Published On: Thu, Oct 3rd, 2019

EBCI Board of Elections dismisses McCoy’s protest

 

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

The EBCI Board of Elections (BOE) has voted to dismiss the protest filed by Teresa McCoy, candidate for Principal Chief in the September General Election, following a hearing held on Sept. 23.  In a 5-0 vote (BOE member Shirley Reagan recused herself), the BOE wrote in a 12-page decision that “McCoy’s protest of the 2019 General Election for Office of the Principal Chief did not meet the minimum requirements set forth in Chapter 161 of the Cherokee Code”.

The decision was dated Monday, Sept. 30 and was made available to Robert Jumper, One Feather editor, on the afternoon of Thursday, Oct. 3.  The Sept. 23 hearing was closed to the public and the press.  The One Feather has requested a copy of the full transcript of the hearing but has not received it as of press time.

McCoy’s protest was against alleged actions of the BOE members and stated, “I have information and evidence that BOE Member Shirley Reagan and Chair Denise Ballard, and the Board as a whole, because they were aware, have violated the integrity and spirit of our elections and have violated CC (Cherokee Code) Sec. 161.17(c), 161-19(a)(g).”

Cherokee Code Sec. 161-17(c) states, “No Election Board member shall be a candidate for any tribal office or actively support any candidate for tribal office during the term for which the member is appointed to the Board.  For purposes of this section, ‘actively support’ means contributing money to, campaigning for, or openly declaring support for any candidate’.”

Cherokee Code Sec. 161-19(a) speaks to the power of BOE and (g) states, “The Board shall investigate irregularities and nonperformance of duty and violation of tribal election rules and regulations by election officials or other persons.”

McCoy said she wasn’t surprised by the outcome of her protest.  “We expected them to say exactly what they said.  We do plan to take it to court, but that will be at a later date.”

She added, “We expected a denial.”

Part of her protest involved issues she alleges with absentee voting.  “There’s a process for absentee voting.  We are going to come into Tribal Council (with legislation) and point out the problems in the Election Ordinance at a later date.”

According to information from the BOE, Richard G. Sneed won the race for Principal Chief in the General Election over McCoy with 2,131 votes (55.11 percent) to 1,736 (44.89 percent) – a difference of 395 votes.

According to the BOE decision, all BOE members (Chairperson Ballard, Reagan, Pam Straughan, Annie Owens, Margaret French, and Roger Smoker) were present for the Sept. 23 hearing as well as four attorneys including: Craig Jacobson, attorney for the BOE; Michael McConnell and Chris Siewers, EBCI Attorney General’s Office; and Carolyn West, Legislative Attorney for Tribal Council.  McCoy’s attorney was not present which caused her to seek a continuance.  The decision was authored by Jacobson.

Chairperson Ballard told the One Feather, “She (McCoy) did not prove that anything affected the outcome of the election.”

The BOE decision states, “The hearing commenced at approximately 10 a.m. with McCoy making a motion to continue the hearing.  She stated that she was requesting a continuance because her attorney could not be present.  Discussion on this motion took up a significant amount of time.”

After more discussion and a closed session during the hearing, the BOE denied McCoy’s request for a continuance.  The decision states, “McCoy had a notice of the Monday, September 23 hearing date on Tuesday, September 17.  This gave her six (6) days to prepare for the protest hearing.  In this time, McCoy did not secure the services of an attorney who would appear before the Board on her behalf at the schedule hearing.  After much back and forth, the Board voted unanimously to deny McCoy’s motion to continue and the Board proceeded with the hearing as it was originally scheduled.”

McCoy ended up being represented at the Sept. 23 hearing by lay advocate Lori Taylor.

The first issue brought up in the hearing, according to the decision, was a complaint by McCoy about alleged voting irregularities at Tsali Care Center on Aug. 28 in which she alleged that BOE Members Straughan and Reagan were present collecting absentee ballots at the Center at the same time Principal Chief Richard G. Sneed and Birdtown Reps. Albert Rose and Boyd Owle were there playing Bingo with the residents.

The decision relates that Straughan and Reagan were at the Center in the morning, around 9:30 a.m., and the tribal officials were there in the afternoon, around 2 p.m.

