Tahlequah Daily Press

July 11, 2013

High court challenge

Staff Writer

TAHLEQUAH — The Cherokee Nation Supreme Court on Tuesday heard arguments in two cases about the recent tribal council election.

Former District 15 Tribal Councilor Meredith Frailey has petitioned the court for a runoff election, while at-large challenger Robin Mayes has asked the court to set a new election in his case.

According to certified election results, District 15 incumbent Meredith Frailey was narrowly defeated by Janees Taylor. Frailey earned 262 votes, compared to Taylor’s 289, or 50.70 percent of the ballots cast.

On Tuesday, James Proszek, council for Frailey, argued that irregularities in the conduct of the District 15 election resulted in 20 voters being improperly required to cast ballots outside their home district. Due to these irregularities, Proszek said, Taylor did not receive more than 50 percent of the votes in District 15.

As relief, Frailey is requesting the court order a runoff election be set between her and Taylor.

“This is about an integral part of the process,” said Proszek. “Twenty-two voters were denied their right to vote in their district or were allowed to vote in an improper district.”

Taylor and the Cherokee Nation Election Commission were both named in Frailey’s action, and both filed accompanying motions to defend their positions.

Don Bingham, Taylor’s attorney, made a motion to dismiss, saying Frailey’s allegations failed to meet the requirements necessary to affect the outcome of the election.

“They are arguing about votes that could have been cast [in the District 15 election], but weren’t, creating a mathematical uncertainty in the outcome,” said Bingham. “They have no legal underpinnings for saying that.”

Frailey’s case centered on 18 voters whose last registered addresses were post office boxes. After the tribe split the nation into 15 voting districts last year, the Cherokee Nation Election Commission was charged with making sure voters were reassigned to their proper districts.

A CNEC resolution issued in January stated registered voters with post office  boxes listed who failed to make address changes - giving a physical address - by the final registration date of April 1, would be placed in the district in which their post office boxes were located.

However, the CNEC was mandated by the redistricting law to make sure voters were properly assigned to districts, and extended making changes to registration information through the end of April.

Throughout the day’s proceedings, both sides called several witnesses, including CNEC Chairman Bill Horton, CNEC board member Carolyn Allen, CNEC Administrator Wanda Beaver, Frailey, Taylor’s field director Jared Johnson, and John Rose, a consultant hired to aid the tribe’s election commission with software updates for redistricting. Also called was Kathy Hines, director of the Center of Spatial Analysis at the University of Oklahoma; she aided the election commission in mapping for redistricting.

During her testimony, Frailey said she visited each of the post offices in District 15 to establish the 18 voters’ boxes were, indeed, within the district. She did not conduct any further investigation to obtain the physical address of the voters in question.

Johnson, who worked on Taylor’s campaign, said he conducted extensive research beginning Sunday, July 7, and ascertained most with post office boxes listed voted within the appropriate district they were assigned given their physical address.

“We must also point out that voters in all districts were not denied the right to vote,” said Bingham. “We’ve shown through testimony today that challenge ballots were available.”

Bingham’s motion to dismiss was denied, and after hearing testimony and summations, the justices retired to consider the evidence and will issue written order no later than close of business Friday.

In the second case heard by the court, at-large challenger Robin Mayes asked the court to void the results of the June 22 election, and order a new one for the at-large candidates. Certified election results indicate incumbent Jack Baker earned 51.64 percent - 739 votes – of the 1,439 ballots cast.

Mayes, represented by A.J. Garcia, asserts the CNEC, CN Registration Department and CN Attorney General Todd Hembree excluded “in excess of 4,000 Cherokee citizens,” from registering as citizens, while allowing several hundred of the same class - descendants of Freedmen - to vote and fully participate in the election.

Sara Hill, representing Hembree’s office, asked that Mayes’ motion be denied.

“The fact is, Mayes was defeated,” said Hill. “His claim in no way shows violation of election code or procedure. This, in fact, is not a proper election challenge, as the registrar - not the election commission - determines citizenship.”

Harvey Chaffin, attorney for CNEC, concurred.

“If you’re not a citizen,  if you don’t have a card, you can’t register to vote,” said Chaffin. “Citizenship is determined by the Cherokee Nation, not the election commission. We have allowed certain Freedmen to vote because they are registered citizens and voters. The federal case [to determine the acceptance of additional Freedmen as citizens] is still pending in federal court. The Cherokee Nation Election Commission is part of the federal case and is under federal order saying we will allow registered freedmen to vote.”

After deliberating in chambers for a short while, the justices returned and dismissed Mayes’ case, saying it failed to meet standards for an election challenge.