In re Decision of National Election Director [2019] FMSC 11; 22 FSM R. 234 (App. 2019) (15 April 2019)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P8-2019

IN RE: MARCH 27, 2019 DECISION OF THE
NATIONAL ELECTION DIRECTOR ORDERING
A REVOTE AT THE POHNPEI SPECIAL POLLING
PLACE FOR KOSRAE AT-LARGE
CONGRESSIONAL SEAT,

YOSIWO P. GEORGE,
Petitioner,

vs.

TONY OTTO, in his official capacity as the FSM
National Election Director,
Respondent,

AREN B. PALIK,
Real Party in Interest.
_____________________________________________

ORDER AGAIN DENYING INJUNCTION

Decided: April 15, 2019

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Petitioner: Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941

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HEADNOTES

Elections - Revote
A revote is an authorized remedy for fraud or error that cannot be corrected by a recount, and a shortage of ballots at a polling place is, by its nature, an error that cannot be corrected by a recount. In re Decision of Nat’l Election Dir., 22 FSM R. 234, 236 (App. 2019).

Elections - Revote
A revote is the preferred remedy for an error that cannot be corrected by a recount since it does not disenfranchise the many qualified and innocent voters at the polling place(s) where the revote is held. In re Decision of Nat’l Election Dir., 22 FSM R. 234, 236 (App. 2019).

Civil Procedure - Injunctions - Irreparable Harm; Elections - Revote
A party seeking a preliminary injunction must clearly show that an immediate and irreparable injury would otherwise occur and that there is no adequate alternative remedy. In re Decision of Nat’l Election Dir., 22 FSM R. 234, 236 (App. 2019).

Civil Procedure - Injunctions - Irreparable Harm
A showing that a candidate might end up losing an election that the candidate had seemingly already won, does not show irreparable harm. In re Decision of Nat’l Election Dir., 22 FSM R. 234, 236 (App. 2019).

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COURT’S OPINION

PER CURIAM:

On April 5, 2019, petitioner Yosiwo P. George filed his Motion for Preliminary Injunction, in which he sought to enjoin the April 18, 2019 revote that the National Election Director ordered at the Pohnpei special polling place for the Kosrae at-large Congressional seat. We denied that motion. On April 11, 2019, George filed a Motion For Reconsideration, with supporting affidavits. This was followed, on April 12, 2019, by a Supplement to Motion to Reconsider, with further supporting affidavits and exhibits.

I.

The affiants aver either (1) that election officials were aware before election day that they would likely run short of ballots at the Pohnpei special polling place for Kosrae voters because only 129 ballots had been provided for that box, or (2) that they believed fewer than twenty qualified Kosrae voters were turned away without voting after the 129 ballots were all used.

George speculates that there were traveling Kosrae electors who voted at the Pohnpei special polling place on March 5, 2019, who will not be present on Pohnpei for the April 18, 2019 revote, and that this alone will change the outcome. He would want us to assume that any such voters were persons who had voted for him on March 5, 2019, and will not be present to vote for him on April 18, 2019. We cannot make that assumption. We cannot assume that any particular person would have, or will, vote either one way or the other. They may have voted for George’s opponent. Nor can we assume that the voters who arrived to vote after there were no more blank ballots were persons who would not have voted for George.^[1] A preliminary injunction cannot be based on such speculation.

II.

George also contends that a revote is not a remedy authorized by law. He argues that a revote can only be a remedy if it is proven that a sufficient number of fraudulent ballots were cast. George asserts that nowhere in the election law is a revote authorized as a remedy for the shortage of ballots. He is mistaken. A revote is an authorized remedy for fraud or error that cannot be corrected by a recount. 9 F.S.M.C. 801(2); see also 9 F.S.M.C. 805(3). A shortage of ballots at a polling place is, by its nature, an error that cannot be corrected by a recount.

George asserts that we should follow Nelson v. FSM Nat’l Election Dir., 16 FSM R. 414 (App. 2009) and not disenfranchise everyone who voted at the Pohnpei special polling place on March 5, 2019, by permitting the revote. In Nelson, we stated that we "would decline to order the exclusion of all votes at a polling place, thus disenfranchising many qualified and innocent voters and possibly altering the will of the electorate and the election results." Id. (citing Sipenuk v. FSM Nat’l Election Dir., 15 FSM R. 1, 6 (App. 2007)). George overlooks that we next stated that "[o]nly a recount or a revote would be proper in such cases." Id. (footnote omitted). In other words, under Nelson, a revote is the preferred remedy for an error that cannot be corrected by a recount since it does not disenfranchise the many qualified and innocent voters at the polling place(s) where the revote is held.

III.

A party seeking a preliminary injunction must clearly show that an immediate and irreparable injury would otherwise occur, and that there is no adequate alternative remedy. Nena v. Saimon, 19 FSM R. 317, 328 (App. 2014); Berman v. Pohnpei, 18 FSM R. 418, 421 (App. 2012). George cannot do that. He may again be declared the winning candidate after the April 18, 2019 revote. Asugar v. Edward, 13 FSM R. 209, 212 & n.2 (Chk. 2005). If not, he may prevail through the administrative election procedure, or through a court appeal, or through the credentials committee in Congress. Even if he does not, we cannot hold that a showing that a candidate might end up losing an election that the candidate had seemingly already won, shows irreparable harm. To do so would make a mockery of the democratic election process.

IV.

Accordingly, petitioner Yosiwo P. George’s Motion For Reconsideration is denied.

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^[1] According one affidavit, at least one of the voters who arrived after the ballots were exhausted was driven to the polling place by one of George’s campaign workers, which may, or may not, indicate that voter’s preference.