Gamble v. Ho-Chunk Nation Election Bd. (June 30, 2025)

Case details

Full caption

Benjamin Gamble v. Ho-Chunk Nation Election Board

Country

United States

Jurisdiction

Federal

Decided

June 30, 2025

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WZLZI

iu tmcwjic 1RIAJ IJflME OJT

JUN 302025

IN THE

HO-CHUNK NATION TRIAL COURT

3 Benjamin Gamble,

4 Plaintiff,

v. Case No.: CV 25-08

6 Ho-Chunk Nation Election Board,

7 Defendant

ORDER

DENYING PLAINTIFF’S MOTION FOR INJUNCTION AND

GRANTING DEFENDANT’S MOTION TO DISMISS

12 INTRODUCTION

13 This case anses out of plaintiff’s challenge of the Ho-Chunk Nation Election Board’s

(hereinafter Election Board) decision to certify the results of the June 3, 2025, lb-Chunk Nation 15

General Election. The Court must determine whether to grant the Plaintiff’s Emergency Motion 16

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with Exhibits 1-7. On June 20, 2025 the Defendants attorneys filed the Defendants Witness 2 List, and Defendants Rule 31 Disclosure. The Court issued an Order (Erratum) to the parties 3

and interested parties on June 23, 2025 to correct a clerical error related to the start time of the 4

June 26, 2025 Pre Trial Hearing which included an error as to the start time. The Erratum 6 Order provided clarity as to the fact that the Pre-Trial Hearing would start at 8:00 a.m. CDT

on the 26th of June, 2025. 8 On June 24, 2025 the Plaintiff, still representing himself, pro Se, filed Plaintffs Final

Rebuttal; and a document labeled Summary. Plaintiff also submitted Exhibits A-if: “EBM Training” noted in upper left corner ofdocument, from 3/10/25 [appears to be two pagesj,

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1 The Defendants by legal counsel filed Defendant ‘s Reply to Plaintiff’s Rebuttal on June 2 25, 2025, with Attached Exhibits.

2sth 3 On the of June, 2025.The Plaintiff filed the Emergency Motion to Strick [sic] 4

Cert!fication andfor Sanctions; a document titled “Corrected Exhibit” and Exhibits A-H. 6 PRE-TRIAL/MOTION HEARING/JUDICIAL DISCLOSURE

The Court convened the Pre-Trial Conference and Motion Hearing, (hereafter Motion 8 Hearing), Thursday, June 26, 2025 at 8:00 a.m. CDT. The following parties appeared at the

hearing: Department of Justice Tribal Attorney David Mrgudich and Department of Justice Senior Counsel Erik Shircel appeared in person, for the Defendant Election Board and they 12 noted that Ms. Weeta Montelongo, the Election Board Chair and Ms. JoAnn Maney, ELection 13 Board member were attending remotely. The Plaintiff was not immediately connected to the 14 hearing, the court suggested that in the interests of justice a brief recess could be taken to 15

permit the pLaintiff to join the proceeding. Mo!. Hr’g(LPER, June 26, 2025, 8:06:00 a.m.CDT). 16

Attorney Shircel taking the lead for the Defendant, suggested that he would be open to a brief

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Judicial Disclosure 2 Chief Judge Lowe disclosed to the parties that in review of materials submitted by the 3 plaintiff on June 24, 2925 she noted that tribal member Tonia Lowe, who is a resident of Area 4

IV, is the Ho-Chunk kinship sister of the presiding judge. She explained that Tonia Lowe’s 6 father and Judge Lowe’s father were brothers. Judge Lowe also affirmed that she could fairly ‘

and objectively hear the pending matter. Her disclosure was made as part of an ethical 8 responsibility so as to allow the parties to determine if the information was of significance to 9

them and whether they had any objections to the judge continuing on with the case. Mo!. Hr ‘g (LPER, June 26, 2025, 8:07:25 a.m. CDT and again at 8:17:53 a.m. CDT. The parties were 12 given time to think about the disclosure. The plaintiff had no objection Id., 8:19:49 a.m. CDT. 13 Attorney Shircel for the defendants had no objection and stated the disclosure did not rise to the 14 level of recusal. Id.; 8:19:56 a.m. CDT. 15

The Court then addressed the purpose for the Pre-Trial Hearing as being useful to 16

identify and narrow the issues that can be resolved, and those which must go to litigation-- if

