The Carter Center Congratulates the Cherokee Nation on the Completion of the Vote Counting Process

CONTACT: Atlanta, Deborah Hakes +1 404 420 5124 or [email protected]

The Carter Center commends the Cherokee Nation Election Commission (CNEC) on the completion of the extended special election for Principal Chief. Voting took place over 10 days and counting over three (Oct. 9-11, 2011). The extra days of voting and the counting process were conducted transparently. On Oct. 12, the CNEC certified election results that declared candidate Bill John Baker the victor, having received 53.97 percent of all votes. Based on our observation of the counting process, The Carter Center has confidence in the results certified by the commission.

The Center congratulates Principal Chief Elect Bill John Baker on his successful campaign. The Center encourages Chadwick Smith to once again demonstrate his proven leadership by accepting the results and working with Mr. Baker to restore the confidence of the Cherokee people in the electoral process.

Carter Center observers witnessed all three days of the vote counting process. This included the observation of the logic and accuracy testing of the ballot tabulator, tabulation of precinct level results, the processing and tabulation of close of to 10,000 absentee ballots, and the review and hand tallying of close to 150 challenged ballots cast throughout the ten days of voting. In addition, the Center observed each of the additional days of voting on Sept. 29 and Oct. 1, 4, 6, and 8.

This is a preliminary statement of the Center's findings regarding the five extra days of voting and the counting process. The Carter Center will continue to monitor electoral developments in the Cherokee Nation. A final report of the mission's conclusions and recommendations about the election will be released in the coming weeks.

Background
The Sept. 24, 2011, Special Election for Principal Chief was called after a series of recounts prompted the Supreme Court of the Cherokee Nation to vacate the election because they were unable to determine a winner with mathematical certainty. The September election was, essentially, a rerun of the June election. Principal Chief candidates Bill John Baker and incumbent Chadwick Smith competed vigorously throughout the process.

Simultaneously, developments in the ongoing struggle between the Cherokee Nation and the descendents of Freedmen regarding the Freedmen's status as citizens of the Nation resulted in a number of last minute changes to the electoral process. Federal court orders issued days before the election required a number of adjustments to the process, including: amendments to the voters roll to reinstate eligible, registered Freedmen on the list; the mailing of absentee ballots to Freedmen voters; the addition of five in-person voting days for Freedmen and other Cherokee voters between Sept. 24 and Oct. 8; an extension to the absentee ballot submission deadline; and a delay of the vote counting process until Oct. 9-11, 2011. It was in this context that the vote counting process unfolded.

Extra Voting Days
As per the Sept. 26, 2011 federal court order, the Cherokee Nation was required to hold five extra walk-in voting days at the election commission in Tahlequah for all eligible voters on Sept. 29 and Oct. 1, 4, 6, and 8. Voters also had until Oct. 8 to mail in absentee ballots to the CNEC. The Carter Center observer present reported that voting proceeded smoothly and was largely without incident. At times, representatives of the candidates visited the CNEC to check on the process, causing concern among some voters. The Carter Center does not believe that this affected the integrity of the process.

The Carter Center observed that throughout the extra voting period election commissioners and CNEC staff treated all voters cordially, and with respect. Where voters had questions on the process the commissioners and staff carefully addressed the matter. On rare instances where voters appeared upset because of a misunderstanding of the process,[i] the commissioners and staff consistently remained calm as they worked with the voter to resolve the problem and maintain calm within the polling area.

Commission staff ensured correct voter identification procedures were followed each day. The Center observed that every voter was asked to present their driver's license, blue card – indicating Cherokee citizenship, or red card – indicating eligibility to vote. Where voters did not have this material, they were not permitted to vote.[ii]

Some voters arrived at the commission and were surprised to learn they were not registered to vote. In most cases, this arose because voters had registered after the March 31, 2011, deadline. In a smaller number of cases, voters insisted that either they or a family member had submitted the voter registration form prior the deadline – although no such voter was able to present confirmation of this. In still other cases, citizens did not appear to understand that the process of voter registration and registration as a tribal citizen were two distinct processes. In each instance, CNEC staff advised the voters to register so that they would be eligible for upcoming elections.

General Observations about the Counting Process
The counting process was conducted in a convivial atmosphere. This was particularly notable given the scale of the task with commissioners, staff, and counting assistants reviewing and counting close to 20,000 ballots. Both commissioners and staff equipped themselves well, working long hours with grace and good humor. In addition, in response to the anticipated high volume of ballots to be reviewed and counted, the commissioners recruited assistants to help with the counting process. These assistants were thorough and consistent in their work, despite the long hours required of them.

