[24 FSM R. 180]

CIVIL ACTION NO. 2023-1004

Hearing: July 10, 2023
Decided: July 11, 2023
Amended: July 13, 2023

APPEARANCES:

For the Petitioners:    Salomon M. Saimon, Esq.
                                   P.O. Box 911
                                   Kolonia, Pohnpei FM 96941

                                   Kathleen M. Burch, Esq. (on the petition)
                                   20 Forrest Place
                                   Atlanta, Georgia 30328

HEADNOTES

Constitutional Law – Amendment

A referendum to amend the Constitution must be held nationwide because a proposed amendment can be added to the Constitution only when it has been approved by ¾ of the votes cast on that amendment in each of ¾ of the states so one state's results are important when not all proposed amendments were ratified by the other three states. Barker-Saimon v. Rain, 24 FSM R. 180, 181 (Chk. 2023).

Mandamus and Prohibition – When May Issue

The five elements that must be present in order for the FSM Supreme Court to exercise its discretion to issue a writ of mandamus are: 1) the respondent must be a public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available. Barker-Saimon v. Rain, 24 FSM R. 180, 182 (Chk. 2023).

Elections – Conduct; Mandamus and Prohibition – When May Issue

The national election counting and tabulating committee in Chuuk is required to count and tabulate the ballots, and the acting Chuuk National Election Commissioner has the non-discretionary duty to administer the election and supervise the counting and tabulating of the referendum ballots. When the acting Chuuk National Election Commissioner has failed to have the referendum ballots counted, tabulated, and reported and there is no other adequate legal remedy available to the petitioners, a writ of mandamus will order the acting Chuuk National Election Commissioner to start the counting and tabulating of the uncounted referendum ballots as soon as possible. Barker-Saimon v. Rain, 24 FSM R. 180, 182 (Chk. 2023).

Civil Procedure – Injunctions

Temporary injunctive relief may issue when the petitioners' likelihood of success on the merits is high; when there is no significant burden on the parties restrained; when the public interest favors dispelling doubts about the ballot boxes' whereabouts; and when, if those doubts are not dispelled, an irreparable taint may hang over the referendum's conduct. Barker-Saimon v. Rain, 24 FSM R. 180, 182-83 (Chk. 2023).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

On July 10, 2023, this came before the court to hear the petitioners' amended request for a writ of mandamus commanding that the ballots cast in Chuuk during the July 4, 2023 special election for the nine constitutional amendment referendum questions be counted and tabulated and the results reported and that the National Election Director, Ausen Lambert, not certify the results for any of the nine constitutional amendment referendum questions until all four states have reported their results on the nine constitutional amendment referendum questions. The court also heard the petitioners' application for a temporary restraining order seeking orders concerning the whereabouts and safety of the uncounted ballot boxes.

At the hearing's start, the petitioners' motion to add the acting National Election Commissioner for Chuuk, Susie Rain, as a respondent was granted. The court heard testimony from national Election Director Ausen Lambert and acting Chuuk National Election Commissioner Susie Rain. The petitioners also, based on the court's Memorandum of Decision, entered July 10, 2023, withdrew their motion for reconsideration, filed Sunday, July 9, 2023.

The petitioners were voters in the July 4, 2023 special election and referendum in Chuuk, and two of the petitioners were delegates from Chuuk to the Fourth FSM Constitutional Convention, which submitted eight of the nine proposed constitutional amendments on the July 4 ballot. The petitioners, or at least two of them, have standing to bring this action.

I.

The following facts are pertinent:

A special election and referendum was held on July 4, 2023. The special election was to fill Chuuk's four-year at-large Congress seat vacated when Congress elected its previous occupant President. The referendum was on nine proposed amendments to the FSM Constitution. The referendum was held nationwide¹ because a proposed amendment can be added to the Constitution only when it has been approved by ¾ of the votes cast on that amendment in each of ¾ of the states. FSM Const. art. XIV, § 1. The other three states have reported their election (Kosrae only) and referendum results to the National Election Director. Kosrae voters approved all proposed amendments. Not all proposed amendments were approved by ¾ of the Pohnpei and by ¾ of the Yap voters. The Chuuk results are therefore important.

There were 112 polling places for Chuuk. All but five have reported their results for the four-year at large seat to the acting Chuuk National Election Commissioner, who then reported those results to the National Election Director. However, only 27 have reported their referendum results to the acting Chuuk National Election Commissioner. The rest either counted and tabulated their results and placed those tabulations and results in their ballot boxes and then locked them and sent the boxes to the Chuuk National Election Office on Weno, but did not report their results to the acting Chuuk National Election Commissioner. Or they replaced the uncounted referendum ballots in their ballot boxes with the counted special election ballots, and locked those ballot boxes, which were then sent to the Chuuk National Election Office on Weno. The five ballot boxes that have not yet reported their results for the four-year at large seat have not yet arrived at the Chuuk National Election Office on Weno and been locked in the office. Sixteen ballot boxes have not yet been received at the Chuuk National Election Office on Weno.