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1 Intelligence) tools for research. lie further asserted that the plaintiff had supplied the court with 2 false information and should be sanctioned. The Court inquired as to whether counsel Shircel 3 was preparing written support identifying the specific concerning citations and data provided 4

by the plaintiff for the defense motion, or whether the motion itself was going to be put in 6 writing. Attorney Shircel confirmed that he was making the motion on the record today and

would be able to argue it as it was essential to his defense. LPER 8:28:44 a.m. CDT 8 Plaintiff expressed a desire to think about the disclosure relating to the Tonia Lowe

disclosure of LPER 8:23:19 a.m. CDT. The Court determined to hear the position of the Plaintiff as relates to all the motions. Plaintiff indicated that he was prepared to proceed with 12 addressing the Emergency Motion which includes his request to void the election pursuant to 13 the Election code, “ § 18.9(d)” and seeks sanctions under “Rule §5-111” for material 14 misrepresentations and discovery abuses buy the Defendant. Plaintiff seeks to secure an Order 15

for an immediate audit under the Election Code 18, 9 (a)

— (c) with sanctions for non

compliance with a court order--if the Election Board Defendant were to fail to comply within ii

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I With those disclosures, the hearing shifted focus to the arguments and supportive 2 evidence related to the pending motions of the parties. Specifically whether the action should 3 be dismissed for the failure of the plaintiff to prove any violation of the Ho-Chunk Nation 4

Election Code. 6 FINDINGS OF FACT

At the Pre-Trial Conference and Motion Hearing, convened on June 26, 2025 the

following findings were made by the Court. 9

The parties received proper notice of the June 26, 2025 Pre-Trial and Motion Hearing. 10 ii 2. The plaintiff, Benjamin Gamble is an enrolled member of the Ho-Chunk Nation, Tribal 12 ID # ending in 4767, and maintains an address of 31928 Granville Drive, Winchester, CA 92526. 13 3. The Plaintiff was a candidate for the Ho-Chunk Nation Area IV, Seat 3 Legislative 14

position in the June 3, 2025 General Election. In his initial appearance before the court, plaintiff 16 advised that he had intended to secure legal counsel. Scheduling Conference, May 16, 2025 I? LPER, 3:0 1:35 p.m., CDT. He continues to represent himself in this action as of June 26, 2025. lB

He explained that he had difficulty in trying to secure counsel to represent him in tribal court.

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I 5. Plaintiff chaLlenges the Election results and defendants certification of the June 3, 2025

2 General Election through his timely filed Complaint, CV 25-08 (HCN Tr. Ct., June 13, 2025) 3

alleging violations of the CONSTITUTION and Election Code by the defendants. Id., 4

6. Plaintiff alleges that the applicable law supporting his cause of action is the HCN

6 CONSTITUTION, ART. VII, § 5(a) JUDICIARY; ART. V § 4 LEGISLATURE, REDISTRICTING OR

‘ REAPPORTIONMENT, and the ELECTION CODE CH. I §2.4; Cl-i. II 2, 9a, I le(2); 2. Complaint. At

8 2. 9 7 The CONSTITUTION at ART. VIII, § 7 states: 10

Section 7. Challenges of Election Results. Any member of the Ho-Chunk Nation II

may challenge the resuLts of any election by filing suit in the Trial Court within ten 12 (10) days after the Election Board certifies the election results. The Trial Court shall

hear and decide a challenge to any election within twenty (20) days after the ‘3 challenge is filed in the Trial Court. ‘4

8. A review of the Plaintiff’s cited supporting laws alleging to be from the Ho-CHUNK

15 ATION ELECTION CODE, 211CC §6, reveals that of the law cited by plaintiff, the only two that

16 ctually exist are the references to CH. II §9. , and Cl-i. II.9a. Relating to Notice of Election.

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12. The Plaintiff claims that his election prospects were materially harmed by unlawful 2 barriers placed on voters intending to support him. It is his contention that equal protection has 3 been denied under tribal law by flaws in the absentee ballot process. Complaint at 3. 4

13. The Plaintiff also lists numerous hardships encountered by absentee voters, the expense 6 of a notary, only having one polling place in all of Area IV, the reliance on the US Mails for ‘ ballot delivery and return and the variables in delay caused by that factor, limitations on 8 electronic access to make requests for absentee ballots, and the lack of a means to cure error

with absentee ballots and other general concerns. See Complaint, at 1-3 14. Plaintiff claims that the Nation’s Cybersecurity firewalls block attachments. Plainiff’s 12 Complaint Attachment e-mail, p. 1. Plaintiff has identified at least one individual tribal member 13 that experienced an inability to utilize the e-mail system of the Nation (for reasons which may 14 not clearly be related to the electoral process) per Attorney Shircel. 15

