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.]
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]Be it enacted that the general elections under the Fort McDowell Yavapai Nation Constitution shall be governed by the following ordinance enacted as required by Article VI, Section 1 of the Fort McDowell Yavapai Nation Constitution adopted on October 19, 1999.
ARTICLE I. ELECTION BOARD
Sec. 3-1. ELECTION BOARD
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.
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.
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.
The Election Board shall be compensated at a rate as set by the Tribal Council.
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.
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
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.
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.
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
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
ARTICLE II. ELIGIBILITY OF VOTERS AND CANDIDATESSec. 3-3. VOTERS
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.
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.
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.
Sec. 3-4. ABSENTEE VOTER
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.
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.
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.
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
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:
be an enrolled member of the Fort McDowell Yavapai Nation; and
have continuously physically resided within the Fort McDowell
Yavapai Nation for at least one year immediately preceding the
election date; and
be 25 years of age; and
possess a high school diploma or its equivalent; and
- Must not have been convicted of a felony or been convicted of a misdemeanor involving moral turpitude.
- Must be an enrolled member of the Fort McDowell Yavapai Nation; and
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.
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. PETITIONSSec. 3-6. ELECTION PETITIONS
Candidates for office shall be required to obtain the following number of signatures or more from qualified voters of the Nation:
President, fifty (50) signatures;
Vice-President, forty (40) signatures
Treasurer, thirty (30) signatures
Secretary, twenty (20) signatures
- 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
Sec. 3-11. PREPARATION, FORM AND CONTENT OF BALLOTS
shall be prepared by the Election Board. Each ballot shall be headed
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.
shall not be permitted to write-in candidates on the official ballot.
- 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.
Sec. 3-12. ELECTION PROCEDURES
Regular elections shall be held on the second Tuesday in January in even numbered years. The Election Board shall:
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.
voter's list on the first (1st) Friday of December before the
sufficient notices of the election to be held on the second (2nd)
Tuesday in January before the election.
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.
the location of the polling place in various tribal locations
sufficient to provide adequate notice to eligible voters.
- 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.
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.
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.
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.
Foot Limit 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.
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.
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.
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.
Ballots unused at the end of the voting shall be tied or stapled together, marked "UNUSED" in red ink.
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.
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.
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.
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.
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.
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.
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:
he/she is not the person whose name appears on the List of Eligible
he/she has already voted before in the election that is presently
If the Election Board determines that the challenge is correct, the person shall be prohibited from casting any votes.
Sec. 3-16. TIE VOTES
In the case of a tie between one or more candidates, a runoff election shall be held. The Runoff election shall be held between five (5) days and ten (10) days after the election results are certified by the Election Board. In the event the Runoff election results in another tie, the winner shall be determined by drawing cards with the high card winning or, if the tied candidates agree, another similar method (e.g. a coin toss, drawing of lots) mutually agreeable to the tied candidates.
Sec. 3-17. VALIDITY OF ELECTIONS; ELECTION CHALLENGES
Any eligible candidate whose name appears on the ballot may challenge an election. Such challenge must be filed in writing within two (2) days following the Certification of the Election by the Election Board. The challenge shall be presented in writing to the Chairperson of the Election Board. Within three (3) days following the filing of the challenge, the Election Board shall hold a hearing to determine the validity of the challenge. The hearing shall be informal and the formal rules of evidence shall not apply. If there is more than one challenge, the Election Board may consolidate those challenges. The Election Board shall ensure that all candidates in the election receive notice of the hearing either by personal service, or certified mail or both. The Election Board shall issue a written decision within five (5) days following the hearing. The Election Board's decision shall include detailed findings of fact, the basis of their decision, and their decision.
The decision of the Election Board may be appealed to the Trial Division of the Tribal Court within two (2) days after receipt of the Election Board decision. The findings and decisions of the Election Board shall be given deference by the Tribal Court and the Court's review shall be limited to whether or not the decision of the Election Board is sustained by sufficient evidence on the record. The member challenging the decision shall have the burden of proving the decision was wrong by a clear and convincing evidence standard. 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 Trial Court shall hear and determine the appeal within seven (7) days following the filing of the appeal. The decision of the Trial Division of the Tribal Court shall be final and no other court, including the Tribal Supreme Court, shall have jurisdiction over election contests.
Sec. 3-18. STANDARD OF REVIEW FOR AN ELECTION CONTEST
For all election contests filed pursuant to Section 3-17 above, the Election Board and the Tribal Court shall be guided by the following principles as their standard of review:
results are presumed to be regular and proper; and
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
will not be set aside unless the facts definitely show fraud and/or
that there was not a fair election; and
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.
- 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.
Sec. 3-19. THE TRIBAL COUNCIL DURING THE PENDENCY OF AN ELECTION CONTEST
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.
- 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.
Sec. 3-20. TIME
In computing any period of time prescribed or allowed by these rules the day of the act, event or default from which the designated period of time begins to run shall not be included. When the period of time prescribed or allowed under this Chapter is less than 11 days, then Saturdays, Sundays, and legal holidays shall be excluded in the computation. All persons who file any appeals under this Ordinance shall provide an address where that person can be served personally. If that person is not at the designated address when personal service is attempted, the process server is authorized to either leave the notice with a person of suitable age or to post the notice at the address. The act of leaving the notice with a person of suitable age or posting the notice shall constitute receipt of the notice for purposes of this Chapter.
Sec. 3-21. REPEAL OF PREVIOUS ELECTION ORDINANCES
Any and all past election ordinances, including the election ordinance passed on January 11, 1999 pursuant to Res. No. 99-07, shall be considered superseded upon the ratification and approval of the Constitution adopted by the voters of the Tribe on October 19, 1999.
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 99-07WHEREAS, the Tribal Council of the Fort McDowell Mohave-Apache Indian Community desires to establish an Election Code for the Community; and
WHEREAS, the Election Code shall further clarify the voting requirements currently set forth in the Constitution and Bylaws of the Fort McDowell Mohave-Apache Indian Community; and
WHEREAS, the Election Code will set out the rules and procedures governing Tribal elections including but not limited to designating Election Board duties and establishing requirements and procedures for ballot voting, election challenges, and runoff elections; and
NOW, THEREFORE, BE IT RESOLVED that the Tribal Council hereby enacts thefollowing Election Code Ordinance to be codified as Chapter 3, Election Code, of the Law and Order Code.
Secretary, Tribal Council