In re Nomun Weito Interim Election [2003] FMCSC 5; 11 FSM Intrm. 461 (Chk. S. Ct. App. 2003) (14 April 2003)

CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as In re Nomun Weito Interim Election
[2003] FMCSC 5; 11 FSM Intrm. 461 (Chk. S. Ct. App. 2003)

[2003] FMCSC 5; [11 FSM Intrm. 461]

IN THE MATTER OF THE INTERIM ELECTION FOR
NOMUN WEITO, HOUSE OF REPRESENTATIVES

-------------------------------------------------

VICKY DAWE, in her capacity as an eligible voter
of the Nomun Weito,
Petitioner-Appellant,

vs.

THE CHUUK ELECTION COMMISSION, its
MEMBERS in their official capacities, THE
EXECUTIVE DIRECTOR of said Commission, in
his official capacity, and MARINO RICKY, the
real party in interest,
Respondents-Appellees.

CSSC APPEAL NO. 04-2003

ORDER AND MEMORANDUM OF DECISION

Trial: April 8, 2003
Decided: April 14, 2003

BEFORE:

Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court
Hon. Camillo Noket, Temporary Justice, Chuuk State Supreme Court*
Hon. Dennis K. Yamase, Temporary Justice, Chuuk State Supreme Court**

*qualified attorney in the State of Chuuk
**Associate Justice, Supreme Court of the Federated States of Micronesia

APPEARANCES:

For the Petitioner-Appellant: Wesley Simina, Esq.
(Dawe) P.O. Box 94
Weno, Chuuk FM 96942

[11 FSM Intrm. 462]

For the Respondent-Appellee: Johnny Meippen, Esq.
(Election Commission) P.O. Box 705
Weno, Chuuk FM 96942

For the Real Party in Interest: Julio M. Akapito, Esq.
(Ricky) P.O. Box 303
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Elections
A Chuuk Election Commission decision may be appealed to the Chuuk State Supreme Court appellate division where a trial de novo may hear witness testimony and oral arguments from the parties. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 464 & n.2 (Chk. S. Ct. App. 2003).

Elections
An FSM citizen, who is over 18 years of age, a resident of Chuuk, and not insane, confined to a mental institution or imprisoned, may vote at any Chuuk election provided he is registered to vote. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 465 (Chk. S. Ct. App. 2003).

Elections
Specific procedures and time frames govern voter registration. No one can be registered except by affidavit of registration made before the registration clerk in the municipality where such person resides at least 30 days prior to any election, when the registration rolls close for that election, and the Commission, accepts no further affidavits except for those who turn 18 years of age within the 30 day period. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 465 (Chk. S. Ct. App. 2003).

Elections
The Chuuk State Election Commission has the statutory power to promulgate in writing the necessary rules and regulations including administrative procedures for elections. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 466 n.8 (Chk. S. Ct. App. 2003).

Elections
Any elector who has previously been registered but whose name does not appear on the master list of his or her election precinct may be re-registered provided, he or she signs an affidavit attesting to such previous registration and swears to before the Election Commission or a designated representative. A registered voter from the same precinct must witness the elector’s sworn statement. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 466 (Chk. S. Ct. App. 2003).

Elections
The Election Commission must prepare and compile a registration list of all voters for use in a general election, or any other election. The Election Commission’s responsibility is to see that the general register lists accurately reflects the registered voters for the State of Chuuk. In re Nomun Weito Interim Election, [2003] FMCSC 5; 11 FSM Intrm. 461, 467 (Chk. S. Ct. App. 2003).

Elections
When it was already too late for the 39 persons on the additional list to be registered if they had not previously registered, then their votes were illegal; and when the specific procedures for re-registration were not followed for any of the 39 persons on the additional list that were being re-

[11 FSM Intrm. 463]

registered, their votes were illegal. Therefore, the process used to add the 39 persons on the additional list to the general register list on election day so as to allow them to vote was an election irregularity; all 39 persons on the additional list should not have been allowed to vote; and their votes were illegal. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 467 (Chk. S. Ct. App. 2003).

Elections
Because the statutory provision prohibits making, using or furnishing copies of official ballots by any person, the Election Director should not have authorized the copying of additional ballots and copied ballots should not have been used in the election. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 467 (Chk. S. Ct. App. 2003).

Elections
Opening a ballot box on the day before the election is not in accordance with the election law. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 468 (Chk. S. Ct. App. 2003).

