THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Aten v. National Election Commissioner (II) ,
6 FSM Intrm. 74 (App. 1993)

[6 FSM Intrm. 74]

GERHART ATEN,
Appellant,

vs.

NATIONAL ELECTION COMMISSIONER,
CHUUK STATE and KALISTO REFALOPEI
as the real party in interest,
Appellees.

APPEAL CASE NO. C1-1993

OPINION

Hearing:  May 5, 1993
Order Issued:  May 7, 1993
Opinion Entered:  May 24, 1993

BEFORE:
     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellant:     Thomas Sterling, Esq.
                                    Klemm, Blair, Sterling & Johnson
                                    1008 Pacific News Building
                                    236 Archbishop F.C. Flores Street
                                    Agaa, Guam  96910

[6 FSM Intrm. 75]

For the Appellee:      Douglas J. Juergens, Esq.
                                    Chief of Litigation
                                    Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei  FM  96941

For the Appellee:      Johnny Meippen, Esq.
(Real Party in             P.O. Box 705
Interest)                       Weno, Chuuk  FM  96942

*    *    *    *

HEADNOTES
Elections
     The National Election Commissioner has the power to establish voting precincts and designate polling places upon the recommendation of the members of the board of elections of the particular election district.  Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 76-77 (App. 1993).

Elections
     If the possibility of double voting is alleged the burden is on the appellant to show that it occurred.  Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 78 (App. 1993).

Elections
     That the results of the election would have been changed but for the alleged irregularities is not the correct formulation of the ground for a revote.  Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 79 (App. 1993).

Elections
     When a state election is held on the same date as the national election and the closing time for the state poll is later than the 5:00 p.m. closing time for the national election, then the later state closing time prevails for the national election as well.  The poll remains open to allow all who are waiting in line at closing time to vote.  Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 79 (App. 1993).

Elections
     When the National Election Commissioner's decision concerning election irregularities is appealed to the FSM Supreme Court, the Appellate Division must decide whether the National Election Commissioner's decision is proper, and if not, whether the irregularities complained of could have resulted in the election of a candidate who would not have won had the irregularities not occurred.  Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 81 (App. 1993).

Elections
     Where election irregularities cannot be corrected by a recount, the election, in whole or in part, can be set aside and done over only if it is more likely than not that the irregularities complained of could have, not necessarily would have, resulted in the election of a candidate who would not have won had the irregularities not occurred.  Aten v. National Election Comm'r (II), 6 FSM Intrm. 74, 82 (App. 1993).

[6 FSM Intrm. 76]
*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This appeal arises out of the national election held on March 2, 1993.  The appellant, Gerhart Aten, and Kalisto Refalopei were the candidates for the Congressional seat of the Fourth District in Chuuk State.

     The appellant appeals the denial by the National Election Commissioner of his petition which sought the disallowance of 11 votes cast at two polling places (Wirong and Nenon) and the setting aside of results in Guam (a special polling place) and that a new election be held there.  The appellant appeals to this court pursuant to 9 F.S.M.C. 903.

     The parties presented oral argument on May 5, 1993 and an order was issued May 7, 1993 disposing of the issues presented.  In summary the order as to Wirong and Nenon reverses the National Election Commissioner in part and struck 13 votes cast at those polls.  As to Guam, the order reversed the Commissioner's decision, set aside the results and ordered that the election be done over.  This memorandum sets out our reasoning which led us to issue the order.

     Our consideration of this appeal has been limited to those matters fairly brought to the attention of the National Election Commissioner by complaint or petition and matters available to the National Election Commissioner at the time of his decision.

I.  WIRONG AND NENON
     The appellant's petition to the National Election Commissioner that the election results of Wirong and Nenon be set aside alleges two grounds: 1) that the National Election Commissioner exceeded his authority in designating these as polling places because the board of election did not recommend the designations, and 2) that because separate new register lists were not prepared for the new polling places there was no guard against double voting.

     The National Election Commissioner denied the petition by letter on March 22, 1993 in which he states that the two places had been polling places in earlier elections and that the state election results of the precinct of which Wirong is a part are consistent with an election having no double voting.

The Designations
     The powers and duties of the National Election Commissioner are set out in 9 F.S.M.C. 302.  Read in context subparagraph 5 provides:

     Section 302.  Powers and duties of national election commissioner.  A National Election Commissioner shall have responsibility for the overall supervision and administration of the election within his State and shall perform such duties as are prescribed by law, which include, but are not limited to the following:
. . .

