D.E. Smoot and Wendy Burton

The Norman Transcript

The battle over who will lead the Cherokee Nation the next four years is far from settled, but it could turn a corner during the next 48 hours.

The Cherokee Nation Supreme Court ended on Tuesday its evidentiary review of Principal Chief Chad Smith’s challenge of the June 30 recount that gave his opponent a 266-vote victory.

When justices reconvened the hearing, they immediately announced they would entertain nothing but closing arguments about how to resolve the nearly four-week dispute over the June 25 election results.

Smith’s campaign argued for the confirmation and certification of the this past weekend’s ballot tabulations that gave Smith a five-vote edge of challenger Bill John Baker.

Baker’s campaign argued for a new election, saying the consideration of ineligible votes during the hand recount this past weekend makes it mathematically impossible to determine a winner.

The justices began deliberating after about an hour and a half of arguments and inquiries, making it clear there would be no decision Tuesday night. The Cherokee Nation’s election laws give the court 48 hours to announce a decision.

Both candidates deferred to the court’s anticipated ruling and expressed optimism about the outcome of any decision made.

“We end today the same place we started: Every time all the ballots have been accurately counted and tallied, I’ve had the most votes,” Smith said. “The Supreme Court has seen this with their own eyes, and have seen enough evidence to finally end this election, more than three weeks after the final vote was cast.”

Baker said he is confident his legal team successfully argued the case for a new election. He appeared confident he could win a special election, which officials said could be done within 30 days of the court’s decision.

“I feel with the supporters I have and the volunteers who have come to my aid, we can’t lose,” Baker said to a cheering throng of supporters outside the Cherokee Nation Judicial Center about his chances for a victory. “If the court doesn’t order it (a new election), I hope Chief Smith would do it.”

The candidates’ comments came after their lawyers staked out the campaigns’ legal positions for the justices.

Tim Baker, who is leading his brother’s legal team, argued for the necessity of a new election.

“I think that everybody agrees there were 24 to 26 votes not properly cast, and there has to be a mathematical certainty,” Baker said. “It’s my position that’s what the law is, and if you look at Chad Smith’s original briefs he filed, they said the same thing. Hopefully they (justices) are going to follow the law and do what’s right and have a new election.”

Dean Luthey, Smith’s lead counsel, argued for confirmation and certification of the ballot tabulations this past weekend. He said the court-ordered hand count of the ballots was “meticulous, laborious, well-planned and well-suited to make sure every ballot was properly counted.”

“When all the vitriol is washed out of the gutter and into the sewers — where it belongs — what do you have left?” Luthey said about the election dispute. “This case comes down to the rule of law, doesn’t it?”

Tuesday’s hearing drew scores of supporters, most of them backers of Baker and his request for a special election to resolve the disputes over spoiled ballots and improperly executed absentee ballots.

More than 15,000 ballots were cast in the June 25 principal chief election. Both Baker and Smith have been named winners and losers in the bitter battle in which every tabulation has ended with different results, eroding the confidence of voters.

“Do it all over,” Joann Thompson said before the hearing began. “It’s too messed up.”

Linda Garcia said a new election should require “independent people do the counting and watching this time.”

Smith supporter Gayle Ross said much of the drama of the June 25 election stems from what she described as a “botched recount” June 30.

“Baker has pushed a fairy tale to keep the drama stirred up — that kind of leadership divides,” Ross said. “I personally believe, as a Smith supporter, that the recount (this past weekend) does indeed show a winner can be determined.”

Responding to questions about divisions within the tribe, both candidates said they believe unity is possible.

“We’re all family, we’ve been family from the beginning of time,” an emotional Baker said. “We squabble, but in the end we’ll all come together.”

Smith said reuniting the tribe will be his greatest opportunity as the Cherokee Nation’s principal chief, a post he intends to hold for the next four years.