Elections
When voters used a copied ballot but were not aware of it and did not intend to do so and when those voters were properly registered to vote, showed up at the polling place, and properly exercised their constitutional and statutory right to vote, any problem with the ballots that they used was not their fault, but the fault of election officials in carrying out the election. Thus their votes should not be voided. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 468-69 (Chk. S. Ct. App. 2003).

Elections
When even if the number of illegal votes were all subtracted from the real party in interest’s legal votes, the real party in interest still has more votes than his opponent, the court cannot set aside the election results because the election results would not change. In re Nomun Weito Interim Election[2003] FMCSC 5; , 11 FSM Intrm. 461, 469-70 (Chk. S. Ct. App. 2003).

* * * *

COURT’S OPINION

KESKE S. MARAR, Associate Justice, Presiding:

This election contest comes before us as an appeal from a decision of the appellee/respondents ("appellee") Chuuk State Election Commission by a voter in the March 4, 2003 Chuuk State election. The appellant/petitioner ("appellant"), Vicky Dawe, is a voter of Election District No. 12 (Onou, Onoun, Makur, Unanu, and Pisarach) and voted in Unanu in the March 4, 2003 election for that district’s representative in the Chuuk Legislature, House of Representatives. The appellant is a supporter of Kalisto Patis who came in second to the real party in interest and the declared winner in the election, Marino Ricky ("real party in interest"). The total voter returns for Election District No. 12 being 312 for Ricky and 266 for Patis, a difference of 46 votes.^[1] In Unanu the total votes cast were 66, of which 57 were for Ricky and 9 were for Patis.

[11 FSM Intrm. 464]

Citing section 130^[1] of the Election Law of 1996 ("election law"), Chk. S.L. No. 3-95-26, and alleging various irregularities, voter Dawe appealed the decision of the Chuuk State Election Commission in ME-Contest: No. 03-22-2003-01^[1] to the Chuuk State Supreme Court appellate division. We held a trial de novo on April 8, 2003. Submission of witness testimony and oral arguments from the three parties were heard.

We find that a number of irregularities took place during the March 4, 2003 election for Election District No. 12 in Unanu, but that even if all of the votes that we have determined were illegal were subtracted from the real party in interest’s legal votes, it would not change the election result. We therefore confirm the election of the real party in interest. Our reasoning follows.

I. VOTING IRREGULARITIES

In bringing this appeal of the decision of the Election Commission in ME-Contest: No. 03-22-2003-01, the appellant raised three issues which involve alleged irregularities that occurred during the March 4, 2003 election for Election District No. 12 in Unanu. The issues, set forth by the appellant, are as follows: (1) whether photocopying or duplication of official ballots is permitted by law; (2) whether unregistered "persons" not on the general register were authorized by law to re-register and cast their vote on the day of election at the polling place; and (3) if both irregularities were proven to the court’s satisfaction, what remedies, if any, would the appellant be entitled to.

Below we discuss separately each of the issues and at the same time discuss related issues relevant to the course of conduct that gave rise to the main irregularities of copying ballots and allowing additional persons not on the general register list to vote.

A. Allowance of Persons Not Included on General Register List to Vote

The Executive Director of the Chuuk State Election Commission ("Executive Director") testified that 39 names of voters for Unanu was transmitted over the radio by one of the poll workers at Unanu. The names that were transmitted were those persons who were not on the general register list of voters for Unanu, but were being submitted so as to allow them to vote in Unanu in the March 4, 2003 election. The Executive Director further testified that he later received a written list of the 39 names transmitted over the radio ("additional list"). Next to the names on the additional list was an alleged date of birth for each person.

The Executive Director’s testimony indicated that he received the additional list and added the names to the general register. The Executive Director characterized this action as a re-registration and thus those persons were allowed to vote in Unanu. Evidence was submitted to the court indicating that the persons on the additional list did indeed vote and the total number of votes cast in Unanu also

[11 FSM Intrm. 465]

support this submission.
Section 10 of Chk. S.L. No. 3-95-26 states:

Every person not confined to a mental institution, nor judicially declared insane, nor committed under a sentence of imprisonment, who is a citizen of the FSM over 18 years of age, or who shall have reached his eighteenth birthday on the day set for election, who is a resident of Chuuk and who complies with the provisions of this Act governing the registration of electors, is entitled to vote at any primary, general, runoff, special, or local election to be held within the State of Chuuk; provided that in the election of municipal officers only those otherwise qualified electors who reside within the municipality concerned shall have the right to vote for such municipal officers.

