FSM SUPREME COURT APPELLATE DIVISION
Cite as Asor v. Lambert 24 FSM R. 297 (App. 2023)
SABINO ASOR, REDLEY KILLION, and
JOHNSON S. ELIMO,
Petitioners,
vs.
AUSEN LAMBERT, in his official capacity
as the National Election Director,
Respondent,
FABIAN S. NIMEA,
Real Party in Interest.
APPEAL CASE NO. C2-2023
OPINION
Argued: August 25, 2023
Decided: September 8, 2023
BEFORE:
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court
APPEARANCES:
For the Petitioners: Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei, FM 96941
For the Respondent:
Jeffrey S. Tilfas, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Real Party in Interest::
Marstella E. Jack, Esq.
Jack & Enlet
P.O. Box 2210
Kolonia, Pohnpei FM 96941
* * * *
If a candidate seeks a recount and the National Election Director decides to provide one, that decision is not subject to judicial review. Asor v. Lambert, 24 FSM R. 297, 304 n.4 (App. 2023).
The full extent of the FSM Supreme Court's ability to review National Election Director election contest decisions is to determine if the National Election Director's decision was a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; b) in excess of statutory jurisdiction, authority, or limitations, or a denial of legal right; c) without substantial compliance with the procedures required by law; or d) unwarranted by the facts. Asor v. Lambert, 24 FSM R. 297, 304 (App. 2023).
The National Election Director has jurisdiction when an election contest petition is timely filed, and, at that point, the National Election Director only has the authority to grant or deny the petition on the merits based on whatever is before him. Asor v. Lambert, 24 FSM R. 297, 304 (App. 2023).
The National Election Director has jurisdiction when the election contest petition is timely filed, and the court has jurisdiction when the petition appealing the Director's decision is timely filed. The omission in a recount or revote petition of matter that the statute says should be contained in a petition is not a jurisdictional defect, but, depending on the case, it may well be an evidentiary defect. Asor v. Lambert, 24 FSM R. 297, 304 (App. 2023).
When the facts in dispute in an election contest appeal involve witnesses whose credibility will be a major factor in any factual determination; when identifying an impartial special master in Chuuk may be difficult, as would be bringing in an outside person; and when, even if a special master appointment, proceedings, and report had been possible before the scheduled oral argument, it is not possible afterwards. Asor v. Lambert, 24 FSM R. 297, 305 (App. 2023).
The election contest process is expected to be expeditious without resort to remands and extensive proceedings. Asor v. Lambert, 24 FSM R. 297, 305 (App. 2023).
The court would only ever consider a remand to the National Election Director to conduct an evidentiary hearing if, in the unlikely event, it were apparent that he or she should have held one when the petition was first presented to him or her – whether there was enough evidence before him or her to indicate that there was a substantial likelihood of irregularities that could have affected the election's outcome but that there was not quite enough evidence to satisfy the preponderance-of-the-evidence standard for a revote order, without a hearing to resolve some factual dispute one way or the other. Asor v. Lambert, 24 FSM R. 297, 305 (App. 2023).
If it were shown to the court that there was a preponderance of the evidence for a revote, the court would simply order the revote, and, if there was insufficient evidence before the National Election Director for a revote, the court would just affirm that decision. Asor v. Lambert, 24 FSM R. 297, 305 (App. 2023).
The National Election Director commits an error in certifying the election results for the Chuuk at-large congressional seat before the ballot boxes from all 112 Chuuk polling places have been counted, tabulated, and reported because, by statute, the National Election Director shall certify the election results and shall declare the winning candidate (the candidate with the plurality of votes) upon completion of the counting and the tabulation of election results by the national election commissioners. Asor v. Lambert, 24 FSM R. 297, 305 (App. 2023).
The only time a losing candidate can petition or challenge the results is in the seven days after certification of the results whenever that occurs. So if the certification is delayed, it would not affect the candidates' ability to petition or to challenge the results. Asor v. Lambert, 24 FSM R. 297, 306 (App. 2023).
The agreed record in an election appeal should include the candidate's petition to the National Election Director; the relevant election results; all relevant matter that was before the National Election Director – this would include not only the aggrieved candidate's petition, but also the winning candidate's response; all the vote totals for all the winning and losing candidates; all relevant evidence submitted to the National Election Director, including responses to his queries; any communications between the National Election Director and election personnel regarding the matter (for example, any e-mails between the National Election Director and a state national election commissioner); any evidence timely submitted in support or opposition to the petition; if the National Election Director held an evidentiary hearing, whatever was presented there; and the National Election Director's decision appealed from. The agreed record in an election appeal is analogous to the appendix in an appeal from a trial court decision. It must contain all relevant and important documents. Asor v. Lambert, 24 FSM R. 297, 306 (App. 2023).
