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Reid v. Tuipine,

 

 

LEALAIFUANEVA PETER E. REID and

AFOA MOEGA LUTU, Petitioners,

 

v.

 

SOLIAI TUIPINE, Chief Election Officer, Respondent.

 

High Court of American Samoa

Appellate Division

 

AP No. 15-00

 

December 1, 2000

 

 

[1] Under A.S.C.A. § 6.0903(c), which sets out the standard of review for invalidating a general election, challengers must prove that the election result has been made uncertain due to mistake or fraud or the indeterminacy of the leading candidates’ majority margin according to the valid votes cast; an election will be invalidated only if the number of ineligible ballots cast is equal to or greater than the winning margin.

 

[2] Considerable deference is given to administrative decisions involving an agency’s construction of its governing statute and regulations only where the interpretation is consistent with the statutory mandate and does not frustrate legislative policy; administrative rules cannot supersede existing statutory authority where they directly conflict. 

 

[3] Where Petitioners are candidates for governor and lieutenant governor of American Samoa and challenge a critical number of excluded votes such that the alleged exclusion could very well cause a difference in the election result, the Petitioners have standing to assert such claim under A.S.C.A. § 6.0902.

 

[4] Although A.S.C.A. § 6.0902 intimates that the Appellate Division of the High Court may hear virtually any cause of action, and although the Court has broad powers to review any cause that could cause a difference in an election result, such is the case only insofar as the cause [4ASR3d10]                               is treatable


by reversing, correcting, or changing the decisions of district or election officials. 

 

[5] Where Petitioners challenge the legality of Election Rules themselves, such challenge does not qualify the case under the subject matter jurisdiction provided for by A.S.C.A. § 6.0902 because the enactment of an administrative rule involves more than the mere decision of an election official for purposes of the statutes concerning election contests and review of administrative rules is outside the scope of the Court’s review. 

 

[6] The Court is allowed to void elections based on the uncertainty of valid votes cast—not on votes that might have been cast. 

 

[7] A.S.C.A. § 6.0902 establishes two requirements for an election complaint: that it shall set forth any cause or causes that could cause a difference in the election result, and that it set forth any reasons for reversing, correcting, or changing the decisions of the district or election officials; all causes of action in an election contest must claim to make a difference in the election result, and must pertain to a decision of a district or election official. 

 

[8] A.S.C.A. § 6.1106(b) strictly prohibits the opening of the absentee ballot container before Election Day and administrative rules which allow discretion in this improperly contravene the statute.

 

[9] A.S.C.A. § 6.0802 primarily requires that a central polling station be designated to count all ballots and, although this provision is violated when absentee ballots are counted at satellite stations, such actions of convenience, though improper, are not cause to void ballots where there is no evidence of tampering or fraud or laxity to call into question the validity or security of the actual ballots counted. 

 

[10] Although electors are mandated to sign the poll book under A.S.C.A. § 6.0706, the failure of voters to sign the poll book does not render their votes illegal.

 

[11] Although the early closing of polling stations is improper, such does not render the election result uncertain where there is evidence that all of the registered voters have voted, and where there is no showing that the early closing affected the election result.

 

[12] When partisan poll watchers are not afforded the opportunity to physically examine the ballots, a public recount of such ballots should be undertaken.

 

[13] Under A.S.C.A. § 6.0402 a list of district election officials must be made, but it is not required to be [4ASR3d11]  published.

 

[14] Although A.S.C.A. § 6.0233(a) requires that challenges contesting the qualifications of electors be decided as soon as possible, where challenges are brought the day before the election but not decided before election day, the challenger is not prejudiced since he may raise the challenges on the day of the election. 

 

[15] Where election officials fail to follow the statutory procedure for handling challenges to the qualifications of electors, such non-compliance does render an election result uncertain when challenges are permitted, or when such challenges are viewed most favorably to the challenger and the election result is not rendered uncertain. 

 

[16] Under A.S.C.A. § 6.0903(c), the Court may rule that the cumulative effect of any number of claims can change an election result even if any of the individual claims is incapable of doing so on its own, but the burden is to demonstrate specifically, clearly, and convincingly that the irregularities affected the vote. 

 

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,[1] Acting Associate Justice, LOGOAI, Associate Judge, and ATUILAGI, Associate Judge.