The rest of the 112 Chuuk ballot boxes have arrived at the Chuuk National Election Office on Weno and been locked in the office. Seventy of these boxes contain either uncounted and unreported referendum ballots or counted but unreported referendum ballots. The boxes themselves each have two locks on them, one on the outside and another on the inside. The acting Chuuk National Election Commissioner, awaiting direction from the National Election Director, has not had the boxes opened to have the referendum ballots counted and tabulated. The National Election Director, having certified a winner from among the nine Chuukese candidates, is waiting to see if one or more of the losing candidates will contest the certification or ask for a recount before having the ballot boxes, which each contain both special election ballots and referendum ballots, opened to count to the referendum ballots.

II.

The five elements that must be present in order for the FSM Supreme Court to exercise its discretion to issue a writ of mandamus are: 1) the respondent must be a public officer; 2) the act to be compelled must be non-discretionary or ministerial; 3) the respondent must have a clear legal duty to perform the act; 4) the respondent must have failed or refused to perform the act; and 5) there must be no other adequate legal remedy available. Etscheit v. Amaraich, 14 FSM R. 597, 600 (App. 2007).

The national election counting and tabulating committee in Chuuk is required to count and tabulate the ballots, 9 F.S.M.C. 306(2), and the acting Chuuk National Election Commissioner has the non-discretionary duty to administer the election and supervise the counting and tabulating of the referendum ballots. 9 F.S.M.C. 304. The acting Chuuk National Election Commissioner has failed to have the referendum ballots counted, tabulated, and reported. There is no other adequate legal remedy available to the petitioners. The acting Chuuk National Election Commissioner shall therefore start the counting and tabulating of the uncounted referendum ballots Tuesday, July 11, 2023, or as soon as possible.

To alleviate concerns about the integrity of the special election ballots if the boxes are opened if there are any election contests, challenges, or recounts over the four-year, at-large seat, the ballot boxes shall only be opened and the counting and tabulating conducted, in the presence of poll watchers of the five highest vote-getting special election candidates in the July 4 election and with a representative of the petitioners present.

The acting Chuuk National Election Commissioner is further ordered to prepare an inventory or listing of all ballot boxes that have not yet been received at the Chuuk National Election office about where the unreceived ballot boxes are, in whose custody those boxes are, and whether they are in transit and the expected arrival date. This temporary injunctive relief is issued because the petitioners' likelihood of success on the merits is high. There is no significant burden on the parties restrained. The public interest favors dispelling doubts about the boxes' whereabouts, and if those doubts are not dispelled, an irreparable taint may hang over the referendum's conduct.

III.

Furthermore, there are analogous reasons concerning the referendum proposals. The petitioners' success on the merits is likely. The public interest favors not making a premature certification because of the irreparable taint that may occur if it is thought that announced certifications affected the counting and tabulating of the Chuuk referendum votes. There is no significant burden on the respondent.

The National Election Director is therefore ordered to not certify the nationwide results for any of the nine constitutional amendment referendums from the July 4, 2023 election until the Chuuk votes have been counted, tabulated, and the results reported and included the certification. And, lastly, so that the general public may have confidence in the Chuuk ballot boxes' security (and the special election ballots therein as well as the referendum ballots) during this process and during any further activity with the special election at-large seat, the National Election Director is ordered to request that the national police provide security for the Chuuk National Election Office until all results have been certified.

IV.

NOW THEREFORE IT IS HEREBY ORDERED that the acting Chuuk National Election Commissioner shall therefore start the counting and tabulating of the uncounted referendum ballots on Friday, July 14, 2023, and that the ballot boxes shall only be opened and the counting and tabulating conducted in the presence of poll watchers for the five top special election candidates in the July 4 special election and with a representative of the petitioners also present.

IT IS FURTHER ORDERED that the acting Chuuk National Election Commissioner shall prepare an inventory or listing of all ballot boxes that have not yet been received at the Chuuk National Election office about where the unreceived ballot boxes are and in whose custody those boxes are and whether they are in transit and the expected arrival date. A copy of the inventory shall be provided to the court and to the petitioners.

IT IS FURTHER ORDERED that the National Election Director shall not certify the nationwide results for any of the nine constitutional amendment referendums from the July 4, 2023 election until the Chuuk votes have been counted, tabulated, and the results reported and included the certification.

AND IT IS FURTHER ORDERED that the National Election Director shall request the national police to provide security for the Chuuk National Election Office until all results have been certified.

A copy of this order shall be served on the July 4, 2023 candidates for the at-large Chuuk congressional seat.

Footnotes:

¹ A special election was also held in Kosrae to fill its four-year at-large Congress seat vacated when Congress elected its previous occupant Vice President.