Daniel v. Moses(1985)

POHNPEI SUPREME COURT REPORTS

VOL. 1

[1 P. S. Ct. R 98]

MITCHUO DANIEL,

Petitioner

RESIO S. MOSES, GOVERNOR,

and

SAMSON ALPET, ELECTION COMMISSIONER,

STATE OF POHNPEI,

Respondents

Pohnpei Civil Action No. 4-85

Trial Division of the Pohnpei Supreme Court

January 17, 1985

Motion by petitioner for a temporary restraining order against respondents to halt impending run-off election of Lieutenant Governor until the hearing of petitioner's petition for a re-election in respect of a Legislature seat for the Municipality of Kitti which petitioner wanted held concurrently with the election of the Lieutenant Governor.

The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, denying the motion, held that the matter before the Court was an election contest and the Court lacked jurisdiction.

1. Elections - Election Contest - Courts - Jurisdiction

Where the nature of the case is one of election contest the Court lacks jurisdiction, but if not jurisdiction lies.

2. Elections - Election Contest - Meaning

An election contest is not an ordinary civil suit, it is a special statutory proceeding which can only be maintained where all the requirements specified in election contest statutes are complied with ;Words and Phrases, Vo1.14, p. 277).

[1 P. S. Ct. R 99]

3. Elections - Election Contest - Meaning

An election contest is a contest in behalf of one who has failed of success in election against right of one who has been declared or determined by proper authority to have been successful ( Words and Phrases, Vol. 14, p. 278)

4. Elections - Election Contest - Purpose

The purpose of an election contest is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain the will of the people. (Words and Phrases, Vol. 14, P. 277).

5. Elections - Election Contest - Procedure

The procedure by which election results may be contested is provided for in most jurisdictions as part of the election machinery by the constitution or statute. (2 Am Jur 2d, Elections, Section 318).

6. Elections - Election Contest

Subject to constitutional limitations, the Legislature may prescribe the elections which are subject to contest, and where it has acted, the elections designated are to the exclusion of others. (26 Am Jur 2d ,Elections, Section 319).

7. Elections - Election Contest

An election is not a single event, but a process and the entire process is subject to contest, including the manner of giving notice of the election, the manner in which the ballots are prepared, and various other things which precede an election. ( 26 Am Jur 2d, Elections, Section 321)

8. Elections - Election Contest - Courts - Powers

The courts have no inherent power to determine an election contest; the determination of an election contest is a judicial function only when, and to the extent that the determination is authorized by statute (26 Am Jur 2d, Elections, Section 329)

[1 P. S. Ct. R 100]

9. Elections - Election Contest - Responsibility for

Election contests are the responsibility of the legislative or political branch of the government under the theory of separation of powers, and are generally beyond the control of the judicial branch, except to the extent that responsibility therefor has been expressly given by legislation to the judiciary.

10. Elections - Declaration of Winner by Governor - Effect

Where the Governor declares a winner in an election, the election process is in the hands of the Legislative Branch to determine whether to seat or not to seat the declared winner.

11. Elections - Declaration of Winner by Governor - Effect

Where the Governor declares the winner in an election, the declaration gives the winner the right to hold office, subject, of course, to the judgment of the Legislative Branch pursuant to the constitutional retention of power of the Legislature to judge qualifications of its members.

12. Elections - Election Contest - Statutory Requirements

The requirements prescribed by statute providing for election contests are the conditions precedent to the exercise of the right of contest, and those requirements must be complied with.

13. Elections - Election Contest - Exercise of Right

The right to contest an election cannot be exercised until the election has been completed, and unless the statutes provide otherwise there can be no contest before the appropriate authority has declared contestee elected, and it has been held that until a certificate is issued by the proper officer, there can arise no cause for a contested election.

14. Elections - Election Contest - Exercise of Right

For the exercise of the right to contest an election an express declaration of the appropriate authority that the candidate receiving the highest number of votes was elected is not necessary.

[1 P. S. Ct. R 101]

15. Elections - Election Contest - Exercise of Right

Where the election laws so contemplate , a recount must terminate and the result be declared before an election contest can commence. ( 29 CJS, Elections, Section 250.)

16. Elections - Run-Off Election

The declaration by the Governor of a winner in an election is tantamount to a refusal by the Governor and the Election Commissioner to grant a runoff election in respect of the election the result of which is declared.

