Election Commission dismisses allegations of election misdeeds on technicalities

September 19, 2011

By Bill Jaynes
The Kaselehlie Press

September 15, 2011 Weno, Chuuk-"I'm not doing this because I lost the election," said Alexander Narruhn of his filing at the Chuuk State Supreme Court arguing that the Constitution requires that a Governor be elected by a majority vote. Narruhn also filed a complaint with Chuuk State Election Commission making fifteen separate allegations of election wrongdoing. "I'm doing this because of the legal precedents that can be set for the future in Chuuk and I'm not going to give up!"

He has already filed an appeal of the Chuuk State Supreme Court which denied his petition for a Writ of Mandamus. The Court essentially ruled that in the case of a "special" election to fill a vacancy for the seat of Governor the winning candidate need not have a majority of the vote.

Narruhn also appealed the decision of the Election Commission which dismissed his complaint essentially on a technicality. Although he filed his complaint with the Commission within the prescribed time limit of five days after the certification of the election he hadn't paid the $50 fee that should have accompanied his complaint and allegations. The Commission dismissed his complaint on September 5 because it was not accompanied by the $50 payment.

After Narruhn was alerted to the fact that it costs $50 to file a complaint he made the payment on the following day and filed a supplemental complaint which was essentially a copy of the original complaint. The Election Commission accepted the payment, kept the money and then ruled that the supplemental complaint (the original complaint accompanied by a payment) was received after the five day period candidates have to file a complaint had expired. The Commission said that a supplement must supplement a complaint but since the Commission had already dismissed the September 5 complaint because of the absence of a payment the supplement supplemented a non-existent complaint.

The Commission dismissed the entire complaint and its supplemental having made no judgment whatsoever on the validity of Narruhn's fifteen allegations of election misdeeds.

The Election Commission also used as grounds for dismissal of Narruhn's complaint the fact that it "failed to state any number of votes in a given precinct that might reduce votes for the winning candidate or increase the votes of the complainant, or votes that given (sic) to defendant or votes that were denied to complaint (sic) that could have change (sic) the result of the special election."

The dismissal of the Narruhn's complaint on the conduct of the election was signed by Election Commissioners Rufus Petewon of the Faichuk region, Angelino Rosokow, Chairman of the Commission from the Northwest region, Ananter Year of the Northern Namoneas region, and John Eliezah, of the Mortlocks region. The signature of Commissioner Sountak Gideon of the Southern Namoneas region was absent.

If one were to center his or her attention on technicalities it would be reasonable to argue that the dismissal of Narruhn's complaint was signed long before the election was even necessary. The dismissal said that the complaint was denied with prejudice on "this 8th day of April, 2011," clearly a typographical error.

The Chuuk State Supreme Court's denial of Narruhn's filing for a Writ of Mandamus asking the court to decide that a runoff election is required by the Constitution seemed to center on the word "ticket." Article VI Section 7 of the Chuuk Constitution which deals with a general election of a Governor and Lt. Governor says:

"The Governor and Lieutenant Governor shall be elected jointly on a single ticket at a general election. The candidates for the 2 offices on the ticket receiving the majority of votes cast shall be elected. If a majority is not received, a runoff election between the candidates on the tickets receiving the two highest pluralities shall be held on the fourth Tuesday following the general election, as prescribed by statute."

Article VI Section 11(a) of the Chuuk Constitution deals with the replacement of a Governor who leaves office for reasons such as just occurred when former Governor Wesly Simina left office in order to take up a new elected office as a member of the FSM Congress. It says:

"(a) If the Governor dies, resigns, suffers a major incapacity, or is removed from office with one year or less of the term remaining, the Lieutenant Governor becomes Governor. However, if any such event occurs with more than one year of the term remaining, the Lieutenant Governor becomes Acting Governor until a Governor is elected and takes office. The election shall be held on the fifth Wednesday after the event occurs. If the Lieutenant Governor dies, resigns, is removed from office, or succeeds the Governor, the Governor shall appoint a Lieutenant Governor with the advice and consent of 2/3 of all of the members of the Senate. The order of succession after the Lieutenant Governor shall be the President of the Senate and the Speaker of the House of Representatives."

The word "ticket" does not appear in Section 11 but neither does the term "special election," a term that the Supreme Court used several times in its decision to deny a writ of mandamus requiring a runoff election for the position of Governor.

The Supreme Court decision said essentially that Section 7 standards for gubernatorial elections and Section 11 standards for gubernatorial elections differ in three main ways.

Section 7 requires a run off in the case where a "ticket" that includes a candidate for Governor and a candidate for Lt. Governor, does not receive a majority of votes. Candidates running under a situation that activates Section 11 run alone. The winner of an election in that case later chooses his or her own Lt. Governor with the advice and consent of the Senate.

Section 11 makes no mention of a runoff election in the event that a governor is not elected by a majority vote. Section 11 does not say that an election conducted for reasons of its terms should be conducted in the same manner as the gubernatorial election requirements for general elections described in Section 7.

Section 11 did not include the words, "as prescribed by statute." The Supreme Court decision said that if it had then Section 142 of the Chuuk Election Code would carry a great weight. Section 142 of the Election Code says that "[a]ll special elections shall be conducted in the same manner and form as a general election, except as otherwise provided in this Act."

"A court must be careful not to read into a constitution provisions which are not there not rewrite a constitution to include provisions that seem to be omitted," the ruling said.

"The Constitution's framers did not include such provisions, and even if that was through oversight, the court will not insert into the Constitution a runoff provision that is not there."

The Court denied Narruhn's petition for a writ of mandamus ordering the Election Commission to hold a runoff election.