By LORI ANN EDMO
FORT HALL — Sherwin Racehorse, Fort Hall Business Council Primary Election candidate filed a petition in Shoshone-Bannock Tribal Court asking for judicial review and injunctive relief against the Election Board and the Fort Hall Business Council.
He’s asking the court to stop the Election Board from further violating the Tribes Constitution and Bylaws by not proceeding with the 2020 Tribal Election until the Court decides on the issue.
Three other candidates Nancy Eschief-Murillo, Marina Fast Horse and Wesley Edmo also signed onto it.
Racehorse initially challenged the Primary Election process with the Election Board but it was denied. The Election Board said in a memo they appreciated his concern over the difference between resolutions and ordinances however the board was faced with protecting the health and welfare of the Tribes and also protecting the memberships right to vote. “Allowing for mail in voting for the primary election in light of the pandemic was temporary not permanent and in our opinion was the most rational method to protect both interests,” the memo reads.
Section 307A 10 authorizes the Election Board to exercise such other actions necessary to carry out the purposes of the Tribal Elections Act, the memo continues. “TEB has found your ‘2020 Tribal Election Dispute’ to be insufficient under the Tribal Election Act.”
The TEB advised Racehorse he had 10 ten days to file for judicial review under section 2-2-23 from the date of the May 4 decision.
The petition requests the Tribal Court to provide review of whether the Tribal Elections Act legally authorized by a Tribal Constitution requires a properly administered amendment process and determination of whether mail-in balloting is in compliance with the Constitution.
The following claims are listed:
Article IV, Section 3 of the Constitution provides all elections shall be by secret ballot.
Article IV, Section 4 of the Constitution provides that a primary election shall be held on a reservation wide basis at least 60 days prior to the general election.
On or about October 12, 2010 the Fort Hall Business Council enacted the Tribal Elections Act as amended on or about February 4, 2014. Section 205 of the Tribal Elections Act states all tribal elections shall be conducted by secret ballot (Constitution, Article IV, Section 3.) Pursuant to the Constitution and tribal law, a primary reservation wide election was scheduled for March 27 and postponed to April 24. On March 31, the council adopted resolution ELEC-2020-0237 at the recommendations of the TEB, the Primary Election shall be a vote by mail process for registered tribal members only in accordance with the procedural recommendations set forth by the Election Board. The TEB advised the cancellation of the primary elections process because of the coronavirus pandemic and recommended a mail in balloting process.
In accordance with the resolution the TEB proceeded in scheduling the Primary Election securing an address system through Tribal Enrollment linked to the voter’s list having its contractor Automated Elections Services to proceed with mailing out the ballots on April 4.
On April 24, the Elections Board validated 10 “unsigned” returned ballot envelopes and approved them for count balloting contrary to the written instructions. The primary election high vote for number 3 and 4 candidates were five (5) votes apart thereby putting in dispute the final vote count/tally. The petition reads alternatively, the Board failed to abide by their own rules and regulations by counting ballots that were received but did not contain a signature on the envelope. Additionally, the Board did not verify any signatures on mail in ballots against the voting log-in signature roll.
The petition says the public review process was inconsistent because the Facebook Live video did not have full audio and the audience was complaining of not being able to hear the Election Board discussion. The video live feed was cut off several times leaving the audience “bewildered and wondering what was happening during the screening and counting of ballots.” It resulted in lack of due process to the general membership according to the petition.
The petition further says the Board’s administration of the election violates the Constitution due to the fact alone that the election was not by secret ballot. Instead, ballots received were required to have the envelope signed and sealed by the registered voter. Mail in balloting is considered absentee balloting and promotes voter suppression.
On April 24, 81 ballots were determined undeliverable, where 36 voters were found by calling the Election board secretary and new mailing addresses updated and new ballots sent. The action is inconsistent with the Elections Act, Sec. 203 (C) which requires that a registered voter “who had mail returned as undeliverable to the Tribal Elections Board,” shall have their registration canceled and removed from the voter list.
After the April 24, election count there are hundreds of mail in ballots undelivered, or to be determined as undelivered, thus substantiating that there was a lack of due process to the registered voters who may have never received the mail in ballot, or received the mail in ballot and was not a resident of the Reservation in compliance with the Elections Act but exercised a right to vote, or had the old rural addressing system address on file conflicting with the Tribal GIS addressing system. This is a direct violation of the constitutionally protected due process provision where voters cannot be assured of equal access to vote by secret ballot and constitutes voter suppression.
The petition says a tribal identification card, signature at the polls is the only way to legally verify a registered voter under Sec. 207 of the Election Act.
A Tribal identification card, and signature at the polls, is the only way to legally verify a registered voter (Election Act, Sec. 207, Voter identification).
Mailing out ballots to Tribal member voters does not ensure that all eligible voters have the same opportunity to participate in the voting or election process. The Board implemented no process to verify or confirm that ballots were received and controlled by the intended recipient. Mail in balloting promotes absentee ballot fraud.
The Board’s actions sought to amend or revise the Constitution in a manner that is not proscribed as proper.
An emergency to the public health such as the COVID19 virus pandemic is not sufficient reasoning to adopt a resolution authorizing a mail in balloting process without sufficient legal procedures/amendment to the Elections Act to protect the constitutionally mandated secret ballot process. Mail in balloting is not secret balloting in accordance within the meaning of the tribal Constitution nor with the administrative legal intent of the Tribal Elections Act.
The petitioner is asking the Tribal Court to order an immediate stay on further proceedings to the 2020 Tribal Election, whereby the Board and Council be enjoined from certifying the results of the Primary Election, until such time as this Court can rule on the constitutionality, and administrative breaches of the Tribal Elections Act, of the Board’s actions.
Petitioner asks the Court to provide an interim order removing tribal attorney’s Brandelle Whitworth and Bill Bacon from involvement of this petition as they are to be on the forthcoming General Election ballot and constitutes a conflict of interest.
The Tribal Court is requested to issue an order proclaiming the Board’s actions unconstitutional, rendering the primary elections invalid and illegal, and ordering the Board to administer a new primary election that abides by the Constitution.
The Tribal Court is requested to schedule a hearing within 10 business days, in accordance with the Elections Act, Sect. 219(F). Any such other relief as the Court may see fit.