17. Elections - Courts - Nullification of Declaration of and Seating of Winner Effect

Where the Governor has declared the winner in an election for a Legislature seat for the Municipality of Kitti, or where the Legislative Branch has seated the declared winner, the Court will have to null the declaration of the Executive Branch and also the Legislature's determination in order to effect a simultaneous run-off election for the Lieutenant Governor and for the Legislature seat, and this in itself is a contesting of the election procedures and result.

Counsel for Petitioner: James Hagerstrom

Counsel for Respondents: Patricia E. Billington

JUDAH C. JOHNNY, Associate Justice

This matter came on for hearing before me on January 15, and 16, 1985, in Kolonia, State of Pohnpei, on a motion for temporary restraining order. The petitioner on January 10, 1985, filed a petition for re-election in the Kitti Municipality, pursuant to a special election that was held in the State of Pohnpei on December 21,1984, to fill the vacant position of the Pohnpei State Lieutenant

[1 P. S. Ct. R 102]

Governor, and three newly established seats in the Pohnpei State Legislature, respectively, for the municipalities of Kitti, Madolenihmw and Sokehs, under the Pohnpei State Constitution which took effect in this State on November 8, 1984.

This election was completed and pursuant to the votes tallied, the Governor declared no winner in the Lieutenant Governor seat race. In accord with Article 6, Section 4, of the Constitution, a runoff election was called to be held on January 18, 1985. Following that, the petitioner filed the motion for restraining order, seeking an order of this Court to restrain the State from holding the scheduled run-off election for the Lieutenant Governor seat, until this matter can be fairly and equitably resolved.

At the January 15 hearing, the petitioner represented to this Court that the petition for re-election had been inadvertently filed with the Court; that it was in fact, intended to be filed with the Pohnpei State Election Commissioner to seek a run-off election between the two candidates who received the highest votes in the December 21 election. The petition was thus duly withdrawn. What remained at bar was therefore the motion to temporarily halt the run-off election of the Lieutenant Governor.

[1 P. S. Ct. R 103]

There was no assertion of jurisdiction. Therefore, the first issue that the Court required to be addressed was the question of judicial jurisdiction, inasmuch as the matter is an offspring of an election to a legislative seat. Counsel were required to furnish.the Court with authorities that confirm or controvert the existence of jurisdiction of this Court to entertain the motion. Counsel have cooperatively done so. The respondent additionally moved for dismissal on grounds of want of jurisdiction and procedural defects. This is considered in the light of authorities that have been furnished on the question of jurisdiction.

[1-2] In weighing arguments of counsel and reviewing the authorities furnished, I am satisfied that the test in determining judicial jurisdiction in this instance, is "election contest." That is, if the nature of this case is one of election contest, then it lacks jurisdiction; if not, then jurisdiction lies.

By way of argument, the petitioner treats this matter as not being an election contest but a "situation" where the Executive Branch of the government refuses to use the run-off provision of the 1979 General Election Law and Amendment No. 2 of the Ponape District Charter. The petitioner contends that the situation requires

[1 P. S. Ct. R 104]

action to correct the manner or mechanism by which an election contest will be carried out, before that election contest begins, citing Kautenfurger v. Johnson, 33 P 2d 293 as an example, where the court took jurisdiction to enjoin a county board of supervisors from using a voting machine unless the names of candidates were rotated. Other authorities were offered which are considered. The respondent argues to the contrary, asserting that the matter is an election contest.

It is necessary to define election contest in analyzing the jurisdiction, if any, that this Court has in this case. Some definitions according to Words and Phrases, Volume 14 are:

" 'Election contest' is not an ordinary . civil suit', it is a special statutory proceeding which can only be maintained where all requirements specified in election contest statutes are complied with." (p. 277)

" 'Election contest' is contest in behalf of one who has failed of success in election against right of one who has been declared or determined by proper authority to have been successful . " (p. 278.)

"The purpose of an 'election contest' is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain the will of people."( p.277)

"Constitutions and statutes of most jurisdictions provide, as part of the machinery of elections, a procedure by which election results may be contested (26 Am Jur 2d, Elections, Section 318.)

[1 P. S. Ct. R 105]

"Subject to constitutional limitations, the legislature may prescribe the elections which are subject to contest, and where it has acted, the elections designated are to the exclusion of others." (Section 319, Supra.)

"An election is not a single event, but a process, and the entire process is subject to contest, including the manner of giving notice of the election, the manner in which the ballots are prepared, and various other things which precede an election." (Section 321, Supra.)