15. The current ELECTION CODE requires absentee ballots to be notarized, 2 HCC § 13 b (2). 16

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19. It appears from the record and pleadings that information concerning the absentee ballots 2 has been shared with the Plaintiff by the Defendant. The Plaintiff did not argue that he had been 3 denied discovery when directly asked. LPER Pre-Trial Motion Hr ‘g. 4

20. Plaintiff offered much in the way of anecdotal information from other sources, concerning 6 challenges and issues that tribal members have shared their election related experiences with

him via social media and other means. Specifically, plaintiff reviewed his Emergency Motion 8 and supplemental materials filed on June 25, 2025 at the Pre-Trial/Motion Hearing as 9

supportive of his complaint. However, the nature of the relief sought requires that a certain I0

standard be met for the issuance of relief whether injunctive or other. 12 21. Plaintiff acknowledges that he was not really disenfranchised. LPER 9:19:36 a.m. 13 22. The defendant, Ho-Chunk Nation Election Board, is a constitutionally established entity, 14 and maintains an address of W9814 Airport Road, Black River FaLls, WI 54615. CoNsTITUTION Is

ART. VIII, § 4 ELECTION BOARD. 16

23. The defendant denies that the plaintiff has met the burden of proving by “clear and

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I 25. The Court asked whether there was written support for the Defendant’s Rule 56B motion

2 seeking sanction, for citation error by the Plaintiff; or whether the motion itselfwas going to be 3

put in writing. HCN R., Civ. P. 18 states: Types ofMotions. 4

Motions are requests directed to the Court and must be in writing except for those made in Court. Motions based on factual matters shall be supported by affidavits, references 6 to other documents, testimony, exhibits or other material already in the Court record.

Motions based on legal matters shall contain or be supported by a legal memorandum, which states the issues and legal basis relied on by the moving party. The Motions 8 referenced within these Rules shall not be considered exhaustive of the Motions 9 available to litigants.

It is clear that a motion may be made on the record, and need not be written depending II

on whether supportive material is needed to document facts or provide legal memorandum as

necessary. Attorney Shircel confirmed that he was making the motion on the record today and

14 would Like to be able to argue it as it was essential to his defense. The court determined to

15 proceed as the Plaintiff Gamble acknowledged that he did in fact perform research on-line and

16 used Googie. lie advised that he is not an attorney. The legal citation aspects and requirements

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I 26. The Defendants based the Motions for Dismissal and Summary Judgment in part on the 2 Plaintiff’s failure to comply with the Court’s Scheduling Order as relates to 1-ICN R. Civ. P.,

Rule 31 disclosures as additional reasoning for supporting the Motions. 4

They argue that the Plaintiff has not made his case as to providing the necessary proof 6 that the Defendants have violated the Ho-Chunk Election Code.

27. Neither is there a basis for the Plaintiff to secure an injunction concerning the Area IV, 8 Seat 3 positIon. The complaint alleges no specific harm that the Plaintiff suffered. Additionally

there is no showing that the four prong test adopted by this court has been addressed by the 10

Plaintiff in either an initial pleading or an accompanying motion. See IICN R. Civ. P 60. 12 28. At no time has the Plaintiff suggested that his ballot was rejected, and as such he has not 13 argued as to why he personally is disenfranchised. 14 29. The Election Board has developed and used a system that permits them to protect the Is

integrity of the ballots and the balloting process. There is no claim from the Defendants that the 16

system cannot be improved. Rather it was suggested that the population can work to have the

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appropriate to assure that things like the US Mail and its issues with staffing and budget may 2 not unilaterally impact our Ho-Chunk Nation elections, it behooves the Legislature to review 3 such concerns and consider whether it is appropriate to craft a Legislative response to the needs 4

of the Nation. Policy concerns can drive Legislation. Here the plaintiff alleged that the US 6 MaiL may have impacted the election, but offered no evidence, nor solid proof of the impact of

the postal service on our 1-b-Chunk Election held June 3, 2025. Further there is no evidentiary 8 nexus between the other allegations relating to Fed Ex expenses, and Birth Certificate cost and 9

Notary expenses and the impact on participation in the election. The failure to introduce I0

evidence proving any impact on the Area IV, Seat 3 General Election prohibits this court from (2 making a finding that the case or controversy must continue to the trial phase. It is difficult to

maintain a case or controversy under such circumstances where relevant facts and testimony 14 have not been provided for consideration by the tribunal. Broad sweeping statements and ‘5

anecdotes, and hearsay are not material facts. Here there is no material dispute of fact. The 16

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was she engaged in the Certification Process. Defendant ‘s Reply to Plaintiffs Final Rebuttal 2 at 2. The Defendant cannot be held responsible for the conduct of third parties. The Defendant 3 outlined the complaint process that any tribal member could utilize relating to Sections 16 and 4

