Tribal Elections 101 – Consider the Following When Updating Tribal Election Laws and Regulations

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By Denise Bareilles, CILS Eureka Office Directing Attorney

I have had the pleasure of working closely with several Tribes in administering tribal elections.  It is an interesting area of tribal law that constantly presents new issues for tribal self-governance. Consider the information below when updating Tribal Election laws and regulations.

Does the Tribe’s Constitutional Framework Still Meet the Needs of Tribal Elections?

Most tribal Constitutions set forth the basic framework for tribal elections. The Constitution will generally have a specific section explaining the following:

  • The governing body (committee, board, or other administrative agency) responsible for administering elections
  • Qualifications for running as a candidate and respective nomination procedures
  • Voter registration process
  • When elections will be held
  • Process for enacting or amending the tribal election law
  • Process for challenging election results

The Constitution is a living document that should continuously serve its intended purpose. Does the election provisions in the Constitution continue to reflect the needs on how to administer tribal elections effectively? If not, work on updating the Constitution to avoid disputes that challenge election procedures as unconstitutional.

Here is an example of this issue presenting itself in tribal elections. The Tribe’s Constitution stated that all members of an Election Board must be elected by the voting membership. Through time, it became common practice (and well known in the community) that the Board made emergency appointments when necessary to fill empty Board seats. These emergency appointments were necessary to avoid cancelling elections due to the lack of a Board quorum to carry out election administrative actions. This emergency appointment procedure was not expressly provided for in the Constitution, and a lawsuit was eventually filed challenging the practice in the Tribal Court.  The emergency appointment procedure was ultimately held unconstitutional.

Who is Regulating the Tribal Elections?

It is important to understand the significance of an administrative election agency independent from the Tribal Council when holding elections for Tribal Council seats. Tribal governments predate the formation of the United States government. However, some tribal governments have organized under a tribal Constitution that provides that the Tribal Council substantially regulates tribal elections. Consider updating these types of Constitutions to ensure independent elections and as the tribe’s election system becomes more sophisticated. If not, this again invites disputes regarding the conflict of interest presented by the Tribal Council regulating its seats in tribal elections.

Is Tribal Election Law and Regulations Being Reviewed and Updated?

We cannot stress enough the importance of regularly reviewing and updating tribal election laws and regulations. Is nomination paperwork being submitted and reviewed correctly? Is the registrar of voters sufficiently being updated? Are petitions for ballot measures processed correctly? Are ballots being counted accurately? Are challenges to election results thoroughly addressed?

When reviewing ballot counting procedures, carefully evaluate the procedures to confirm that no one may tamper with final election results. There must be a paper trail for every single ballot. Ballots should be stored in secure locations. There should be a live video feed to the ballot tabulation room. Require tamper-evident seals, identification badges, and the presence of two or more staff members of opposite political affiliations. Tabulation equipment should be tested and certified before and after the election to confirm the machines are tabulating correctly. Provide a method for voters to track their ballots.

Is the Tribe Encouraging its Tribal Members to be a Member of its Administrative Election Agency?

Administering tribal elections is a complicated task that requires staff with substantial experience. Tribal elections are intimidating. Tribal officials and staff must understand tribal law, policies, and regulations and succinctly communicate the information to the tribal community. Tribal elections occur in smaller communities; thereby politics can be pervasive and run deep throughout. The tribal election agency’s actions are closely scrutinized and challenged sometimes on a regular basis. This may discourage tribal members from working for the election agency due to the constant pressure to respond quickly with correct information on all issues. To support the community, it is important to regularly do outreach to the community by holding regular training on administering tribal elections.

CILS has been assisting tribal governments in tribal self-governance for the last 50 years. Reach out to the CILS office closest to you if you have any questions or comments in administering tribal elections.