"The courts have no inherent power to determine election contest. The determination of an election contest is a judicial function only when, and to the extent that the determination is authorized by statute." (Section 329 Supra.)

"Election contests are responsibility of the legislative or political branch of the government under the theory of separation of powers, and are generally beyond the control of the judicial branch, except to the extent that responsibility therefor has been expressly given the judiciary by legislation."

Liberal Party of Palau v. Election Commissioner of Palau 3 TTR 293. Also see Basilius, et al v. Election Commissioner, 5 TTR 290.

[10-11 ] How do we relate these to the case at bar? Counsel have ably argued. In my opinion, it is important to note the relief being sought, to determine how this case relates to the foregoing. Also important is to note the development of the election, as the result of which this motion is brought. Here, the petitioner has asked for a run-off, the petition being to the Election Commissioner,

[1 P. S. Ct. R 106]

dated January 10,1985. On January 14, the petitioner moved this Court to restrain the State from holding an election scheduled for January 18, 1985. On the same date (January 14, 1985), the Governor declared a winner in the election in respect of which a run-off is being sought by the petitioner. The election process in my view is now in the hands of the legislative branch, to determine whether to seat or not to seat the declared winner. In my opinion; the declaration by the Executive Branch naming a winner gives that named winner the right to hold office, subject, of course, to the judgment of the Legislative Branch pursuant to the constitutional retention of power of the Legislature to judge qualifications of its members.

[12-15] The requirements prescribed by statute providing for election contests have been said to be the conditions precedent to the exercise of the right of contest, and must be complied with. The right to contest an election cannot be exercised until the election has been completed and unless the statutes provide otherwise, there can be no contest before the appropriate authority has declared contestee elected, and it has been held that until a certificate is issued by the proper officer, there can arise no cause

[1 P. S. Ct. R 107]

for a contested election. However it has been held that an express declaration of the appropriate authority that the candidate receiving the highest number of votes was elected is not necessary. Where the election laws so contemplate, a recount must terminate and the result be declared before an election contest can commence. See 29 C.J.S. Elections, Section 250, also notes 6 to 11.

As I see it, the respondent Governor's refusal to grant a runoff election is his determination to declare a winner and is in fact his declaration of a winner as evidenced in his communication witnessed on January 14, 1985.

[17-18] If this Court at this stage shall hold the Lieutenant Governor's run-off election, the obvious thing to do to effect a simultaneous run-off election for the legislative seat for the Municipality of Kitti, will be to null the declaration of the Executive Branch of the winner, and if the Legislative Branch has seated the declared winner, it will also be to null the legislative determination. I am of the opinion that this in itself is contesting the election procedures and result, and therefore while initially it may not have been so, the matter is now at this stage, an election contest. We lack jurisdiction.

[1 P. S. Ct. R 108]

Accordingly, the motion is denied and this matter is hereby dismissed. The run-off election may proceed as scheduled.

ADDENDUM

Cognizant that these addendum remarks are purely dictum, I feel compelled to invite the indulgence of the other branches of this government to take a deeper look at the existing election law in this Sate. I offer the following concern, which, while I sympathize with them as expressed by the petitioner in this matter, I consider them to be beyond our reach to grant relief. Article VII Section 2 of the Constitution of the Federated States of Micronesia, from which we derived our mandate to establish our own state constitution, provides that our constitution shall be "democratic." In that spirit we have established a Constitution which declares banner of a democratic principle and guarantees every citizen a "free and equal" election. Failing that guarantee, as explicitly stated by the framers, any statute is in militation thereof. Free and equal election, I submit, encompasses an election system where the choice of the majority prevails, because of equality in individual votes.

We have at hand, as ably demonstrated by the petitioner, a

[1 P. S. Ct. R 109]

statutory system of recount of election which provides that, "the person receiving the greatest number of votes shall be deemed to have been elected..."D.L. 4L-206-79 Section 10-5. This provision applies to election of members of the Legislature Branch, whose election, such statute seems to deprive the benefit of run-off election in the event no candidate receives majority votes cast. If it shall happen that in one of our elections, fifty candidates vie for a vacancy and the election result of 103 votes cast shows that the highest vote getter receives 4 votes, the runner-up receives 3, and all the remaining 48 receive two votes each, will we be content that all the 99 votes cast lost to the 4? One wonders if this is the intent of the Constitution that guarantees "equal" vote. See Standing Committee Report No. 61 of the Pohnpei State Constitutional Convention.