 

Counsel: For Plaintiffs, Marshall Ashley

 For Defendant, Elvis R.P. Patea

 

OPINION AND ORDER

 

Per Curiam:

 

Petitioners Lealaifuaneva Peter E. Reid (“Reid”) and Afoa Moega Lutu, candidates for governor and lieutenant governor, seek to contest the results of the gubernatorial election held on Tuesday, November 7, 2000 (“Election Day”) pursuant to A.S.C.A. §§ 6.0902 and 6.0903.  Petitioners filed their complaint on November 14, 2000, at 2:55 p.m., alleging eight causes of action for invalidating the November 7, 2000, election.  Respondent Soliai Tuipine, Chief Election Officer, filed his answer on November 17, 2000.  The Court took evidence[2] and heard arguments on November 20, 22, and 24, 2000.  [4ASR3d12]

 

Facts

 

In 1996, Respondent adopted administrative rule No. EL-01-96 (“Election Rules”) for carrying out Title 6 of the American Samoa Code  (“Election Laws”).  A.S.A.C. § 3.1101 of the Election Rules sets forth the voting procedures for requesting and casting temporary and local absentee ballots.[3] 

 

Respondent made the Election Rules available for public inspection and, on August 15, 1996, filed certified copies with the Secretary of American Samoa (Lieutenant Governor), the Secretary of the Senate, and the Clerk of the House of Representatives.  (Ex. 25.)  The Election Rules became effective on September 4, 1996, and were duly applied in the 1996, 1998, and 2000 elections.  These rules have remained uncontested until the current case before the Court.

 

Respondent published a description of the Election Rules that was made available to candidates and the general public before each election (“Candidate Manual”).  The Candidate Manual for the election at issue was published in the latter part of June 2000.  (2000 Candidate Manual Ex. 31.)  Respondent also mailed an additional set of papers to all candidates on August 25, 2000, detailing the Election Office’s absentee voting procedures.  (Absentee Voting Booklet Ex. 2.)

 

Respondent was summoned by the Senate and appeared on September 8, 2000, to discuss the absentee ballot procedure.  Petitioner Reid, as a Senator, also attended this hearing, but neither he nor the Senate made any complaints or official challenges in the form of a letter or resolution, or otherwise contested the absentee voting procedure as provided for by A.S.C.A. § 4.1009(d).  At a later date, emissaries from Petitioners’ campaign committee visited Respondent and discussed the absentee voting procedure.  [4ASR3d13]

 

For the 2000 general election, Respondent designated one or more polling stations in each of the 17 election districts in accordance with A.S.C.A. § 6.0502(a).  Respondent added one polling station, the Amouli/Auasi/Utumea polling station on Tutuila, to the 43 polling stations designated in the 1996 general election, totaling 44 polling stations territory-wide.  This addition was made available for the benefit of voters residing in Aunu`u who complained about not being able to return to the polling station on the island in time to vote.

 

Respondent hired and designated election officials to perform the functions of the Election Office under A.S.C.A. § 6.0102(h).  Prospective election officials completed applications requiring that applicants reveal, in addition to other personal information, whether they are active members of “any campaign for public office,” and whether they are an “immediate relative of anyone who is campaigning for public office.”  (Ex. 28.)  Respondent states that he did not hire applicants who answered in the affirmative to either of these two questions. 

 

No district officials were suggested by any of the three district governors for the general election of 2000.  The district governors did not submit a list of names to Respondent as defined in A.S.C.A. § 6.0102(e) and allowed by A.S.C.A. § 6.0402(a), nor did Respondent solicit such a list.  District officials are required to perform Election Day functions including: deciding challenges to the qualifications of electors on Election Day, A.S.C.A. § 6.0223(b); opening the polls, A.S.C.A. § 6.0701; providing sufficient polling booths, A.S.C.A. § 6.0703(a); placing and observing the ballot boxes, A.S.C.A. § 6.0703(b); opening and exposing empty ballot boxes to all present before the start of voting, A.S.C.A. § 6.0705(a); sealing the ballot box and forwarding it to a central polling station, A.S.C.A. § 6.0802(a); and performing a number of other statutorily-mandated functions.  Respondent instead designated one election official to be a “team leader” of each polling station to perform most of the functions required of district officials.  He did not screen these individuals for the ability to speak Samoan and English as is required by A.S.C.A. § 6.0402(a) for district officials.  Nor did he require any of the team leaders, or other election officials, to rule on challenges to elector qualifications as also required of district officials.  Rather, he instructed election officials to set the challenged votes aside in envelopes to be ruled upon by the Board of Registration.

