Chipen v Losap Election Commissioner [1999] FMCSC 7; 9 FSM Intrm. 46 (Chk. S. Ct. Tr. 1999) (18 February 1999)

CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as Chipen v. Losap Election Commissioner, [1999] FMCSC 7; 9 FSM Intrm. 46 (Chk. S. Ct. Tr. 1999)

[1999] FMCSC 7; [9 FSM Intrm. 46]

TWINIS CHIPEN et al.,
Plaintiffs,

vs.

LOSAP ELECTION COMMISSIONER et al.,
Defendants.

CSSC CIVIL ACTION NO. 16-99

ORDERS DENYING TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Machime O'Sonis
Associate Justice

Decided: February 18, 1999

APPEARANCES:

For the Plaintiffs:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

For the Defendants:
Tony Rosokow, trial counselor
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Constitutional Law - Chuuk; Elections
No resident entitled to vote may be denied the privilege to vote or be interfered with in voting. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 47 (Chk. S. Ct. Tr. 1999).

Elections
Voting is a privilege and not a right. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 47 (Chk. S. Ct. Tr. 1999).

Elections
Absentee voting is a privilege granted electors, and not an absolute right. The purpose of statutes permitting absentee voting is to enable a qualified voter to vote at a general election in the precinct of his domicil when he is temporarily absent therefrom. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 47 (Chk. S. Ct. Tr. 1999).

Constitutional Law; Constitutional Law - Chuuk
The right guaranteed in the Chuuk Constitution to move and migrate within the State and the

[9 FSM Intrm. 47]

right in the FSM Constitution to travel and migrate within the Federated States, do not protect travel or migration outside these boundaries. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 48 (Chk. S. Ct. Tr. 1999).

Elections
Unless voting is expressly allowed elsewhere, all ballots must be cast in the state of residence. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 48 (Chk. S. Ct. Tr. 1999).

Constitutional Law - Due Process; Constitutional Law - Equal Protection; Elections
Voters' due process and equal protection rights are not violated by regulation or restriction of voting by absentee ballots. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 48 (Chk. S. Ct. Tr. 1999).

Constitutional Law; Constitutional Law - Chuuk; Elections
A municipal ordinance restricting absentee voting in municipal elections to persons in the state of Chuuk is not unconstitutional. Chipen v. Losap Election Comm'r, [1999] FMCSC 7; 9 FSM Intrm. 46, 48 (Chk. S. Ct. Tr. 1999).

* * * *

COURT'S OPINION

MACHIME O'SONIS, Associate Justice:

This cause comes before the Court after notice and hearing on Plaintiff's motion for a Temporary Restraining Order and Preliminary Injunction relative to voting by absentee ballot, which raises the basic issue of the constitutionality of Losap Municipal Ordinance No. 08-98 and related provisions of the Losap Municipal Election Laws.

Plaintiff contends that the refusal of the Defendant Election Commissioner to send absentee ballots to persons residing outside Chuuk State, in particular, Hawaii, and the Losap Municipal Ordinance upon which his action is based, is a violation of Article XII, § 3he Chuuk State Constitutiotution which provides that: "no resident entitled to vote may be denied the privilege to vote or be interfered with in voting."

Therefore, the issue is whether the denial of an absentee ballot to persons outside the State violates the "privilege to vote."

It is clear that in this regard, the Chuuk State Constitution extends only a voting "privilege" and not a "right." This is in keeping with the general law. In 26 Am. Jur. 2d Elections § 243 (196t is said: "Absentesentee voting is a privilege granted electors, and not an absolute right. The purpose of statutes permitting absentee voting is to enable a qualified voter to vote at a general election in the precinct of his domicil when he is temporarily absent therefrom." Id. (emphasis added).

Under the general rule, it is seen that absentee voting may be denied completely and it necessarily follows that reasonable restrictions may be placed on the exercise thereof. In this case, under the facts elicited at the hearing, the Defendant is well within constitutional bounds in requiring that absentee voting be done only at places designated within Chuuk State.

Also, in 26 Am. Jur. 2d Elections § 244 (1966), said that abse absentee voting laws have been upheld as against the contention that such restrictions "constitute class legislation"; that such laws

[1999] FMKSC 1; [9 FSM Intrm. 48]

have "extraterritorial operation"; where there is an issue "relating to the residence of voters"; where the issue is the "necessity of their personal appearance at the polls"; and where the issue involved is "the mechanics of voting, including the place and method of casting the ballot." (emphasis added)

Plaintiffs argue that they are denied the right to migrate in violation of Article III, §11, of the Chuuk State Constitution, however, it is clear that such right is guaranteed "to move and migrate within the State" or to "travel and migrate within the Federated States," FSM Const. art. IV, § 12 (emphasis added). Suchisrovisions do not protect travel or migration outside these boundaries.

It is also said that unless the constitution expressly allows voting elsewhere, all ballots must be cast in the State of residence. 26 Am. Jur. 2d Elections § 244 (1966). Further, it has been specifically held that due process and equal protection of rights of voters are not violated by regulation or restriction of voting by absentee ballots. Roe v. Mobile County Appointing Bd. 904 F. Supp. 1315, 1336 (S36 (S.D. Ala.), aff'd sub nom., Roe v. Alabama, [1995] USCA11 2212; 68 F.3d 404 (11th Cir. 1995).

Based on the foregoing analysis, the Court concludes that Losap Municipal Ordinance 08-98 denies no constitutional right of the Plaintiffs, and the Motions for Temporary Restraining Order and Preliminary Injunction are due to be denied, and it is so ordered.