THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE
APPELLATE DIVISION
Cite as Chipen v. Chuuk State Election Comm'r,
8 FSM Intrm 300n (Chk. S. Ct. App. 1998)

[8 FSM Intrm. 300n]

TWINIS CHIPEN,
Appellant,

vs.

CHUUK STATE ELECTION COMMISSION et al.,
Appellees.

CIVIL APPEAL NO. 3-97

OPINION

Argued:  December 1, 1997
Decided:  April 20, 1998

BEFORE:
Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court, presiding
Hon. Lyndon L. Cornelius, Temporary Justice, Chuuk State Supreme Court*
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

*Chief Justice, Kosrae State Court, Lelu, Kosrae
**FSM Public Defender, Weno, Chuuk

[8 FSM Intrm. 300o]

APPEARANCES:
For the Appellant:      Johnny Meippen, Esq.
                      P.O. Box 705
                      Weno, Chuuk FM 96942

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

*    *    *    *
 
HEADNOTES
Elections
     All the provisions of the Chuuk State Election Law of 1996 apply to all elections in the State of Chuuk, including municipal and national elections whenever applicable unless otherwise specifically provided.  Chipen v. Chuuk State Election Comm'n, 8 FSM Intrm. 300n, 300o (Chk. S. Ct. App. 1998).

Elections
     When a contestant offers no evidence of voting irregularities before a municipal election board and the Chuuk State Election Commission and the Chuuk State Supreme Court appellate division, the appellate division has no basis to disturb the findings of fact reached by the Election Commission. Findings of fact relative to the residence, age and location of electors will generally be left undisturbed.  Chipen v. Chuuk State Election Comm'n, 8 FSM Intrm. 300n, 300p (Chk. S. Ct. App. 1998).

Elections
     All ballots forwarded to absentee voters and not physically received by the Commission at its main office prior to the closing of the polls on election day shall be rejected.  Chipen v. Chuuk State Election Comm'n, 8 FSM Intrm. 300n, 300p (Chk. S. Ct. App. 1998).

*    *    *    *

COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This is an appeal from a decision of the Election Commission of Chuuk State.

     An election for the office of mayor of Losap Municipality was held on February 26, 1997 pursuant to the Chuuk State Election Law of 1996, Chk. Pub. L. No. 3-95-26.  Section 148 of the Election Law states as follows:  "All the provisions of this act apply to all elections in the State of Chuuk, including municipal and national elections whenever applicable unless otherwise specifically provided." Id. 148 (emphasis added).

     No provisions for the conduct of elections are "otherwise specifically provided" in the Constitution or Ordinances of the Losap Municipality, therefore, the Election Law of 1996 is applicable to the Losap Municipal Election held on February 26, 1997.

     A petition in the nature of an election contest was filed on March 6, 1997, with the Chuuk State

[8 FSM Intrm. 300p]

Election Commission by the Contestant, Twinis Chipen, the unsuccessful candidate in the February 26, 1997 election.  The Chuuk State Election Commission denied the relief requested by the Contestant on March 7, 1997 and the successful candidate, as determined by the Election Commission was sworn in as Mayor of Losap on that same date.

     Notice of appeal to this Court was filed on March 10, 1997.  The Appellant argues two basic flaws in the election for mayor of Losap held on February 26, 1997.

     First, that the ballot box containing the absentee ballots cast by Losap voters on Weno should be disregarded for the following reasons:

     1.  That three votes were cast by persons who had not made a request to vote by absentee ballot;

     2.  That two persons who were registered voters elsewhere were allowed to cast a ballot in the Losap election; and,

     3.  That one underage person was allowed to vote.

      The record indicates that the Chuuk State Election Commission received testimony from the Election Coordinator and the Losap Election Board that only people who are on the Losap master voting list were allowed to cast votes.  There is no record that the Contestant offered any evidence before the Chuuk State Election Commission or the Losap Election Board.  None was offered to support the Contestant's claims before this Court.

     This Court has no basis to disturb the findings of fact reached by the Election Commission.  Findings of fact relative to the residence, age and location of electors "will generally be left undisturbed."  26 Am. Jur. 2d Elections 359 (1966).

     Secondly, the Contestant argues that the ballot box containing the absentee votes of persons in Honolulu, Hawaii should have been counted.

     The record indicates that the Honolulu absentee ballots were transmitted to the Election Board in Chuuk by facsimile and did not arrive until after February 26, 1997, the day of the election.

     In this regard, the provisions of Section 91, Chuuk State Election Law of 1996 are specific as follows:

Mailing or Delivering Ballot.  The sealed returned envelope containing the ballot may be delivered to the Commission at its main office at any time prior to the closing of the polls on election day.  If not so delivered, said envelope shall be mailed, postage pre-paid, directly to the Commission in sufficient time to reach the Commission prior to the closing of the polls on election day.

     Also, Section 92, Election Law of 1996 provides:  "All ballots forwarded to absentee voters and not physically received by the Commission at its main office prior to the closing of the polls on election day shall be rejected."

     As indicated, we affirm the decision of the Election Commission of Chuuk State.
                                                                                                                                                                                                                                                                                                           
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