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181. 2. Application of Statutory Procedure. a. Are the Results So Close That It Would Be Proper to Have a Re-Count? In the present case, Appellant Samuel does not assert the result is so close that it would be proper to have a re-count. As noted above, the difference in votes between Appellant Samuel and candidate Ladie Jack was more than 3%. In Clanton (1), at 152, the Marshall Islands Supreme Court noted that votes differences of 2 votes (1%) and 31 votes (1.5%) could, in number and percentage, be characterized as "close." However, in the absence of statutory criteria or information furnished by the appellants that arguably would give rise to a "substantial possibility" that a re-count would establish a different result, the CEO did not abuse or erroneously exercise the discretion vested in him by not finding the results were so close that a re-count is proper and that there is a "substantial possibility" the election result would be affected by a re-count. ld. 152. In the present case, the Petition, the November 26 letter, and attachments to them do not provide information that arguably would give rise to a "substantial possibility" that a re-count would establish a different result. For the most part, Appellant Samuel's affidavit was based upon belief, opinion, and speculation. Appellant Samuel's affidavit together with the others does not mandate a re-count. b. Are Errors Alleged and Would They Affect the Results? In this case, Appellant Samuel alleges errors he believes affected the results of the election. In his December 14, 2015 Petition, he lists seven categories of alleged errors: (i) election officials mishandle postal ballots and rejected postal ballots that should have been .. counted; (ii) election officials failed to loudly call out voters' names before issuing ballots; (iii) 7

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Samuel v. Chief Electoral Officer et al.

Judgment

Question Presented: (1) Whether Chief Electoral Officer (“CEO”) erred in rejecting a candidate’s request for a re-count due to a close mayoral race with 3,25% of vote difference and alleged violations? (2) Whether the refusal to add a name of a voter to the voter registry beyond the deadline for voter registration can be raised as a class action to protect the rights of voters?

Alleged Acts: Appellant ran in the 16 November 2015 mayoral election for the Majuro Atoll Local Government and lost; the difference in votes for the winner and the Appellant amounted to 3.25% of the votes cast. Appellant filed petitions challenging the election results, requesting a recount and alleging that election officials made errors during the election that violated Majuro voters’ rights. Appellant listed seven alleged errors in his petition: (1) election officials mishandled postal ballots and rejected postal ballots that should have been counted; (2) election officials failed to loudly call out voters’ names before issuing ballots; (3) election officials rejected absentee voters for their failure to sign the voters’ list; (4) election officials denied legally registered Majuro voters on outer islands the right to vote absentee; (5) election officials failed to provide Majuro polling places with enough ballots for the voters, forcing voters to search for a polling place to cast their vote; (6) counting and tabulation errors in one ward led to a substantial change in the vote, which Appellant argues justifies a re-tabulation for the entire atoll; and (7) election officials extended the deadline to collect ballots from confined voters.

Procedural history: On 14 December 2015, Appellant Samuel requested that the CEO ordered a recount of the votes cast for the Majuro mayor and to refer to the High Court alleged violations of voters’ rights. The appellant Samuel claimed the CEO did not notify the Appellant in a timely manner regarding his decision on referral to the High Court. The CEO, on December 19, 2015, certified that Ladie Jack had won the race. Without a written response, re-count, or referral, on 17 December 2015, Appellant filed two cases to the High Court demanding a re-count of all votes and a referral to High of violation of right of voters, and a petition challenging the results and seeking repoll. On 19 December 2015, the CEO certified the results of the election. On 27 October 2016, the Court dismissed Appellant’s referral request case on the merits, on the ground that the Plaintiff failed to comply with the Court’s orders. On 10 February 2017, the Court remanded the re-count request case to the CEO to respond in writing to Appellant’s 14 December 2015 Petition. The CEO rejected Appellant’s Petition on 15 February 2017. Appellant filed a Notice of Appeal on 6 March 2017 and amended his Notice of Appeal on 15 March 2017, appealing the CEO’s rejection of both his re-count and referral requests. After review, the Court determined that the only questions for determination are those surrounding re-count and referral and was to determine whether the CEO committedabuse of or erroneously exercised discretion.

