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Â鶹´«Ã½ congratulates the election commission, candidates, and voters of the Cherokee Nation on a successful election day. Sept. 24 was the only day for voters to cast ballots at 38 precincts in the Nation, but there will be additional opportunities for citizens to cast a ballot at the election commission and for Freedmen** to vote by absentee ballot to determine who will be the next principal chief.[1]
It is critical that the election commission conduct the process to the highest standards of transparency in order to ensure citizens' confidence. The commission's invitation to Â鶹´«Ã½ to observe this election serves as indicator of their commitment to this foundational principle. The Center recognizes that the protracted election may cause uncertainty and encourages the continued patience of all concerned. The Center also urges the candidates and their supporters to demonstrate responsible leadership, making a good faith effort to support the integrity of the entire process, refraining from negative rhetoric while striving to solidify the confidence of the Cherokee people in the democratic selection of a principal chief.
Â鶹´«Ã½ was invited to observe the Special Election for Principal Chief by the Cherokee Nation Election Commission. Twelve Â鶹´«Ã½ observers were deployed throughout the 14 counties of the Cherokee Nation and visited all 38 polling precincts. Â鶹´«Ã½ observers were present at the election commission for much of election day, observing the sealing of absentee ballot materials walk-in voting at the commission, the receipt and logging of election materials at the commission after the close of polls, and the securing of all election materials for the later count. The Center assesses the electoral process based on the Cherokee Nation legal framework and international obligations and good practice for democratic elections.
This is a preliminary statement of the mission's findings. The election for the principal chief of the Cherokee Nation is ongoing and the results will not be known until the week of Oct. 9, 2011. The Center will therefore refrain from commenting on the election as a whole, but offers these observations on the conduct of the voting process through Sept. 24.
Background
The Sept. 24, 2011, Special Election for Principal Chief was called after a series of recounts with varying totals and slim margins prompted the Supreme Court of the Cherokee Nation to vacate the election because it was unable to determine a winner with mathematical certainty.[2] The Sept. 24 election was, essentially, a rerun of the June 25 election. Principal Chief candidates Bill John Baker and incumbent Chadwick Smith competed vigorously throughout the process.
Simultaneously, a number of developments in the ongoing struggle between the Cherokee Nation and the descendents of Freedmen regarding the status of Freedmen as citizens of the Cherokee Nation, impacted the September election. Freedmen who had voted in the June 25 election were stripped of voting rights following an Aug. 22 ruling of the Cherokee Nation Supreme Court. Four days before the election, a federal court ordered that these rights be restored, resulting in a number of last-minute changes to the electoral process. These included amendments to the voters roll to reinstate eligible, registered Freedmen on the list; the mailing of absentee ballots to Freedmen voters; the addition of in-person voting days for Freedmen voters from Sept. 24-Oct. 8; and most significantly for election day, a delay of the vote counting process until the week of Oct. 9, 2011. It was in this context that the Sept. 24 election day unfolded.
Election Administration
Overall, Â鶹´«Ã½ observation teams commended the competent administration of the election by the election commission and precinct polling staff. The disciplined conduct of this election was notable given the shifting legal parameters and the additional administrative burden placed on the election commission in the days before the election by the federal court order.
In many precincts where poll workers were understaffed, Center observers noted that poll officials managed the election day process despite having fewer staff than anticipated in the law and regulations. Poll workers were well informed about voting procedures, including many of the last-minute changes in the signed federal court order of Sept. 21. However, there were a few exceptions to this, including instances where Â鶹´«Ã½ observers noted confusion among some poll officials regarding the use of challenged ballot mechanisms (see below) and other important election safeguards.
The policy of the election commission to have precinct poll officials call the commissioners if in doubt regarding any aspect of the election process helped polling officials navigate some of the more challenging election day issues. Precinct officials reported to Â鶹´«Ã½ that the election commission was generally responsive to their needs when they sought clarification on processes and procedures, although some complained that the phone lines were jammed. In the future, precinct officials and the voters they serve would benefit from additional call-in lines so that election issues can be addressed even more efficiently.
Polling was well organized in most precincts, ensuring the efficient flow of voters through the voting process. Most observers reported that the layout of the precinct was such that the secrecy of the ballot was protected.[3] The majority of precincts were accessible to disabled voters. While Â鶹´«Ã½ observers noted that precinct poll officials did not consistently explain to voters how to cast their ballots, voters seemed to understand the voting process and were able to vote without hindrance.
