FSM SUPREME COURT
APPELLATE DIVISION
Cite as Braiel v. National Election Dir.,
9 FSM Intrm. 133 (App. 1999)

[9 FSM Intrm. 133]

HERNER BRAIEL,
Appellant,

vs.

NATIONAL ELECTION DIRECTOR and
NISHIMA YLEIZAH, as real party in interest,
Appellees.

APPEAL CASE NO. C3-1999

OPINION

Argued:  May 3, 1999
Decided:  May 4, 1999
Opinion Entered:  May 7, 1999

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Temporary Justice, FSM Supreme Court*

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

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


For the Appellee:        M.J. Mace, Esq. (brief)
(Nat'l Election Dir.)      Amy J. Fitzpatrick, Esq. (argued)
                                      Assistant Attorneys General
                                      FSM Department of Justice
                                      P.O. Box PS-105
                                      Palikir, Pohnpei FM 96941
 
*    *    *    *

HEADNOTES
Elections
     The National Election Commissioner's failure to send out any absentee ballots until eleven days before the election instead of the at least 30 days prior to an election provided for by 9 F.S.M.C. 704(1) is not in substantial compliance with the procedures required by the statute and was a direct violation of a mandatory statute enacted by Congress.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 136 (App. 1999).

[9 FSM Intrm. 134]

Elections
     When requests for absentee ballots were received between January 30th and February 11th and no ballots were sent out until February 19th, those ballots were not sent out as soon as is practicable after the request was received as required by statute.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 136 (App. 1999).

Elections
     The standard to determine whether a recount must be ordered is 1) whether a substantial question of fraud or error exists, and 2) whether there is a substantial possibility that the outcome of the election would be affected.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 136 (App. 1999).

Elections
     Errors in not timely providing absentee ballots can be largely remedied by extending the time in which ballots from such voters can be counted as timely received.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 136 (App. 1999).
 
Elections     
     Absentee ballots must be sent out at least thirty days before the election to all duly qualified voters who have requested them by then.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 136, 137 (App. 1999).

Elections
     No absentee ballots received after the established close of polling places on Election Day should be counted and tabulated.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 137 (App. 1999).

Elections
     A partial recount is a less drastic remedy than requiring part of the election to be done over.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 137 (App. 1999).

Elections
     There are rare occasions when an equitable remedy may be proper in an election case.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 137 (App. 1999).

Elections
     The innocent voter who has done everything right should not lose the right to vote and be counted because the election officials have disregarded the mandates and directions of the election law.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 138 (App. 1999).

Administrative Law
     Regulations do not come into effect when they have not been filed with the Registrar of Corporations.  Regulations cannot extend or limit the reach of the statute that authorizes it.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 138 (App. 1999).
 
Elections
     Separate mail or delivery by absentee voters is not required by the statute's language.  Braiel v. National Election Dir., 9 FSM Intrm. 133, 138 (App. 1999).

Elections
     Mere irregularities in a ballot's form will not invalidate an election if the voters' intent is obvious. Therefore ballots where the alignment of the candidate's name, picture, and box for an X vary slightly from the specimen ballot are not confusing and will not be invalidated.  Braiel v. National Election Dir.,

[9 FSM Intrm. 135]

9 FSM Intrm. 133, 139 (App. 1999).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before us on the timely appeal of Herner Braiel, a candidate in Chuuk Congressional Election District One [Mortlocks], from the National Election Director's decision rejecting various complaints about the election's conduct.

     One day after hearing argument of this appeal, we entered our order reversing the National Election Director's decision denying the counting of certain absentee ballots and of certain absentee ballots received after 5:00 o'clock p.m., March 2nd the closing time of the polls on election day.  [All dates in this opinion are in 1999.] Our order affirmed the Director's decision to deny Braiel's complaint about certain ballots cast at the Weno polling place he contended did not conform to the specimen ballot.

     This opinion sets out our reasons behind that order.

