Thursday, December 4, 2008

Mohegan Voting Rights Court Case Moves Forward

Feather News
Revised


Revisions were made to a complaint filed in the Mohegan Tribal Court that seeks to overturn the manner in which elections are conducted on the Mohegan Reservation. The amended complaint was filed today in the Mohegan Tribal Court.

One of the next steps in the court case of Kenneth Davison v. The Mohegan Tribe Election Committee will be a decision by Judge Jane Freeman on whether the tribal government must notify all tribal members of the case and let tribal members know that they can ask the court to be made a party in the case. Also pending are possible revisions to add additional defendants.

Davison said, "Naming the Election Committee as a defendant is a technical matter and not adversarial. The Election Committee chairman, Jim Gray, and the entire committee are a professional group of folks that tribal members should be proud of. I can't speak for them but I believe that in their professional capacity they are neutral and want to see some kind of resolution to this matter. I just felt that naming the Election Committee as a defendant was a necessary way to begin the court case."

Davison's voting rights case was first filed with the tribal court on September 15, 2008. Since then, the judge denied a motion by the defendant's attorney that sought to have the case dismissed.

The amended complaint follows (Should readers wish to refer to the Mohegan Constitution, the Mohegan Election Code or the U.S. Constitution, these documents can be found on www.feathernews.com):

FACTS:

1.Plaintiff’s ballots for the past two run-off elections in August 2007 and August 2008 were not counted.

2.Plaintiff expressed his preference (voted) for three candidates in both aforementioned run-off elections in which four elective positions were available.

3.Plaintiff was notified by Election Committee officials that Plaintiff’s ballots in aforementioned elections were deemed not valid in accordance with the requirements set forth in Section 1-205(a) and Section 1-206(e)(2) of the Election Code, which requires voters to indicate their preference (vote) for the same number of candidates as there are elective positions available.

4.Section 1-205(a) of the Election Code states, “Every registered voting member of The Tribe who submits a ballot in a Tribal election shall be required to cast one vote thereon for each elective position available.” Further, Section 1-206(e)(2) of the Election Code states, in part, that no ballots containing “less votes than positions available” shall be counted.

5.Article VII, Section 2 of the Mohegan Constitution states “In each tribal election, every registered voting member shall be entitled to cast one vote for each elective position available.”

6.According to Black’s Legal Dictionary, a “vote” is the “expression of one’s preference or opinion by ballot.”

7.Article XI, Section I of the Mohegan Constitution states, in part, that “The Mohegan Tribe, in exercising its powers of self-government, shall make no law inconsistent with The Indian Civil Rights Act of 1968.”

8.The Indian Civil Rights Act and Article XI, Section 1(a) of the Mohegan Constitution prohibits the Mohegan Tribe from making or enforcing laws that abridge the freedom of speech.

9.The Indian Civil Rights Act and Article XI, Section 1(h) of the Mohegan Constitution guarantees Mohegan citizens equal protection of the Tribal Nation’s laws.

10.Article XVII of the Mohegan Constitution sets forth the procedures for amending the Mohegan Constitution.

11.Certain at-large election methods, such as the method used in Mohegan elections, have been proven in federal courts to dilute the vote of certain classes of citizens in violation of, inter alia, U.S. citizens’ equal protection of its laws guaranteed under the U.S. Constitution.



CLAIMS, INJURIES OR DAMAGES:

1.Deeming the Plaintiff’s aforementioned ballots not valid, and therefore not counted, abridged Plaintiff’s voting rights in accordance with Article VII, Section 2 of the Mohegan Constitution.

2.Deeming the Plaintiff’s candidate preferences on aforementioned ballots not valid, and therefore not counted, abridged Plaintiff’s freedom of speech rights guaranteed under the federal Indian Civil Rights Act and Article XI, Section 1(a) of the Mohegan Constitution. Similarly, the Election Code’s requirements in Section 1-205(a) and 1-206(e)(2), which forces the Plaintiff to indicate his preference for more candidates than Plaintiff wishes to vote for in order for Plaintiff’s ballot to be counted, abridges Plaintiff’s freedom of speech rights guaranteed under the federal Indian Civil Rights Act and Article XI, Section 1(a) of the Mohegan Constitution.

3.Deeming the Plaintiff’s candidate preferences on said ballots not valid, and therefore not counted, abridged Plaintiff’s equal protection of its laws by not allowing Plaintiff the opportunity to participate in the political process, in violation of the federal Indian Civil Rights Act and Article XI, Section 1(h) of the Mohegan Constitution, both of which guarantee Mohegan citizens equal protection of the Tribal Nation’s laws.

4.The Tribal Council’s enactment of Section 1-205(a) and 1-206(e)(2) of the Election Code violated the Mohegan Constitution’s mandated procedures that allow for amending the Constitution as described in Article XVII of the Mohegan Constitution.



RELIEF:

Wherefore, the Plaintiff prays that this Court:

1. Declare that Sections 1-205(a) and 1-206(e)(2) of the Election Code violate Article VII, Section 2 of the Mohegan Constitution.

2. Declare that Sections 1-205(a) and 1-206(e)(2) of the Election Code violate Article XI, Section 1(a) of the Mohegan Constitution.

3. Declare that Sections 1-205(a) and 1-206(e)(2) and the implementation of those Sections of the Election Code violate Article XI, Section 1(h) of the Mohegan Constitution.

4. Declare that the enactment of Sections 1-205(a) and 1-206(e)(2) of the Election Code violates Article XVII of the Mohegan Constitution.

5. Enjoin the Defendant and its agents, and all persons acting in concert with any of them, from administering, implementing, or conducting any future election under the existing balloting process in which voters must vote for all elective positions available.

6. Order the Defendant to devise and submit for Court approval a balloting process that does not violate Articles VII, Section 2 and Article XI, Section 1(a) of the Mohegan Constitution. Order the Defendant to devise and submit for Court approval an implementation schedule for a revised balloting process that will take effect for the next election cycle. In the absence, the Court shall devise a revised balloting process and implementation schedule that will take effect for the next election cycle.

7. Order the Defendant that the ballot be changed to indicate how many candidates were selected by the voter should voters be allowed to choose different numbers of candidates on their ballots.

8. Order the Defendant to devise and submit for Court approval educational materials that are to be sent to Mohegan voters notifying them of any changes in the balloting process. In said material, an illustrative sample ballot reflecting any changes, along with instructions on how to fill out the ballot, shall be included.

9. Plaintiff requests the Mohegan Tribe to pay all court costs and reasonable legal costs incurred on this case. Plaintiff requests not to be responsible for any costs incurred by the Defendant.

10. Grant such additional relief as the interests of justice may require.