Thursday, November 12, 2009

Understanding Our Election Laws-"Votes Cast"

“Votes Cast”—a question of law, not politics.

The Commonwealth Election Commission has certified results from the election held November 7, 2009. It has included in its certification 1) a call for the run-off election between two governor/lieutenant governor teams; 2) a determination that none of the legislative initiatives to amend our CNMI Constitution passed; and 3) a determination that the popular initiative to change our statutory law did not pass.

Note that the newspapers immediately reported the need for a run-off election and initially reported that the legislative and popular initiatives all passed.

However, the CEC has certified results that none of the initiatives passed. Each of these three certifications depend in part on the CEC’s assessment of the number of “votes cast.”

You can see the raw numbers on the Saipan Tribune’s website: here

The Run-Off Election

There were 13,536 votes cast for governor/lieutenant governor candidates. These candidates run in teams, pursuant to our CNMI Constitution. It's very clear no candidate got more than 50% of the vote.

P.L. 16-43, codified at 1 CMC § 6509, became law in July 2009, to effectuate the House Legislative Initiative 15-16, S.D. It provides as follows:

“...a runoff election for governor and lieutenant governor is required if no candidate receives a majority of the votes cast and counted for that office.”

This language is very clear: it speaks of votes, it describes the votes as both cast and counted, and it limits the votes to those made for “that” office (meaning the offices of governor/lieutenant governor).

What are votes? When is a vote cast? When is it counted? These are the questions that seem basic and easy to answer.

A vote is generally described as an elector’s choice in an election. It is distinguished from the “ballot” which is the means or method for making the vote known. “Ballots” can be paper with ink or pencil or punch holes or they can be mechanical or electronic signals given from voting machines—and the purpose of the “ballot” is to signify or express the “vote,” which is the choice of the voter/elector.

The United States Supreme Court discussed the difference between votes and ballots in the case of Gutierrez v. Ada, 528 U.S. 25 (2000), which arose out of an election contest in Guam. The Court took the case to resolve the different interpretation that the 9th Circuit had given to the phrase “votes cast” , reading it to include the number of ballots cast in the general election, and not just the votes in the Governor/Lieutenant Governor race; the 3rd Circuit had interpreted the phrase as it applied to the Virgin Islands elections in Todman v. Boschulte, 694 F.2d 939 (3rd Cir. 1982) as limited to votes actually cast in the race, and not to the total number of ballots.

In Gutierrez v. Ada, the U.S. Supreme Court looked at the Guam Organic Act and its language calling for a runoff between the top two gubernatorial slates if one did not get a majority of the votes cast. The U.S. Supreme Court said that:
“It would be equally odd to think that after repeatedly using “votes” or “vote” to mean an expression of choice for the gubernatorial slate, Congress suddenly used “votes cast in any election” to mean “ballots cast.”

This case was decided before we passed our CNMI Constitutional initiative and the enactment of P.L. 16-43.

It helps us understand our law, which includes not only the same phrase “votes cast” but adds the specific language “and counted for that office.” It is clear that in the CNMI, for our run-off election, our law only includes the votes cast in the governor/lieutenant governor election; that votes that are not counted –because they are over-votes or the voter is disqualified, for example—are not part of the equation in determining whether a candidate has reached the 50% mark. For those who do not select any candidate in the race, their under-vote is not added into the equation either, as not being a “vote,” or not being a “vote cast,” or not being a “vote cast and counted.” It doesn’t really matter for this law, which particular reason keeps their vote out of the exchange.

Constitutional amendment by Legislative Initiative

The Saipan Tribune election results show that
9,412 votes were counted on the House Legislative Initiative 15-3, of which 5353 were YES.

9,708 votes were counted on the House Legislative Initiative 16-11, of which 5644 were YES.

9748 votes were counted on Senate Legislative Initiative 16-11, of which 5476 were YES.

Article XVIII, section 3 of the CNMI Constitution provides the means for changing the CNMI Constitution by Legislative Initiative.

“The legislature by the affirmative vote of three-fourths of the members of each house present and voting may propose amendments to this Constitution. ..."

After the Legislature passes a proposed constitutional change, the people vote on it. Article XVIII, section 5.

“a) A proposed amendment to this Constitution shall be submitted to the voters for ratification at the next regular general election or at a special election established by law.
b) An amendment proposed by legislative initiative shall become effective if approved by a majority of the votes cast...”

This has been part of our CNMI Constitution since it was ratified in 1978, and the language pre-dates the U.S. Supreme Court decision of Gutierrez v. Ada.

These provisions use the term “votes cast” but do not have the added clarifying language of the P.L. 16-43, specifying that the votes must be countable and in the election in question.

So the analysis starts with what is a vote.

The CEC seems to be saying that our CNMI Constitution, using the phrase a “vote cast” in the context of the legislative initiative is synonymous with a ballot cast in any of the races, contests, issues of the election held.

The CEC cites no authority for its opinion. Although there are some old cases from other jurisdictions that have held similarly, those cases are based on the unique situations of those jurisdictions. They are old. And they were considered unpersuasive by the U.S. Supreme Court in the Gutierrez v. Ada case.

