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Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 3 - ELECTIONS

Art. I. Election Board

Art. II. Eligibility of Voters and Candidates

Art. III. Petitions

Art. IV. Election

[Historical Note: Chapter 3 is derived from Resolution No. 99-144 Enacted 11/4/99]

ARTICLE I. ELECTION BOARD

Sec. 3-1. ELECTION BOARD

1. Composition
   
   The Election Board shall be appointed by a majority of a quorum of the Tribal Council. The Election Board shall consist of five (5) members. The Election Board members shall be appointed for a period of four (4) years effective on the date of his or her appointment; provided that two (2) of the initial members shall be designated to serve initial terms of two years. Each member shall serve until his or her replacement has been appointed by the Tribal Council. Upon expiration of the term of an Election Board Member, the Tribal Council shall appoint a member to serve for a period of four (4) years. The Chairperson of the Election Board shall be chosen by the Election Board from within its own members. The four remaining members of the Board shall be designated as tellers.
   
   
2. Removal
   
   By a majority of a quorum vote of the Tribal Council, any member of the Election Board may be removed for failing to uphold the duties of his position on the Election Board or for other good cause. The member shall be afforded reasonable notice and an opportunity to be heard regarding the alleged grounds for removal. The term of a member shall be automatically terminated if such member is convicted of a felony or of a misdemeanor involving moral turpitude as defined in this Election Ordinance.
   
   
3. Qualifications
   
   No candidate for office is eligible for appointment to the Election Board. No existing member of the Election Board may run for office without prior resignation from the Election Board. No person shall be eligible for appointment to the Election Board who has been convicted of a felony or who has, within five (5) years prior to appointment, been convicted of a misdemeanor involving moral turpitude as defined in this the Election Ordinance. Serving on the Election Board involves a substantial commitment, members of the Election Board must be able to dedicate the time and effort necessary to fulfill this substantial commitment. Election Board Members must be at least twenty-one years of age.
   
   
4. Compensation
   
   The Election Board shall be compensated at a rate as set by the Tribal Council.
   
   
5. Vacancies
   
   Vacancies for any reason shall be filled by a majority vote of a quorum of the Tribal Council for the remainder of the existing term.
   
   
6. Conflict of Interest
   
   Unless a majority of the remaining members of the Election Board agree that the member can sit as a fair and impartial judge, no Election Board member shall participate in any election contest or appeal involving a candidate or voter who is an immediate family member. For purposes of this section, immediate family shall mean father, mother, husband, wife, son, daughter, sister or brother.
   

Sec. 3-2. DUTIES

1. In General
   
   The Election Board shall have the duty of assuring that all of the relevant election dates and deadlines are met and shall possess the powers necessary to conduct an orderly and fair election. The Election Board shall ensure that all elections are conducted according to the Constitution and this ordinance. The Election Board shall hear election contests and disputes.
   
   
2. Oath Prior to the election, each member of the Election Board shall take an oath to faithfully perform the duties imposed upon him or her by the Constitution of the Fort McDowell Yavapai Nation and Tribal Law. A Tribal Judge shall administer and certify the oath.
   
   
3. Chairman The Chairman of the Election Board shall be responsible for the safe keeping of the ballots and ballot boxes. The Chairman shall periodically check and monitor the work of the Election Board members to insure accuracy. The Chairman shall supervise the counting of the election results.
   
   
4. Tellers The Tellers of the Election Board shall check off the voter's names on the final list of eligible voters as they arrive to vote on election day.
   

ARTICLE II. ELIGIBILITY OF VOTERS AND CANDIDATES

1. Eligibility
   
   All enrolled members of the Fort McDowell Yavapai Nation who are 21 years of age or over on the date of the Tribal election shall be eligible to vote.
   
   
2. List of Eligible Voters
   
   A list of Eligible of voters shall be prepared by the Election Board. The list of eligible voters shall be posted at designated places within the Community by the first Friday in December before the General Election.
   
   
3. Appeals
   
   Any enrolled member of the Fort McDowell Yavapai Nation whose name has been removed or omitted from the list of Eligible Voters may appeal in writing to the Election Board for listing. The final date for an appeal will be the second Friday in December. The Election Board shall hold a hearing within five (5) days after the second Friday in December for any filed voter eligibility appeals. If there are more than one appeal, the Election Board may consolidate the hearings of the appeals. The decision of the Election Board shall be made no later than five (5) days after the hearing and shall be final.