We urge appropriate changes in the statutes.


	POHNPEI SUPREME COURT REPORTS VOL. 1 [1 P. S. Ct. R 98] MITCHUO DANIEL, Petitioner v. RESIO S. MOSES, GOVERNOR, and SAMSON ALPET, ELECTION COMMISSIONER, STATE OF POHNPEI, *Respondents* Pohnpei Civil Action No. 4-85 Trial Division of the Pohnpei Supreme Court January 17, 1985 Motion by petitioner for a temporary restraining order against respondents to halt impending run-off election of Lieutenant Governor until the hearing of petitioner's petition for a re-election in respect of a Legislature seat for the Municipality of Kitti which petitioner wanted held concurrently with the election of the Lieutenant Governor. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, denying the motion, held that the matter before the Court was an election contest and the Court lacked jurisdiction. 1. Elections - Election Contest - Courts - Jurisdiction Where the nature of the case is one of election contest the Court lacks jurisdiction, but if not jurisdiction lies. 2. Elections - Election Contest - Meaning An election contest is not an ordinary civil suit, it is a special statutory proceeding which can only be maintained where all the requirements specified in election contest statutes are complied with ;Words and Phrases, Vo1.14, p. 277). [1 P. S. Ct. R 99] 3. Elections - Election Contest - Meaning An election contest is a contest in behalf of one who has failed of success in election against right of one who has been declared or determined by proper authority to have been successful ( Words and Phrases, Vol. 14, p. 278) 4. Elections - Election Contest - Purpose The purpose of an election contest is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain the will of the people. (Words and Phrases, Vol. 14, P. 277). 5. Elections - Election Contest - Procedure The procedure by which election results may be contested is provided for in most jurisdictions as part of the election machinery by the constitution or statute. (2 Am Jur 2d, Elections, Section 318). 6. Elections - Election Contest Subject to constitutional limitations, the Legislature may prescribe the elections which are subject to contest, and where it has acted, the elections designated are to the exclusion of others. (26 Am Jur 2d ,Elections, Section 319). 7. Elections - Election Contest An election is not a single event, but a process and the entire process is subject to contest, including the manner of giving notice of the election, the manner in which the ballots are prepared, and various other things which precede an election. ( 26 Am Jur 2d, Elections, Section 321) 8. Elections - Election Contest - Courts - Powers The courts have no inherent power to determine an election contest; the determination of an election contest is a judicial function only when, and to the extent that the determination is authorized by statute (26 Am Jur 2d, Elections, Section 329) [1 P. S. Ct. R 100] 9. Elections - Election Contest - Responsibility for Election contests are the responsibility of the legislative or political branch of the government under the theory of separation of powers, and are generally beyond the control of the judicial branch, except to the extent that responsibility therefor has been expressly given by legislation to the judiciary. 10. Elections - Declaration of Winner by Governor - Effect Where the Governor declares a winner in an election, the election process is in the hands of the Legislative Branch to determine whether to seat or not to seat the declared winner. 11. Elections - Declaration of Winner by Governor - Effect Where the Governor declares the winner in an election, the declaration gives the winner the right to hold office, subject, of course, to the judgment of the Legislative Branch pursuant to the constitutional retention of power of the Legislature to judge qualifications of its members. 12. Elections - Election Contest - Statutory Requirements The requirements prescribed by statute providing for election contests are the conditions precedent to the exercise of the right of contest, and those requirements must be complied with. 13. Elections - Election Contest - Exercise of Right The right to contest an election cannot be exercised until the election has been completed, and unless the statutes provide otherwise there can be no contest before the appropriate authority has declared contestee elected, and it has been held that until a certificate is issued by the proper officer, there can arise no cause for a contested election. 14. Elections - Election Contest - Exercise of Right For the exercise of the right to contest an election an express declaration of the appropriate authority that the candidate receiving the highest number of votes was elected is not necessary. [1 P. S. Ct. R 101] 15. Elections - Election Contest - Exercise of Right Where the election laws so contemplate , a recount must terminate and the result be declared before an election contest can commence. ( 29 CJS, Elections, Section 250.) 16. Elections - Run-Off Election The declaration by the Governor of a winner in an election is tantamount to a refusal by the Governor and the Election Commissioner to grant a runoff election in respect of the election the result of which is declared. 