 

Respondent kept a running list of election officials as he hired them, including those election officials designated as team leaders.  Until Election Day, individuals resigned or might have been removed from the list due to admitted or discovered affiliation with partisan campaigns.  A final list of election officials was not compiled until Election Day.  Respondent did not receive any requests to view this list of election officials, nor he did he make the list public out of fear that the officials [4ASR3d14]  would be susceptible to bribery.

On or about September 1, 2000, Respondent caused 15,600 ballots for the governor’s race to be printed, corresponding to the actual number of registered voters.  Respondent received requests for ballots from off-island absentee voters until October 24, 2000, fifteen days before the general election, pursuant to A.S.C.A. § 6.1102.  Respondent responded to these with either a denial letter or a packet containing an official ballot, instructions and a reply envelope, all within 24 hours of receiving the request in accordance with A.S.C.A. § 6.1103.

 

Completed off-island absentee ballots arrived at the U.S. Post Office of American Samoa at least biweekly until Election Day.  Respondent’s staff picked up the ballots at the post office and delivered them to the main Election Office in Utulei (“Election Office”).  On the days following the biweekly flights, poll watchers for all candidates were invited to observe the opening of the absentee ballot container and the disposition of the off-island absentee ballots.  With poll watchers in attendance, Respondent removed the absentee ballot container from Respondent’s file cabinet, both of which, box and cabinet, were locked and accessible by Respondent’s sole key.  Election officials then checked the envelopes for qualifications and tampering, called out the registration numbers before logging them in the election log, and placed the envelopes in the ballot box.  At the close of each session, Respondent re-locked the absentee ballot container in his file cabinet.  Respondent similarly placed the off-island absentee ballots arriving during the week in the file cabinet until the upcoming Monday or Friday public sessions. 

 

Respondent required that temporary and certain local absentee ballots be cast at the Election Office, which functioned as the “absentee qualified elector polling station” under A.S.C.A. § 6.1107.  These voters were instructed to show proper identification to Respondent’s employees, who then checked the voters’ personal files for proper qualification.  If deemed qualified, each voter received three ballots which the voter cast and placed in envelopes.  The voters sealed the envelopes, signed their names and voter registration numbers on the seal, and placed the envelopes in the respective box for Governor, House of Representatives, or Congressional delegate.

 

Respondent did not accept requests for temporary absentee ballots between the 75th day prior to the election and the printing of the ballots on or about September 1, 2000.  After the printing of the ballots, Respondent implemented A.S.A.C. § 3.1101 in refusing to mail absentee ballots to temporary absentee voters who had already left the island.  Respondent did not disqualify these voters from voting on-island, in person, if they so chose to vote.  [4ASR3d15]

 

Only those local absentee voters who qualified because of an inability to attend the polls were allowed to cast their vote from somewhere other than the polling stations in the territory.  In those instances, election officials visited the elector at that elector’s location to procure his or her vote.      

 

Notwithstanding Respondent’s review of election officials, certain election officials had partisan interests.  We find at least one case of overt coercion by election officials who attempted to influence the vote of a local absentee voter.[4]  In addition, at some of the polling stations, campaigners wearing T-shirts with candidate logos were allowed to mill about polling stations, sit in the election officials’ chairs in the polling stations, greet voters entering the stations, and supply food to various election officials. 

 

On the eve of the general election, Petitioners challenged the qualifications of 35 electors under A.S.C.A. § 6.0223(a) by way of a letter to Respondent delivered at approximately 2:45 p.m.  (Ex. 19.)  Respondent, preoccupied with the practicalities of staging the election, did not fully investigate the challenges, did not post notice to the challenged voters, and did not make a final decision on or respond to the letter until after the election.  Respondent mailed a letter to Petitioners dated November 13, 2000, explaining that, though he made no decision regarding the challenge of 35 voters brought in mid-afternoon the day before the opening of the polls, Petitioners had been freely capable of challenging the qualifications of these voters at the polls themselves.   (Ex. 26.)  None of the 35 voters were challenged by Petitioners’ poll watchers on Election Day.

