Cite as Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591 (Chk. S. Ct. App. 2007)

CIVIL APPEAL NO. 13-2007

Trial:   April 9-11, 2007

Decided:   April 12, 2007

Memorandum Entered:   April 16, 2007

Hon. Midasy O. Aisek, Associate Justice, Presiding

Hon. Dennis K. Yamase, Temporary Justice*

Hon. Repeat Samuel, Temporary Justice**

*Associate Justice, FSM Supreme Court, Chuuk

**Attorney at Law, Weno, Chuuk

      In an election contest trial in the appellate division, the respondent may, after presentation of the petitioner’s case, move for dismissal on the ground that the petitioner has not carried his burden of proof for the relief sought. The court will consider the motion to be analogous to a Civil Procedure Rule 41(b) motion in the trial division and hear argument. Such a motion for dismissal may be made on the ground that upon the facts and the law the petitioner has shown no right to relief, and the appellate court, as the trier of facts, may then determine the facts and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence. When the court renders judgment on the merits against the petitioner by granting a motion to dismiss after the close of the petitioner’s case-in-chief, it must make findings of fact and conclusions of law in a manner analogous to Civil Procedure Rule 52(a). Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 594-95 (Chk. S. Ct. App. 2007).

       Since, in an election contest appeal, the appellate division is statutorily required to conduct a trial instead of the usual appellate proceeding, the court will follow, where necessary, procedures analogous to those in the Civil Procedure Rules. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 594-95 n.1 (Chk. S. Ct. App. 2007).

     Election irregularities may include the polling place’s location was not announced thirty days in advance, voting started without a candidate poll watcher’s presence, and poll watchers, who, for some reason, were permitted to sit close to the poll workers in the voting area. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596 (Chk. S. Ct. App. 2007).

      It is a poll watcher’s duty to know where the polling place is and to be present before it is scheduled to open. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596 (Chk. S. Ct. App. 2007).

     Persons who are present at the polling place before closing (or in line at the door) and who are qualified to vote and have not been able to do so, must be given sufficient time to vote. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596 (Chk. S. Ct. App. 2007).

      For the twenty-plus voters who cast their votes after 5:00 p.m. to have affected the election’s outcome, there would have to have been at least twenty-six voters (because the winning margin was twenty-six votes); they would have to have all been illegal votes; and all of them would have had to have voted for real party in interest and none for the petitioner, which since this is a multiple-member district, it was possible that one or more of these voters voted for both. This makes it unlikely that these twenty-plus voters (possibly not even totaling 26), even if they all cast illegal votes, affected the election’s outcome. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596 (Chk. S. Ct.

App. 2007).

      An election cannot be set aside on account of illegal votes, unless by deducting those illegal votes, the result is a tie or a different candidate would be declared the winner. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596 (Chk. S. Ct. App. 2007).

      An election contestant will prevail only when it is more likely than not that the irregularities complained of could have, not necessarily would have, resulted in a tie or the election of a candidate who would not have won had the irregularities not occurred. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596 (Chk. S. Ct. App. 2007).

      The court, in an election contest, would be extremely hesitant to grant the relief of nullification of all of the votes cast in a ballot box and a declaration that the election contestant was then the winner because that would disenfranchise the many qualified voters who properly cast their ballots in that ballot box in good faith. If there had been proven illegal votes in sufficient number that the ballot box result was cast in doubt, the court would have been inclined to consider ordering the election done over as a less drastic and more equitable and democratic remedy. The statute explicitly gives the court the power to order a recount during trial, but does not specifically grant the power to order a revote or to nullify a ballot box. The powers to effect remedies for irregularities that likely could have affected an election’s outcome appear to be implied or inherent in the Election Commission’s powers and thus in the court’s powers in review of the Commission’s election contest decisions. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 596-97 (Chk. S. Ct. App. 2007).

      A recount will not be ordered when the statements of contest on file do not appear to make it necessary; when the petitioner, who had originally not made that request before the Election Commission, initially made such a request of the court prematurely, but later abandoned his request when the court specifically inquired if he was still seeking a recount; and when, even if the court could be assured of the security and chain of custody of the ballot box in question, it was not shown that it was likely a recount could alter the outcome. Samuel v. Chuuk State Election Comm’n, 14 FSM Intrm. 591, 597 (Chk. S. Ct. App. 2007).

* * * *

       This election contest appeal came before the court for trial pursuant to sections 130 and 131 of the Chuuk Election Code. After the presentation of the petitioner’s case-in-chief ended on April 11,

2007, the respondent, Chuuk State Election Commission, moved orally to dismiss the case on the ground that, upon the facts and the law, the petitioner had not shown any right to relief. The petitioner was given the time he asked for to prepare his opposition to the motion, and then orally presented his arguments against the motion. We took the motion under advisement, and, on the next day, we granted the motion to dismiss from the bench. This opinion memorializes our reasons for doing so.