I.  Issues and Holdings
     1.  Whether voters who requested absentee ballots by January 30th are entitled to any relief when the National Election Commissioner failed to send out any ballots until February 19th.

     We conclude that such voters are because 9 F.S.M.C. 704(1) states that the Commissioner "shall, at least 30 days prior to an election" provide ballots to whoever has so requested.

     2.  Whether voters who requested absentee ballots within 30 days of the election are entitled to any relief when the Commissioner failed to fulfill any such request until February 19th.

     We conclude that since the Commissioner is required to provide ballots "as soon as practicable," voters who requested absentee ballots in early February are entitled to some relief.

     3.  Whether certain absentee ballots returned to the Commissioner on time but packaged and mailed together are entitled to be counted.

     We conclude that ballots received in a package meet the requirement of 9 F.S.M.C. 704(1) that the ballots "shall be mailed or delivered."

     4.  Whether the Director's denial of Braiel's complaint alleging use of ballots not conforming to the specimen was error as defined in 9 F.S.M.C. 903(1).

     We conclude that the Director's denial was not error.

II.  Reasoning
A.  Requests Received in January.
     By thirty days before the election (January 30th), there were 775 requests from persons outside

[9 FSM Intrm. 136]

Chuuk for District One absentee ballots.  (The bulk of them were received the first full week in January.)  The National Election Commissioner is required to provide absentee ballots at least 30 days prior to an election if such a ballot is requested. 9 F.S.M.C. 704.  None were sent out before February 19th, 11 days before the March 2nd election.  (The record only contains the date that the National Election Commissioner began sending out ballots to those who had requested them.  Thus our opinion can only assume that all requests received by that date were sent out on the 19th.)  This was not in substantial compliance with the procedures required by the statute and was a direct violation of a mandatory statute enacted by Congress.

B.  Requests Received Within 30 Days of the Election.
     Four hundred seven requests for absentee ballots were received by the National Election Commissioner between January 30th and February 11th.  No ballots were sent out until February 19th.  The Commissioner should have sent out the ballots "as soon as is practicable" after the request is received.  9 F.S.M.C. 704(1).  The delay in fulfilling the requests received in early February cannot be considered within the allowable time, and were not in substantial compliance with the procedures required by the statute.

C.  Whether a Recount Is Warranted.
     The standard to determine whether a recount must be ordered is 1) whether a substantial question of fraud or error exists, and 2) whether there is a substantial possibility that the outcome of the election would be affected.  9 F.S.M.C. 904. Parts A and B above conclude that errors did occur in responding to the requests for ballots.

     As to the second requirement, the Director certified that the real party interest received 391 more votes than Braiel.  We conclude that the large number of out-of-state requests received (775 before January 30th and 407 between January 30th and February 11th) that were not provided in a timely way justifies our conclusion that a substantial possibility exists, that the outcome would be affected by a recount (actually a count) of the ballots the Commissioner received from those who requested absentee ballots during those two periods.

     We concluded that a recount must be done.

D.  Remedy.
     The errors in not timely providing the ballots can be largely remedied by extending the time in which ballots from such voters can be counted as timely received.

     First considered is requests received before January 30th.  The statute requires the Commissioner to provide ballots before January 30th.  (Thirty days prior to election is January 30th, a Saturday when the post office was closed.)  Since the statute requires that the ballots be provided at least 30 days before election, such requests should have been mailed out by Friday, January 29th.  Since the Commissioner was 21 days late, a like number of days is added to March 2 within which any ballots from those requested by January be included in the count.

     Next considered is the remedy for those whose requests were received between January 30th and February 11th.  This remedy hinges upon the days allowable under the statutory "as soon as is practicable."  The Director doesn't offer a time frame, saying that each should be considered under the circumstances then existing.  Braiel suggests one week.  We accept that as reasonable, perhaps even generous to the Commissioner.  We also consider that the Commissioner gives no reason for the

[9 FSM Intrm. 137]

lengthy delays in sending out absentee ballots.  The record is silent on this question.