Absentee Voting and Challenged Ballots
A large number of Cherokee Nation registered voters were sent absentee ballots for the September 2011 election. The election commission dispatched approximately 12,000 ballots to voters in the 14 counties, and throughout Oklahoma and beyond.[4] All voters who had requested an absentee ballot for the June election were automatically sent them for the Sept. 24 Special Election. In addition, other voters were allowed to request an absentee ballot during a 10-day request window in August.
Absentee voting is internationally recognized as a good practice to ensure the right to vote. However, absentee voting removes some of the safeguards that are inherent in controlled, in-person voting environments.
While the automatic dispatch of the absentee ballots was a good faith effort by the election commission to ensure all voters were able to cast a ballot in the principal chief race, Â鶹´«Ã½ observers reported some voter confusion caused by this at the polling precincts. Voters who were issued an absentee ballot, but who stated that they did not receive that ballot, were eligible to cast a challenged ballot.[5] These ballots, once voted, were placed in secrecy envelopes and stored separately from the regular ballots cast via the tabulator. The challenged ballots will be reviewed by the election commission during the vote counting process and a determination made on their validity.[6] Â鶹´«Ã½ observers reported instances of challenged ballots being cast, in most precincts on the basis of this, but also for other reasons.
In several cases, voters who had received an absentee ballot (and/or who were listed on the voter registry as having been issued an absentee ballot) arrived at the station with the hope of either casting a regular ballot in person or casting their absentee ballot in person via the tabulator. Some voters arrived at the precinct to find they were unable to vote because they had been issued an absentee ballot that they claimed they did not request. Because the Cherokee Nation law states that voters issued an absentee ballot may cast a challenged ballot only if they state that they did not receive it, these voters were not able to cast a challenged ballot. Although precinct officials generally sought guidance from the election commission on how to proceed in each individual case, future elections would benefit from a more robust public information campaign to explain the absentee and challenged ballot processes in detail.
No ballots will be counted by the election commission until the week of Oct. 9, 2011. This includes both ballots cast in the tabulator at precincts, as well as the absentee and challenged ballots.
Voter Registration and Identification
Â鶹´«Ã½ observers noted significant confusion regarding voter registration procedures for this election. Only voters who registered to vote for the June election were eligible to vote in the September election for principal chief. While new registrations and requests to change precincts were taken by the election commission between June and September, these new registrations and amendments to the voters' roll were not applicable to the Sept. 24 election.[7]
In several cases throughout the counties, citizens arrived at the polls to find that they were either not registered to vote at that precinct, or were not registered at all. In most of these cases, voters were then either sent to the appropriate precinct or sent away. In some cases, however, such voters were advised that they could cast a challenged ballot. The election law does not anticipate the use of challenged ballots in such circumstances and therefore does not provide for these ballots to be counted. Â鶹´«Ã½ recognizes that the unusual circumstances of this election (i.e., that it was a rerun of the June election, rather than a new election) contributed to this confusion. In the future, the election commission may want to consider engaging in a more robust voter outreach program to increase public awareness.
The election law of the Cherokee Nation requires that poll workers identify voters before they cast their ballot.[8] Such a requirement is in accordance with internationally recognized best practice. In the case of the Cherokee Nation, voter identification can take one of two forms –recognition by precinct polling officials, or, if they are not recognized by poll officials, voters may be required to present a valid form of identification at the discretion of precinct officials. While Â鶹´«Ã½ observers noted some minor variations in identification practices among precincts, all observed were in conformity with the law. Greater consistency in the application of the regulations would be of benefit to the process and would help to alleviate confusion and misunderstanding about the ID requirements in future elections.
Voting by Freedmen
Despite the controversy regarding the disenfranchisement and subsequent re-enfranchisement of the Freedmen, Â鶹´«Ã½ observers did not report any cases of Freedmen encountering obstacles in casting their ballots on the Sept. 24 election day. No distinction was made between Freedmen and other voters on the voters roll. In an exit meeting on Sept. 25, two Freedmen organizers told Â鶹´«Ã½ observers that they received no complaints of discriminatory behavior or actions. The considerable efforts of the election commission to respond to the demands of the federal court order are to be recognized.