(emphasis added).

The aforementioned statutory provision makes it clear that an FSM citizen, who is over 18 years of age, a resident of Chuuk, and not insane, confined to a mental institution or imprisoned, may vote at any Chuuk election provided he is registered to vote.

There are specific procedures and time frames established in sections 11, 12, and 13 of Chk. S.L. No. 3-95-26 governing voter registration. Section 11^[1] provides that no one can be registered except by affidavit of registration made before the registration clerk in the municipality where such person resides. Section 12^[1] provides that 30 days prior to any election, the registration rolls shall be closed for that election, and no further affidavits of registration shall be accepted by the Commission, except for those who turn 18 years of age within the 30 day period. Section 13^[1] provides for places

[11 FSM Intrm. 466]

of registration.

In addition to the aforementioned statutory provisions of the election law, the Election Manual of the Chuuk State Election Commission ("Election Manual")^[1] contains regulations^[1] pertaining to the elector and voter in Rule 3.0 of Regulation No. 1. Rules 3.1 to 3.3 of Regulation No. 1 contained in the Election Manual states:

3.1 An elector registered in previous elections is deemed to have registered pursuant to the registration requirements of CSL No. 3-95-26, as amended, provided the name of such an elector appears in the master list of his/her election precinct.

3.2 Only qualified registered voters who are listed and on the master list of a given election precinct are entitled to vote in that election precinct.

3.3 Any elector who has previously been registered but whose name does not appear on the master list of his/her election precinct may be re-registered provided, he/she shall sign an affidavit attesting to such previous registration and shall be sworn to before the Election Commission or a designated representative. There shall be a registered voter from the same precinct to witness to such sworn statement of the elector.

(emphasis added).

There was no direct evidence as to what persons on the additional list had already been registered and inadvertently left off the general register and what persons had not been registered at all.^[1] There was no testimony as to why the voters on the additional list were not already included on

[11 FSM Intrm. 467]

the general register if they had already registered. If they had indeed registered, then some oversight by the Election Commission must have occurred since all persons who have registered to vote should have been included on the general register list.

Section 21 of Chk. S.L. No. 3-95-26 requires the Commission to "prepare and compile a registration list of all voters . .;. for use in a general elal election, or any other election."

Testimony was also presented that three persons on the general register list had passay, that another 10 persons were not on Unanu at the time oime of the election, and that the name of the poll worker from Unanu was not included on the general register list. Also the general register list from the 2001 elections was exactly the same as the general register list for the 2003 elections. This showed that the general register list had not been updated since the 2001 elections and was not updated in preparation for the 2003 elections. The Commission, however, is required to "deliver to the precinct board in each precinct or polling place a complete list of registered voters for that precinct or polling place. The List shall constitute the register to be used at that election." Chk. S.L. No. 3-95-26, § 23

It is clearly thly the responsibility of the Election Commission under the election law to see to it that the general register lists accurately reflect registered voters for the State of Chuuk and if this resporesponsibility is not met, problems like the one before us will recur. We urge the Election Commission to diligently carry out its responsibility of updating all general register lists prior to future elections. It will make less work for everyone in the long run.

For those 39 persons on the additional list who were not already registered, it was already too late for them to be registered under section 12 of Chk. S.L. No. 3-95-26. If they had not previously registered, then their votes were illegal.

The Executive Director’s testimony was that no affidavits were submitted by the 39 persons on the additional list. The Executive Director testified that the Mayor and a municipal judge signed a form for the persons on the additional list. Neither these forms nor a copy of these forms were before the court in evidence. The court thus has no direct evidence before it as to what exactly was on the forms referred to by the Executive Director.

Based on the evidence before us, we cannot conclude that the specific procedures set forth under Rule 3.3 of Regulation No. 1 of the Election Manual for re-registration were followed for any of those 39 persons on the additional list that were being re-registered. Therefore their votes were illegal. Additionally, an examination of the additional list indicated one person who was too young to vote and one person who may have been a new registrant.

We, therefore, find that the process used to add the 39 persons on the additional list to the general register list on election day so as to allow those voters to vote was an election irregularity, that all 39 persons on the additional list should not have been allowed to vote, and that their votes were illegal.

B. Copying and Use of Additional Ballots

Testimony was received from one of the poll workers at Unanu who admitted that the ballot box for Unanu was opened and the general register list inside the ballot box was examined on March 3, 2003, the day before the election.