The decision states, “All ballots which were provided to, and retrieved from, Tsali Care residents were handled in compliance with the absentee balloting process provided in tribal law.  August 30, 2019 was the last day for absentee voting in the 2019 General Election.  On August 28, Reagan and Straughan retrieved a total of three (3) absentee ballots from Tsali Care.  Those ballots were properly transmitted to the Board of Elections and counted in the election according to standard protocol.  Reagan and Straughan were not present at Tsali Care at the same time Chief Sneed, Albert Rose, and Boyd Owle were at Tsali Care playing Bingo with the residents.”

The BOE related that a total of 42 absentee ballots were cast in the Principal Chief’s race in the General Election (31 for Sneed, 11 for McCoy).

Of the absentee balloting issue, Chairperson Ballard said, “They followed the process.  Tsali Care called with the names of the people who wanted to absentee vote.  An absentee application was mailed to them just like any other absentee voter.  We vote to approve or disapprove every absentee vote based on the criteria that was established by a referendum vote.”

She further stated, “There were only four absentee ballots that Shirley and Pam took to Tsali Care and one of the residents declined to vote, she changed her mind.  So, there were only three ballots collected at Tsali Care.”

Chairperson Ballard reaffirmed the timeline of the visit to Tsali Care by Reagan and Straughan to retrieve the ballots.  “They went at 9:30 a.m. and they left at 9:55 a.m.  They weren’t even there 50 minutes.”

The next complaint handled during the protest hearing involved a Facebook message Reagan posted on the Facebook page for Chief Sneed which read, “I was at Tsali Care today with some of the patients absentee voting.  They were excited about the Chief and some of the Council coming to play Bingo today.”

According to the decision, “Reagan admitted she made the comment on Sneed’s Facebook page.  In her testimony, Reagan explained: ‘The lady told me that she was excited after she cast her ballot.  I didn’t talk to any other voters or anything like that.  And I do not think that’s supporting Chief Sneed.  The residents were just happy that somebody from tribal government was coming to play Bingo with them.”

The decision goes on to state, “McCoy argues that Reagan’s Facebook comment constitutes an election irregularity.  Assuming arguendo that Reagan’s Facebook comment constitutes an election irregularity, McCoy has not provided any evidence that the alleged irregularity ‘unfairly and improperly or illegally affected the actual outcome of the election, and but for the irregularity, the winning candidate would not have prevailed at the polls.”

It was at this point in the hearing, according to the decision, that McCoy requested that Reagan be recused from voting on McCoy’s protest.  Reagan did recuse herself at the end of the hearing according to the decision.

The next part covered in the decision involves McCoy’s allegation that the BOE members violated Cherokee Code 117-45 (Standards for Ethical Conduct for Tribal Officials).  The BOE related in the decision on the protest that the BOE is not tasked in tribal law to handle alleged ethical violations of the Board’s members – the EBCI Office of Internal Audit & Ethics is.

McCoy also alleged in the hearing that the BOE’s denial of certification of her candidacy prior to the Primary Election in June hurt her chances in the General Election.  The decision states, “At the protest hearing, McCoy said, ‘But that I feel – I know, and I can bring people in here that will tell you and the Council and whoever they need to that they chose not to vote for me because you called me a thief.  You allowed it and you condoned it.”

After being denied certification of her candidacy, McCoy took her case to the Cherokee Supreme Court and won an appeal in which the Court ordered the BOE to certify her for the Primary Election.

The conclusion of the decision reiterates that the burden of proof is on the protestor (McCoy) and states, “McCoy’s evidence does not establish the existence of an election irregularity regarding absentee votes.  However, even assuming arguendo that the evidence did establish such as irregularity, and assuming all thirty-one (31) absentee votes for Sneed should be subtracted from his final total, Sneed’s margin of victory over McCoy would still be 364 votes.”

It continues, “McCoy’s multiple other complaints about her perceived treatment before and during the 2019 General Election fail to show that but for the alleged irregularities that the actual outcome of the election has been affected or would have been different.  Even viewing the evidence in the light most favorable to McCoy leaves McCoy with a 364 vote deficit to Sneed that she is unable to bridge.”

Chairperson Ballard noted, “Unfortunately, what was an election that went very smoothly hasn’t ended very smoothly.”

 

 

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