UPDATE: Cherokee Nation Supreme Court dismisses Lay, Frailey election appeals

BY D. SEAN ROWLEY
Senior Reporter
06/19/2019 03:15 PM
Main Cherokee Phoenix
Dick Lay
Main Cherokee Phoenix
Meredith Frailey
Main Cherokee Phoenix
Chuck Hoskin Jr.
Main Cherokee Phoenix
Bryan Warner
TAHLEQUAH – After two days of deliberation, Supreme Court justices on June 19 dismissed the appeals by principal chief candidate Dick Lay and deputy chief candidate Meredith Frailey against principal chief-elect Chuck Hoskin Jr., deputy chief-elect Bryan Warner and the Cherokee Nation Election Commission.

All five justices – Lee W. Paden, Lynn Burris, Mark L. Dobbins, John C. Garrett and Chief Justice James G. Wilcoxen – signed the decision.

Hoskin said his only surprise with the hearing was the raising of issues previously examined and discharged by the EC and the attorney general’s office.

“The issue was nothing new, but that is part of due process,” Hoskin said. “That process is complete, and I am not at all surprised by the outcome, and Bryan Warner and I are ready to assume office and get to work.”

Warner expressed satisfaction with the hearing’s conclusion.

“I’m ready to get things going, and I’m preparing to transition into the new role and help the citizens of the Cherokee Nation,” he said. “I want to go to work and serve the people diligently.”

Lay called the decision “interesting” and said he was proud of his grassroots campaign.

“I’m happy we never resorted to mudslinging,” Lay said. “I’m happy we were honest and transparent enough not to have utilized an LLC. I’m proud that when it came time to be at the courthouse, I was there. I will continue to work for the best interest of the Cherokee Nation.”

Frailey said the hearing demonstrated the strengths of the Nation’s legal system but that there is room to improve the elections. She also commended the justices and all legal counsel for their professionalism.

“I’m disappointed with the decision in part because the facts were similar to the (David) Walkingstick disqualification case, and I think that was used (in the appellate case) as the standard,” Frailey said. “But I thank the justices of the Supreme Court for hearing our argument, and I think it shows that our democratic system of government does work. I believe the election laws need to be amended to eliminate doubt and confusion among the people. There is much improvement to be made, but we are also fortunate to have the government we have.”

In the opinion, Wilcoxen said the post-election appeals process is available as a challenge to the circumstances of the election itself and any attempts to usurp the will of the Cherokee people.

“Notwithstanding, Petitioners here did not make such allegations in their pleadings or their arguments but instead focus on alleged violations of election laws centered on campaign contributions and expenditures by Hoskin and Warner,” Wilcoxen wrote. “Article 5 also provides for this Court to consider the record of the Election Commission on appeal. Even though there is no record because the Commission did not hear this complaint, the Court considered the evidence offered by Petitioners.”

Wilcoxen wrote that campaign finance violation allegations are normally presented to the EC, often seeking a candidate’s disqualification based on conduct. He added that the appellants did not file until nine days after the election, leaving no proceeding for appeal to the EC. He further stated that similar complaints were made before the election, but found to be without merit by the EC and attorney general’s office.

“Petitioners claim Cherokee Future, a professional campaign corporation, hired by the Hoskin/Warner campaign as a vehicle to pay vendors was acting as a front for other vendors,” Wilcoxen wrote. “Allegedly, Cherokee Future did not disclose the individual actual vendors other than generically and that there were large payments to Cherokee Future under the designation ‘miscellaneous.’ Granted there should be as much disclosure as reasonably possible but the Election Commission considered the changes made in later revised filings made by the Hoskin/Warner campaign and found that there was no evidence of violation of the election law regarding the disclosure of expenses by the campaign. In fact, there is no evidence that Cherokee Future did anything but pay bills.”

The court also found no indication that Cherokee Future took or requested contributions, or that it funded in-kind contributions to the campaign and that campaign donations actually went to Cherokee Future to cover campaign-related costs. It also stated the campaign disclosed payments to Cherokee Future, which never received contributions and did not run afoul of corporate donation prohibitions.

“The Petitioners themselves are dissatisfied with the level of disclosure, however, those complaints should have been made with the Election Commission and they should have been made in a timely manner and where possible before the election,” Wilcoxen wrote. “A fair reading of the Election Laws indicate that challenges of this nature should be made pre-election as a practical matter to avoid the necessity and expense of a new election should a candidate be disqualified. It should be done to avoid the appearance that the complaining parties have waited to see how the election turned out before filing a complaint against their opponents. While this Court is not saying that is the case here, this Court is saying that there is not sufficient evidence in this record for this Court to order a new election after the fact. Therefore, it is the order of this court that this consolidated action be dismissed with all pending motions being deemed moot.”

The EC was expected to certify June 1 election results on June 20 in a special meeting.
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