Section 62 of Chk. S.L. No. 3-95-26 states:

[11 FSM Intrm. 468]

Before receiving any ballots the precinct shall, in the presence of any voters assembled at the polling place, open and exhibit and close the ballot box. Thereafter the ballot box shall not be removed from the polling place or from the presence of the voters until all the ballot boxes are sealed. All ballots shall be accounted for before the ballot boxes are sealed.

(emphasis added). Section 62 of Chk. S.L. No. 3-95-26 clearly states that the ballot box should be opened in the presence of any voters assembled at the polling place. While not providing a specific time for the opening of the ballot box and receiving the ballots, the presence of voters would indicate that the ballot box should be opened at the start of the elections on election day. There is good reason for this, as such a practice would reduce the possibility of the contents of the ballot box being tampered with prior to the elections. Therefore we hold that the opening of the ballot box on the day before the election was not in accordance with section 62 of the election law.

Following the examination of the general register list from the ballot box on the day before the election it was determined that there would be a shortage of ballots. The Executive Director testified that 44 ballots were included in the ballot box. The Executive Director also testified that after receiving the radio transmission from Unanu and obtaining the written list of 39 additional voters he authorized the poll workers at Unanu to make additional copies of the official ballot so that all of the voters could vote.

One of the poll workers at Unanu testified that they obtained one of the official ballots from the ballot box for copying and that they made additional copies of the official ballot. Testimony was received that the poll workers first made 15 copies of the official ballot, then another 5, then another 2. This totals up to 22 copied ballots.

Section 43 of Chk. S.L. No. 3-95-26 states: "No person shall make, use, keep or furnish to others any paper in imitation of official ballots, except sample ballots issued by the Commission."

This statutory provision prohibits making, using or furnishing copies of official ballots by any person. The Election Director should not have authorized the copying of additional ballots and copied ballots should not have been used in the election.

II. THE REMEDIES

Having found that the votes of the 39 people on the additional list were illegal and that it was an election irregularity to open the ballot box before the election day and to make copies of the ballots for use by voters, we now examine what remedy may be afforded to the appellant.

With regard to the unlawfully copied ballots, the Election Law of 1996 does not specifically provide a remedy for the violation of section 43 which states that no person shall make, use, or furnish any paper in imitation of an official ballot. While we acknowledge that the ballots were illegal we do not see any fairness in disenfranchising the lawfully registered voters of Unanu. Those persons on the general register list for Unanu were legally qualified voters entitled to vote pursuant to section 10 of Chk. S.L. No. 3-95-26 and Article XII, Section 2 of the Chuuk State Constitution.

The number of voters on the general register list were 40, but testimony received indicated that three of the names on the general register list were deceased and 10 others were not in Unanu on the day of the election. Therefore, there were 27 voters on the general register list who were legally in a position to vote on the day of election.

[11 FSM Intrm. 469]

If any of those 27 voters did use a copied ballot they were not aware of it and did not intend to do so. Those 27 voters were properly registered to vote, showed up at the polling place, and properly exercised their constitutional and statutory right to vote. If there was any problem with the ballots that they used it was not their fault. It was the fault of election officials in carrying out the election. We hold, therefore, that their votes should not be voided.

The appellant’s position is that all of the 66 votes in Unanu were so tainted by the irregularities that all of the votes from Unanu should be voided. The appellee’s position is that only those votes determined to be illegal should be used to reduce the number of the real party in interest’s legal votes and that the subtraction of the illegal votes does not change the results of the election.

Section 125 of Chk. S.L. No. 3-95-26 states:

An election shall not be set aside on account of illegal votes, unless it appears that such number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.

We are mandated to follow the formula set forth by section 125 of the election law if we are to set aside the results of an election.^[1] In doing so we set forth the following figures from the election that are in evidence before us. The total votes cast in Unanu was 66. Of these, the votes cast for the real party in interest was 57 and the votes cast for the appellant was 9. The largest number of illegal votes cast that we could deduct from the legal votes of the real party in interest would be 39. There was evidence submitted to the court that the additional list of the 39 people was provided to the Executive Director by the real party in interest. Therefore, it would appear to us that these illegal votes were likely given to the person whose right to the office is contested who is the real party in interest. If we therefore subtract all 39 of the votes that we have determined were illegal from the real party in interest’s legal votes this would leave us with a vote total for Election District No. 12 of 273 for the real party in interest and 266 for the candidate Patis.