19 of the ELECTION CODE. It is an administrative process that involves the Defendant. 6 32. Defense Counsel also cites to the Court’s authority to grant Dismissal for failed

compliance with the Court’s Scheduling Order and Rule 31 of the HCN R. Clv. P. Further, 8 Plaintiff’s Complaint and supporting materials and arguments failed to show by clear and 9

convincing evidence that the Defendants have violated the Election Code or they otherwise I0

conducted an unfair election and the results would have been different but for the violations. 12 [Emphasis added]. 13 33. Defense argues that the Motion to Dismiss andfor Summary Judgement are appropriate 14 whereas here, the Plaintiff has not shown that ballot issues related to tracking, counting, 15

storing or any other matter would have had the effect of resulting in a different outcome of the 16

election for him. Issues relating to costs for returning the ballots aside, the Plaintiff has

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I similarly situated to use in enhancing tribal member activity in elections and encouraging 2 participation in the activities of a sovereign indigenous people. 3

DECISION

I. Requested Relief 6 The Election Board must act within the four corners of the Election Code, and in this

instance there has been no showing by Plaintiff that he personally has statements, affidavits, resolutions, etc., that show that he has the authority to speak on behalf of anyone other than 9

himself. Therefore, where his complaint does not allege any specific harm that he suffered, nor 10 ii does he expand on identification of the alleged unlawful barriers and where he admits he has 12 not been disenfranchised, he cannot prevail in this litigation. Plaintiff makes blanket assertions 13 without any actual proof to back up his claims. Plaintiff fails to cite to any actual evidence that 14

any action suppressed voter turnout or that the outcome of the election would have been different 15

but for the violation. There is no link proven between the allegations of the Plaintiff and 16

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‘ granting the injunction serves the public interest. See e.g. HCN Election Bd. v. Aurelia Lera 2 Hopinkah, SU 98-08 at 8 (HCN S. Ct., Apr. 7, 1999); Coalition for Fair Gov ‘III v. Chioris 3 Lowe, Jr., et al., CV 96-22 (HCN Tr. Ct., July 23, 1996); Tracy Thundercloud v. HCN Election 4

Bd., CV 95-16 (HCN Tr. Ct., Aug. 28, 1995); and Joyce Warner eta!. v. HCN Election Bd., CV 6 95-03-06, -09-10 (HCN Tr. Ct., July 3, 1995). The Court need not go further with this analysis

as the remedy is not appropriate given fact that the Plaintiff has not demonstrated a likelihood 8 of success nor has he identified how the issuance of an injunction on seating a member of the

Legislature represents anything but a harm at this time given the unlikely success of the Plaintiff on the merits. There is no justification to postpone the Area IV, Seat 3 seat and no need for a 12 special election with its attendant costs and use of resources of the Election Board and others. 13 Plaintiff’s failure to address the four prongs is not a sole determining factor as to whether the 14 relief is appropriate. However the analysis of the four factors is. In this instance that analysis 15

demands that Plaintiffs request must be denied. The Court declines to enjoin the seating of 16

the Area IV, Seat 3 Legislative Representative currently scheduled for July 2, 2025.

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of the ELECTION CODE and assures compliance with the overarching legal mandates related to Elections from the 110-CHUNK CONSTITUTION. 3 It is incumbent upon the proponent of electronically gathered research and information 4

to determine the relevance and accuracy of the legal cites included as part of the case or 6 controversy. It is difficult to sustain a case or controversy where there is no apparent ‘

supportive law for the party’s contentions. With the correct citations the parties are able to 8 identify key sections and accordingly may frame their arguments based on these accurate

filings. The fact that the Plaintiff relied upon some form of research or citation that did not correspond with the laws of the Ho-Chunk Nation, while purporting to be a citation to that law 12 is concerning. Access to justice and knowledge of the applicable law in a given case or 13 controversy are critical factors to achieving just and fair outcomes in litigation. Here the 14 Court exercises its discretion and declines to impose a Rule 56B sanction as to Plaintiff’s i5

documentary submissions and legal citations as has been proposed by the Defendant’s 16

counsel. The Court anticipates that formal rules and possibly statutes will be developed IX to address this burgeoning challenge related to technological advances in research and

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I right to relief as he has not been able to prove by clear and convincing evidence that that the 2 Defendant has violated the Election Code. Therefore he has an inability to meet the burden of 3 showing he is entitled to remedies sought. 4

More importantly he has been unable to demonstrate that the election results would 6 have been different even allowing for an increase in three votes. The facts do not support that

the Plaintiff has met the burden of showing he is entitled to the remedies sought. He has failed 8 to state a claim for which relief can be granted. Plaintiff’s Chain of Custody Breach and

Falsified Certification Tallies arguments involving the “Galarza family ballots- not logged”, have been proven to be incorrect based on documents exchanged with the plaintiff by Defendant. 12 Plaintiff’s Final Rebuttal, Ex. F.