17. Elections - Courts - Nullification of Declaration of and Seating of Winner Effect Where the Governor has declared the winner in an election for a Legislature seat for the Municipality of Kitti, or where the Legislative Branch has seated the declared winner, the Court will have to null the declaration of the Executive Branch and also the Legislature's determination in order to effect a simultaneous run-off election for the Lieutenant Governor and for the Legislature seat, and this in itself is a contesting of the election procedures and result. Counsel for Petitioner: James Hagerstrom Counsel for Respondents: Patricia E. Billington JUDAH C. JOHNNY, Associate Justice This matter came on for hearing before me on January 15, and 16, 1985, in Kolonia, State of Pohnpei, on a motion for temporary restraining order. The petitioner on January 10, 1985, filed a petition for re-election in the Kitti Municipality, pursuant to a special election that was held in the State of Pohnpei on December 21,1984, to fill the vacant position of the Pohnpei State Lieutenant [1 P. S. Ct. R 102] Governor, and three newly established seats in the Pohnpei State Legislature, respectively, for the municipalities of Kitti, Madolenihmw and Sokehs, under the Pohnpei State Constitution which took effect in this State on November 8, 1984. This election was completed and pursuant to the votes tallied, the Governor declared no winner in the Lieutenant Governor seat race. In accord with Article 6, Section 4, of the Constitution, a runoff election was called to be held on January 18, 1985. Following that, the petitioner filed the motion for restraining order, seeking an order of this Court to restrain the State from holding the scheduled run-off election for the Lieutenant Governor seat, until this matter can be fairly and equitably resolved. At the January 15 hearing, the petitioner represented to this Court that the petition for re-election had been inadvertently filed with the Court; that it was in fact, intended to be filed with the Pohnpei State Election Commissioner to seek a run-off election between the two candidates who received the highest votes in the December 21 election. The petition was thus duly withdrawn. What remained at bar was therefore the motion to temporarily halt the run-off election of the Lieutenant Governor. [1 P. S. Ct. R 103] There was no assertion of jurisdiction. Therefore, the first issue that the Court required to be addressed was the question of judicial jurisdiction, inasmuch as the matter is an offspring of an election to a legislative seat. Counsel were required to furnish.the Court with authorities that confirm or controvert the existence of jurisdiction of this Court to entertain the motion. Counsel have cooperatively done so. The respondent additionally moved for dismissal on grounds of want of jurisdiction and procedural defects. This is considered in the light of authorities that have been furnished on the question of jurisdiction. [1-2] In weighing arguments of counsel and reviewing the authorities furnished, I am satisfied that the test in determining judicial jurisdiction in this instance, is "election contest." That is, if the nature of this case is one of election contest, then it lacks jurisdiction; if not, then jurisdiction lies. By way of argument, the petitioner treats this matter as not being an election contest but a "situation" where the Executive Branch of the government refuses to use the run-off provision of the 1979 General Election Law and Amendment No. 2 of the Ponape District Charter. The petitioner contends that the situation requires [1 P. S. Ct. R 104] action to correct the manner or mechanism by which an election contest will be carried out, before that election contest begins, citing Kautenfurger v. Johnson, 33 P 2d 293 as an example, where the court took jurisdiction to enjoin a county board of supervisors from using a voting machine unless the names of candidates were rotated. Other authorities were offered which are considered. The respondent argues to the contrary, asserting that the matter is an election contest. It is necessary to define election contest in analyzing the jurisdiction, if any, that this Court has in this case. Some definitions according to Words and Phrases, Volume 14 are: " 'Election contest' is not an ordinary . civil suit', it is a special statutory proceeding which can only be maintained where all requirements specified in election contest statutes are complied with." (p. 277) " 'Election contest' is contest in behalf of one who has failed of success in election against right of one who has been declared or determined by proper authority to have been successful . " (p. 278.) "The purpose of an 'election contest' is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain the will of people."( p.277) "Constitutions and statutes of most jurisdictions provide, as part of the machinery of elections, a procedure by which election results may be contested (26 Am Jur 2d, Elections, Section 318.) [1 P. S. Ct. R 105] "Subject to constitutional limitations, the legislature may prescribe the elections which are subject to contest, and where it has acted, the elections designated are to the exclusion of others." (Section 319, Supra.) "An election is not a single event, but a process, and the entire process is subject to contest, including the manner of giving notice of the election, the manner in which the ballots are prepared, and various other things which precede an election." (Section 321, Supra.) "The courts have no inherent power to determine election contest. The determination of an election contest is a judicial function only when, and to the extent that the determination is authorized by