     Applying this time period of "as soon as is practicable," we are able to set out a formula for the remedy.  To the date the request was received between January 30 and February 11 is added 7 days during which the Commissioner should have responded.  The number of days from the resulting date to February 19 is then determined.  (This is the period of unreasonable delay.)  That number of days is added to March 2 in which an absentee ballot will be considered timely received and counted.

     We give one example to show how this formula works.  If a voter's request for an absentee ballot were received February 4th, one week or seven days is added representing the time the Commissioner could send out the absentee ballot.  The resulting date, February 11th, is eight days before February 19th when ballots were actually sent out.  This eight days is the delay not within the "as soon as is practicable" period.  Thus the eight days is added to the March 2nd election date, resulting in March 10th.  Thus for the voter whose request was received February 4th, if the Commissioner received his or her ballot by March 10th, it will be processed in the usual manner under 9 F.S.M.C. 705(1) and (2).

     What authority do we have to order this remedy?  We are faced with the interplay between two mandatory statutes.  The first requires the National Election Commissioner to send out absentee ballots at least thirty days before the election to all duly qualified voters who have requested them by then.  9 F.S.M.C. 704(1). The second statute requires that no absentee ballots received after the established close of polling places on Election Day be counted and tabulated.  9 F.S.M.C. 705(3).  Section 704(1) also requires that absentee ballots to be sent to voters requesting them less than 30 days before the election as soon as is practicable. For voters who requested ballots the first eleven days of February this was not done.  What remedy then can we give voters who may have been disenfranchised by the National Election Commissioner's widespread violation of 9 F.S.M.C. 704(1) in the light of 9 F.S.M.C. 705(3)?  There is some authority that this violation would void the ballots cast and invalidate the election when there was uncertainty as to the winner.  That would require the election to be done over.  Emery v. Robertson County Election Comm'n, 586 S.W.2d 103, 110 (Tenn. 1979) (election to be voided where irregularities pervasive enough to make outcome uncertain); M.C. Dransfield, Annotation, Construction and Effect of Absentee Voters' Laws, 97 A.L.R.2d 257, 308-11 (1964).  We have chosen a less drastic remedy.  We have instead granted a partial recount.  "A decision whether to grant or deny a recount is not an everyday . . . decision.  This is a large question affecting the public interest profoundly and invoking fundamental policy considerations."  Olter v. National Election Comm'r, 3 FSM Intrm. 123, 133 (App. 1987).  We have chosen not to disenfranchise absentee voters because of the National Election Commissioner's actions.  We do not make this decision lightly.  In Olter, the decision not to count 18 late-arriving absentee ballots was upheld even though only five were received on time out of the 88 that were sent out was affirmed.  Olter, 3 FSM Intrm. at 140.  There was no allegation that the ballots had been sent out late. The Olter court noted that perhaps the then timing requirement for sending out ballots should be softened.  Id.  (It was "at least twenty days prior to an election" in the version of 9 F.S.M.C. 704(1) in effect at that time.  The current thirty days may be as a result of the Olter court's suggestion.)  Perhaps the statute contemplated that there might be circumstances under which a late-arriving absentee ballot would be counted, because 9 F.S.M.C. 705(3) requires that they be endorsed and kept unopened "for the period of time required for the preservation of ballots used at such election" before being destroyed.

     Our remedy may in part be considered equitable.  There are rare occasions when an equitable remedy may be proper in an election case.  Walker v. Oak Cliff Fire Protection Dist., 807 P.2d 762, 768 (Okla. 1991) (equity used to void special election of which the public had not been notified because no statutory remedy available); 26 Am. Jur. 2d Elections 413, at 210 (1996).  This seems to be one of them.  This is because

[9 FSM Intrm. 138]

The right of the people to determine their political leadership is at the heart of the democratic system of government established by the Constitution of the Federated States of Micronesia.  Any substantial possibility that fraud or error may have affected the outcome of a national election poses a serious threat to the very credibility and integrity of constitutional government.  Congress has provided the possibility of a recount to protect these interests.