The totality of the circumstances relating to the allegations made by Plaintiff do not 14 clearly show that he has established a right to relief as the Defendant had successfully provided l5

the infonriation necessary to demonstrate that the concerns as to the Galarza family ballots show 16

that their Absentee Ballots were both notarized and logged, (Ex. 9, Attached Envelopes for

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Money Centers ofAm. Inc., CV 10-54 (HCN Tr. Ct., April 15, 2013) at 7. As to materiality, the 2 substantive law will identify which facts are material. Only disputes over facts that might affect 3 the outcome of the suit under the governing Law will properly preclude the entry of summary 4

judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Aleksandra 6 Cichowski v. Four Winds Insurance Agency, LLC, CV 01-90 (HCN Tr. Ct., Dec. 15, 2003) aff’d

SU 04-01 (HCN S. Ct., Aug. 20, 2004). 8 A. Are there any genuine issues of material fact? 9

This court takes into consideration the briefs and other supportive materials filed in I0

relation to the motions for summary judgment. In CV 25-08 the Plaintiff has been unable to 12 prove any violations by the Election Board. Accordingly there are no material facts in dispute 13 Summary judgment is not precluded and in fact may be the preferred method to resolve this 14 case. 15

The allegations concerning Tammy White Wing are not relevant to this action as she is 16

neither an employee nor agent of the Election Board. The Defendants counsel has taken

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I genuine issue as to material fact and the moving party is entitled to judgment as a

matter of law.

The Plaintiff has raised many issues, but has not met the burden of proof to show that there are genuine disputes of material fact. The Defendant is entitled to judgment as a matter of law where there is no proof, no admissible evidence proffered by Plaintiff that supports his claim or would result in different results for the eLection given the facts in the record. The Election

Board has not violated the law or otherwise conducted an unfair election contrary to the

8 9 Constitutional and statutory requirements of the Nation’s ELECTION CODE 2 HCC § 6. 10 Each eligible voter is encouraged to choose to participate in the elections and also in

suggesting ways to honor our sovereignty and the processes of self-government that will strengthen the I-to-Chunk Nation.

Summary Judgment for Defendant.

14 Is

This Order constitutes a final judgment for the purposes of an appeal to the Ho

Chunk Nation Supreme Court. The Notice ofAppeal shall be filed and served within three

18 (3) calendar days of the entry of judgment, as per the Ho-Chunk Nation Rules of Civil

Procedure, Rule 80(A)

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IT IS SO ORDERED this 30th day of June 2025, by the Ho-Chunk Nation Trial Court

. 22 E

23 located in Black River Falls, WI within the sovereign lands of the Ho-Chunk Nation.

Hole’w// C7€f Trial ourt Judge

Plaintiff’s claims against this defendant. Accordingly the court declines to grant remedies sought

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JLED

IN THE HOCNtJNK NAT)W TRIAL SUPR JR?

JUN 302025

CERTIFICATE OF SERVICE

k Of COUPL 11at

I, Tabitha Ostrem, Records Manager of the Ho-Chunk Nation Trial Court, do hereby certify that on the date set forth below, I served a true and correct copy of the ORDER(Denying Plaintiff’s Motion for Injunction and Granting Defendant’s Motion to Dismiss) in Case No. CV 25-08 and upon all persons listed below.

By Email:

Benjamin Gamble Bejamin.garnb1e(ãgmaiI .com

HCN Department of Justice dojcourtfihings@,ho-chunk.com David.Mrgudich@ho-chunk.com Erik. Shircel@ho-chunk.com

Sandra White Wing ww. sand(iyahoo .com

Michael Murphy Michael. Murphy@ho-chunk.com

Melissa Olvera Melissa.olvera@ho-chunk.com

Weeta 0. Montelongo Weeta. Montelongo(ho-chunk.com

Dated: June 30, 2025

(h Tabitha Ostrem. Records Manager Ho-Chunk Nation Trial Court

Cc: Staff Attorney

to Strike Certflcation andfor Sanctions. The record and pleadings in this matter do not sustain

by the Plaintiff. Conversely, the Motion for Summary Judgment and Dismissal filed by the

Defendant Election Board is granted.

