6/3/2002 12:00:00 AM
The recent special election to fill a District 1 Tribal Council vacancy will stand, ruled Saginaw Chippewa Tribal Court Election Appeals Judge Vanya S. Hogen on May 29.
Individual protests filed by Steven Pego and Faith Montoya on May 22 alleged the election was not conducted properly after Caucus Committee members denied several individuals their right to vote because they did not have current voter registration cards at the polls. Their protests were addressed in a May 28 hearing before Hogen.
Bernie Sprague finished first in the May 17 election, beating Pego by six votes, 53-47. The District 1 vacancy was created after Ruth Moses resigned on March 5.
To successfully protest an election, a protester must demonstrate by "clear and convincing evidence" that procedures were violated; that there was fraud or coercion in the election process or that a candidate or voter was ineligible to participate in the election, according to Ordinance No. 4, Section 21 (d). Once a protester meets that burden, they must also prove by clear and convincing evidence that the alleged election irregularities "actually and materially" affected the outcome of the election.
Hogen's 13-page decision acknowledged that Ordinance No. 4 does not specifically state what identification voters must bring with them to the polls. Pego and Montoya contended the ordinance has no provisions in regard to the voter registration card, let alone an issue date.
However, Hogen stated that in Ordinance No. 4, Section 8(d)(3) that the "Clerk shall require each voter to sign in and shall be responsible for verifying that the person is in fact the eligible voter presented."
"The Tribal Clerk, therefore, was delegated the authority to reasonably determine what identification must be presented at the polls to ensure that the individual voting is, in actuality, a registered voter in the election district."
The voter registration card procedure was used in the Saginaw Chippewa Tribe's primary election on Oct. 9 and the Nov. 6 general election. Both elections were not contested.
"Prior to the primaries for the Nov. 6 election, the Tribal Clerk and the Election Caucus Committee decided that voters should be required to present their voter registration cards in addition to either a state driver's license or state identification card when voting," stated Hogen. "This requirement was specifically introduced to verify the identity and current residence of each voter. This requirement was published in at least two editions of the Tribal Observer and was announced at community gatherings and on local radio stations. Thus, voters were given ample notice that they were required to bring their Tribal voter registration cards with them to the polls.
"Even assuming for the sake of argument that the Tribal Clerk and Election Caucus Committee violated election pro-
cedures by requiring voters to present Tribal voter registration cards when voting, protesters Pego and Montoya failed to prove by clear and convincing evidence that the outcome of the May 17 special election was actually or materially affected by this requirement. The protesters presented the testimony of five witnesses who claimed to have been denied the ability to vote in the special election because they had not presented a voter registration card."
During the May 28 hearing, District 1 members Lyle Pontiac, Patricia Jackson, Dennis Christy, Lisa Kennedy and Maia Montoya-Pego testified on behalf of the Pego protest.
"Even if each of these witnesses had testified that they were improperly denied their right to vote, the protesters would not have satisfied their burden," Hogen also stated. "Six votes separated the first and second candidates in this election. Therefore, to demonstrate an actual and material effect on the election, the protesters were required to demonstrate that at least six persons were denied their right to vote, and that these same persons would have voted for Steve Pego had they been given the opportunity.
"In actuality, the protesters offered only one witness who was denied the right to vote because she did not have a new voter registration card with her at the polls. Three of the five witnesses who testified on behalf of the protesters were not even registered to vote in the special election."
Hogen also acknowledged that Pego and Montoya may well "be correct that it was confusing for the Tribal Clerk to send a [May 2] letter purporting to require that voters bring their "new" voter registration cards to the polls when those cards were not actually going to be required."
"Although the filing of these protests has not resulted in the calling of a new special election, their filing is useful to the Tribe and to the Tribal Clerk and the Election Caucus Committee nonetheless, for it provides useful feedback to Tribal officials on how best to conduct fair Tribal elections."
Under Tribal law, Hogen's decision is final and cannot be appealed.