It is important that all the documents in the record before the National Election Director be in the Agreed Record filed with the court because only by knowing what was before the National Election Director (or should have been before the National Election Director) can the court determine whether the Director's decision was either arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or in excess of statutory jurisdiction, authority, or limitations, or a denial of legal right; or without substantial compliance with the procedures required by law; or unwarranted by the facts. The court cannot rely on the oral representations of counsel or allusions in their written briefs for this material. Asor v. Lambert, 24 FSM R. 297, 306 (App. 2023).
A candidate must be vigilant in asserting his or her rights to petition, but a candidate must also be diligent. Asor v. Lambert, 24 FSM R. 297, 307 (App. 2023).
The court will decline to consider affidavits and exhibits that were not before the National Election Director when the losing candidate submitted his petition because they were neither attached as a part of the petition nor mentioned in the petition. When the appellant losing candidate asked the court to consider these on appeal and when his shifting allegations of irregularities hindered appellate review, the court could not conduct a meaningful appellate review. Asor v. Lambert, 24 FSM R. 297, 307 (App. 2023).
Whether the National Election Director's decision was arbitrary, capricious, an abuse of discretion, or not warranted by the facts depends upon what evidence was (or should have been) before the National Election Director. Asor v. Lambert, 24 FSM R. 297, 307 (App. 2023).
When a petition is long on allegations, but short on evidence, there was not enough evidence before the National Election Director to constitute a preponderance of the evidence requiring the National Election Director to order a revote. Asor v. Lambert, 24 FSM R. 297, 307 (App. 2023).
With over a 200-vote winning margin, there does not seem a likelihood that just a recount could change the election's outcome when the partial recount was sought in tandem with a partial revote so that these votes could be combined for a new overall total result, but when the record before the court shows insufficient evidence before the National Election Director for him to order a revote anywhere, there was insufficient evidence of the need for a partial recount. Asor v. Lambert, 24 FSM R. 297, 307 (App. 2023).
* * * *
LARRY WENTWORTH, Associate Justice:
This appeal is from the National Election Director's July 21, 2023 decision denying the Petitioners' petition for a recount and revote of the July 4, 2023 special election for the Chuuk at-large congressional seat. We will not vacate or reverse the National Election Director's July 21, 2023 decision. Our reasons follow.
A. Election and Certification
On May 11, 2023, the 23rd Congress was seated. Congress then elected the FSM President and Vice President from among the four at-large (four-year term) congressmen. FSM Const. art. X, § 4. Congress elected the at-large congressman from Chuuk, Wesley Simina, President, and the at-large congressman from Kosrae, Aren Palik, Vice President. Their seats were declared vacant. FSM Const. art. X, § 5. Congressional vacancies are filled by special election. FSM Const. art. IX, § 12. The special election was scheduled for July 4, 2023. Nine candidates vied for the Chuuk at-large seat. The nationwide election referendum on proposed constitutional amendments was set for the same day.
The election was held as scheduled. The National Election Director certified the results on July 10, 2023. The part of the certification relevant to the Chuuk special election read:
Whereas . . . while the State of Chuuk have partially completed their results of the candidates without the results of five polling places being reported to the Chuuk National Election Central Committee and a polling place did not actually conduct their election on Election Day. The results of the proposed constitutional amendments for the State of Chuuk will be reported separately after the challenged [sic] period has lapsed.
Certification and Declaration of Winning Candidates for the July 4, 2023 Special Election at 1 (July 10, 2023). The National Election Director certified and declared Fabian Sitan Nimea to be the winning candidate for the Chuuk at-large seat with 3,576 votes. Id. at 2. Thus, any losing candidate seeking a recount or a revote had until July 17, 2023 to file a petition with the National Election Director requesting that relief. 9 F.S.M.C. 802(1) ("petition . . . must be filed within one week after the National Election Director certifies the results"). Reportedly, Nimea had 203 more votes that the next highest candidate, Sabino Asor.