PROCEDURAL HISTORY

The Court recounts procedural history of the instant case preliminarily in its

Scheduling Order, CV 25-08 (HCN Tr. Ct., June 18, 2025). Given the compressed timelines of

an Election Challenge, since the entry of that Scheduling Order the following has occurred:

The Defendants Answer to Plaintffs Complaint was timely filed on June 18, 2025. The

Defendants by Tribal Attorney David Mrgudich and Senior Tribal Counsel Erik Shircel also filed the Defendants Motionfor Summary Judgment and Dismissal on June 18, 2025, along 12 Gmail dated June 19, 2025 at 7.53 a.m. purported to be from Linda McHugh to Plaintiff 13 [concerning ballots and other concerns of sender]; Ex. D- “Disenfranchised Voters, District 4, i4 June 3, 2025 Election”, a list consisting of 10 names.l The other exhibits submitted include a 15 sheet labeled “Page 2, EBM-06/04/25” this page which includes what appears to be five (5) 16 motions made in the Election Board meeting where the Board addressed certification of 18 winners. (Included no specific exhibit label). A spread sheet documenting the District IV 19 Absentee Trackingfrom June 3, 2025 Election was attached, the addresses of the individuals 20 had been redacted, AES Control #s are also listed. (Included no specific exhibit label). Page 2 2i of the Election Board Minutes from 02/10/25 was submitted by the Plaintiff as an Exhibit 22 23 (included no label). A document labeled as “Exhibit H Chicago Vote Breakdown” (Included 24 no specific exhibit label, nor source information). 25 26 27 ‘At the Pre-Trial the Plaintiff did not indicate who had prepared this list of individuals. The Court had advised the 28 parties that one of the names on the list of people who were labeled as “disenfranchised voters” was Tonia Lowe, the Ho-Chunk sister of the presiding Chief Judge. This disclosure was made at the outset of the hearing on June 26,2025 to permit the parties an opportunity to determine if they had objections to the Chief Judge continuing on with the case. There were no objections. 17

recess to permit the plaintiff to join the hearing. He also stated that in litigation it was I possible that he would seek a default judgment if the Plaintiff did not appear, and it was not

necessary to make further attempts to locate the Plaintiff, he had been present at scheduling and 2! had notice as to the date and time to appear. Id., 08:06:47 CDT. The Court took a brief recess. 22

Back on the record at 8:16:52 a.m. and Plaintiff Benjamin Gamble had been able to join the

hearing. He apologized for the lateness and explained that he had used the wrong information to attempt to connect to the proceeding. Id., 8:17:36 CDT. The Court advised him that the defendant’s attorneys from the Nation’s Department of Justice were present in person and that 27 Ms. Maney and Ms. Montelongo appeared virtually.

possible. Given the compressed timelines of an election case the parties would also take up the

pending motions as had been previously agreed to by the parties at the Scheduling Conference

June 16, 2025.

Those motions were identified as the Defendants Motion for Summary Judgment and

Dismissal, and the Defendants Reply to the Plaintiff’s Rebuttal, filed 6.24.25, Defendants

counsel Shircel also raised a motion on the record. He categorized it as a Rule 56 b motion for an involuntary dismissal due to gross violations relating to the plaintiff’s citation of law and cases. Senior counsel Shircel went on to argue that the involuntary dismissal was warranted 27 where he has been unable to locate and find the references to the CONSTITUTION and ELECTION CODE cited by the plaintiff. He questioned whether the plaintiff relied on Al (Artificial

72 hours. Emergency Motion, CV 25-08 (HCN Tr. Ct.) at I.

Senior Counsel Shircel advocated that his client should not be faced with witnesses if

the matter goes to trial as the plaintiff failed to comply with the Rule 31 disclosures and has

also failed to provide a witness list as of today. He argued that this puts him in an impossible

position in preparing a defense. Further, his argument is that the inaccurate citations for the

laws the Plaintiff has cited to effectively prohibit his ability to identify the law and thus hinder his ability to create a defense of his client. In response to Senior Counsel Shircel’s expression of a desire to prohibit the calling of 27 witnesses and use of witnesses by the Plaintiff. Plaintiff offered that he had no witnesses. Pre Trial/Motion Hearing, June 26, 2025, LPER 8:31: 11, a.m. CDT.

Pre-Trial Conference Motion Hearing, June 26, 2025 LPER, 8:33:08 a.m. CDT.

