--- Am. Tribal Law ----, 2021 WL 3493422 (Cherokee Sup.Ct.)
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Supreme Court of the Cherokee Nation.
David COMINGDEER, Appellant,
v.
CHEROKEE NATION ELECTION COMMISSION, Individually, and Joshua Sam, Individually Appellees.
CASE NO.: SC-21-06
|
FILED AUGUST 8, 2021

OPINION OF THE COURT
Opinion by: Shawna S. Baker, Justice
Now on this 6th day of August, 2021, this matter comes on for consideration by the Court. Petitioner, David Comingdeer, appeals the results of the 2021 District 7 Run-off Election. Respondents, Cherokee Nation Election Commission (hereinafter “CNEC”) and Joshua Sam, each filed Motions to Dismiss in response to the same. Petitioner, David Comingdeer, appears in person and by and through his counsel, Tahlina Nofire. Respondent CNEC, appears by and through its counsel, Harvey Chaffin, and Respondent Sam, appears by and through his counsel, Carly Griffith Hotvedt.

Pursuant to Article VIII of the Cherokee Nation Constitution and 26 C.N.C.A § 101(D), et seq., this Court exercises original jurisdiction over this election appeal. Having reviewed the pleadings and supporting authorities and heard the testimony of witnesses and the parties’ legal arguments on the sufficiency of the Petition to Challenge the Validity of Election Results, this Court FINDS AND ORDERS as follows:

A petition for an election appeal must contain each and every one of the specific statutory requirements set forth in 26 C.N.C.A § 101(D).1 Section 101 (D) requires a petition for an election appeal to provide:
[A] specific statement regarding each alleged violation of this Title herein or of any election procedures adopted by the Election Commission in force at the time of the alleged violation, including the date of the alleged violations, the identity of the person or persons involved in the alleged violations and the Precinct where the violation occurred. If fraudulent voting or Election Fraud is alleged, the petition shall also state the specific facts constituting the alleged fraud, identify each Precinct where the alleged fraud occurred, the estimated number of fraudulent votes cast at each specified precinct location. If fraudulent absentee voting is alleged, the petition shall also state the specific acts constituting the alleged fraud, and estimated number of fraudulent votes cast by absentee ballot.
Section 101(D) further states, “If the appeal petition does not contain the required information, or if the allegations do not allege sufficient violations to affect an election outcome, the petition shall be deemed frivolous by the Cherokee Nation Supreme Court and shall be dismissed.” (Emphasis added).

Petitioner’s first proposition set forth in Paragraphs 1 and 2 alleges the Recount held on July 30, 2021 was not conducted in accordance with 26 C.N.C.A § 93. The Petitioner’s claim has no merit. The Recount failed to proceed due to the Petitioner’s error in providing proper service to Respondent Sam as required by statute. This Court was present to “answer[ ] questions regarding tribal law and to insur[e] tribal law [was] followed.” 26 C.N.C.A § 93(H). The Court heard testimony regarding notice and issued its Opinion in Case No. Recount 21-02. The Petitioner has failed to meet his burden of proof on his first proposition.

Petitioner’s second proposition in Paragraph 3 alleges the CNEC failed to properly preserve the ballots. CNEC staff members testified as to election procedures and the storage and security of ballots. Petitioner provided no evidence to the contradict the CNEC’s testimony. The Petitioner has failed to meet his burden of proof on his second proposition.

Proposition three, found in Paragraphs 4 thru 8, alleges the CNEC illegally interfered in the election outcome by virtue of its address being used on an envelope sent to one registered voter in District 7. Said envelope allegedly contained a flyer from Respondent Sam, a Request for Absentee Ballot, and a return envelope to CNEC. Testimony from CNEC staffers, along with physical evidence entered into the record, demonstrates the envelope at issue did not originate from the CNEC.2 Ms. Nofire, in her closing on this proposition, stated Respondent Sam is responsible for the mailing and not the CNEC. Therefore, the Petitioner, by his counsel’s own admission, has failed to meet his burden of proof with respect to his third proposition.

Proposition four found in Paragraphs 9 and 10 alleges two registered voters, Lara Brewer and Janice Brewer, received absentee ballots they did not request and any absentee ballot properly cast in the election, which arrived at the voter’s address as a result of an alleged forged Request for Absentee Ballot, should be invalidated. Petitioner provided only one Affidavit from Lara Brewer alleging a forged Request for Absentee Ballot.3 Lara Brewer was not present to give testimony. Evidence was entered by Respondent Sam demonstrating Lara Brewer not only completed the Request for Absentee Ballot form, but also gave the original signed form to a third-party for return of the same to the CNEC. CNEC records show Lara Brewer was sent an absentee ballot, but she did not vote in the Run-off Election. Thus, we need not address the validity of any absentee ballots. As such, Petitioner does not meet his burden of proof.

Proposition five alleges Respondent Sam notarized numerous absentee ballots in District 7 and collected the notarized ballots for return to the CNEC. Title 26 does not prohibit a candidate from notarizing ballots for voters.4 Title 26 does not limit the number of absentee ballots a notary can notarize during an election. Finally, Title 26 does not restrict a candidate from going door to door to campaign, to offer notary services, or to assist a voter in returning their cast absentee ballot to the CNEC.