We, therefore, conclude that pursuant to section 125 of the election law we cannot set aside the results of this election because even if the number of illegal votes were all subtracted from the real party in interest’s legal votes, the election results would not change.

III. CONCLUSION

We find that the following irregularities took place before or during the March 4, 2003 election for Election District No. 12 in Unanu: (1) the ballot box was improperly opened prior to election day in violation of section 62 of the election law; (2) 39 people were allowed to vote in Unanu who were not on the general register list in violation of sections 11 and 12 of the election law and these people were not properly re-registered pursuant to Rule 3.3 of Regulation No. 1 of the Election Manual; and (3) ballots were authorized to be copied, and were copied and used in the election in Unanu in violation of section 43 of the election law.

[2003] FMCSC 6; [11 FSM Intrm. 470]

In light of these irregularities we determine that 39 illegal votes were cast in Unanu in the March 4, 2003 election, but that even if all of the illegal votes are subtracted from the legal votes of the real party in interest it would not change the election result. We therefore confirm the election of the real party in interest.

* * * *

________________________________________

Footnotes:

1. A letter of certification of results was made to the Election Commission on March 8, 2003 by the Chuuk State Election Office and certification of the election results pursuant to section 115 of Chk. S.L. No. 3-95-26 was declared by the Election Commission on March 11, 2003.

2. Section 130 of Chk. S.L. No. 3-95-26 states:

Within three (3) days after the end of time allowed for filing statements of contest, the Election Commission shall meet in a special session to hear, investigate, and decide on any complaint brought before it. The Commission shall issue its determination within 2 days of the commencement of its special session. A decision of the Chuuk Election Commission may be appealed to the Appellate Division of the Chuuk State Supreme Court.

3. The decision in ME Contest: No. 03-22-2003-01 was issued by the Election Commission on March 26, 2003.

4. Section 5 of Chk. S.L. No. 3-95-26 states:

No person shall be registered as a voter except by affidavit of registration made before the registration clerk in the municipality wherein such person resides, or before a registration clerk in the office of the Commission. Before such affidavit shall be made, the person shall be asked if he is currently registered to vote in any other jurisdiction(s). If he answers affirmatively, he shall identify said jurisdiction and complete and sign an attested statement on a form provided by the Commission which requests the cancellation of his registration and which shall be forthwith forwarded by the Commission to that jurisdiction. If he answers negatively, he shall nonetheless identify the jurisdiction in which he last voted. The Commission shall prepare forms for the collection of this data, and may require the submission of such additional information as will enable it to comply with this Section. The affidavit shall then be made in duplicate, and shall set forth all the facts required to be shown by this Act and the election manual.

(emphasis added).

5. Section 12 of Chk. S.L. No. 3-95-26 states: "Thirty (30) days prior to any general, primary, or special election, the registration rolls shall be closed for that election, and no further affidavits of registration shall be accepted by the Commission, except for those who turn 18 years of age within the 30 days period." (emphasis added).

6. Section 13 of Chk. S.L. No. 3-95-26 states:

The registration of electors shall be in progress at the main office of the Commission during such hours as the office is open for business at all times prior to the closing of the registration rolls. Electors may also be registered at such times and places within and outside of the State as the Commission shall deem advisable and convenient and may deputize volunteers on a temporary basis for such purposes who are qualified as set out in this Act.

7. The preparation of an election manual by the Election Commission is specifically provided for in section 7 of Chk. S.L. No. 3-95-26 which states:

It shall be the duty and responsibility of the Commission to prepare and promulgate a manual of administrative procedures to be used in the conduct of elections. The manual shall set forth the regulations to be followed by all election officials as well as descriptions of the necessary equipment and forms to be used in election procedures. The content of the manual shall become effective upon the approval by majority members of the Commission. It shall be the responsibility of the Commission to provide all necessary forms for the conduct of elections.

(emphasis added) .

8. The authority for the promulgation of rules and regulations is specifically provided the Election Commission in section 149 of Chk. S.L. No. 3-95-26 which states: "The Chuuk State Election Commission has the power to promulgate in writing the necessary rules and regulations including administrative procedures, to effectuate the purpose of this Act." (emphasis added).

9. There was only a single notation on the additional list of 39 people next to the name of Ancion Robert that read "New Reg." that indicated who might be a new registrant.

10. Pursuant to section 124 of the election law, we are also not allowed to void an election result because of an irregularity or improper conduct in the proceedings of any precinct election board unless such irregularity or misconduct resulted in a defendant being declared either elected or tied for election.

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