LULA B. BAUER, )
Plaintiff, )
)
versus ) C-80-1
)
SAM FARMER, WARREN G. )
SHERRED, OLA MAYE DRAPER, )
and EDWIN A. WALL, SR., )
as the chairman and members of )
the Choctaw Nation Special Election )
Board, )
Defendants. )

Taylor, Presiding Judge.

These proceedings mark the first time during this century the Choctaw Nation has exercised judicial sovereignty.

The dispute in this case revolves around a disagreement regarding the way in which the Special Election Board, and its agents, conducted the special election to fill the vacancy on the Tribal Council for District Number Twelve (12). In her petition, the Plaintiff, Lula B. Bauer, alleges that the way the election was conducted amounted to a violation of the Special Election Regulations of the Choctaw Nation of Oklahoma which were promulgated and adopted by the Tribal Council on October 13, 1979, and which governed the Special Election Board in its conducting the election.

The Plaintiff alleges that there was electioneering within one hundred (100) feet of the building and site of the election while it was in progress, that there were unauthorized people allowed in the room where the ballot box was located, that the room was small and cramped and that there was intimidation by oppressive closeness of election officials, and an absence of a private area for voters to mark their ballots, all of which combined to deny the voters their right to vote by secret ballot as guaranteed by the Choctaw Constitution.

In arriving at its decision in this case the Court finds, concludes, and orders as follows:

FINDINGS OF FACT

1. The majority finds that Special Election Regulations were adopted by the Tribal Council on October 13, 1979.
2. The majority further finds that the regulations prohibit electioneering within one hundred (100) feet of the building where and when the election is in progress.
3. The majority further finds that the regulations provide in Article X, Section 1 as follows: Voting shall be by secret ballot.
4. The majority further finds that the special election in question was conducted on the 22nd day of December, 1979 at the Coal County, Oklahoma, Courthouse in a small room which had dimensions of approximately ten feet by fifteen feet (10'X15').
5. The majority further finds that when the ballots were called and recorded after the polling place closed, the results were as follows:

Edward L. John - 42
Lula B. Bauer - 38

6. The majority further finds although there was some testimony that Mr. John was outside the voting room on two occasions other than the occasion when he cast his ballot, there was no evidence from which to find that he, or any one on his behalf, was engaged in electioneering in violation of the Special Election Regulations.
7. The majority further finds that although from time to time while the election was in progress there were unauthorized persons allowed in the room where the balloting was being conducted, the Plaintiff failed to prove by a preponderance of the evidence, that such fact caused anyone to alter his or her decision as to how the voter would mark his or her ballot.
8. The majority further finds that watcher for the Plaintiff was allowed to remain in the voting room at times other than during the calling and recording of the result of the vote (in contravention of the Special Election Regulations).
9. The majority further finds that the election, as in most other tribal elections, was conducted at a polling place borrowed from the local governmental sub-division of the state of Oklahoma.
10. The majority further finds that although in some counties voting booths are made available for tribal elections, from the local county government, there were no voting booths available at this particular election, nor were any ballot booths available from the tribe.
11. The majority further finds that some type of portable balloting apparatus or booth, should be constructed and made available for voters use during tribal elections.
12. The majority further finds that the Plaintiff failed to prove by a preponderance of the evidence, that there was any intimidation which would amount to such a display of force as would intimidate a person of ordinary firmness.
13. The majority further finds that there was no fraud nor material departure from the Special Election Regulations regarding the mode of holding the election here in question.
14. The majority further finds that although no balloting booths were available to the voters, there was nothing to keep them from taking their ballot to a corner of the room and, with their backs turned to the room, marking the same in private; or to cupping their hand over the ballot as they marked it, to ensure the secrecy of their choice.

CONCLUSIONS OF LAW

1. The majority concludes that an election is the express of choice by the voters.
2. The majority further concludes that tribal elections must be held under the authority of tribal law and substantially as required by laws providing therefor.
3. The majority further concludes that all reasonable presumptions will be indulged as to the regularity of elections.
4. The majority further concludes that the attacking party has the burden of showing the disqualification of an election.
5. The majority further concludes that the extent of secrecy and the means of preserving it are matters of legislative discretion, and it is for the Tribal Council to promulgate policy in carrying out the spirit and general policy of the Constitution.
6. The majority further concludes that the Council may expressly declare that a particular defect or irregularity is fatal to the election, and in such a case our court will enforce their command. When, however, a regulation provides that certain things shall be done in connection with the preparation of an election ballot without prescribing what results shall follow if they are not done, the regulation will be regarded as directory, and the test of the legality of the election will be whether the voters were given an opportunity to express their will and fairly express it.
7. The majority further concludes that where regulations are directory in their nature, substantial compliance with said regulations is all that will be required.
8. The majority further concludes that generally honest mistakes of, or mere omissions on the part of election officers, or irregularity in directory matters, even though gross, if not fraudulent, will not void an election unless they affect the result, or at least render it uncertain.
9. The majority concludes further that before intimidation will be recognized as sufficient to violate the secrecy of the ballot, it must be such a display of force as would intimidate a person of ordinary firmness.
10. The majority further concludes that although there is a constitutional mandate to the Council to adopt regulations ensuring the tribal elections shall be conducted by secret ballot, final responsibility must be borne by the individual voter, and in this case they could have ensured it.
11. The majority further concludes that the Plaintiff has failed to prove to the court's satisfaction that the results of the election should be set aside.

DECISION AND ORDER

IT IS THEREFORE THE DECISION AND ORDER OF THE COURT that the Plaintiff has failed to show the court that the results of the Special Election in Coal County, for the position of Tribal Council Representative, District Number 12, conducted on the 22d day of December, 1979, should be set aside and a new election ordered, therefore the Special Election Board is authorized and directed to certify Mr. Edward L. John as the winner of said election and Mr. John is authorized to assume the duties of his office upon taking the proper oath of office.

I am authorized to state that Judge Charley G. Jones concurs in this decision.
Judge Ed Curtis dissents.