B. Asor's Petition
Also on July 10, 2023, candidate Sabino Asor signed a verified petition1 alleging that the certification of the Chuuk congressional election result was contrary to law because the Acting Chuuk Election Commissioner submitted incomplete election results to the National Election Director. Asor's signature was notarized. The petition was filed the next day, July 11, 2023. Asor also alleged that the FSM President telephoned the Acting Chuuk Election Commissioner and ordered her to stop the vote count even though more than five ballot boxes had not yet been counted and recorded. Asor argued that submitting election results when ballot boxes remain uncounted violated the election law. Asor stated that sworn affidavits and subpoenaed testimony would be submitted to support his claims.
Asor also contended that another ground to hold a recount or revote was the manner of the Acting Chuuk Election Commissioner's office in counting and tabulating the results, since it violated Section 710 of the Election Code. Asor averred that the alleged authorization of traveler voters in Pohnpei to cast traveler ballots was inconsistent with Section 606. Asor contended that these allegations of fraud and irregularities were grounds for an independent revote, and that affidavits would show ballot stuffing in several polling places as listed in the petition. Asor stated that, to support his claims, affidavits from certain witnesses would be produced. Attached to the petition were several statements labeled as "affidavits" of various alleged witnesses. These "affidavits" were neither signed nor notarized by the alleged affiants. Copies of two of these were later signed and notarized on July 14, 2023. During oral argument, petitioners' counsel stated that he did not know whether these notarized affidavits ever reached the National Election Director, and if they did, whether that was before the Director when he made his decision.
Since Asor's petition was filed on July 11, 2023, Nimea had until July 18, 2023, to file a response. 9 F.S.M.C. 802(3). He did not file one. And the National Election Director had until July 25, 2023, "to decide whether to approve the petition." 9 F.S.M.C. 802(4).
C. National Election Director's Decision
On July 21, 2023, the National Election Director rendered his decision. He informed Asor that his office had received Asor's verified petition; that he had reviewed it; and that, under the preponderance-of-the-evidence standard in 9 F.S.M.C. 803(2), he did not have the authority to grant a recount. The National Election Director explained that, based upon his thorough examination of Asor's petition, he made the following assessments:
1) that the allegation that Minoru Stephen personally heard the conversation between the Director and the Acting Chuuk Election Commissioner about why the count and tabulation stopped without his knowledge or instruction was not the actual telephone conversation, which was about uncounted boxes. An affidavit confirming the actual conversation with Acting Chuuk Election Commissioner was attached;
2) that consultations and inquiries were made on the serious allegations that the FSM President ordered the Acting Chuuk Election Commissioner to stop all counting and tabulation of ballots were completed and revealed that the allegation was not true. An affidavit by Acting Chuuk Election Commissioner Susie Rain was attached;
3) that the allegations that the Chuuk Election Commissioner's office published election results were not supported by evidence and that the National Election's office had no way to access the four ballot boxes since they were barred from opening the locked ballot boxes;
4) that the travel voters absent on Election Day could vote 30 days before traveling by submitting evidence of his or her travel date which was the procedure that had been in practice; and
5) that the petition did not provide evidence and affidavits to support its claims as required by 9 F.S.M.C. 801.
Letter to Sabino S. Asor from Ausen T. Lambert at 2 (July 21, 2023). The National Election Director detailed his actions after receiving the petition. The Director mentioned the legal requirement of no more than two poll watchers for each candidate and that they be present to observe and validate the process of the count and tabulation for the candidates, and that Asor's petition had given the Director "a legitimate and reasonable basis to verify the results . . . in the locked four ballot boxes." Id. The Director stated that the completion of tabulating the results of each candidate's vote totals, including "the counting and tabulation of the in-question ballot boxes" would then be recorded to the current total results producing the candidate with the most votes, or winner of the special election. Id. at 3. The National Election Director attached the results of the tabulation of the questioned ballot boxes and the grand total for each candidate.2 The National Election Director concluded that Asor must meet the preponderance-of-the-evidence standard of proof, but the Director had not yet received, by the July 15, 2023 deadline,3 any supporting facts, evidence, and affidavits, as required by law to support the petition's claims. The National Election Director concluded that "[a] revote should be reserved only for situations where election irregularities were so widespread as to likely result in a change of the election result." Id. The National Election Director therefore denied the petition for a revote.
