that decision is presented in a protest hearing or found as part of an independent investigation — as long as there is evidence.
Supreme Court decision
In a five-page opinion released Friday, Oct. 6, the Supreme Court came down clearly on Rose’s side.
In the court’s view, the board’s investigation found “numerous specific facts about irregularities related to this election.” The findings were enough to show that a recount would not yield an accurate vote count, the court found, and when that’s the case, “the board is required by law to conduct a runoff election.”
The irregularities in this case affected a sufficient number of votes to call the results into question, the court found. The 55 votes cast using substitute early voting ballots would certainly be enough to swing the election, and even the seven ballots that the machine failed to recognize as being cast would have been sufficient to change the five-vote margin between Rose and Sessions following the recount. In that context, the court found, even the single vote of the person found to have illegally registered as a Birdtown voter could have made the difference.
The court also sided with McConnell and Saunooke on the question of the election board’s authority. The reading that Jones proposed, which would give the board the authority to declare a runoff election only if evidence presented in a protest hearing met the burden of proof outlined in the code, would “handcuff the Board of Elections in performing its duties and could require it to disregard information it obtains from its own investigations of irregularities,” the opinion reads.
The Supreme Court decision was the final word on the election issue, making the Oct. 10 runoff a sure thing.
Saunooke applauded the ruling.
“I fully support the decisions of the Cherokee Supreme Court,” he said.
Jones, meanwhile, maintained that Sessions should have been declared the winner outright.
“We are extremely disappointed with the court’s decision. We respect the court’s decision, but we believe it’s wrong,” Jones said Monday, Oct. 9. “Because of the way the system’s set up, tribal members who are able only to vote absentee or early voting will be disenfranchised. They had an opportunity to vote in the General Election but they will not have an opportunity to vote tomorrow.”
McConnell declined to comment on the case.
Election updates online
The Smoky Mountain News went to press just before polls closed Tuesday, preventing runoff results in the race between Albert Rose and Ashley Sessions from being printed here. However, results will be posted online at www.smokymountainnews.com and reported in the Oct. 18 print issue.
The election included only two candidates — Rose and Sessions — rather than all four candidates who ran in September’s General Election. The difference between the other two, first-place Boyd Owle and fourth-place Travis Smith, was 206 votes and well outside the number of disputed ballots. Owle was sworn into office Oct. 2 along with the other newly elected councilmembers. The runoff did not include opportunity for absentee or early voting, meaning that tribal members registered in Birdtown who were traveling or live away from the Qualla Boundary could not participate. However, Birdtown voters who are tribal employees were granted an hour of administrative leave Oct. 10 to cast a ballot.