Olter, 3 FSM Intrm. at 139.  Thus the result of the application of our remedy will be that no one will reasonably be able to question the integrity and credibility of the election results in District One.  If the National Election Commissioner's violation of 9 F.S.M.C. 704(1) had been minor ) if only a few ballots had been sent out late or if the ballots had been sent out only a few days late ) no remedy would have been ordered or have been appropriate.  This remedy is in harmony with the principle that the innocent voter who has done everything right should not lose the right to vote and be counted because the election officials have disregarded the mandates and directions of the election law.  See Emery, 586 S.W.2d at 107; Dransfield, 97 A.L.R.2d at 306-07.

E.  Pouch Received Before the Closing of Polls but Not Opened.
     Braiel complained that a pouch which was received timely was not opened and the ballots counted.  The Director cites the statute and certain emergency regulations adopted on January 7th.  He cites this sentence of 9 F.S.M.C. 704(1): "The ballot envelope and the affidavit shall then be enclosed and sealed in the covering reply envelope and shall be mailed or delivered to reach the National Election Commissioner . . . ."

     The Director relies on the entire 704(1) to conclude that all instructions are to the individual voter, and mailing several reply envelopes together is impermissible. We are unwilling to give the Director's restrictive reading of this provision.  His position is that each voter must mail separately his or her ballot.  This pouch was mailed.

     The January 7th regulations include this sentence:  "Absentee ballots must be mailed or delivered by the absentee voter to the National Election Commissioner . . . ."  With commendable candor the Director points out that the regulations didn't come into effect because they were not filed with the Registrar of Corporations. We are also concerned because the regulations seek to limit the provisions of the statute.  Regulations cannot extend or limit the reach of the statute that authorizes it.  Klavasru v. Kosrae, 7 FSM Intrm. 86 (Kos. 1995).  The Commissioner had advised Braiel before March 2 that returning ballots in a package was acceptable.

     During oral argument the Director supported the separate return as a precaution against fraud or coercion in the election and as conducive to secrecy in voting.  While these goals may be desirable, and the means appropriate, separate mail or delivery is not required by the statute's language.  We found no merit is the objection to the receipt of any ballots that may be within the pouch or package, and ordered the contents counted.

F.  Nonconforming Ballots Cast on Weno.
     Braiel contends, with no support except his own representations, that 265 of the 1,701 ballots cast in Weno did not conform to the specimen ballot provided by the Commissioner and those ballots are so confusing that the true intent of the voters using those ballots cannot be assured.

     The Special Master filed his report on April 15th after an inspection and examination of all District One ballots cast on Weno.  The parties were represented during this inspection.  No objection

[9 FSM Intrm. 139]

was made.  The Master found five ways in which the allegedly nonconforming ballots differed from the specimen.  In all of these the names of the three candidates appears on the left, with a box for an "X" on the right side.  Between the names and the boxes are pictures of each candidate.  They do not conform in that the photos vary slightly from the specimen vertically or horizontally.  The photos are never out of order.  In every case the photo is at least partially opposite the appropriate box.  Mere irregularities in a ballot's form will not invalidate an election if the voters' intent is obvious.  26 Am. Jur. 2d Elections 316 (1996).

     We were surprised that Braiel continued his assertions on this ground in his brief and during oral argument once the Master's Report was available.  The Director denied Braiel's complaint on several grounds, including that no voter objected to a ballot or asked for assistance on this issue on election day.  Braiel has established no error in the decision of the Director concerning the alleged nonconforming ballots.  Accordingly, the National Election Director's decision on this assignment of error is hereby affirmed.

III.  Conclusion
     Accordingly, we affirmed the National Election Director's decision on the alleged nonconforming ballots used at the Weno polling place and on Braiel's other grounds on appeal we granted him the relief set forth above.
                                                                                                                                                                                                                                                                                                           
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