D. Petitioners' Appeal
On July 25, 2023, Sabino Asor, Redley Killion and Johnson S. Elimo filed a Petition to Appeal Agency Decision in the FSM Supreme Court appellate division. They sought review of the National Election Director's July 21, 2023 decision denying the petition for recount and revote. They asserted that the Director's decision was arbitrary, capricious, an abuse of discretion exceeding statutory jurisdiction, did not comply with procedures, and was not warranted by the facts, and they asked that it be set aside.
On August 8, 2023, the Petitioners filed a motion to remand or, in the alternative, to appoint a special master. In the motion, the Petitioners asked that this matter be remanded to the National Election Director so that he could conduct an evidentiary hearing because he had not held one before he denied Asor's petition. The Petitioners further asked that if this request was not granted, then in the alternative they asked that we appoint a special master to look at the signature lists they submitted as part of the record for this case. To support their request for an appointment of a special master, the Petitioners rely on Braiel v. National Election Director, 9 FSM R. 133, 136-37 (App. 1999). They also rely on the signed and notarized affidavits of Yares Reseky (July 13, 2023), Jayreen Mitichitosy (July 26, 2023), and Minoru Stephen (July 17, 2023) that were included in a supplement to the motion that, for unknown reasons, was not filed until August 24, 2023.
The Petitioners and the National Election Director filed, on August 12, 2023, a Joint Submission of the Record. The Petitioners then filed their brief on August 16, 2023. The respondent National Election Director filed his brief on August 21, 2023, and the real party in interest, winning candidate Fabian S. Nimea, filed his responsive brief on August 21, 2023. The Petitioners filed a reply brief on August 23, 2023. We heard arguments from the parties on August 25, 2023.
E. Parties' Positions
The Petitioners ask that we review the National Election Director's decision on Asor's July 10, 2023 petition. The Petitioners contend that since that decision was arbitrary, capricious, an abuse of discretion; exceeded statutory jurisdiction; did not follow procedures set by law; and was unwarranted by the facts, a recount must be ordered for certain places, and, in the instances where a recount could not fix the problems, then a revote should take place.
The Director first argues that we lack jurisdiction over this matter because, even though Asor's petition was timely filed, the petition did not comply with the law's strict requirements about a petition's contents since no evidence or affidavits were submitted to support the petition. The Director then rejects the Petitioners' argument on ballot stuffing by stating that these allegations of fraud and irregularities came about after comparing the numbers of the signature lists of the number of polling places for Chuuk and the certified votes. The Director does not agree that those numbers represent fraud and irregularities but only errors in counting or marks in the signature list that should not have been counted as well as missing signature list pages or possibly other reasons. The Director concludes that the Petitioners raise these arguments but were unable to substantiate them with evidence. Rather, only unsigned and unsworn documents were submitted with Asor's petition. Thus, a recount is unnecessary. Essentially, the Director argues that despite the arguments raised by the Petitioners they did not provide any, or enough, proof or evidence to support their claims.
Nimea argues that there is only a limited question before us – whether the Petitioners should be allowed to file new and additional exhibits before us to support their claim. Nimea contends that there are statutory requirements for an election contest and that on July 11, 2023, the Petitioners filed their petition and made several allegations that remain unsupported by any evidence.
The Petitioners reply that, since the petition identifies individuals who heard the alleged call from the President, that is sufficient to cause the National Election Director to hold evidentiary hearings. They argue that, since no hearing was held, they did not have an opportunity to present their witnesses. The Petitioners further assert that their petition adhered to the statutory requirements for a petition filed with the National Election Director. They maintain that the National Election Director wrongly denied their petition based upon an absence of evidence. Similarly, the Petitioners argue that Nimea is mistaken when he argued that the lack of evidence warrants a dismissal of the Petitioners' appeal because the cases that Nimea cited were not on point and are distinguishable from the current matter.
Moreover, the Petitioners claim that the verified petition itself is "other evidence" as required by the law. Lastly, the Petitioners contend that the stipulated record, filed August 12, 2023, that, in their view, showed massive irregularities, supporting the setting aside of the National Election Director's certification and holding a revote, as a stipulated record is binding. The Petitioners disagree with Nimea's contention that this appeal should be dismissed because the Petitioners did not move to enjoin the certification and that the certification has already been transmitted to the President. The Petitioners noted that there are remedies available either from us or from Congress (such as Congress's power as sole judge of the election and qualification of its members). Lastly, the Petitioners averred that there was a premature certification and admission of irregularities.