 

At approximately 8:00 p.m. on November 6, 2000, the night before Election Day, poll watchers were called to the election office to observe the opening of the absentee ballot containers and the sorting of the ballots.  At 8:35 p.m., Petitioners’ poll watcher arrived.  Under Respondent’s supervision, election officials removed the gubernatorial absentee ballot box from the file cabinet and placed it on a table in the middle of a large room in the election office, within an area accessible only to election officials and fenced off from the general public.  The officials unlocked the box and removed the individual ballot envelopes.  Utilizing the voter identification number and name written on each envelope, about ten election officials sorted the envelopes into 44 piles [4ASR3d16] representing the 44 polling stations.  The election officials called out each voter’s registration number and name to provide poll watchers the opportunity to cross-check their separate voter lists and challenge the qualifications of individual voters.  Then, the officials secured the piles of ballot envelopes into large manila envelopes and placed these on the floor immediately before the Respondent and his counsel, who were both seated at Respondent’s desk. 

 

While sorting the gubernatorial ballots, the election officials noticed that a number of congressional ballots had been mistakenly placed in the gubernatorial ballot box.  They reasoned that absentee voters had improperly switched their ballots for Governor and Delegate to the U.S. House of Representatives, and that the congressional ballot box probably contained gubernatorial ballots.  Respondent ordered the election officials to open and search the congressional absentee ballot box for gubernatorial votes that were found therein.  The officials continued sorting gubernatorial ballots until sometime between 2:00 to 3:00 a.m., during which time the large manila envelopes containing the gubernatorial absentee ballots remained open on the floor in front of Respondent.  No challenges were raised, either throughout the night or at the close of sorting, regarding voter qualifications or the sorting process.            

At approximately 4:00 a.m., only the gubernatorial and congressional ballots had been sorted.  In order to meet the poll opening deadline of 6:00 a.m., election officials placed the large manila envelopes into the corresponding ballot boxes for each polling station, except for the Manu`a and Aunu`u island ballot boxes that had been delivered the day before.  They then closed and secured the boxes with padlocks.  Respondent dispatched the individual polling officials to their respective polling stations, each carrying a locked ballot box filled with office supplies and the absentee ballots in manila envelopes.  The officials were each accompanied to their assigned destinations by police escorts.

 

Meanwhile, election officials at the Election Office continued to sort the absentee ballot box for the American Samoa House of Representatives.  On the morning of Election Day, more absentee ballots arrived in the mail.  These were collected, verified, and sorted by election officials.  Sometime before noon, three election officials accompanied by a police officer began to deliver these absentee ballots to the individual polling stations. 

 

All the polling officials arrived at their designated polling stations before 6:00 a.m. to set up their materials.  At each station, the polling officials removed the large manila envelopes containing the absentee ballots from the ballot boxes and set them aside.  They then displayed the empty ballot boxes to all present, including poll watchers for all candidates.  Beginning at 6:00 a.m., voters proceeded to cast their ballots.  They: 1) [4ASR3d17] presented identification; 2) had their name and voter registration number called out; 3) signed the poll log; 4) picked up three blank ballot forms to mark their gubernatorial, congressional, and representative votes; 5) entered a screened area to cast their vote; and 6) placed each marked ballot into the respective gubernatorial, congressional, and representative ballot box, located in the middle of the room. 

 

Leone election officials did not require qualified electors to sign the poll book prior to receiving and casting their ballots. Instead, they highlighted the names of voters in the poll book with a yellow marker until the team leader noticed and corrected this error.  On the poll accounting report submitted to the Election Office after the polls had closed, the team leader noted in parentheses the number of names highlighted separately from the number of voters’ signatures counted.

 

Respondent instructed team leaders to allow persons lawfully present at the polls on Election Day the opportunity to challenge the qualifications of any individual voters, in accordance with A.S.C.A. § 6.0223(b).  In some instances, team leaders openly and repeatedly discouraged poll watchers from challenging voter qualifications, although ultimately, the evidence shows that all challenges were taken into account.  All qualified voters were allowed to vote at the polls, but if challenged, this vote was sealed and set aside for later determination by the Board of Registration.  Approximately 22 challenged votes were set aside and not counted in the election result.  These are now pending determination by the Board of Registration.

