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Mohegan elders council invalidates Mark Brown's election, orders new tribal vote

Mohegan — Mark Brown’s narrow Dec. 8 election to the Mohegan Tribal Council has been invalidated by the tribe’s Council of Elders, which has scheduled a new election for March 15.

Brown’s seat, which he had assumed Dec. 18, was deemed vacated as of Jan. 31, according to a Mohegan Gaming & Entertainment posting Thursday on the website of the U.S. Securities and Exchange Commission. The nine members of the Mohegan Tribal Council compose the MGE Management Board, which operates the tribe’s casino enterprises.

The elders’ council’s order stemmed from complaints filed by tribal members, chiefly Ken Davison, the council candidate who lost the Dec. 8 election to Brown by a single vote. Davison had complained to the Mohegan Tribal Election Committee and had petitioned both the tribal court and the elders’ council after he said an improper change in voting hours had prevented a tribal member from delivering two ballots that were for him.

Had the ballots been counted, Davison claimed he would have won the election, not Brown.

“Due to the MTEC’s refusal to accept hand-delivered ballots during the legal voting hours of 9:00 a.m. to 12:00 noon on election day, and its subsequent failure to adhere to the provisions of the Election Ordinance which mandated a recount, an investigation, a finding of probable cause, and a hearing, we do not know which of the top two vote recipients came in first and which came in second, or if there was a tie for first place,” concluded the elders council, the tribe’s highest judicial authority.

The Dec. 8 election will be “construed as a special run-off primary,” with Brown and Davison appearing on the ballot in the new election. Another candidate, Jay Ihloff, had appeared on the ballot in the Dec. 8 election, finishing third.

“We’re thrilled that the Council of Elders ruled in our favor on every issue we raised,” said M. John Strafaci, Davison’s attorney. “He’s essentially been vindicated. They found he was not only correct in his position but that tribal members’ right to vote is protected by the Mohegan constitution. It’s an important decision.”

Mark Brown had no comment on the elders’ council’s ruling, nor did his attorney, Joe Barnes, respond to a message seeking comment. Davison, a lawyer who previously had run for the council and who once wrote "Feather News," an independent tribal news blog, did not respond to messages.

Heading into the Dec. 8 election, Brown had served 24 consecutive years on the tribal council before losing a re-election bid last August. The Dec. 8 vote was held to fill a vacancy left by the resignation of his brother, Kevin Brown, who stepped down in July following an ethics investigation. Kevin Brown had resigned as council chairman in February 2019.

Before the Dec. 8 election, the election committee had informed tribal members that ballots could be mailed or left in a ballot box inside the employee entrance to the tribe’s government building and that hand-delivered ballots would be accepted from 9 a.m. to noon. Subsequently, the committee changed the voting hours to 8:30 to 9 a.m., publishing notice of the change in tribal newsletters and on tribal websites.

Shortly before noon on Dec. 8, tribal member Mark Sperry, who said he had never learned of the change in hours, arrived at the government building to drop off his ballot and that of his son, Marc Sperry, but found the building locked. Both Sperry ballots were votes for Davison.

Mark Sperry also had filed complaints with the election committee, tribal court and the elders’ council.

“... There exists no constitutional authority for the MTEC to restrict the legal voting hours once ballot instructions have been mailed,” Laurence Roberge, the elder council’s chairman and chief justice, wrote in his Jan. 31 decision.

He ordered that hand-delivered ballots be accepted from 9 a.m. to noon March 15 and that “Should a tie result, lots shall be drawn to determine the winner.”

b.hallenbeck@theday.com

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