The process of reviewing and counting the ballots in the Cherokee Nation is complex. Each phase of the counting process has numerous steps, which require all commissioners to be present and to participate. Carter Center observers reported that the complexity of each phase of the process, caused some initial confusion among the commissioners, staff, and assistants about how best to complete the task at hand, particularly given the shifting parameters caused by the federal court orders. While this confusion was generally resolved fairly early in each phase of the review and counting process, the Center recommends that for future elections the commission develop standard operating procedures and clear, written criteria for decision-making in each part of the count, which can be shared with everyone in advance of the count beginning.

The Carter Center noted that the decision by the CNEC to allow three days to count the almost 20,000 ballots proved wise. This allowed the commission to be thorough and careful in their review and to avoid errors that might occur had they been working overnight. The Carter Center was pleased to note the patience exhibited by the candidates and their supporters and the people of the Cherokee Nation during this time. The decision of the election commission to release unofficial, partial results as they were available contributed to a calm atmosphere throughout the process.

During the counting process, there are three instances in which the commission is required to make decisions regarding the validity of votes, including the review of notary and signatures, hand tallying of ballots rejected by the tabulator and the review of challenged ballots.

Review of Notary and Signature
The commission must review of each absentee ballot to ensure that it bears a notary seal and signature, as well as the signature of the voter.[iii] Each commissioner worked with an assistant to review the validity of absentee ballots in teams of two. Ultimately, every ballot was reviewed by four people to verify that there was a notary seal and signature, and that the voter had signed the absentee ballot.

This process of double checking all ballots ensured consistency in the verification process. Any ballots that did not have the signature and seal of the notary and/or a voter's signature were then subject to another review by the commissioners who decided together whether to accept or reject those ballots. Of almost 10,000 absentee ballots received, close to 300 ballots were rejected because they did not bear a notary's seal or signature and/or the voter's signature.

The Center noted several instances in which notaries failed to both sign and seal the ballot as required by law. The actions of these notaries disenfranchised voters. The Carter Center suggests that the CNEC to contact the notaries and the appropriate regulatory bodies to inform them of the error they made. Overall, the Center noted that the commission used consistent criteria for determining whether to accept or reject absentee ballots on the basis of the notary and signature, which contributed to the accuracy and transparency of the process.

Hand Tallying of Ballots Rejected by the Tabulator
Once absentee ballots are accepted and removed from both the outer and inner secrecy envelopes, they are tabulated by a high-speed ballot tabulator. This machine counts approximately 250 ballots a minute. However, it will 'outstack' or reject ballots that it cannot read because they reflect votes for more than one candidate, or neither candidate; are votes cast in colored ink or pencil; or, have had the machine readable bar codes defaced. These outstacked ballots, as well as ballots that have been damaged in transit, are hand tallied by the commissioners.

The commissioners were cautious and thorough in their review of the fewer than 50 "outstacked" and damaged ballots that needed to be hand tallied. There were several instances in which voters did not complete the arrow as required for the ballot to be counted.

When reviewing the ballots, the commission used a narrow definition of voter intent, and only accepted those ballots on which the voter marked their preference according to established procedure (i.e. by completing the arrow in ink). In so doing, the commission strictly adhered to the statute and their interpretation of the guidance provided by the Cherokee Nation Supreme Court during the evidentiary recount conducted in July. The commission was consistent and objective when determining whether to accept or reject ballots. In order to promote efficiency in future counting processes, the Center would suggest that the commission establish clear, written criteria for the acceptance or rejection of ballots prior to the commencement of counting, including determining whether marks other than completion of the arrow will be accepted, and that amendments to the election law in this regard also be considered.

Challenged Ballots
In instances in which voters arrived to vote at the commission but had been issued an absentee ballot, commission staff advised them that they would be able to cast a challenged ballot but that, depending on a determination by the commission, their ballot may not be counted. This was a correct interpretation of the Cherokee Nation Election Law, which states that a challenged ballot will only be counted if cast by a voter who has requested an absentee ballot and states that they did not receive their ballot in the mail.[iv]

However, it should be noted that during the review and tallying of challenged ballots the CNEC and their council determined that the Sept. 26 federal court order required that challenged ballots cast from Sept. 21 onward, by any Cherokee citizen, at the election commission in Tahlequah, would be counted regardless of the reason cast. In addition, any challenged ballot cast by a Freedmen voter at the commission on any of the 10 days of voting would be accepted regardless of the reason cast. On the final day of vote counting, the CNEC reviewed approximately 150 challenged ballots cast from Sept. 17-Oct. 8.