 

Respondent allowed all polling stations located on Manu’a to close early so that the election officials could depart Manu’a for Tutuila on the afternoon flight from Ta’u around 12:30 p.m.  One Ta’u polling station closed at 11:10.  Between 11:10 and 11:30 the team leader instructed the village mayors (Pulenu`u) to scour the villages to determine that all qualified electors had voted.  The district governor of Manu’a then certified that all persons had voted.  Respondent then authorized the early counting of the votes in the Manu’a islands.  Early release of the results was not authorized, but neither was it prohibited.  The polling station located on Tutuila for Manu’a residents remained open until about 6:00 p.m., the closing time prescribed for all polls.

 

After each station closed, team leaders opened the large manila envelopes holding the governor’s absentee ballots, removed the envelopes containing individual absentee ballots, and transferred the ballots within each to the governor’s ballot box.  At the Leone polling station, one of Petitioners’ poll watchers attempted to challenge this procedure, but he subsequently retracted this challenge after consulting with Petitioners’ Leone campaign committee.  Officials then unlocked and opened the governor’s ballot box.  Without first counting the total [4ASR3d18] number of votes cast to determine that this amount corresponded with the number of electors shown on the poll book, as required by A.S.C.A. § 6.0802(a), the votes for each candidate were tallied.  Only after the votes were counted as such did election officials compare the total number of ballots against the number of electors who voted, as indicated by the voters’ signatures, stamps representing absentee ballots, and proxy votes in the poll book.  The election officials reported these figures in poll accounting reports for each polling station.     

 

Election officials tallied a total of 12,057 votes territory-wide, not including the 22 challenged ballots that were placed aside at the polls.  Petitioners received 342 votes less than the leading candidate, who received 82 votes more than the majority of votes required by A.S.C.A. § 4.0104 to avoid a run-off and carry an election.  

 

Fourteen polling stations reported discrepancies between ballots counted and votes cast as reflected by the poll book.  Each discrepancy was described as an “underage” or “overage” in accordance with A.S.C.A. § 6.0803(a).  An overage occurs when there are more ballots than the poll book reveals were cast; an underage occurs when there are fewer.  The poll accounting reports for the 14 polling stations show the following: Faleasao, underage of 14 (Ex. 5); Tula/Onenoa, underage of 3 (Ex. 6); Utulei/Gataivai, underage of 4 (Ex. 7); Fagatogo, underage of 4 (Ex. 8); Aunu`u/Amouli, underage of 1 (Ex. 9); Amouli/Auasi/Utumea, overage of 22 (Ex. 9); Pago Pago, underage of 5 (Ex. 11); Nu`uuli, overage of 90 (Ex. 12); Leone, overage of 255 (Ex. 13); the Tutuila polling station for Manu’a, underage of 2 (Ex. 14); Amaluia/Asili/Afao/Atauloma, underage of 5 (Ex. 15); Vaitogi, underage of 2 (Ex. 16); Vailoatai, overage of 26 (Ex. 17); and Futiga/Maleloa Ituau, underage of 1 (Ex. 18).  The total number of initially reported overages and underages is 438.

 

Following Election Day, a veteran Election Office official of the 1994, 1996, 1998 and 2000 elections (“Reviewer”) attempted to reconcile the 2000 election results by counting the signatures of voters who voted on each roll, the stamped absentees whose votes were counted on the rolls, and the proxies on the rolls.  These she totaled and compared with the poll accounting reports submitted by the election officials of each polling station.  Reviewer reported her results for each polling station.  (Ex. 34-42.)  On the morning of November 14, 2000, the result was posted in summary form for public viewing at the Election Office.  (Ex. 29.)  The following table, complied by the Court, compares the overages (“+”) and underages (“-”) of the initial report against the reconciled report, and lists the reasons given by the Reviewer for the disparate numbers.  [4ASR3d19]

 

 

Polling Station

Initial Report

 

Reviewer’s Report

 

Explanation by Reviewer

Faleasao Manu’a

-14

+1

Absentee ballots not counted (+16),

Local absentee votes not counted (-2),

Spoiled ballot (-1)

Tula/Onenoa

-3

+1

Absentee ballot not counted (+1),

Challenged ballots not counted (+4)

Utulei/Gataivai

-4

+1

Absentee ballot not counted (+3),

Challenged ballots not counted (+2),

Fagatogo

-4

+1

Absentee ballots not counted (+2),

Void ballots not counted (+3)

Aunu`u/Amouli

-1

-1

 

Amouli/Auasi/

Utumea