     (5) to establish voting precincts within each election district and designate appropriate polling places within each voting precinct, upon recommendations of the

[6 FSM Intrm. 77]

members of the board of election of the particular election district;

     The appellant contends that the board must recommend in order that a designation be valid.

     On January 15, 1993 the National Election Commissioner issued a six page document which names the five Congressional Election Districts in Chuuk, and designates precincts and polling places.  Five polling places were designated in Polle and three in Wonei.  Wirong and Nenon were not named.

     On February 15, 1993 the Commissioner issued Election Regulation No. 1 amendment which adds six additional polling places, among which were Wirong and Nenon.

     The only factual presentation before us on the issue of the recommendation by the board is contained in the deposition of the National Election Commissioner taken April 19, 1993.  Mr. Mori testified that "some of the members of the Faichuk Election Board" requested him to designate Wirong and Nenon as polling places.  The following is also found in the deposition:

     Q.  Prior to the time that you designated these new districts did you have any consultations with the National Election Board concerning this issue of whether they should be designated?

     A.  Yes.

     Q.  And when was that consultation held?

     A.  Much earlier than the February 15th designation.

     Q.  And how many people attended that meeting?

     A.  Mostly those people from PWP, the area.

     Q.  That's P )

     A.  Polle, Wonei and Patta.

     Q.  Approximately how many people attended this meeting?

     A.  Maybe about ) there were about more than ten people there.

     Q.  And what was the general substance of the discussion at that time?

     A.  I told them that they were gonna prepare for this ) 'cause they were not reflected in the earlier designation.  So I told them that this ones will be instituted, this additional two, Nelon and Wirong.

Dep. Robert Mori, National Election Commissioner for Chuuk State at 8.  Mr. Mori testified there were no written minutes of the meeting.

     Considering this testimony as a whole, we cannot find that the appellant established his allegation that the designations were made without the recommendation of the members of the

[6 FSM Intrm. 78]

election board.  In reaching this finding we note that the record contains no testimony that any board member opposed the designation.

     Because of the lack of a sufficient factual basis, we do not have to reach the question of the Commissioner's authority to designate in the absence of any recommendation.

     We conclude that decision of the National Election Commissioner denying the appellant's petition on this issue should be affirmed.

Lack of Register List
     With the designation of Wirong and Nenon, there then existed six polling places in Polle and four in Wonei.  The register lists for polling places in these two precincts included the village of residence of each voter.  In his deposition the National Election Commissioner, testified that those residing in either Wirong or Nenon must properly only vote at those polling places, and that a person residing in another village could not properly vote in Wirong or Nenon.  In Mr. Mori's letter of March 4, 1993 which responded to appellant's complaints of voting irregularities the Commissioner stated:  "In addition, only those who registered and listed in the Wirong master list cast his ballot in Wirong.  Had any elector of other polling place cast his ballot in Wirong, the Faichuk Board Member assigned to Wirong would have been reporting such incident to my office."

     The Commissioner is misinformed in making these assertions.  An examination of the list of 35 voting in Wirong and the register list for Chukuram reveals that 14 were not residents of Wirong.  Of the 14, four were not on the register list and 11 were residents of Chukuram (one of whom was under the age of 18).

     In Nenon 79 persons voted.  Fifty-four of these were not residents of Nenon. Of the 54, eight were not on the Wonei register of voters and 46 appeared to be residents of villages in Wonei other than Nenon.

     As to Wirong and Nenon, we struck as invalid twelve ballots where the voter's names do not appear on the general register, plus one underage voter.  This solution is possible only because all votes at Nenon and all but one at Wirong are for Kalisto Refalopei.  Thus of the five invalid in Wirong, we deleted the single vote for Gerhart Aten, and deleted four from the votes counted for Kalisto Refalopei.  In Nenon the eight invalid ballots reduce the votes obtained by Kalisto Refalopei by eight.  Our reasoning is this:

     1.  The 12 invalid ballots were cast by persons not appearing to be registered to vote, based on lists available at the two polling places.  Registration in the precinct of one's residence is a prerequisite to voting.  9 F.S.M.C. 502(3).

     2.  As to those who voted in Wirong and Nenon who were residents of other villages of Polle or Wonei, double voting, if it occurred, can be verified by an examination of the list of those who voted at the other polling places in either Polle or Wonei.  That is, in Polle, the list of those voting in the remaining polling places of Sapou, Chukuram, Neton, Neirenom and Manaio can be checked; in Wonei, the list of those voting at Sapitiw, Penieta and Tonokas can be checked. We feel that this burden is on the appellant; he cannot rely solely on an assertion that double voting is possible.