1. Request for Absentee Ballot
   
   Eligible voters who are temporarily absent or otherwise unable to cast their ballots at the polling place may request absentee ballots. Such request must be in writing and delivered to the Election Board at least twenty-one (21) days prior to the date of the election.
   
   
2. Schedule
   
   Absentee ballots shall be mailed to eligible voters at least ten (10) days prior to the date of the election. The absentee voter must seal his ballot in an unmarked envelope which, in turn, must be sealed in an envelope which bears the absentee voter's signature and address. The absentee voter must sign the envelope to have his or her votes counted. Ballots returned to the Election Board through the mail shall be mailed to the Election Board at the address indicated on the ballot. Absentee ballots must be received by the Election Board by 5:00 p.m. the day before the election. If any such absentee ballot is not received by the date and time described herein, then such absentee ballot shall be rejected and not be counted.
   
   
3. Lost Absentee Ballot
   
   If an absentee voter loses his absentee ballot, or fails to properly return his absentee ballot, he may still vote on election day. The Election Board shall check the list of persons who have voted by absentee ballot to insure that person has not already voted by absentee ballot.
   
   
4. Received Absentee Ballots
   
   As the Election Board receives completed absentee ballots, the Election Board shall properly record the name of the absentee voter and shall remove the completed absentee ballot from its outer envelope and place the absentee ballot in a locked ballot box. The signed envelopes shall be retained with the records of the election.

Sec. 3-5. CANDIDATES

1. Qualifications
   
   A person may run for only one elective office. Candidates for the office of President, Vice-President, Treasurer, Secretary and Council Member shall meet the minimum qualifications as listed in Article V, Section 6 of the Fort McDowell Yavapai Constitution which requires that all candidates:
   
   
   1. Must be an enrolled member of the Fort McDowell Yavapai Nation; and
      
      
   2. Must have continuously physically resided within the Fort McDowell Yavapai Nation for at least one year immediately preceding the election date; and
      
      
   3. Must be 25 years of age; and
      
      
   4. Must possess a high school diploma or its equivalent; and
      
      
   5. Must not have been convicted of a felony or been convicted of a misdemeanor involving moral turpitude.
   
   

2. Moral Turpitude
   
   No person who has been convicted of a felony, or who has been convicted of a misdemeanor involving moral turpitude shall be eligible to hold any elected office under the Constitution. The following misdemeanors and no others shall be considered misdemeanors involving moral turpitude: bribery, embezzlement, extortion, deceit, fraud, misappropriation of funds, forgery, homicide, misbranding, perjury, rape, sexual offenses with a minor and theft.
   
   

3. Residence
   
   Residence for the purpose of candidacy shall mean the "physical presence." The candidate must have continuously resided within the boundaries of the Fort McDowell Yavapai Nation for one year prior to the date of the filing of a Petition and through the date of the election. Temporary absence from the Fort McDowell Yavapai Nation for purposes of employment, education, military service, illness or physical disability shall not otherwise affect the residence of the member, where such member has otherwise qualified under this Section.

ARTICLE III. PETITIONS

1. For President, fifty (50) signatures;
   
   
2. For Vice-President, forty (40) signatures
   
   
3. For Treasurer, thirty (30) signatures
   
   
4. For Secretary, twenty (20) signatures
   
   
5. For At Large Council Members, thirty (30) signatures.

Tribal Members may sign more than one petition form.

Sec. 3-7. CERTIFICATION, AUTHORIZATION AND WAIVER

Any person who takes a petition for the purpose of collecting signatures for any office shall sign a certificate certifying that he or she meets the qualifications for office. The person shall also sign an authorization and waiver allowing the Tribal Council designated agency or person to conduct a background check, including a criminal records search with tribal, local, county, state, and/or federal law enforcement agencies for a conviction of felony or a conviction of a misdemeanor as defined in this ordinance. The designated tribal agency or person shall only release information concerning the criminal records check to the Election Board that relates to any felonies or misdemeanors involving moral turpitude.


