Postelection Statement on Cherokee Nation Elections, June 1, 1999

ATLANTA, GA....Before going into details, we would once again like to congratulate you on your dedication to well-run tribal elections and to the professionalism and unflappability of your staff. If you accomplished nothing else in this election, your voters can feel confident they have a truly secret ballot which should go a long way toward building their trust in the elections process of the Cherokee Nation.

You have received a copy of our "Preliminary Statement" which summarizes our observations from all the precincts visited and touches upon issues raised in our visits with you, your staff, and other interested parties. As promised, we are also relating our observations to a review of your laws, rules and procedures and offer suggestions you might wish to take into account as you consider possible revision to these documents. Based on our conversations it is clear you have already given thought to many of them but we include them to encourage their inclusion in your further deliberations and for the sake of completeness.

We offer these thoughts in full recognition that you will consider them in the context of their appropriateness to the Cherokee Nation to which we can only bring a surface understanding. Nevertheless, in the context of our commitment to the principle that all members of a society should have a fair and equal opportunity to participate in the choice of who and how they are governed, we believe incorporating these changes could further that goal.

We begin with some general, overarching observations which will feature in some of the suggestions made later on in this memorandum:

1. All candidates should be able to count on open and fair elections conducted on a level playing field;
2. Elections should be as inclusive as possible. Any population in which less than twenty percent are registered to vote is prima facie a system which is exclusive, unless it happens to be a society in which a select group of people have been designated by tradition or other means acceptable to the citizens to represent them;
3. There are perils in low voter participation as it opens the door to manipulation of outcomes through marginal activities as a few swing votes can have a significant impact on outcomes;
4. Independence of a elections commission contributes significantly to the perception of impartiality in the conduct of elections;
5. While ad hoc decision making is an inescapable feature of election day, this should be minimized through clearer and tighter rules. Otherwise, reports of specific incidents of interpretations of rules are immediately generalized to assert they are part of a conspiracy to commit fraud. (Challenged ballots, No. 2 under "Election Day Issues" is a case in point.)

REGISTRATION
The question to be answered is: Do you believe that if you are a registered member of the tribe you should be able to vote based solely on that membership? The most common complaint heard by our observers arose from those who believed the answer to this question is "yes." A decision needs to be made if the majority feel this way as there are those who would argue that it is the obligation of interested citizens to register to vote. Whichever position is agreed upon, steps need to be taken to explain that decision and the actions required by voters.

The type of documentation required to vote will then derive therefrom. It is not clear how this message is best delivered to the voters as the Commission staff can not be faulted for their efforts to advertise the rule changes, first when changes were enacted in 1989 and again through a public campaign in July 1994; yet, many voters are still confused and disenfranchised.

Consistent with what was said in the opening above and our understanding that the Cherokee Nation wishes to continue choosing its leadership through open elections, we suggest the Commission consider the following options:

1. Eliminate registration entirely. This can be done in several ways:

• Voting on the basis of tribal registration (blue card) with no permanent voter registration list maintained. Multiple voting in different precincts would be eliminated by checking tribal registration numbers against the master list;
• Allowing day-of-election registration (Minnesota, Wisconsin, Maine). The voter simply appears with the blue tribal registration card and a picture ID, casts a ballot and is logged into the system. Previously registered voters proceed as usual. Key to this system is a method of ensuring the voter does not vote in several precincts. Just as above, this is accomplished by logging his/her name into the computer data base shared by all precincts. Attempts to vote more than once are also subject to criminal penalties. If there is no computerized, shared data base, this system requires that ballots of these voters be counted separately to enable cross-checking after the fact;
• Converting the blue card into a permanent ID card would facilitate either of the above options.

2. If registration continues to be the basis for voting, then certain enhancements appear warranted:

• The Elections Commission, working with the tribal registrar, should explore ways to encourage or induce members of the tribe to notify address and /or name changes so that both the tribal and voter registrations are more up to date;
• Shorter deadlines set before each election, e.g., 60 – 45 - 30 days, should be established;
• Anyone whose 18th birthday falls within the period up to election day should be allowed to register. If a runoff is needed, those turning eighteen in the intervening period should be allowed to register.