The Petitioners seek a revote at those polling places where, in their view, the number of votes cast exceeded by five or more the number of names on the voter signature lists (state or national) for that polling place, and a recount at all other polling places.
Whether the National Election Director's decision denying Asor's July 10, 2023 petition for a recount or a revote was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or exceeded his statutory jurisdiction; or did not comply with procedures required by law; or was not warranted by the facts.
The Election Code provides the standard of review we must use for appeals from the National Election Director's decisions (except from a decision to provide a recount4). It provides that:
The Appellate Division of the Supreme Court shall review the appeal to determine if the decision by the National Election Director was:
(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(b) in excess of statutory jurisdiction, authority, or limitations, or a denial of legal right;
(c) without substantial compliance with the procedures required by law; or
(d) unwarranted by the facts.
9 F.S.M.C. 804(2). That is the full extent of our ability to review National Election Director election contest decisions.
A. Jurisdiction
Jurisdiction is usually a threshold question. The Director contends that we lack jurisdiction because Asor's July 10, 2023 election petition failed to include any affidavits. The Director's reasoning apparently is that since the statute requires that an election petition contain "affidavits, documents and any other evidence in support of the petition," 9 F.S.M.C. 801(4)(d), he lacked jurisdiction or we lack jurisdiction or both when no affidavits are included.
We cannot agree. We rejected virtually the same argument in Lambert v. FSM National Election Director, 23 FSM R. 285, 291 (App. 2021) where the Director contended that he lacked jurisdiction over an election petition because the petition not only did not contain the affidavits, documents, and other evidence required by 9 F.S.M.C. 801(4)(d) but it also did not include the election records and witnesses that 9 F.S.M.C. 801(4)(c) said a petition should contain. We held that the Director had jurisdiction because the election contest petition was timely filed, and, at that point, the National Election Director only had the authority to grant or deny the petition on the merits based on whatever was before him. Lambert, 23 FSM R. at 291.
In this case, the National Election Director had jurisdiction because Asor's petition was timely (almost precipitously) filed. And we have jurisdiction because the petition appealing the Director's July 21, 2023 decision was timely filed. The omission in a recount or revote petition of matter that § 801(4) says should be contained in a petition is not a jurisdictional defect. It may well, depending on the case, be an evidentiary defect.
B. Petitioners' Motion
Preceding oral argument on the merits, we heard argument on the Petitioners' motion for a remand or for the appointment of a special master. We deferred ruling on the motion until we could address it in tandem with our decision on the merits.
For the appointment of a special master, the Petitioners rely on Braiel v. National Election Director, 9 FSM R. 133, 136-37 (App. 1999). In that case, a special master was appointed to determine, before oral argument was heard, two strictly factual matters that were disputed or undetermined – the number of ballots that had been received by mail within a certain number of days after Election Day and whether, on certain printed ballots, the candidate's picture and the check box and name were misaligned enough so that a voter could have voted for someone other than who the voter intended to. The special master, the court's state justice ombudsman in Chuuk, easily and quickly accomplished those tasks in the presence of the candidates' poll watchers and then prepared and submitted his report.
In this case, the facts in dispute involve witnesses whose credibility will be a major factor in any factual determination. This is a much more difficult task and perhaps unsuited for a special master. Identifying an impartial special master in Chuuk may be difficult as would be bringing in an outside person. Even if a special master appointment, proceedings, and report had been possible before the August 24, 2023 scheduled oral argument, it is not possible now.
The Petitioners also move for a remand to the National Election Director for him to conduct an evidentiary hearing. As we have noted before, the election contest process is expected to be expeditious without resort to remands and extensive proceedings. Lambert v. FSM Nat'l Election Dir., 23 FSM R. 285, 291-92 (App. 2021); Wiliander v. Mallarme, 7 FSM R. 152, 161 (App. 1995). We would only ever consider a remand to the National Election Director to conduct an evidentiary hearing if it were apparent that he (or she) should have held one when the petition was first presented to him (or her) – whether there was enough evidence before him (or her) to indicate that there was a substantial likelihood of irregularities that could have affected the election's outcome but that there was not quite enough evidence to satisfy the preponderance-of-the-evidence standard for a revote order, without a hearing to resolve some factual dispute one way or the other. Only in this unlikely scenario, would we even consider a remand. Because, if it were shown to us that there was a preponderance of the evidence for a revote, we would simply order the revote. See Aten v. National Election Comm'r (II), 6 FSM R. 74, 82 (App. 1993). And, if there was insufficient evidence before the National Election Director for a revote, we would just affirm that decision.
