The body has been discussing the changes in a series of work sessions this summer but must finalize any amendments before Oct. 1. Tribal law states that the election ordinance cannot be amended during an election year, which is defined as a period from Oct. 1 to Sept. 30 during which an election is held. Tribal elections will take place in September 2021.
The election ordinance was last amended in December 2018, with that Tribal Council first passing an ordinance that amended the definition of “election year” to allow changes through Dec. 31. The definition was later changed back to the original Oct. 1 to Sept. 30 period.
The ordinance amendments are on the agenda for the Tribal Council meeting set to start at 8:30 a.m. Thursday, Sept. 3. If the proposed changes are adopted, the following provisions would go into effect.
Qualifications for office
• Chief and vice chief candidates would be 35 years old by the date of the General Election and tribal council candidates would be 18, whereas currently candidates must reach the qualifying age before the Primary Election.
• Tribal Council candidates would reside in the township they seek to represent for at least 90 days before the General Election and chief and vice chief candidates would live on tribal trust lands for at least two years, whereas currently candidates must meet the residency requirement by the date of the Primary Election.
• The list of items making a person ineligible to hold office would change so as to make the law better align with the tribe’s Charter and Governing Document. Under the proposed changes, removal by impeachment from an elected office would make a person ineligible, but removal by impeachment from an appointed office would not. The proposed changes remove a provision stating a person would become ineligible to run after resigning from office while under criminal investigation or pending charges for fraud. A provision adopted in 2018 would also be removed, which states that someone who is more than 90 days in default of a debt to the tribe would be disqualified.
Certification of candidates
• The filing period would shorten from the previous window of March 1-15 to run from the first Monday to the first Friday in March.
• The Board of Elections would have the power to require any candidate to appear before it and answer questions about his or her application for candidacy.
• The law would affirmatively state that the board “shall” certify any candidate who meets all the qualifications for office and is not disqualified for running.
• Currently, the Board of Elections sends notice to each candidate after the filing period ends stating that it has either certified or declined to certify that candidate, and candidates who are not certified can appeal the decision. Under the proposed changes, the board would be required to hold a hearing before making a decision on certification in any cases in which eligibility is unclear.
• In the case of a certification hearing, the applicant would have the right to ask the Board to issue subpoenas on his or her behalf. The board would be able to issue subpoenas on its own behalf as well.
• The applicant would bear the burden of proof to prove “by a preponderance of the evidence” that he or she meets the qualifications for candidacy.
• The Board of Elections must publish a list of candidates in the Cherokee One Feather by April 15, and if any additional candidates are certified after that date, the entire list must be republished with the new name included as soon as possible.
• In decertification hearings, the burden of proof would be on the moving party, not the candidate, to prove “by a preponderance of evidence” that the person is not qualified to run for office.
Election regularities and protests
• Only enrolled members who are registered to vote in tribal elections would be able to file a protest alleging election irregularities.
• The board could decide not to order a hearing if it determines that the protest fails to meet the minimum requirements set forth in Cherokee Code 161-16(b); or if the alleged regularities “even if taken as true in the light most favorable to the protestor” cannot be shown to have affected the election’s ultimate outcome. The current ordinance states that the board can decline to hold a hearing if it determines that it can render an “informed decision” based on the written protest and supporting materials;
• If the decision is appealed to the Cherokee Supreme Court, notice of appeal must be given no later than three business days after the final decision is served.
• The board can apply to the Cherokee Court for an order requiring compliance with subpoenas should any person or entity refuse to obey a subpoena the board issues.
• Write-in candidates must file with the Board of Elections between the first Monday and the first Friday in April preceding a Primary Election. Currently the window extends from April 1 to April 15.
• A candidate may voluntarily withdraw from the race by submitting a written letter to the board stating that desire. The candidate’s name will be removed from the ballot if the ballots have not yet been printed. If the ballots have been printed, all votes for that candidate will be considered null and void.
• The immediate family members who reside in the household of a tribal member serving active military duty would be eligible for an absentee ballot.
• It would be illegal to photograph or otherwise record the image of any voter within the voting closure, or to photograph or otherwise record a voted ballot.
• Email and text messages would be listed as acceptable methods for official communication from the board.
• Language stating that parties to hearings before the board have the right to a lay advocate represent them would be stricken, but language stating the right to an attorney would remain.