Sec. 3-8. PROCEDURE FOR REVIEW AND DETERMINATION OF CANDIDACY QUALIFICATION

The Election Board shall review the candidates' qualifications and the validity of the candidates' submitted Petitions. The Election Board shall meet to review the qualifications and the Petitions. If the Election Board determines that a person is not qualified to be a candidate or a Petition is invalid, the individual affected shall immediately be notified by certified mail, or personal service or both. The notice shall be delivered no later than the 2nd Wednesday in December. The notification shall include the reason for the adverse decision.

An appeal of the Election Board's decision that a person is not qualified or a Petition is not valid may be made in writing to the Election Board within two (2) days after receipt of the decision. Along with the notice of appeal, the potential candidate shall submit his or her justifications and/or evidence indicating why the Election Board's initial determination is in error. The Election Board shall hold a hearing within two (2) days after receipt of the notice of appeal. The hearing shall be informal and the formal rules of evidence shall not apply. The Election Board shall issue a written opinion within three (3) days after the hearing. The Election Board's decision shall include detailed findings of fact, the basis of their decision, and their decision. The individual affected shall immediately be notified by certified mail, personal service or both. If there are more than one appeal, the Election Board may consolidate the hearings.

An appeal of the decision of the Election Board may be made in writing to the Trial Court of the Tribal Court within two (2) days after receipt of the Election Board decision. The decision of the Election Board shall be given deference by the Tribal Court and the review shall be limited to whether the decision of the Election Board is sustained by sufficient evidence on the record. The Tribal Court shall decide the matter within three (3) days of receipt of the appeal. Except in rare cases with good cause shown as to why the additional evidence should be considered, the Trial Court's review will be limited to a review of the record of the Election Board proceedings and the evidence before the Election Board at the time of its decision. Unless good cause is shown for a hearing before the Trial Court, the Trial Court shall not hold a hearing. The decision of the Trial Court of the Tribal Court shall be final.


Sec. 3-9. AVAILABILITY OF PETITIONS, DEADLINE FOR THE SUBMISSION OF PETITIONS

The Election Board shall make Petitions available to the candidates no later than the 3rd Monday in November. For the initial election under the new Constitution scheduled for January of 2000, Petitions shall be made available as soon as practicable. All Petitions shall be submitted to the Election Board on or before fourteen (14) days after the 3rd Monday in November.


Sec. 3-10. PUBLIC INSPECTION OF FILED PETITIONS

Any eligible voter may inspect all Petitions filed with the Election Board. If an eligible voter has reason to believe a Petition is invalid, the eligible voter shall immediately notify the Chairman of the Election Board for consideration. Any such notification must be received within five (5) days after the deadline to submit Petitions has passed or such notification will not be considered by the Election Board.

ARTICLE IV. ELECTION

1. Ballots shall be prepared by the Election Board. Each ballot shall be headed "Official Ballot."
   
   
2. The ballots shall list the names of the candidates whose names appear on the final list of candidates as established by the Election Board. The names of the candidates on the ballots shall be listed alphabetically by last name.
   
   
3. Voters shall not be permitted to write-in candidates on the official ballot.
   
   
4. Voters must cast a vote for each open seat and shall only cast one vote for each seat that is open for election. In other words, if the offices of the President, the Treasurer and One Council Member are open for election, then each voter must cast one vote for a candidate for President, one vote for a candidate for Treasurer, and one vote for a candidate for Council Member. If a voter votes for more or less than the exact number of open seats or fails to cast one vote for each open position, then the entire ballot shall be spoiled and no votes on the ballot shall be counted. A rejected ballot shall be refolded and marked "REJECTED" in red ink by a designated teller. Each member of the Election Board shall sign his or her name below the marking and the rejected ballot shall be placed in the ballot box at the end of the counting.

1. Election
   
   Regular elections shall be held on the second Tuesday in January in even numbered years. The Election Board shall:
   
   
   1. Make Petitions for Candidates available no later than the third (3rd) Monday in November before the election and inform the prospective candidates the deadline for the submission of the completed Petitions is on or before fourteen (14) days after the 3rd Monday in November.
      
      
   2. Post voter's list on the first (1st) Friday of December before the election.
      
      
   3. Post sufficient notices of the election to be held on the second (2nd) Tuesday in January before the election.
      
      
   4. Post the names of qualified candidates, as verified by the Election Board, for a period of at least fifteen (15) days prior to the election, duly noting any pending appeals.
      