C. Premature Certification
The National Election Director did commit an error in certifying the election results for the Chuuk at-large congressional seat before the ballot boxes from all 112 Chuuk polling places had been counted, tabulated, and reported. "Upon completion of the counting and the tabulation of election results by the national election commissioners . . . the National Election Director shall certify the election results and shall declare as the winning candidate[] for the Congress . . . the candidate[] receiving the plurality of votes . . . ." 9 F.S.M.C. 711(1).
The Chuuk National Election Commissioner's counting and tabulating of all 112 ballot boxes had not been completed when the National Election Director declared Nimea the winning candidate, as the National Election Director himself acknowledged in his certification ("without the results of five polling places being reported to the Chuuk National Election Central Committee and a polling place did not actually conduct their election on Election Day"5). The National Election Director should have certified the election results in the other three states on July 10, 2023, while delaying certification of the Chuuk results until the counting and tabulating was completed. 9 F.S.M.C. 711(3) ("where there is irregularity preventing certification of results in any Congressional Election District, the results from such district shall be delayed until such irregularity is resolved, but the results from the other Congressional Election Districts shall be certified and declared"). He did not.
According to representations of counsel, four of those ballot boxes were included in the National Election Director's August 1, 2023 second (amended) certification, which also increased Nimea's winning margin by about 20 votes, and the remaining uncounted ballot box only contained a total of 31 ballots, so that the July 10, 2023 certification results would not change. This second certification is not before us. Although it was among the documents listed in the August 12, 2023 Joint Submission of the Record, it was never included in any court filing. No losing candidate chose to file a petition for a recount or a revote in the seven days after that August 1, 2023 certification.
The National Election Director's stated reason for certifying the incomplete results from the Chuuk at-large congressional seat "was to give the candidates the opportunity to petition or challenge the election outcome." Aff. Ausen T. Lambert para. 6 (July 20, 2023). That reason is inadequate because the only time a losing candidate can petition or challenge the results is in the seven days after certification of the results whenever that occurs. 9 F.S.M.C. 802(1) ("petition for a recount or revote must be filed within one week after the National Election Director certifies the results"). So if the certification had been delayed, it would not have affected the candidates' ability to petition or to challenge the results. (The added time might even have enhanced their ability to gather evidence for a petition or challenge.)
But, as seen below, the Director's premature certification of the Chuuk at-large congressional seat results does not seem to make a difference. Nevertheless, the National Election Director should not make premature certification a habit.
D. Record
We are disappointed with the record presented by the parties. The agreed record in an election appeal should include the candidate's petition to the National Election Director; the relevant election results; all relevant matter that was before the National Election Director – this would include not only the aggrieved candidate's petition, but also the winning candidate's response; all the vote totals for all the winning and losing candidates; all relevant evidence submitted to the National Election Director, including responses to his queries; any communications between the National Election Director and election personnel regarding the matter (for example, any e-mails between the National Election Director and a state national election commissioner); any evidence timely submitted in support or opposition to the petition; if the National Election Director held an evidentiary hearing, whatever was presented there; and the National Election Director's decision appealed from. The agreed record in an election appeal is analogous to the appendix in an appeal from a trial court decision. It must contain all relevant and important documents.
Much of this was missing from the record in this appeal. The parties did file an Agreed Record (Joint Submission of the Record) on August 12, 2023. It contained a list of documents and a chart showing numbers of votes that were not marked on either the state or FSM voter signature lists (created by the attorneys reviewing these lists in August). However, none of these documents were provided in the "Agreed Record." Some of the listed documents had been attached to one or another court filing. Some were not. (And some of the documents listed in the agreed record in the August 12, 2023 filing were never put before the National Election Director, either as part of Asor's petition or later.) All of the necessary documents should be filed in the agreed record.
It is important that all these documents in the record before the National Election Director be in the Agreed Record because only by knowing what was before the National Election Director (or should have been before the National Election Director) can we determine whether the Director's decision was either arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or in excess of statutory jurisdiction, authority, or limitations, or a denial of legal right; or without substantial compliance with the procedures required by law; or unwarranted by the facts. We cannot rely on the oral representations of counsel or allusions in their written briefs for this material.