      This case involves the election of Chuuk House of Representatives members from Election District No. 5. Election District No. 5 is a multiple-member district with the two top vote-getters being elected. The official results for that district were: Kapier Kaminanga, 1,295 votes; Leo John, 1,249 votes; and Olimpas Samuel, 1,223 votes. Kapier Kaminanga and Leo John were therefore certified as winning candidates, with John’s winning margin over Samuel being 26 votes.

      The petitioner, Olimpas Samuel, complained of irregularities in the conduct of the election for Election District No. 5 at the special polling at Honolulu, Hawaii, when the election was held there on March 5, 2007, Honolulu time (March 6, 2007, Chuuk time). The Chuuk state election was conducted in Honolulu at the Neal Blaisdell Center, where the FSM national election was also conducted on the same day. Samuel petitioned the Election Commission to have the circumstances surrounding the voting at that polling place investigated and to have the results from that polling place nullified. The official results from the Election District No. 5 Honolulu ballot box were: Kapier Kaminanga, 106 votes; Leo John, 117 votes; and Olimpas Samuel, 37 votes. Nullification of the results in Honolulu would, in Samuel’s view, make him a winning candidate because Kaminanga would then have 1,194 votes; John, 1,132 votes; and Samuel, 1,186 votes; thus making Kaminanga and Samuel the two candidates elected from Election District No. 5.

      On March 12, and 13, 2007, Samuel filed petitions with the Election Commission. The petitions generally alleged that 1) two biological sisters and a cousin of candidate Leo John were poll workers at the District No. 5 polling place in Honolulu; 2) the polling place was opened without the presence of Samuel’s poll watchers, who had not been informed of the polling place’s location; 3) the polling place was open until 6:30 p.m., one and half hours after the scheduled closing time of 5:00 p.m.; and 4) the Election District No. 5 ballot box was not tabulated until March 8, 2007. This last allegation was later withdrawn and Samuel instead alleged that the District No. 5 ballot box was tabulated on March 6, 2007 (March 7, Chuuk time) without the presence of his poll watchers.

      The Election Commission held a hearing on Samuel’s petition(s) on March 16, 2007, and issued its decision on March 19, 2007. It denied Samuel’s petition on the ground that, if the irregularities that Samuel complained of had not occurred, the outcome of the election would not likely have been changed. Samuel then appealed that decision to the Chuuk State Supreme Court appellate division.

      We then conducted a trial in the appellate division. Chk. S.L. No. 3-95-26, § 131. After presentation of Samuel’s case, the respondent moved for dismissal on the ground that Samuel had not carried his burden of proof for the relief sought. We considered the motion to be analogous to a Civil Procedure Rule 41(b) motion in the trial division and heard argument. Such a motion for dismissal may

be made on the ground that upon the facts and the law the petitioner has shown no right to relief. We, as the triers of facts, may then determine the facts and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence. When we render judgment on the merits against the petitioner by granting a motion to dismiss after the close of the petitioner’s case-in-chief, we must make findings of fact and conclusions of law in a manner analogous to Civil Procedure Rule 52(a).

A.  Facts

      The Chuuk state election was conducted in Honolulu at the Neal Blaisdell Center, as an alternative polling place. The FSM national election was also conducted there on the same day. The space available for use by the state election was thus restricted. Election District No. 5 shared the same ballot box as districts six and seven. Friter Ham and Simpat Samuel were chosen to be Olimpas Samuel’s poll watchers at the Honolulu polling place. Friter Ham, however, was later hired to be a poll worker for the March 5, 2007 voting in Honolulu for Election District No. 5.

      Simpat Samuel did not learn until the morning of March 5, 2007, when he heard it from other Chuukese in Honolulu, where the state election day polling place would be. He arrived at the Blaisdell Center about 10:00 a.m. Voting was already underway. He saw candidate Leo John’s sister and a cousin sitting at the same table as Friter Ham and Scandy Walter, who were the designated poll workers for Election District No. 5. Simpat Samuel assumed that John’s sister and cousin were poll workers. After voting, Simpat Samuel remained at the polling place, as a poll watcher but just outside because of the lack of space. Some people tried to vote in the state election were not allowed to because they were not on the master list. A number of these people were still outside the polling place at 5:00 p.m. when the poll was supposed to close. An announcement was made that for Election District No. 1 voters whose name were not on the master list but on another list and had proper identification would be allowed to vote. Simpat Samuel left the Blaisdell Center at 5:10 p.m. He heard later that over twenty people had voted in Election District No. 5 between 5:00 p.m. and 6:30 p.m. Candidate Samuel asserts that these were people who had earlier been denied the right to vote because their names were not on the master list and that they voted because they heard the announcement for District No. 1.