ABSENTEE VOTING
In the recent elections the rules on the books were rigidly adhered to and secrecy protected. We are, therefore, speaking here of ways to make voting easier while protecting the integrity of the process:

1. Consider eliminating the requirement for notarization of absentee ballots. Given the relatively large percentage of absentee ballots, the desire for some form of control is understandable. But notarized ballots have become an anachronism in other elections and costs of notarials serve as a form of poll tax. Anyone trying to beat the system by voting for deceased voters or the like will no doubt have figured out a way to beat the notary process as well. Both Articles 77 and 91 of the elections act provide for affidavits;
2. Provisions should be made for "absentee walk-ins." The law mentions only mail. A drop off box could be available at the Commission offices prior to and on election day. Similarly, provision should be made in the rules that a voter who walks in with an unmarked absentee ballot could have that ballot voided, recorded, and proceed to vote as a regular voter;
3. Perhaps the basic idea of "no excuse" absentee voting (Article 71) should be reconsidered. We have in mind the so-called "in bounds" voters. Why are they not required to explain their absence from their precinct on election day as in US elections? This might reduce "ballot chasing" where candidates help individuals apply for absentee ballots, follow the ballots to their residence when mailed out and then help cast the ballot – a practice for which several individuals in Georgia have been convicted. (Note. From what we understand of procedures in Oklahoma elections, voters are allowed to cast absentee ballots "with reason" up to 45 days prior to the election but are allowed to go to the elections office and cast "early ballots" in the three days just prior to election day.)

Selection of districts. Under current rules, absentee voters are allowed to select the district in which they will vote at each general election, a rule instituted when districts were created in 1987. This allows for considerable pre-election maneuvering. Candidates linked into the network of absentee voters can encourage them to focus on a particular district. Several individuals complained to us that Council representation does not truly reflect the will of the voters who live in the district -- those who depend on Council decisions for benefits -- but rather has been decided by those who don't live there.

Whether or not the many perceptions about the impact of absentee voters are true, the fact is that the current system does leave itself open to being manipulated. Is it fair to suggest absentee voters should only cast ballots for chief and deputy chief in a system where absenteeism is a matter of permanent residence rather than temporary absence on election day?

ELECTION DAY ISSUES
The basic principle – "Keep it Simple"

Most of the following are minor suggestions growing out of confusion between some of the rules and guidelines which leave too much open to interpretation. The main situations we encountered were confusion, bordering on chaos in several instances, in the closing procedures, handling of exceptions such as challenged ballots and the role of watchers.

1. Closing instructions are too complex with lack of clarity in what the precinct workers have to do. The appearance of the manual is that it is step-by-step but there are too many steps and, in the normal haste to get the returns in, workers quickly become frustrated and different members of the team interpret the steps differently. This can also be addressed by more adequate training on closing procedures – including the concept of a "inclusive number." Every one of us had the experience of confusion over accounting for ballots when ballot numbers were subtracted, thus coming up one short, by failing to take into account that the first number must be included, e.g., 3101 to 3175 is 75 ballots, not 74;
2. The manual needs to be precise on how to handle exceptions and Commission members, Commission staff and precinct workers all need to be working from the same instructions. Perhaps the least understood is the "challenged" ballot where the rules applied were not consistent with Article 64 B, perhaps because this section was not updated to take into account the new electronic counting of ballots. In any event, the term "entitled to vote" seemed to have various interpretations. Some election offices have prepared a special "troubleshooters" manual to cover such problems.
3. Access of the press and photographers arose at the last moment in these elections, partly due to our presence. Rules should be worked out and promulgated well in advance. The tradeoff between the public learning more about the elections process versus intruding on the rights of voters needs to be considered;
4. At some sites voters found a confusing labyrinth to negotiate in finally finding the polling station. Barrier-free and easy access should be the rule;
5. The rule on no political activity within 300 feet of the polling station was by and large observed but there is lack of clarity in the rules. At one site a precinct worker parked next to the station with a campaign poster on the side of the vehicle. The type of activity allowed varied with aggressive campaigners accosting voters at several sites. The precincts should be provided with a stake and a plastic sign that is positioned at the 300 foot mark by the inspector.
6. A condition in every contract for a polling site should include access to regular telephone service so that precinct inspectors do not have to rely on cell phones;
7. We found the rules for watchers overly restrictive compared with any we have witnessed elsewhere. We are not in a position to judge why more candidates do not nominate watchers but we believe watchers play a very important role in reassuring voters that all activities at the precinct are above board. While rules should ensure that watchers do not disrupt the flow of voting nor disturb voters, watchers should have the opportunity to raise questions if they have them. Watchers should also be provided a form to complete at the end of the day so the Commission can benefit from their observations. The most productive use of watchers is to have them call the Commission immediately if they see something major that could jeopardize the outcome of the election. Such a call could alert the Commission into fast corrective action that would so minimize the problem as to save the elections and avoid legal proceedings.

ELECTORAL JUSTICE SYSTEM

Procedures need to be codified for appeals by non-candidates. When we asked the question about how voters appeal decisions of the Elections Commission, we were advised they know they can always appeal to a member of the Tribunal. This is too informal. Voters who have had rulings made on registration, where to vote or on challenged ballots should know precisely what their recourse may be.