The change in procedures caused by the Sept. 21 federal court order caused some confusion and frustration to Freedmen voters during early voting, which took place on Sept. 17, 20, 21, and 22. In an effort to anticipate the considerable administrative challenges that might result from the Sept. 20 hearing in the federal court, the election commission decided to allow Freedmen to cast challenged ballots. Following the hearing, a signed court order regarding the voting rights of Freedmen was issued on Sept. 21, 2011. The federal order required that Freedmen be entitled to "vote in the upcoming principal chief election and to have their vote counted in the same manner as all other Cherokee citizens."
The election commission did not receive the proposed final order until the afternoon of Sept. 21, even though the general thrust of the order was known. This caused some consternation during early voting when Freedmen voters arrived at the commission to vote on Sept. 21. Because the final order had not been received or the details of its implementation were being finalized, approximately six Freedmen voters were given challenged ballots and reassured that these ballots would be counted by the commissioners. Once the order was received, Â鶹´«Ã½ observers reported that the commission took action to ensure that Freedmen and all voters were able to cast regular ballots. The election commission has reiterated its commitment to counting all challenged ballots cast by Freedmen prior to the receipt of the final, signed court order.
Campaigning at Precincts
Â鶹´«Ã½ observers reported campaigning outside of many of the polling precincts visited. This seldom was within the prohibited distance of 300 feet from the polling precinct.[9]
Poll Watchers
The presence of poll watchers for all political contestants, throughout polling and counting, is a critically important safeguard to the electoral process. It is a valuable means of protecting the rights of candidates to be elected fairly, and can contribute to the transparency and integrity of the election. Â鶹´«Ã½ observers reported the presence of poll watchers in most precincts visited, however, in most cases there was only one candidate's watcher. Further, in many precincts observed the watchers did not observe the entirety of the process, including the closing of the polls and securing of election materials. Only one of the candidates had a poll watcher present to observe the securing of absentee ballots on the afternoon of Sept. 24, or the receipt and logging of election materials at the commission that night. The other candidate reported to the Center that he was unaware that he was entitled to have a poll watcher present during this process.
The lack of poll watchers representing both candidates during all phases of the process undermines the inherent value of having poll watchers present. Given the climate of uncertainty surrounding this election, both candidates should ensure that their representatives are present during the extended voting process and at the election commission during the count. Â鶹´«Ã½ hopes that the election commission will take any steps necessary to facilitate the full access of the watchers for both candidates to all remaining phases of the election. This may require that each candidate be able to assign more than one watcher to the election commission for the counting process.[10]
The election commission has developed a thorough set of regulations regarding the conduct of poll watchers while in the polling precinct. This includes not speaking to poll workers or voters and remaining in the polling precinct all day to avoid the distraction caused by coming and going. These regulations are intended to protect the rights of voters to cast their ballot free from intimidation, which is to be commended. However, the restrictions on watchers make it difficult for candidates to recruit watchers who can remain in the polling precinct all day, thereby unintentionally diminishing the poll watcher as a transparency measure. In almost all cases observed, poll watchers abided by the regulations of the commission, although they were not consistently applied by precinct staff. To maximize the value of poll watchers, the Center suggests that the election commission consider revising the poll watcher regulations to ensure they are able to observe all aspects of the process and introducing a voluntary seminar for poll watchers on election day procedures.
Looking Forward
The next two and a half weeks of the extended voting process are an important opportunity for the citizens of the Cherokee Nation to work together to mend the fractures caused by the uncertainty of the protracted electoral process and campaign. Â鶹´«Ã½ urges patience in the weeks ahead, and calls on the candidates to demonstrate leadership through the extended voting and counting period.
Â鶹´«Ã½ also urges the election commission to take all steps necessary to ensure complete transparency in the counting process. Such steps might include:
In general, Â鶹´«Ã½ mission would also suggest that the election commission undertake a more robust voter information and outreach program. Much of the confusion witnessed by Â鶹´«Ã½ observers could be ameliorated through a more vigorous public information campaign focused on important deadlines, the use of absentee and/or challenged ballots, the voter identification process, and other voting procedures. Such a campaign could make more effective use of broadcast and print media, as well as the inclusion of more thorough and up to date voter information on the commission's website.
Â鶹´«Ã½ will observe the additional voting days mandated by the federal court order. In addition, the Center will deploy a small team of observers for the counting process that will begin the week of Oct. 9, 2011.
Â鶹´«Ã½ previously observed the 1999 elections in the Cherokee Nation. Â鶹´«Ã½ 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.
**A subsequent Cherokee Nation election commission will allow all registered citizens to utilize extended voting.
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