Davison v. Mohegan Tribe Election Committee

8 Am. Tribal Law 121, 1 M.T.C.R. 111
Mohegan Trial Court·Decided May 18, 2009·No. No. CV-08-0133·Published

Opinion

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

JANE W. FREEMAN, Judge.

The Defendants, the Mohegan Tribe Election Committee (“Committee”) and the Mohegan Tribe of Indians of Connecticut (“Tribe”) have moved for summary judgment on the Plaintiffs Complaint. The operative Complaint is the Amended Complaint dated January 15, 2009. The Plaintiff contends that the Tribe’s ban on bullet voting in the Election Code, MTC § 1-201, et seq., violates several provision of the Mohegan Constitution. The ban on bullet voting is contained in Section 1-205(a) and Section l-206(e)(2) of the Election Code.

Every registered voting member of the Tribe who submits a ballot in a Tribal election shall be required to cast one (1) vote thereon for each elective position available.

MTC § l-205(a).

(e) No spoiled ballot shall be counted. For purposes of this Article, “spoiled” shall mean any of the following: ...
(2) The ballot contains more votes than positions available, or contains less votes than positions available in violation of Section l-205(a) of this Article....

MTC § l-206(e). Bullet voting (also known as “single-shot” voting) is a tactic where the voter selects one or a limited number of candidates, despite having the option to indicate a preference for other candidates. This technique “enables a minority group to win some at-lai'ge seats if it concentrates its vote behind a limited number of candidates and if the vote of the majority is divided among a number of [124]*124candidates.” Thornburg v. Gingles, 478 U.S. 30, 38, n. 5, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (citations omitted).

The Plaintiff has requested a declaratory judgment that the Committee’s decision declaring his ballots spoiled in two Tribal elections violated: (1) his voting rights under Article VII, Section 2 of the Mohegan Constitution1; (2) his free speech rights under the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1302 and Article XI, Section 1(a) of the Mohegan Constitution; (3) his equal protections rights under IGRA and Article XI, Section 1(h) of the Mohegan Constitution2; and (4) the procedures for constitutional amendment in Article VII of the Constitution. He also seeks to enjoin the Defendants from conducting future elections under the provisions in Section 1-206 of the Election Code.

The Defendants have moved for summary judgment claiming that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law because: (1) the ban on bullet voting protects the legitimate governmental interests of ensuring tribal cohesiveness and avoiding unrestrained factionalism along family lines, so that the Plaintiffs free speech claim has no merit; (2) the same legitimate governmental interests bar the Plaintiffs equal protection claim; (3) there is no conflict between Article VII, Section 2 of the Mohegan Constitution and the challenged provisions of the Election Code; and (4) the presence of procedures in the Mohegan Constitution for its amendment, provide no basis for declaring a provision of the Election Code invalid.

I. FACTS

The Defendants have established the following undisputed and relevant facts from the pleadings, affidavits and exhibits: ever since the Mohegan Tribe created a constitutional form of government in 1978, it has been a Mohegan tribal election custom to prohibit voters from voting for fewer candidates than the number of open positions. Zobel Affidavit, ¶ 3. Melissa Tantaquid-geon Zobel is the Tribal Historian and prepared or participated in preparing the document attached to her affidavit entitled “Tribal Election Custom” in which she described the election customs of the Tribe. Zobel Affidavit, ¶¶ 1, 3. Jayne Grandchamp Fawcett was a member of the Mohegan Tribal Council in the 1970s and from 1987 to 2005. Fawcett Affidavit, ¶ 1. Loretta Roberge was a member of the Mohegan Tribal Council from the late 1960s through the late 1980s and then from 1995 to 2000. Roberge Affidavit, ¶ 1. After the Tribe’s federal recognition in 1994, members of the Tribal Council were concerned that bullet voting would adversely affect the cohesiveness of the Tribe and that tribal members would vote only for members of their own families rather than across family lines. Fawcett Affidavit, ¶ 3. They supported a continued prohibition on bullet voting because they believed it would dis[125]*125courage tribal members from voting only along family lines. Fawcett Affidavit, ¶ 3; Roberge Affidavit, ¶ 2.

In the first election ordinance adopted in 19953, and in subsequent amendments and revisions thereto, including Section 1-206(e)(2) of the Election Code, the Tribe has prohibited the counting of ballots cast by those tribal members who voted for greater or fewer than the number of positions to be filled. Johnson Affidavit, ¶ 2. The purpose of such provision was to discourage tribal members from voting only along family lines. Fawcett Affidavit, f 3. By prohibiting bullet voting in its election ordinances, the Tribe has continued to encourage cross-family voting.

The Plaintiff voted in run-off tribal elections in August of 2007 and in August of 2008, but because he voted for only three candidates when four positions were available in each election (Amended Complaint f 2), the Committee deemed his ballots “spoiled” and did not count them in either election (Amended Complaint ¶ 2).

II. APPLICABLE LAW

A. Summary Judgment Standards

The Gaming Disputes Rules of Civil Procedure are currently applicable to actions in the Mohegan Tribal Court. Moh. R.P. § lA(c).4 Section 49 of the Gaming Disputes Rules of Civil Procedure provides the procedures for summary judgment:

b. Proceedings on Motion. A motion for summary judgment shall be supported by such documents as may be appropriate including affidavits, depositions, disclosures, written admission and like documents which show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The adverse party shall file opposing affidavits or other documentary evidence as provided in this rule within the time set forth in § lod, setting forth specific facts showing that there is a material issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party,
c. Form of Affidavits. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Swrorn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto....
f. Judgment. Judgment shall be rendered forthwith if the pleadings and any other proof show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

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Davison v. Mohegan Tribe Election Committee, 8 Am. Tribal Law 121, 1 M.T.C.R. 111 (Mo. 2009).

8 Am. Tribal Law 121 (Davison v. Mohegan Tribe Election Committee) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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