In a follow-up case in Guam, the Guam Supreme Court decided that over-votes were no more an expression of a vote cast than absent votes. Underwood v. Aguon, 2006 Guam 17, 2006 Guam LEXIS 18. This case also cites Bush v. Gore, 121 S. Ct. 525 (2000), where the U.S. Supreme Court considered what constituted a “vote” under federal election law.

“In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.”

The CNMI uses one ballot with all the election contests and races and issues on it. The CEC informed me prior to the election in response to a question I had posed that it is its policy to count votes on each ballot as much as possible. If a voter over-votes in one race, the CEC will not count those votes, but will read and count the remainder of the votes on the ballot in the other races. If a voter under-votes in a race, the CEC will count the under-vote and the votes in the other races/contest/issues correctly made on the ballot. If a voter does not vote at all in a race, the CEC will count the remainder of the votes in the races, contests, issues where votes are cast.

In other words, the CEC generally is counting votes, not ballots.

So a “vote” should mean a clear expression of an opinion on an issue or candidate; and to be “cast” it needs to be clear, legible, and submitted to the CEC during the election process.

It seems that legally, a ballot is not a “vote cast” but is rather just a ballot—a means for getting the vote cast and transmitting that information to the election officers.

The inclusion by the CEC of all ballots in the equation is the same as the CEC casting a “no” vote for every voter who did not indicate a choice on the ballot on the initiative.

Popular initiative to change the statutory law

9644 votes were counted on the Popular Initiative on the Open Government Act, of which 6597 were YES.

The CNMI Constitution Article IX provides a means for people to change the statutory law. Section 1 (d) reads:

“An initiative petition that proposes a general law for the Commonwealth shall become law if approved by two-thirds of the votes cast by persons qualified to vote in the Commonwealth.”

This provision looks a lot like both the run-off provision and the constitutional amendment by initiative provision, except it is worded slightly differently again. This time, the “votes cast” is modified by the phrase “by persons qualified to vote in the Commonwealth.” This phrase makes it clear that votes of those disqualified are not put in the equation for determining the 2/3rd passage. But it doesn’t answer the basic question of what are “votes cast.”

The same analysis used above applies, I think.

Votes cast must be votes submitted in the election. The phrase “votes cast” also helps us understand that it doesn’t mean votes not cast, so that votes by those who choose not to vote, but may be registered voters, are not part of the equation.

But still the question is what is a vote? The cases cited above strongly suggest that a vote is not a ballot; a vote is an expression of choice on the candidates, race, contest, issue in question. Votes must be actual votes, and not ballots.

There is room for disagreement about the CEC's decision to include all ballots in the numeric count when deciding whether the initiatives got a majority of the "votes cast."

Ultimately this issue is a legal issue, not a political issue and should be decided by the CNMI courts.

Thursday, November 5, 2009

Some information for voters in the CNMI

There will be 4 initiatives on the ballot this election, which is set for Saturday, November 7, 2009.

To help you figure out how you want to vote, I offer this information and analysis.

House Legislative Initiative 15-3. Introduced by Justo S. Quitugua. Passed in the house on 5/16/2007; in the Senate on 8/16/2007.

This changes Article XV of the CNMI Constitution as follows:
1. adds the language "high school" before student as a defining criteria for one of the non-voting ex-officio members to the BOE.

The effect of this change is to exclude NMC students from the position. Without the language, any public school student, including a high school student or an NMC student, could be appointed. With it--only a high school student can be appointed.

2. deletes the language to select a teacher member from "an exclusive bargaining representative" within the "Department of Education" to just selecting one teacher from PSS; and adds that the selection process shall be established by law.

The effect of this change is only to the selection process, changing it from one in which teachers have a say about their representative to a political choice.

If the reason for having a teacher on the advisory board is to hear their perspective, it makes more sense to let teachers have a voice in selecting that representative. It makes no sense to make it a political choice. (If you disagree with having a teacher representative at all, neither the existing constitutional provision nor the proposed amendment will give you what you want.)

3. adds term limits to the elected board members. This means that no BOE board member may hold office for more than two terms. It's not clear if this means only 2 consecutive terms or two terms all together.

The effect of this change is to require new blood on the BOE; it also means that the voters have less choice because we can't vote for someone who has experience and is doing a good job if they've already served 2 terms.

4. adds that the budget shall be made "through an annual appropriation."

At present, the budget is made through an annual appropriation, or if no budget is passed, by continuing resolution. This seems to eliminate the continuing resolution as an option. (If the initiative for a balanced budget passes, this option is also eliminated.)

What about the PROS and CONS listed on the Commonwealth Election Site? It's quite obvious to me that neither the pros nor the cons actually address the CHANGES being proposed or deal with them in a deep, meaningful, or analytical way.

The pros?
The first pro-about guaranteeing 15 % is irrelevant--that's already part of the Constitution and nothing in the Legislative Initiative changes it or adds to it.

Term limits as a means to encourage new ideas and public involvement? The Commonwealth Election Commission has provided no information on whether this reasoning has any validity.

Giving responsibility to youth and getting their perspective? That's already possible; as noted above, the actual language forecloses choosing a college student, whose views may be equally valuable and needed.