• Harm. Plaintiff claimed that three disenfranchised votes would have changed the

22 outcome of the election or forced a runoff. The Official Results of the Election show that Sandra

WhiteWing had nineteen (19) total votes compared to the Plaintiff’s fifteen (15) total votes. Thus even if the Defendant had the three (3) claimed votes given to him in his favor, he still would have lost the Election 19 to 18. (See Ex. 1, HCN Election Official CertJled Results, and dated 26 June 04, 2025). Ms. Sandra WhiteWing received 19 votes and was certified as the winner in 27 28 the June 3, 2025 General Election for the Area IV, seat 3 by the defendant Election Board. Admission ofDefendant, Answer at 3. HCN Certfied Election Results, dated June 4, 2025.

The plaintiff has cited to non-existent provisions of the ELECTION CODE in offering cites

to the other sections: Cii. I 2.4, CII. II I le (2) and 2. This Court cautions parties where they §

engage in on-line forms of research. Be aware that the citations may not reflect actual law and

must be checked for accuracy and relevance.

• The HCN CONSTITUTIONAL provisions referencing ART. V § 4 and VII §5a do exist and

appear to be relevant to the action before the court.

• Plaintiff has alleged that in the June 3, 2025 General Election, the Election Board’s

actions resulted in the disenfranchisement of At-Large Voters. The exceptionally Low voter

turnout is claimed to be due to systemic barriers that prevented voters from participating. 17 16. Plaintiff seeks a determination that the June 3, 2025 General Election violated the

ELECTION CODE and CONSTITUTION. Further relief sought would be to direct structural reforms

be implemented by the Election Board. See Complaint at 3. He suggests the defendants disclose

rejected ballots and the basis for rejection, and that the defendant count “good faith” absentee

ballots.

• The ELECTION CODE does not contain language allowing a voter to cure any deficiencies

with a returned ballot. Defendants Answer to Plaintff’s Complaint, at 4. 18. Plaintiff also suggests that a determination that the election is invalid could result in the court ordering a “runoff/special election.” Plaintiff also suggests that reforms may order 27 implementation improvements in an e-mail system for tribal members, error notifications, utilization of digital voting, and drop boxes. Id. 17

convincing evidence that (1) the defendant Election Board violated this ELECTION CODE 2 HCC

§ 6 or (2) otherwise conducted an unfair election.” ELECTION CODE 2 HCC § 6.18. b.

• Defense Counsel argued that Plaintiff was should be sanctioned for his use of statutory

cites and the inclusion of information which was not actually the correct Ho-Chunk law citation

and it made it impossible to locate the cited case or law. Defense stated that the use of such

misinformation represents an impossibility to prepare a defense for his client where there is no corresponding law based on the inaccuracies of the citation provided by the proponent. Technology makes it possible to do many wonderful things with on-line research, but we must 27 not sacrifice accuracy and truth for the sake of a “story” or fiction created by use of Artificial Intelligence or similar tools. Fact checking is critical.

are challenging.

In Ho-Chunk culture it is a matterofrespect and is important for each person to be heard.

Both the Senior Counsel for Defendants and the Court acknowledge that and work to encourage

and make reasonable, legal accommodations for pro se litigants. Here the Counsel for the

Defendant and the Plaintiff are presented with the opportunity to make the argument relating

to concerns about the use of legal research tools, accuracy, truthfulness and how the court

should respond to the use of such tools. The Court has not finalized any rules concerning the

use of Al or Generative Al tools for legal documents. 17

specific concerns relating to the issues raised by the Plaintiff addressed via statutory revision,

or through policy directives via the General Council process. The tribal members may provide

clarity and policy guidance as to the considerabLe issues raised so that the electoral process can

reflect the member needs and our government and its sovereignty can be strengthened.

• The Ho-CHUNK NATION CONSTITUTION represents the Supreme Law of the Ho-Chunk

Nation. CONST., ART. III § 4. It sets forth the four (4) co-equal branches of government,

identifying the spheres of constitutional authority as conferred by the Ho-Chunk Nation General Council. Id., ARTS. III, § 2-3, IV, §2. In particular, the Ho-Chunk Nation Legislature is charged

with promulgating an election code and establishing an Election Board. Id., ARTS. V, § 3, VIII, 4. When it becomes apparent that a review of processes and procedures and the law is §

Plaintiff is displeased with the election outcome and seeks electoral reform. He particularly

wants reform to include encouragement of a greater number of tribal members in the election process. He has not been disenfranchised. Specific example and analysis may be preferred by

those in a position to actually make positive change in our ELECTION CODE. The Plaintiff has

made those suggestions for consideration to enhance participation in the electoral process.