      The Chuuk state election boxes were taken to the FSM consulate office to be counted. Only two boxes were counted that night. The boxes were taken to Chuuk House overnight and returned to the consulate the next day. Election District No. 5 was not counted and tabulated until 2:00 p.m., March 6, 2007 (March 7, Chuuk time). Apparently, the person with the key for the ballot box shared by districts 5, 6, and 7 failed to appear so the box had to be forced open so that the ballot counting could begin. Simpat Samuel was not present during the counting and tabulating. Someone else, volunteered or was volunteered to act as Samuel’s poll watcher during the counting and tabulating process. The box remained stored at Chuuk House until recently when it was returned to Chuuk.

B.   Application of Law to the Facts

      Samuel contends that various election irregularities, if not singly, then in their totality, require that the results in Election District No. 5 (Honolulu voting at an alternative polling place) box be nullified, thereby declaring him the winner. A number of irregularities appear to have occurred.

      The polling place’s location was not announced thirty days in advance. Simpat Samuel did not know its location until the day of the election, although many others (including at least 130 Election District No. 5 voters) found the state election polling place. The polling place was not difficult to find since it was in the same building as the FSM national election being held simultaneously. The Election District No. 5 voting started without Simpat Samuel’s presence. This is irregular. However, it is a poll watcher’s duty to know where the polling place is and to be present before it is scheduled to open. In this case, one of the poll workers, Friter Ham, who had been chosen as Samuel’s poll watcher before he was hired as a poll worker, was present. Neither John nor the Election Commission complained about this.

      Although Samuel complains that John’s relatives were poll workers, it seems they were poll watchers, who, for some reason, were permitted to sit close to the poll workers in the voting area. This also was irregular.

      People voted after the 5:00 p.m. closing time of the polls. The only evidence produced indicate that these numbered over twenty. But when there are persons who are present at the polling place before closing (or in line at the door) and who are qualified to vote and have not been able to do so, they must be given sufficient time to vote. Chk. S.L. No. 3-95-26, § 81. Only if they were unqualified to vote or first appeared after 5:00 p.m. would these persons’ votes be illegal. But even if all of these twenty-plus Election District No. 5 after 5:00 p.m. votes were illegal votes, Samuel has not shown a right to relief. For these votes to have affected the election’s outcome, there would have to have been at least twenty-six voters (because John’s winning margin was twenty-six votes); they would have to have all been illegal votes; and all of them would have had to have voted for John and none for Samuel. Since this is a multiple-member district, it is possible that one or more of these voters voted for both John and for Samuel. This makes it unlikely that these twenty-plus voters (possibly not even totaling 26), even if they all cast illegal votes, affected the election’s outcome. An election cannot be set aside on account of illegal votes, unless by deducting those illegal votes, the result is a tie or a different candidate would be declared the winner. Chk. S.L. No. 3-95-26, § 125.

      An election contestant will prevail only when it is more likely than not that the irregularities complained of could have, not necessarily would have, resulted in a tie or the election of a candidate who would not have won had the irregularities not occurred. See Chk. S.L. No. 3-95-26, § 124; Aten v. National Election Comm’r (II), 6 FSM Intrm. 74, 82 (App. 1993). As just discussed, it was not more likely than not that the allegedly illegal votes cast after the Honolulu polling place had closed, if deducted, could have resulted in a tie or in Samuel’s election. Nothing before the court indicated that any of the other irregularities complained of had any affect on the election’s outcome. Samuel therefore failed to carry his burden of proof to show that upon the facts and the law he had a right to relief, and, on the Election Commission’s motion, we dismissed the case.

znd more equitable and democratic remedy. The statute explicitly gives us the power to order a recount during trial, Chk. S.L. No. 3-95-26, § 132, but does not specifically grant us the power to order a revote or to nullify a ballot box. The powers to effect remedies for irregularities that likely could have affected an election’s outcome appear to be implied or inherent in the Election Commission’s powers and thus our powers in review of the Commission’s election contest decisions.

      We did not order a recount in this case, because the statements of contest on file did not appear to make it necessary; because the petitioner, who had originally not made that request before the Election Commission, initially made such a request of us prematurely, but later abandoned his request when we specifically inquired if he was still seeking a recount; and because, even if we could be assured of the security and chain of custody of the ballot box in question, it was not shown that it was likely a recount could alter the outcome.

     Accordingly, we dismissed the petitioner’s case. The parties’ costs in this election contest are to be borne by the petitioner, Olimpas Samuel. Chk. S.L. No. 3-95-26, § 136. The respondents may submit their claims for costs within ten days of entry of this opinion.