The pros say the HLI ensures that one member is a public school teacher, but that's already assured. What is actually changed is the selection method.

The cons?
15% might not be enough? The Constitution as written provides for at least 15%, but does not prevent more. Nothing in this initiative changes the Constitution in this regard. (Therefore the initiative is neither a pro nor a con on this point.)

Limiting terms limits choices: agreed.

Requiring the DOE rep to be a teacher may not take into considerations administrator issues. The existing Constitution calls for a teacher rep; and so does the change. The only difference is in the selection process. Neither voting for nor against the initiative will have any effect on this consideration.

The change leaves the selection process undefined. agreed.

House Legislative Initiative 16-11 (H.L.I. 16-11) Amends Article III, section 9 (a) of the CNMI Constitution. Introduced by Diego T. Benavente, Joseph P. Deleon Guerrero, Ed Salas and Ray Yumul.

It makes the following changes:
1. deletes the language that provides for budget allocation at the same level as the previous year when no balanced budget is approved before the first day of the fiscal year.

2. provides that no money shall be drawn for government operations without a budget;

3. makes an exception to the no money rule for "certain government services and employees provided by law... essential to the health safety, and welfare of the people... and to protect against damage to and destruction of property."

4. mandates that the Governor submit a balanced budget proposal to the Legislature by 4/1; and suspends his salary if he doesn't and until he does'

5. suspends the legislature's salary if they don't pass a balanced budget by 10/1 until they do pass one.

According to the information provided in the initiative, 23 states have similar balanced budget provisions. That must mean that 27 states don't. No idea about the other territories and insular areas under the American flag.

Balanced budget provisions seem to be popular in times of fiscal uncertainty and difficulty. While they are used by state and local governments, they are not used by the federal government.

You can find the pros and cons for this H.L.I. 16-11 in the CEC's Voters Manual, at page 3. I don't have any additional facts to add.

Public Initiative to extend the Open Government Act (OGA) to apply to the Legislature. This is the initiative spearheaded by Rep. Tina Sablan.

It changes the law as follows:
1. deletes the exception for the Legislature in the OGA, and adds expess language to make the OGA applicable to the Legislature
2. that means, the Legislature will have to prepare agendas, give notice 72 hours in advance of sessions, allow public comment, and respond within 10 days to requests for public records;
3. there is an exception to the 72 hour notice requirement for emergencies, provided the reasons for calling the session emergency are stated in writing, 2/3 of the members agree it is an emergency, and there is an emergency agenda that eventually gets filed in the public record.

The purpose is to provide for a more transparent government and greater ability for the public to participate in our democracy.

The OGA originally applied to the Legislature, but the exception to its applicaton was carved out in a subsequent Legislative term.

The CEC brochure on the OGA initiative lists some cons that I'll address.

* The 72 hour notice would require new notice if discussion is continued over to another day.
I don't know the source for this objection or opinion; I don't know of any legal opinion that supports this interpretation. In courts of law, when notice is required, if it's given and the matter is conintued, no new notice is generally required.

* If the Legislature mistakenly fails to give proper notice the act is null and void.
Yes. This is not a con--that is the objective of the proposal. The initiative wants all of our Legislators to have the full opportunity to participate in the legislative process, and have time to prepare; it is designed for the public to know about legislation before enacted. It is designed to stop secrecy and lies and quick deals behind closed doors that do not face public scrutiny.

* The 2/3rds rule may be hard to obtain in times of emergency.
I think this could be true, but I also think that this rule is designed to prevent false "emergency" declarations--like we're seeing all the time from the executive branch. To me, this is not so much a "con" to the amendment as a reason for the Legislature to do some planning. I think the Legislature can and should prepare some contingency plans for dealing with emergencies, having participation by cell phone, etc.

* Requiring notice will decrease the likelihood that legislators will meet outside of committee members to discuss matters.
The rule applies to official meetings--not informal discussions between legislators.

* The legislators and their assistants will have bigger workloads.
Paper or electronic notice is not significantly difficult; and the potential input from legislators who are prepared because they got notice, and from the public, means that the public will have a better chance to have good laws that won't need amending every few months.

Senate Legislative Initiative 16-11 (S.L.I. 16-11) has the same number as H.L.I. but is entirely separate and different. Not to be confused by the 16-11--be sure to check out the pre-fix.

S.L.I. 16-11 amends Article VIII, section 1 of the CNMI Constitution.

It makes the following changes:

1. It changes the day of elections in the CNMI from Saturdays to Tuesdays.
2. It sets all elections in only even-numbered years.
3. It adjusts terms of elected public officials to make sure the respective positions are filled until the next election in an even-numbered year. It does this by adding a year to terms, where necessary.
4. The next regular general election would be in 2012. The next governor's election would be 2014.

As noted in the CEC pamphlet on pros and cons, this means the governor we elect in this election, will have a 5 year term, the legislators will have 3 year terms, senators will have 5 year terms, and mayors will have 5 year terms.

It also means that we will not be having elections every year; will save money on the cost of elections; will not be hearing election "music" every year; and will have our CNMI election at the same time as the election of our U.S. delegate.