The commission was consistent in their decision-making and followed the criteria outlined above. Careful consideration of the federal court order by the commissioners at the beginning of the challenged ballot review process caused some confusion about how to proceed, however, once a system was in place, the process proceeded without incident. Despite the unique circumstances created by the federal court order, pre-established, written procedures would increase the efficiency of future review processes. In addition, the Center urges the Tribal Council to work closely with the CNEC to amend the regulations regarding challenged ballots so that otherwise eligible voters are not needlessly disenfranchised by the limited circumstances in which challenged ballots can now be used.

Counting of Freedmen Ballots
The CNEC allowed Freedmen voters to case challenged ballots prior to the receipt of the federal court order that required the commission to vote wither by the standard absentee ballot procedure or in person at the various precincts. By the time the court order was received on Sept. 21, two and a half days of early voting had already taken place. As a result, there were a small number of challenged ballots cast by Freedmen voters that were reviewed and counted on Oct. 11. In addition, the two federal court orders mandated that absentee ballots be sent to all registered Freedmen voters that had requested, one, and in cases where those ballots had not been received by Sept. 23, that a second absentee ballot be sent.

The CNEC accepted and counted all challenged ballots cast by Freedmen voters at the election commission in Tahlequah. All absentee ballots cast by Freedmen (except for those that did not bear the requisite notary seal and signature and/or the required voter signature) were counted. Where the absentee ballot database indicated that a Freedmen voter had returned two absentee ballots, Carter Center observers reported that the commissioners always accepted one of those ballots and rejected the duplicate. In cases in which Freedmen voters cast one or more absentee ballots and had also voted a challenged ballot, the Center noted the commissioners accepted their challenged ballots but not their absentees.

Candidates' Watchers
As noted in the Center's Sept. 27 statement on the Sept. 24 elections, the presence of poll watchers is an important means of promoting the integrity and transparency of the electoral process. On each of the five extra voting days and three days of vote counting, poll watchers for both candidates were present. The commission took active steps to ensure that the watchers representing each candidate had access to the process and could move freely about the counting room without interfering in the process. In addition, watchers were requested to follow every movement of election materials on each of the three days.

The Center noted that at times it was difficult for watchers to observe notary review as the envelopes and handwriting on them was small or, at times, illegible. Sometimes observation by watchers of the notary review was inhibited because had to observe over the shoulders of commissioners and counters in order to view the envelopes closely. Throughout the counting process, the commission responded to questions from the watchers and observers and asked repeatedly whether they understood what they were seeing.

Poll watchers on each of the three days generally adhered to the code of conduct for watchers and remained throughout each day of the extra voting and counting processes.[v] On the final day of vote counting, a watcher from the defeated candidate's party left after the unofficial results were released (but before the review of challenged ballots), on the grounds that the campaign had told her that she could leave because her candidate had conceded. Poll watchers maintained a cordial interaction with one another throughout the process and appeared to remain focused on the procedures followed by the commission. One poll watcher filed a complaint with the commission regarding what he perceived to be unauthorized activity of the other party during extra voting. No other complaints were filed during the extra voting period.

The Carter Center previously observed the 1999 elections in the Cherokee Nation. Carter Center election observation missions are conducted in accordance with the Declaration of Principles for International Election Observation and Code of Conduct that was adopted at the United Nations in 2005 and has been endorsed by 37 election observation groups.

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[i] There was one instance in which a voter accused commission staff of stealing her tribal membership or blue card.

[ii] The only exception to this arose for a voter who had none of these cards and instead presented his pharmacy prescription that contained his tribal membership number, a unique numerical identifier that is present on all Cherokees' blue cards and enabled the CNEC to confirm him as a register voter.

[iii] Cherokee Nation Election Law, Title 26, Chapter 6, Article 2, §78

[iv] Cherokee Nation Election Law, Title 26, Chapter 6, Article 2, §78

[v]There was one exception when a watcher wrote down personal information about voters that the commissioners called out to verify voter information. However, once commission staff realized the watcher was taking down this information, they promptly advised him to stop doing so.