The Cherokee Nation Election Code, in its entirety, was recently restated, revised, and signed into law. The Rules Committee passed an “Act Revising and Restating Title 26 (“Elections”) of the Cherokee Nation Code Annotated” on September 24, 2020 with a vote of 16-1. Councilor Nofire, who publicly supports the Petitioner and accompanied him to the hearing, voted with the majority during the Rules Committee to allow any and all candidates for elected office the freedom to notarize an unlimited number of absentee ballots in a Cherokee Nation election.5 The Tribal Council passed Title 26 into law at its meeting held on October 13, 2020. Again, the vote was 16-1 and Councilor Nofire voted in favor of the Act. If the Petitioner believes a candidate should not be allowed to notarize ballots in one’s own race or a candidate should be limited in the number of absentee ballots they can notarize, then he must lobby for change. Petitioner failed to meet his burden of proof under Title 49, Notaries Public, or Title 26.

Finally, Petitioner alleges the CNEC has refused to release the most recent Voter List for the Run-off Election.6 CNEC does not deny the veracity of the Petitioner’s statement. However, counsel for CNEC stated the Voter List shall be released once the results are certified. The CNEC’s timeline for releasing the Voter List is in conformance with its policies and procedures, as well as, historical practice.7 The statute is silent as to when the CNEC must release the most recent Voter List. See 26 C.N.C.A § 25. Petitioner has failed to meet his burden of proof.

The Court applauds the CNEC and all of its staff for ensuring a just and fair 2021 General Election and Run-off Election and for conducting itself with integrity and in conformance with Title 26.

Pursuant to 26 C.N.C.A § 101(D), the Petition to Challenge the Validity of Election Results is deemed frivolous and dismissed with prejudice for failure to state a claim upon which relief can be granted.

All Citations
--- Am. Tribal Law ----, 2021 WL 3493422

Footnotes
1	See Robin Carter Mayes v. Cherokee Nation Election Commission, et al., SC-2013-11 and Chad Smith v. Cherokee Nation Election Commission and Bill John Baker, SC-2015-10.
2	Ms. Nofire acknowledged the envelope at issue did not originate from the CNEC midway through the hearing. She then shifted her focus to alleging Respondent Sam impersonated the CNEC, committed mail fraud and or address fraud, and forgery. Whether or not Respondent Sam sent the mailing, which uses the CNEC’s address as the sender’s address, is unknown. Per testimony from CNEC staffers, this matter has been referred by the CNEC to the Marshall’s office, pursuant to Title 26, for further investigation. Allegations of impersonation, mail fraud and or address fraud, and forgery require specific allegations in the Petition. Such specifics were not provided against Respondent Sam. All statements in the Petition allege the CNEC sent the mailing.
3	The claims of Janice Brewer shall not be considered on the basis of hearsay. Janice Brewer was referenced in her daughter’s Affidavit. An Affidavit for Janice Brewer was not provided by the Petitioner. However, the CNEC records reflect Janice Brewer never requested an absentee ballot, did not receive an absentee ballot, and did not vote by absentee ballot.
4	See also, Opinion of the Cherokee Nation Attorney General, 2018-CNAG-03 Absentee Ballot Requests and Notaries, November 30, 2018 at https://attorneygeneral.cherokee.org/media/smxlr1mt/2018-cnag-03-absentee-ballot-requests-and-notaries.pdf.
5	Early drafts of revised Title 26, as proposed by CNEC, limited a candidate’s ability to notarize absentee ballots. The final version passed by the Tribal Council rejected said limitations.
6	The voter registration deadline for voters to cast a ballot in either the 2021 General or Run-off Election was March 31, 2021. See Election Commission Releases 2021 Voting Info, Cherokee Phoenix, December 20, 2021 at: https://www.cherokeephoenix.org/news/election-commission-releases-2021-votinq-info/article_0c6d1b28-cb61-5b47-ad79-66bce5347648.html. The list of registered voters in District 7 did not change in the Run-off Election. The Request for Absentee Ballot was due by April 16, 2021 for the General Election and June 21, 2021 for the Run-off Election. See Request for Absentee Ballot at: https://election.cherokee.org/media/kxpmda3h/17-2021-absentee-ballot-request-form.pdf. A Request for Absentee Ballot form returned prior to the April 16, 2021 would ensure a voter received an absentee ballot in both the General and Run-off Election. Id. Additionally, registered voters could request absentee ballots only for the Run-off Election by returning their Request for Absentee Ballot on or before June 21, 2021. Id. Those voters who cast absentee ballots in the District 7 General Election are presumably known from the General Election’s Voter List. CNEC staffers testified any voter may call the CNEC, prior to or after the Run-off Election Voter List is released, to inquire if said voter returned a Request for Absentee Ballot form, to obtain a copy of their Request for Absentee Ballot, to verify an absentee ballot was sent to the voter, to determine if the voter’s ballot was received absentee or in-person at the precinct.
7	No evidence was presented to contradict the CNEC’s timeline for releasing the Voter List in past elections.