The financial costs of certain actions should be reviewed, hopefully lowered:

1. Cost recovery may be a consideration in the current charges, but they are high for candidates with few resources;
2. In Article 25 A, terms such as "complete voters list", "individual district lists" and "nine-district lists" are used. Council candidates are restricted to the list from their district. Then under Article 25 B any member of the Nation can buy the Qualified Voter list, updated to the time of purchase. Each list would cost $100; a Council candidate pays $200, $100 for the Qualified list and $100 for the list of those who requested absentee ballot;
3. Article 25 C (Use of Lists) appears impractical and difficult to enforce even though the intent is understandable. These are, after all, public records;
4. Current rules place the cost of a recount entirely upon the candidate. In some states, e.g., Georgia, if the difference between the winning and losing candidate is less than one percent, the state pays the cost. If the difference is greater than one percent, the candidate puts up the money which is nonrefundable if the recount does not reverse the outcome. Note on Article 94 C, last sentence: It would appear that the way for the Commission to avoid a recount is to ensure that ballots are not properly preserved, however that is defined;
5. The provision for a $5000 cash bond in the case of a contested election (Article 101 C) is puzzling. While the need to avoid frivolous petitions is understandable, the idea of posting bond to guarantee payment for potential liabilities or judgments is unusual.

OTHER OBSERVATIONS
Issues of Substance
There are several structural issues which concern us stemming from our reading of various documents and less from direct observation. They do, however, hold the potential for impacting on elections.

1. Foremost among these is the question of the list of registered members of the Cherokee Nation. The provisions in Article III (Membership) of the 1976 Constitution speak to the role of the Registration Committee in enrolling members. They are silent on the question of the status of the Register itself. Is this a confidential document? Who has charge of it and who has access? Under what conditions may it be made available to other than the Committee? For what purposes can the Committee itself access this list other than to add and remove members? Is there in fact a Registration Committee if it does not have three members? The relevance to the elections process is obvious -- access to the list enables a candidate(s) to have the name and address of every potential voter and to screen this against the current voter registration list. Whether or not this is actually being done is not the point. The mere fact that selective access can make the playing field less level is sufficient to build in safeguards. This is no doubt more a matter for the Council than the Elections Commission.
2. We suggest consideration be given to revising the way the Elections Commission is selected. Under the current configuration if supporters of the Chief constitute the majority on the Council, the Chief can determine the makeup of the Commission, at least the majority on it. Again, this is not to say Commissioners do not exert their independence, but confidence in the elections process is as much a matter of perception as reality and every reasonable step should be taken to remove elements which create doubts. One possibility is to select the Commission through popular election, perhaps through a system whereby one commissioner from the north and one from the south is elected on a rotating basis every two or four years depending on the frequency of elections.

The rules for electing Council members might also be reviewed. Under the current structure two-member districts can be represented on the Council by individuals who have received less than 20% of the vote. Indeed in the recent election the two elected members from District 6 only polled 32% combined whereas in districts with one seat, the winner must eventually win a majority even if it requires a runoff. Why are voters in a two-member district not required to express the same strong preference for Council members as those in a one-member. Admittedly a runoff between the top three (assuming no one candidate gets over 50% in the primary) might result in each having about 33% but at least the two winners combined would be well over two-thirds.

Issues of Procedure We feel confident that with the institution of a permanent Elections Commission and with the staff remaining on board throughout the period between elections many improvements in procedure will result automatically. It will be easier to keep the registry more up to date, communications with potential voters and registered voters will be maintained, deadlines for registration and absentee ballot requests can be shortened, manuals can be refined and training of precinct workers and watchers started earlier. However, in the last six months prior to an election the pace accelerates and the staff begin spending more and more of their time fielding telephone calls and walk-in inquiries. We suggest Article 14 C be revised to give the Administrator express authority to hire temporary employees for this period.

CONCLUSION
After this rather exhaustive list of suggestions it is necessary to repeat that the recent elections were very well conducted and we expect this to hold true for the runoff elections as well. We simply felt that since we had subjected current rules and procedures to extensive review, and considering the results of the review in the context of the experiences of our team members with elections both in the U.S. and abroad, we should share these with the Commission. The Commission will obviously decide which are pertinent to the elections process in the Cherokee Nation.

In the days surrounding the election our team was addressed by many members of the Nation and the press expressing one or another concern about election procedures. In most cases these concerns were based on a lack of understanding of the rules. Most were, for example, unaware of the significant improvements to the actual voting process introduced by employing Automated Election Services of Albuquerque, New Mexico. Nevertheless, in a voting population as small as that of the Cherokee Nation, especially that portion living within the nine districts of Northeast Oklahoma, unfounded rumors spread quickly. And, some of the concerns do touch upon or expose some basic weaknesses in current rules and procedures.

Cherokees have a long history of electing tribal leaders through "popular" vote. That being the case, it is imperative that voters have a strong sense of fairness in the system and the secrecy of their ballots. A number of changes have been made in elections procedures over the last three decades and it is only logical that each successive election will bring about enhancements. It is our hope that the suggestions we have made above can contribute to this evolution.