     We concluded that the Commissioner's denial of the appellant's petition on the issue of an

[6 FSM Intrm. 79]

absence of register lists was arbitrary and capricious in that it was not based on a serious investigation, and that it was unwarranted by the facts in that an examination of the documents in the ballot boxes reflects those who voted, and whether they were registered properly.

     Our decision in this matter reduces the lead of Mr. Refalopei from 69 to 58, if the results in Guam are not considered.

II.  GUAM
     The appellant's petition of March 19, 1993 regarding Guam requests that the results of the election in Guam be set aside and the election done over.  The petition alleges six irregularities which are supported by affidavits.  This petition was denied by the National Election Commissioner on March 22, 1993.  The Commissioner does not mention the alleged Guam irregularities, but states, "There is nowhere in all your communication to me that would prove that all the votes supposedly not casted because of the alleged irregularities would have been mostly in your favor and, therefore, would have changed the results of the election."  As discussed later in this memorandum, this is not the correct formulation of the ground for a revote.

     In this same letter of March 22, 1993 the Commissioner referred to his memorandum of March 12 which denied the appellant's earlier complaints of irregularities.  Concerning Guam, the Commissioner wrote in part, "I do not find any good reason not to honor and count the votes so casted on that day.  A two (2) hour extension had already been given to those still in line; I believe this is sufficient time given to those who were actually in line before the 5 p.m. closing time."  As discussed later, this reference to the closing time is incorrect.

     The appellant's six allegations of irregularities will now be discussed and our findings stated.  In general we note that every document before us reflects a state of marked confusion at the Guam special polling place.

Voters waiting to cast their ballots.
     When the election board member closed the polling place at 7:00 p.m. a large number were waiting to vote.

     The election board member, Swither Phillip, wrote the National Election Commissioner on March 5, 1993, "[T]here is still a large number of voters present who did not cast their votes" when the place was closed about 7:00 p.m. In his deposition Mr. Phillip said he did not know how many were waiting to vote, but there were about 500 present in the polling place when he closed it. Affidavits attached to the petition report "more than 200" and "more than 300" waiting.

     Polling places for national elections are to be open 7:00 a.m. until 5:00 p.m.  9 F.S.M.C. 803.  The poll remains open to allow those waiting in line at closing time to vote.  Id. This provision is what the Commissioner was referring to in his letter of March 12.  However, the same code provision states that if a state election is held the same day as the national election, and has a later closing time, such later closing time prevails for the national election.  Id.

     The closing time for Chuuk State elections is 6:00 p.m.  Chuuk Pub. L. No. 27-1-6, 43.  Chuuk State elections were also held on March 2 and both the Hall Islands and Northern Namoneas had their polling places in the same building in Guam as the national polling place under review.

[6 FSM Intrm. 80]

     Thus voters in line at 6:00 p.m. could vote.

     We find that all voters in the poll at 6:00 p.m. were not allowed to cast their ballots, and that the appellant's allegation is correct.  In this regard we note that the election board member did not order the poll closed because all had voted, but instead because of the many irregularities and confusion existing.

Those who voted cannot be determined

     A total of 606 votes were cast in Guam for the Fourth District Congressional seat.  One hundred thirty eight of these are identifiable because they submitted reregistration affidavits.  The balance of 468 cannot be identified in any way because the ballot box contains no general register list.  If the voting had been observed as entirely regular, such a loss of the general register might be overlooked.  However, because of the number of irregularities occurring on March 2, the register is crucial to determine the eligibility of those voting.

     When the ballot box then in the possession of the National Election Commissioner was examined on April 12 and 13 by the appellant's lawyer, the exterior cover hasp and lock had been removed, the internal cover was unlocked. Of the 50 to 70 other boxes observed, the Guam box was the only one not locked.

     The Election Board Member testified that when he closed the poll he put some lists in the top portion of the ballot box, and the rest in a separate cardboard box. No register lists are available now; no explanation has been offered.

     The absence of general register lists used in Guam, essential to validate the election, constitutes an irregularity.

Prospective voters informed no register or ballots for them
     The lists of those registered to vote that were in Guam named all Chuuk registered voters by precinct.  There was not a list of those registered to vote in Guam.

     The system was supposed to function in this way: if the prospective voter's name was on the list, the voter's name was checked and he or she was given a ballot; if the name did not appear and the voter said he or she had voted in previous elections, the voter was permitted to fill out an affidavit to that effect, and then vote.  This is referred to as "reregistering" in the record.