3]. The Plaintiff has not articulated the case that the Election Board did not act in good

faith nor specify as to how specifically they violated the ELECTION CoDE. The Plaintiffs recent allegations relating to alleged retaliation by the Election Board are baseless. The Plaintiff provided information about Tammy White Wing which did not appear in the original Complaint. 27 The allegations were disposed of by the Defendant’s Counsel when he confirmed that she was not a member of the Election Board, nor a poll worker and did not oversee Absentee Ballots nor 17

suggested that there are many concerns and he has suggested a number of ways that the Nation

could improve election participation. That being said, those matters can be raised by the

Plaintiff or others that have encountered issues that may not rise to the level of illegality, but

they are suspect and may readily be improved with some policy development and

communication with the Legislature, perhaps resulting in revisions to the statute. Senior

Counsel Shircel posits that such conversations engaging with policy makers may also involve groups of tribal members, such as the General Council. The Plaintiff’s dissatisfaction with so many issues, does not elevate the case or controversy to justiciability. The governing processes 27 of discussion and policy development are appropriate tools for the Plaintiff and others

that those actions or omissions tend to show Defendant to be violating the Election Code.

Therefore, in such a situation it would not be appropriate to grant the Plaintiffs request

for remedy.

The Plaintiff sought a variety of remedies including a proposed injunction relating to

seating the elected Legislative representative for Area IV, Seat 3. Emergency Alotion to Strike

CertJIcation andfor Sanctions, June 25, 2025, at I. The Plaintiff did not articulate the four prong test utilized by the Court to determine whether to take action to enjoin a matter. The Court has adopted a four-part test for the purpose 26 of evaluating requests for preliminary injunctions. A party must show that (1) they have no 27

adequate remedy at law; (2) the threatened injury to the plaintiff outweighs the harm of issuing an injunction; (3) the plaintiff has a reasonable likelihood of success on the merits; and (4)

The Defendant’s implementation of the newly revised Redistricting and Reapportionment of the Nation’s Legislative Districts has been completed for this General Election. That is not

to say that the process cannot be improved. Counsel for the Defendant made it clear that the

membership of the Ho-Chunk Nation has the opportunity to work with policy makers, the

Legislature and General Council to address perceived challenges and engage more members in

the electoral process. The Defendant has openly encouraged the observation of its meetings and

made the minutes and forms related to this General Election, available for the Nation’s

members--including information about accountability for ballots, their processing and storage.

The duty to assure a fair election lies with the Election Board as it interprets the provisions

artificial intelligence tools.

MOTION TO DISMISS

(B) Involuntary Dismissal. After an Answer has been filed, a party must file a Motion to Dismiss. A Motion to Dismiss will be granted at the discretion of the Court. A Motion to

Dismiss may be granted for lack ofjurisdiction; if there has been no order or other action in a case for six (6) months; if a party substantially fails to comply with these rules; if a party

substantially fails to comply with an order of the Court; if a party fails to establish the right to

relief following presentation of all evidence up to and including trial; or, if the Plaintiff so requests.

Rule 31 HCN R. Civ. P

The Plaintiff has failed to comply with the Rule 31 Disclosure requirements as set forth in the Scheduling Order, CV 25-08 June 18, 2025, and has additionally failed to establish a 17

Galarza Family Absentee Ballots). For these reasons the Defendant must prevail. The Court

determines to grant the Defendant’s Motion to Dismiss with prejudice.

MOTION FOR SUMMARY JUDGMENT

This court takes into consideration the briefs and other supportive materials filed in

relation to the motions for summary judgment.

A moving party must demonstrate a factual and legal basis for which the Court should grant summary judgment. Ho-Chunk Nation Home Ownership Program v. Thundercloud, CV 10-17 (1-ICN. Tr. Ct., Aug. 24, 2010) at 6. A dispute about a material fact is “genuine” only if a 27 reasonable trier of fact could render a verdict for the non-moving party if the record at trial were identical to the record compiled in the summary judgment proceeding. Ho-Chunk Nation v. 17

measures to assure that it is clear to all that allegations regarding Tammy White Wing and the

Galarza Family and their Absentee Ballots have been addressed. It is not disputed that the

Galarza family did participate in the election per Melissa Olvera, Defendant’s Reply to

Plaintff’s Final Rebuttal, CV 25-08, June 25, 2025.

In this matter the Defendant has also sought a Motion for Summary Judgment.

Rule 55. HCN R. Civ. P. - Summary Judgment

Any time after the date an Answer is due or filed, a party may file a Motion for

Summary Judgment on any or all of the issues presented in the action. The Court will render summary judgment in favor of the moving party if there is no genuine

issue as to material fact and the moving party is entitled to judgment as a matter of law. Any time after the date an Answer is due or filed, a party may file a Motion

for Summary Judgment on any or all of the issues presented in the action. The Court will render summary judgment in favor of the moving party if there is no x6D26 27