E. Vigilance and Diligence
We have previously noted that a candidate must be vigilant in asserting his or her rights to petition. Lambert v. FSM Nat'l Election Dir., 23 FSM R. 285, 290 (App. 2021); Wiliander v. Mallarme, 7 FSM R. 152, 157 (App. 1995). Asor was certainly vigilant. But a candidate must also be diligent. Asor had seven days after the National Election Director's July 10, 2023 certification within which to file a petition for recount or a revote. 9 F.S.M.C. 802(1). He did not have to file his petition the day after the National Election Director certified Nimea's election. Asor could have taken some of those seven days to obtain actual affidavits to be submitted with his petition. Since Asor did actually obtain a couple of notarized affidavits on July 14, 2023, (that appear not to have made their way to the National Election Director before he issued his decision), waiting until July 15 or 16, 2023, to file his petition for a revote or recount so that it could include those affidavits and any other evidence that Asor may have been able to gather by then, would have strengthened Asor's petition.
But Asor did not diligently gather affidavits and evidence to bolster his case before submitting his petition for a revote or a recount to the National Election Director, although he may have tried to do so afterwards. In Nelson v. FSM National Election Director, 16 FSM R. 414, 420-21 (App. 2009), we addressed the matter of affidavits and exhibits that were not before the National Election Director when the losing candidate submitted his petition because they were neither attached as a part of the petition nor mentioned in the petition, but which the losing candidate appellant asked us to consider on appeal. We declined to consider them because they had not been before the National Election Director and we could not "conduct a meaningful appellate review in such a manner." Id. at 421. Although Nelson is not directly on point and much of its posture can be distinguished from this case, we find this particular ruling from Nelson instructive. We also note, that like this case, Nelson's shifting allegations of irregularities hindered appellate review. Id. at 420.
Whether the National Election Director's decision was arbitrary, capricious, an abuse of discretion, or not warranted by the facts depends upon what evidence was (or should have been) before the National Election Director. Asor's petition had "affidavits" that were neither signed nor notarized, and thus were not affidavits, only, at best, statements of what the Petitioner believed the named "affiant" would swear to. The names of these "affiants" plus other persons named in Asor's petition as witnesses did provide the National Election Director with a witness list (as cited in 9 F.S.M.C. 801(1)(c)). But the July 11, 2023 petition did not list the voter signature lists as "election records . . . that will establish the existence of election error or fraud," 9 F.S.M.C. 801(1)(c), in support of the petition. While the July 11, 2023 petition may have been long on allegations, it was short on evidence.
We conclude that there was not enough evidence before the National Election Director to constitute a preponderance of the evidence requiring the National Election Director to order a revote. Asor only sought a recount for those polling places that did not, in his view, need a revote. With over a 200-vote winning margin, there does not seem a likelihood that just a recount could change the election's outcome – more than two hundred plus votes are unlikely to change in a recount. Asor sought a partial recount in tandem with a partial revote so that these votes could be combined for a new overall total result. Without a partial revote, there was insufficient evidence of the need for a partial recount.
Since the record before us shows insufficient evidence before the National Election Director for him to order a revote anywhere, we can only affirm the National Election Director's denial of Asor's july 11, 2023 petition.
Accordingly, although the National Election Director erred in prematurely certifying the results of the July 4, 2023 Chuuk at-large seat special election on July 10, 2023, Asor's July 11, 2023 petition, combined with the National Election Director's own inquiries, failed otherwise to provide enough evidence to meet the preponderance-of-the-evidence standard to order a partial revote. We therefore have no choice but to affirm the National Election Director's decision denying a revote and a recount and deny the Petitioners' motion to remand or to appoint a special master.
_______________________________Footnotes:
1 The Petition itself was labeled Petitioner and Others, and, although there were prepared signature lines for other candidates, only Sabino Asor signed it.
2 This tabulation may have been attached to the National Election Director's July 21, 2023 decision, but it was not attached to any copies of that decision filed with the court in this case.
3 Since the National Election Director's certification was on July 10, 2023, the filing deadline would have been July 17, 2023, not July 15. 9 F.S.M.C. 802(1) ("must be filed within one week").
4 If a candidate seeks a recount and the National Election Director decides to provide one, that decision is not subject to judicial review.
5 Losap, the polling place that did not conduct its election on July 4, 2023, conducted it the day after, and for that reason its results were excluded. Presumably, if any revote were ordered, Losap would be among the places where the revote would occur.
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