statute." (Section 329 Supra.) "Election contests are responsibility of the legislative or political branch of the government under the theory of separation of powers, and are generally beyond the control of the judicial branch, except to the extent that responsibility therefor has been expressly given the judiciary by legislation." Liberal Party of Palau v. Election Commissioner of Palau 3 TTR 293. Also see Basilius, et al v. Election Commissioner, 5 TTR 290. [10-11 ] How do we relate these to the case at bar? Counsel have ably argued. In my opinion, it is important to note the relief being sought, to determine how this case relates to the foregoing. Also important is to note the development of the election, as the result of which this motion is brought. Here, the petitioner has asked for a run-off, the petition being to the Election Commissioner, [1 P. S. Ct. R 106] dated January 10,1985. On January 14, the petitioner moved this Court to restrain the State from holding an election scheduled for January 18, 1985. On the same date (January 14, 1985), the Governor declared a winner in the election in respect of which a run-off is being sought by the petitioner. The election process in my view is now in the hands of the legislative branch, to determine whether to seat or not to seat the declared winner. In my opinion; the declaration by the Executive Branch naming a winner gives that named winner the right to hold office, subject, of course, to the judgment of the Legislative Branch pursuant to the constitutional retention of power of the Legislature to judge qualifications of its members. [12-15] The requirements prescribed by statute providing for election contests have been said to be the conditions precedent to the exercise of the right of contest, and must be complied with. The right to contest an election cannot be exercised until the election has been completed and unless the statutes provide otherwise, there can be no contest before the appropriate authority has declared contestee elected, and it has been held that until a certificate is issued by the proper officer, there can arise no cause [1 P. S. Ct. R 107] for a contested election. However it has been held that an express declaration of the appropriate authority that the candidate receiving the highest number of votes was elected is not necessary. Where the election laws so contemplate, a recount must terminate and the result be declared before an election contest can commence. See 29 C.J.S. Elections, Section 250, also notes 6 to 11. As I see it, the respondent Governor's refusal to grant a runoff election is his determination to declare a winner and is in fact his declaration of a winner as evidenced in his communication witnessed on January 14, 1985. [17-18] If this Court at this stage shall hold the Lieutenant Governor's run-off election, the obvious thing to do to effect a simultaneous run-off election for the legislative seat for the Municipality of Kitti, will be to null the declaration of the Executive Branch of the winner, and if the Legislative Branch has seated the declared winner, it will also be to null the legislative determination. I am of the opinion that this in itself is contesting the election procedures and result, and therefore while initially it may not have been so, the matter is now at this stage, an election contest. We lack jurisdiction. [1 P. S. Ct. R 108] Accordingly, the motion is denied and this matter is hereby dismissed. The run-off election may proceed as scheduled. ADDENDUM Cognizant that these addendum remarks are purely dictum, I feel compelled to invite the indulgence of the other branches of this government to take a deeper look at the existing election law in this Sate. I offer the following concern, which, while I sympathize with them as expressed by the petitioner in this matter, I consider them to be beyond our reach to grant relief. Article VII Section 2 of the Constitution of the Federated States of Micronesia, from which we derived our mandate to establish our own state constitution, provides that our constitution shall be "democratic." In that spirit we have established a Constitution which declares banner of a democratic principle and guarantees every citizen a "free and equal" election. Failing that guarantee, as explicitly stated by the framers, any statute is in militation thereof. Free and equal election, I submit, encompasses an election system where the choice of the majority prevails, because of equality in individual votes. We have at hand, as ably demonstrated by the petitioner, a [1 P. S. Ct. R 109] statutory system of recount of election which provides that, "the person receiving the greatest number of votes shall be deemed to have been elected..."D.L. 4L-206-79 Section 10-5. This provision applies to election of members of the Legislature Branch, whose election, such statute seems to deprive the benefit of run-off election in the event no candidate receives majority votes cast. If it shall happen that in one of our elections, fifty candidates vie for a vacancy and the election result of 103 votes cast shows that the highest vote getter receives 4 votes, the runner-up receives 3, and all the remaining 48 receive two votes each, will we be content that all the 99 votes cast lost to the 4? One wonders if this is the intent of the Constitution that guarantees "equal" vote. See Standing Committee Report No. 61 of the Pohnpei State Constitutional Convention. We urge appropriate changes in the statutes.