Call wins special run-off election; protest validated by judge in first

Scott Csernyik

1/3/2006 12:00:00 AM

Lorna Call filled the last seat on the 12-member Tribal Council after two special runoff elections took place to determine the final District 1 spot.

Call bested candidate Jeanette Leaureaux during the Dec. 15 election, 179-172.

The second runoff election took place after Election Appeals Judge Vanya S. Hogen determined on Dec. 8 that "procedures for absentee voting are fairly applied so that preferential treatment is not given to one group of absentee voters."

The ruling nullified results from the Nov. 29 election, which Leaureaux won by a one-vote margin, 143-142. Tribal Elder Joan Myers filed the protest which stemmed from absentee ballots included in the election which were "wrongfully gathered by a Tribal court employee for Tribal members held in the Isabella County Jail.

Myers contended those ballots needed to be removed from the results because the incarcerated members did not request the ballots be delivered "to them for privated completion."

"There was no reason for the ballots to be hand-delivered by Tribal employees where no request was made," stated Myers in the protest dated Dec. 1.

She also maintained that Tribal Elders in area hospitals and nursing homes, as well as those unable to drive or be carried to the polls "were discriminated against as they were not offered the same personal delivery of absentee ballots by Tribal employees if they had not requested absentee ballots before election day."

In her protest, Myers called for "the improperly collected absentee ballots...be removed from the results."

But in addition to the six absentee ballots received from the Isabella County Jail, three other absentee ballots were received by Nov. 29. Of the nine absentee ballots, only eight were counted. One absentee ballot was deemed "spoiled" because it was submitted by an inmate at the Isabella County Jail who was a registered voter in the At-Large District, not in Election District One, according to Hogen's findings of fact.

It also came to light during the Dec. 7 hearing that "in past elections, employees of the Tribal Elders Program have hand-delivered absentee ballots to Tribal Elders who would not have otherwise be able to reach the polls on Election Day."

For the General Election, Elders Program Director Lisa Kennedy "wanted to obtain absentee ballots for the approximately 25 to 35 Tribal Elders within Election District One who were homebound and unable to travel to the polls."

Kennedy e-mailed Tribal Clerk Carol Emmendorfer on Oct. 24 as follows:

"In the pass [sic] we as staff members have been able to pick [ballots] up for our home bound Elders...however, when we attempted to do this prior to the primary election we were not allowed to this year. Could you please give me some clarification with this matter[?]"

After consulting with general counsel for the Tribe, Emmendorfer responded:

"I spoke with our attorney about your request. He felt the best way to get the absentee ballots to home-bound Elders was through the mail. That way, there can be no chance that your office or ours could be accused of mishandling them. If you know Elders who need absentee ballots, please forward their names to me and we'll get them one. Sorry we can't let your office pick them up."

Hogen also stated in her ruling that this policy remained in effect for the runoff election and any requests to hand deliver and return ballots for Tribal Elders who were homebound or resided in a nursing home or hospital would have been denied.

"These efforts to assist the inmates with absentee voting paid off: six of the eight inmates voted (although one inmate's ballot was marked spoiled because he was registered in another district)," stated Hogen in her opinion. "From the evidence presented, no other group of potential absentee voters was given similar assistance. Indeed, only three other persons voted by absentee ballot."

The ruling also noted the Tribal Clerk's Office provided reasonable notice that voters were required to complete an application for absentee ballot if they wished to participate in the general and runoff elections.

She also found the inmate vote "had an actual and material effect on the outcome of the Nov. 29 election.

"Further, for the absentee inmate vote, the only possibilities are that all five of them voted for Ms. Leaureaux, that only three of them voted for Ms. Leaureaux and the other two voted for Ms. Call, or that four of them voted for Ms. Leaureaux and one voted for Ms. Call," stated Hogen. "In the first scenario, without the inmate vote, the results would have been 142 to 138, with Ms. Call winning the election. In the second scenario, the results would have been 140 to 140, in which case the candidates would have tied and another runoff election would have been necessary. In the third scenario, Ms. Call would have won the election by two votes, 141 to 139, if the inmates had not voted. Under any of the possible scenarios, it is clear that the inmate vote actually and materially affected the outcome of the election."

Ms. Myers requested that rather than invalidate the results of the runoff election, this tribunal should simply discount the absentee voters. I have concluded, however, that the Isabella County Jail inmates were eligible to case absentee ballots, and am loathe to disenfranchise them. In addition, two of the absentee votes came from non-inmates, and they would similarly be disenfranchised under Ms. Myers' suggested approach. I am unwilling, therefore, to simply discount all of those votes. Although Ordinance No. 4 requires that I make every reasonable effort to avoid invalidating the results of the election, in this instance, no other option would cure the violations of the procedures. A new runoff election, in which the procedures for absentee voting are fairly applied so that preferential treatment is not given to one group of absentee voters, must be held."