Emory Bryan, News On 6

TAHLEQUAH -- After reviewing the results of a recount of the office of principal chief, the Cherokee Election Commission says the difference between the first count and the recount was 269 ballots that were all absentee.

Chad Smith is challenging the numbers generated by the recount, which resulted in a smaller number of ballots than were counted the first time.

"The election commission acknowledges there are 269 that are unaccounted for and what we believe is that these are votes for us," said Chief Chad Smith.

Friday morning, in another hearing held in secret, the Cherokee Supreme Court validated the recount, but left room for a challenge about ballots that were not counted.

The election commission's attorney had an explanation that created more confusion.

"You draw your own conclusion. There were 251 that weren't voted. That weren't counted. They were counted, but not tallied, now you figure that out for yourself," said Lloyd Cole, Election Commission Attorney.

Cole confirmed some ballots didn't get into the results. Smith's campaign says almost all of those were absentee ballots cast for Smith.

"On the recount, we came up with 251 votes that was not tallied, that were in the room, available for the counters to count, but they were not tallied," Cole said.

Baker's campaign has none of the concerns about the disparity they had before when Smith was certified as the winner.

"We know there was a very thorough count last night. This is a recount. The entire election commission is scrutinizing this entire process," said Chuck Hoskins, Baker's Attorney. "So what we think is the most accurate count to date is the one last night and it's an increased margin for Bill John Baker, he's the Chief elect and we're moving forward."

But Chief Smith believes the only way to figure out what happened to the missing votes is to count again - with a machine.

"The best recount is a machine recount, where there is no human error. They could process all those ballots in 3 or 4 hours, come up with a clean result that would give the Cherokee people confidence in the election," Smith said.

Smith said he plans to both ask for another count, and appeal to the courts to examine what happened to those votes during the recount.

Baker's campaign released a statement late Friday saying Smith should to concede defeat.

"The time for politics is over and our focus from here on out is to make sure that the work of the Cherokee People is being done" said Chief Elect Baker in a statement.

We have no firm timeline, but the appeals process starts over, as is now just where it was when Baker started his appeals that overturned the results.