Summary: Appellant ran in the 16 November 2015 mayoral election for the Majuro Atoll Local Government and lost; the difference in votes for the winner and the Appellant amounted to 3.25% of the votes cast. Appellant filed Petitions challenging the election results. Challenges to election results: Section 180(1) of the Elections Act provides that candidates may file a re-count petition on the following grounds: the result was so close that it would be proper to have the voting figures rechecked, or there was an error [i] in relation to the count [ii] the records of the election, or [iii] the admission or rejection of ballot papers, and that the candidate believes that a re-count will affect the results of the election. The Petitioner must support his Petition with an affidavit specifying his belief and the grounds for it. If the CEO, after considering the Petition and any evidence submitted with it, believes that there is a substantial possibility that the election results will be affected by the alleged irregularities, he shall grant the Petition. Otherwise, the CEO shall reject the Petition. If the CEO rejects the Petition, he shall advise the Petitioner in writing accordingly. The Petitioner may appeal the decision to the High Court within five days of receipt of the CEO’s advice. In reviewing whether a re-count would be proper, the Court noted that Appellant did not argue that the outcome was sufficiently close to warrant a recount; thus, a recount was not mandated. In determining whether errors were alleged and if those errors would affect the results, the Court looked to previous correspondence between Appellant, Appellant’s counsel, and the CEO. While Appellant listed seven categories of alleged errors in his 14 December Petition, the CEO had already addressed some of the issues in correspondence to Appellant’s counsel on 10 December. Given this, the Court did not see any evidence that the CEO erred in determining that there was not a “substantial possibility” that a re-count would affect the results; that is, even if the alleged errors were acknowleged, Appellant failed to show that they substantially affected the outcome of the election or that a re-count would address the problems he cites. In fact, at oral argument, Appellant’s counsel confirmed that Appellant is seeking a repoll as opposed to a re-count. Ordering a repoll of the election is beyond the scope of the current appeal. In sum, Appellant failed to show that the CEO abused or erroneously exercised his discretion when he rejected the appeal. Voting rights: Section 188(2) of the Elections Act provides that a candidate may require the CEO to refer to the High Court any question that has arisen concerning the right of a person to vote in the election, and the CEO shall refer the question to the High Court accordingly. However, any challenge relating to an entry in the electoral register must be made prior to the close of business on the fourth day preceding the date of an election. The Court held that Appellant’s Petition failed for two reasons: he identified only one person who claims that he was unable to vote in the Majuro election, and his challenge to an entry in the electoral register was made too late. Beyond the one person identified, Appellant only sought the referral of a challenge of classes of voters. The Supreme Court has previously held that the CEO is not required to refer to the High Court challenges to the rights of classes, as distinguished from the rights of an identified individual. The Court also remarked that, given the 16 November 2015 election date, Appellant’s 26 November letter was fourteen days late, and his 14 December Petition was 32 days late.

Conclusion: The Court concluded that CEO did not err in rejecting Samuel’s request for a re-count under Section 180 because Samuel had failed to show that a re-count would address any of the issues he raised or that there was a “substantial possibility” the election results would be affected by a re-count. Second, the Court concluded that the CEO did not err in rejecting Samuel’s referral of alleged violation of the rights of voters to vote, because Samuel had failed to show the CEO erred in refusing to refer to the Court violations of the right of “a person” to vote. Section 188(2) applies to the rights of “a person” not the rights of “voters” or a group of persons. In neither case did Samuel show the CEO abused or erroneously exercised his discretion. The Court affirmed the CEO’s rejection of Appellant’s Petition and denied Appellant’s appeal and referral.

Legal Issue(s)

Disputing Results
EMB Operation

Applicable Law(s): Elections Act: Sections 180, 181, 182, 188

Region: Asia-Pacific

Country: Marshall Islands

Language of Decision

English

Court: Trial Court

Date of decision: Aug 31, 2018

Geolocation

Latitude: 8.121385368300965

Longitude: 169.20200388454685

: Geolocation

Primary Documents

180831-Opinion-Samuel-v-CEO-et-al.-HCT-CA-17-37.pdf
English
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Election Judgments - IFES

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Samuel v. Chief Electoral Officer et al.

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