      
   5. Post the location of the polling place in various tribal locations sufficient to provide adequate notice to eligible voters.
      
      
2. Hours of Voting
   
   The polls shall be open from 7:00 a.m. to 6:00 p.m. Any eligible voter who, at the moment of closing, is in the line of waiting voters shall be allowed to prepare and cast a ballot.
   
   
3. Method of Voting
   
   Each prospective voter, upon being identified as being an eligible voter of the Fort McDowell Yavapai Nation, shall be handed an unused ballot and shall sign his or her name on a form kept for that purpose to acknowledge that he or she has received that ballot.
   
   
4. Write In Candidates
   
   Write in candidates shall not be eligible for election. Voters shall not be permitted to write-in candidates on the official ballot. If any voter actually votes for a write-in candidate despite this prohibition, the entire ballot shall be spoiled, meaning that the vote for that write-in candidate and any votes for any other candidates on the ballot shall not be counted. A rejected ballot shall be refolded and marked "REJECTED" in red ink by a designated teller. Each member of the Election Board shall sign his or her name below the marking and the rejected ballot shall be placed in the ballot box at the end of the counting.
   
   
5. Fifty Foot Limit Notices
   
   
   1. Notices
      
      The Election Board shall make two notices stating: "Fifty Foot Limit" or "50 Foot Limit." Before opening the polls, the Election Board shall post the two (2) 50 foot limit notices approximately fifty feet in different directions from the main outside entrance of the designated polling place that the elects on is being held.
      
      
   2. Campaigners
      
      No campaigning by any person will be allowed on election day within a polling place or in a public manner within fifty (50) feet of the main outside entrance of a polling place.
      
      
   3. Effect
      
      No persons shall be allowed to remain inside the fifty (50) foot limit while the polls are open except for the purpose of voting. After a voter has cast his or her ballot, he/she shall immediately leave the boundaries of the fifty foot limit. Members of the Election Board are the only persons allowed to remain inside the fifty (50) foot limit.
   
   
6. Spoiled Ballots
   
   If a voter spoils a ballot and obtains another, the spoiled ballot shall be folded and marked SPOILED in red ink by a designated teller. Each member of the Election Board shall sign his or her name below the marking and the spoiled ballots shall be placed in the ballot box at the end of the counting.
   
   
7. Unused Ballots
   
   Ballots unused at the end of the voting shall be tied or stapled together, marked "UNUSED" in red ink.
   
   

8. Rejected Ballots
   
   If during the counting of the votes, the members of the Election Board are unable to determine from a ballot all of the choices of the voter, that ballot shall be rejected. In other words, if three seats are on the ballot for election and the Election Board can only determine one or two of the voter's choices, the entire ballot shall be rejected. A rejected ballot shall be refolded and marked "REJECTED" in red ink by a designated teller. Each member of the Election Board shall sign his or her name below the marking and the rejected ballot shall be placed in the ballot box at the end of the counting.

9. The Count
   
   As soon as the polls are closed and the last ballot has been deposited in the ballot box, the Election Board shall immediately count the votes cast. The count shall continue without adjournment until completed and the results determined and declared. After the Election Board Chairperson unlocks the ballot box, the Chairperson shall remove and open each ballot and shall read aloud the name of each candidate voted for as indicated on the ballot which shall be duly recorded by all tellers.

10. Witnesses
    
    The counting of the votes shall be open for public observation but the public must remain at a reasonable distance from the Chairperson, tellers, and ballot box. The public must remain quiet and in no way interfere with the orderly counting. If order cannot be kept, the Chairperson shall delay the counting until such time as order has been reestablished.

11. Tally Sheet
    
    Four tellers shall separately write on a tally sheet the titles of the offices and underneath each title the names of the candidates for each office. They shall also place opposite the candidates' names the number of votes for each candidate as the votes are read aloud.

12. The Abstract
    
    At the end of the count, the Election Board shall determine the total votes cast for each candidate. The lists of the Tellers must match in order to be certified. These results shall be written down together with the number of rejected and spoiled votes and shall be certified by the Chairperson.

13. Return of Ballots to the Judiciary
    
    The Election Board shall return to the Fort McDowell Yavapai Nation Judiciary the following:

    1. The official returns; and

    2. The spoiled, rejected and unused ballots; and

    3. The signature roster, poll list, tally sheet and abstract; and

    4. The certification of Election; and

    5. All other relevant election documentation.

14. Posting of Results
    
    Immediately after the results are certified, the Election Board shall post the results.