     The appellant submitted affidavits in support of his petition which stated that about 60 voters from Wonei, including three by name, were not allowed to vote because no list for Wonei was available.  The election board member testified that the list was not present when the box was first opened, but it was later received by fax.

     One affidavit charges that the poll workers falsely stated that lists for Fanapanges and Tol were not present and prospective voters not allowed to cast their votes.  As to this complaint the Election Board Member heard from the poll workers that some lists were missing and speculated that they had been taken from the table at which the two poll workers and the board member sat.

     As to the complaint that some were told that no ballot existed for them, it appears that instead of "ballots," "affidavits" was meant.  The board member testified that the poll did run out of

[6 FSM Intrm. 81]

affidavits, that during working hours more were copied but when the poll ran out after working hours, no re-supply was provided.

     We find that these complaints constitute irregularities.  That lists were missing can be traced to the crowding and confusion that prevailed, as a consequence of which there was an unusual demand for "reregistering" affidavits.

Dispensing multiple ballots; ballots removed from premises; duplication of ballots
     Affidavits in support of the petition allege that unauthorized persons (two are named) took some ballots, marked them, and deposited them in the ballot box. Another named person passed out ballots and those receiving them went outside the polling place, marked them, returned to the poll and deposited their ballots.

     The testimony of the board member is that the workers lost control of the ballots and that in all cases he could not follow the person as he or she received the ballot, marked it, and deposited it in the ballot box.

     The allegation that the ballot could easily be duplicated is conjecture and will not be considered since there is no showing that duplicating occurred.

     We find that the workers had lost control of the election process in the ways specified, and constituted irregularities.

5 and 6.     Additional allegations of irregularities

     We find the following allegations, submitted by affidavit and acknowledged by the election board members are true:

     a) persons present in the polling place were campaigning;

     b) some persons present in the polling place were drunk and disorderly; and

     c) voters could not mark their ballots in secret, and some were unable themselves to deposit their ballot because of the crowding around the ballot box.

     Based on the foregoing factual basis, we must decide (1) whether the National Election Commissioner's decision of March 22, 1993 is proper, and if not, (2) whether it is more likely than not that the irregularities complained of could have resulted in the election of a candidate who would not have won had the irregularities not occurred.

     The National Election Commissioner had before him a report of March 5, 1993 from the board member in Guam explaining why he had closed the poll. The Commissioner accepted as true the statements therein that persons were campaigning in the polling place, that there was shouting and disturbance of the election, and that some present were drunk.  He also had the petition of the appellant with its several attachments including seven affidavits concerning the polling place.  The Commissioner interviewed two of the affiants, and because of corrections each made in parts of their statements, he concluded that all lacked sufficient reliability.  He interviewed the worker who was responsible for the Faichuk register lists who told him that all who were in line at 5:00 p.m. were able to vote by the time the poll was closed.  (In his deposition this worker denied that anyone

[6 FSM Intrm. 82]

from the Election Commission interviewed him.)  He did testify that all in line had voted, and described the crowding that occurred around the table.

     Mr. Mori did not interview the election board member who had ordered the poll closed and who had written his reasons to Mr. Mori.  In his deposition Mr. Swither Phillip characterized the effects of the conditions existing in these phrases, "we can not control the crowd"; "Oh, they're really disorderly conduct in that place.  They were shouting, they even kick the chairs in there"; "[I]t's not really like an election, the way I look at it."; "[T]hat election is no ) is no longer accurate or honest"; and "I think this election is not gonna be."

     We find that the Commissioner's denial, based on a superficial investigation, is arbitrary and capricious, and not warranted by the facts.

     The irregularities cannot be corrected by recount.  Correction can only occur if the election is set aside and done over.  This is not decided however "unless the petitioner proves it is more likely than not that the irregularities complained of could have resulted in the election of a candidate who would not have won had the irregularities not occurred."  9 F.S.M.C. 906.

     We concluded that this test had been met.  Excluding Guam, 58 votes separate the two candidates.1   There are about 1,000 eligible voters from Faichuk living in Guam on the Chuuk State general election register.  Over 800 of these cast their vote in the state election.  With hundreds eligible, it is more likely than not that the result could be different had the irregularities not occurred.  We concluded that, considering the small number of votes separating the candidates, and the large number of eligible voters on Guam, more likely than not, the result could, not necessarily would, change.  Therefore the Commissioner should have ordered the election at the Guam special polling place done over.

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Footnote:
 
1.  Even if the Guam vote were included, 218 votes separated the candidates. Those eligible to vote in Guam constitute a multiple of this figure.
                                                                                                                                                                                                                                                                                                           
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