Sec. 3-13. RESIGNATION AND NOTICE

A. Council Membership

Any member of the Fort McDowell Yavapai Nation Tribal Council who desires to run for a different office than that person is currently serving, and the member's current office is not normally scheduled for a vote in the coming election, shall be required to provide notice to the Election Board. The notice shall state that the member will be running for a different office and the member will resign from the member's current position effective on the date the newly elected officers are sworn into office. Such notice and notice of future resignation must be provided to the Election Board not less than seventy-five (75) days prior to the scheduled election. This notice is required to allow the Election Board to hold a Special Election for the current office of the resigning member on the same date as the upcoming election.

B. Other Employment or Offices

No Council Member shall hold other employment while serving on the Tribal Council. No member of the Tribal Council shall be an employee of or hold other constitutional office in the Fort McDowell Yavapai Nation government. No member of the Tribal Council shall be employed in any branch of the United States Government nor shall any member of the Tribal Council hold any elective office in any other governmental body. This section shall not prohibit a Council Member from serving as the Council's representative on boards, associations or committees.

Upon written notice by the Tribal Council to a member of the Tribal Council or the Secretary who has violated this section, the affected person shall have fourteen (14) days to relinquish such employment or elective office prohibited by this section. If the affected person fails to relinquish such employment, such elective office shall become vacant and an election shall be held pursuant of Article X of the Constitution. This subsection shall remain in effect so long as the Tribal Council is receiving a full salary or compensation equivalent to a full salary.


Sec. 3-14. ABSENCE FROM TRIBAL EMPLOYMENT FOR THE PURPOSE OF VOTING

A person entitled to vote at a Tribal election held within the Fort McDowell Yavapai Reservation shall not be liable for any penalty nor deduction from salary or wages because of absence from employment while voting. Requests shall be made for such absence prior to the date of the election, and the employer may specify the hours during which the employee may be absent.


Sec. 3-15. GROUNDS FOR CHALLENGING VOTERS

A person offering to vote may be orally challenged by the Election Board members upon any of the following grounds:

1. That he/she is not the person whose name appears on the List of Eligible Voters.
   
   
2. That he/she has already voted before in the election that is presently being held.
   
   

If the Election Board determines that the challenge is correct, the person shall be prohibited from casting any votes.

1. Election results are presumed to be regular and proper; and
   
   
2. Irregularities or misconduct in an election which does not tend to affect the result or impeach the fairness of the result will not be considered; and
   
   
3. Elections will not be set aside unless the facts definitely show fraud and/or that there was not a fair election; and
   
   
4. The Rule of Proportionality shall apply which requires that unless it can be shown for which candidate any illegal vote(s) were cast, the illegal vote(s) are deducted from the whole vote of the election in proportion to the votes cast, not from the candidate having the largest number of votes.
   
   
5. After an election, election provisions contained in this Ordinance and the Constitution are to be seen as directions unless the violations of the provisions either 1) obstructed a free and intelligent vote, 2) affected an essential element of a valid election.

1. It is the custom and tradition of the Tribal Council to have a full Tribal Council (all five members) when considering and deciding major issues. If an election contest appeal has been filed, the Tribal Council existing prior to the election shall continue to hold their offices until all newly elected Council Members are sworn into office. This hold-over Tribal Council shall only hear and decide issues that must be decided due to time considerations or every day issues where inaction would adversely affect the smooth running of the Tribe. This power shall be exercised with extreme caution and the hold over Tribal Council shall refrain from deciding controversial issues.
   
   
2. If a decision of the Election Board is appealed to the Trial Division of the Tribal Court, after the decision of the Trial Division the candidates shall be sworn into office on the second Tuesday in February or if that date has passed, as soon as practicable. The Appellate Division of the Tribal Court and all other courts are prohibited from accepting jurisdiction over any election contests. If any election contest is incorrectly filed in the Fort McDowell Supreme Court or any other court despite this prohibition, no court shall issue any stay, injunction or restraining order during the pendency of the appeal, such filing shall not stay or alter the swearing in of the candidates, and such appeal shall be dismissed as soon as practicable.

Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

Resolution No. Ft. McD 99-07

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