Tuesday, November 10, 2009

A Very Long Ramble on "Votes Cast" and the Initiatives

I know--this is too long and rambling, but still, this is how my mind sometimes works. So fwiw:

“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.

I disagree with the CEC’s determination.

But I also think that this issue is a legal issue, not a political issue and should be decided by our courts here.

47 comments:

dekada lawyer said...

Jane, I agree with you. You did the research, which I appreciate. I think it unfortunate, though, that the OGA initiative, the budget initiative, and the PSS initiative were actually ratified.

This is the consequence of the dismal (almost nonexistent) public education and public discussion on these ballot measures. Now, if someone brings a challenge to the CEC's decision, it will be necessary to bring a counter-challenge to the substantive constitutionality of the measure in quetion or the validity of the vote in the absence of adequate public education.

The OGA initiative was one of those things that strikes a chord with public discontent (almost every legisative candidate happily expressed support) but doesn't bear up so well under close scrutiny.

As a political statement on the need for greater transparency, accountability, and genuine deliberative process, the initiative was great -- but actually enacted into law, it would have been horrible. Stanley went overboard in his criticism, but in main substance he was correct.

dekada lawyer said...

More on the OGA initiative:

The Open Government Act as originally enacted contained no exception for the Legislature. However, the Legislature is structurally and functionally different from the executive branch. The particular mandates and prohibitions of the Open Government Act are ill-suited to the legislative process. Moreover, a major issue of constitutional dimensions arises as a consequence of inclusion of the Legislature in the coverage of the OGA. What happens in the event of violation of the OGA by the Legislature in the course of enactment of a law? Is the law invalid? This is not the kind of question the people of the CNMI need in the courts. For these reasons, the Legislature amended the OGA to exclude the Legislature from its coverage (during the first year of my service as Senate counsel).

There is a major transparency and accountability problem with the Legislature, but it is not one that this initiative will solve. Instead, if it goes into effect, the initiative will result in a host of unnecessary issues, conflict, and inefficiency. It is probably constitutionally infirm as well. See CNMI Const. art. II, sec. 14 (b) & (c) (legislative organization and procedures). Further, as a law enacted by initiative, a whole additional legal issue -- one better avoided -- arises. To what extent can the Legislature, by statute enacted pursuant to its own processes, change such a law?

As a consequence of this, a serious risk exists that the legislative response to passage of the initiative may be to repeal the OGA altogether.

I admit I signed the petition to put the measure on the ballot. I did so at Tina's request because I support the political statement she was making -- which is an important one. On the other hand, for the foregoing reasons, I did not support its actual approval into law.

dekada lawyer said...

How does the CEC certify the results now when the election law requires absentee ballots received in the 14 days following the election to be counted?

Granted, those ballots cannot change who will be in the runoff election -- but, still, can the CEC legally certify without first counting all the votes?

And those ballots could possibly change the result in some other races. Did the CEC certify the results for the other races as well?

So we will now have a runoff election on a Monday?

Glen Hunter said...
This comment has been removed by the author.
Glen Hunter said...

steve,

"What happens in the event of violation of the OGA by the Legislature in the course of enactment of a law? Is the law invalid?"

as an attorney you should be well aware that all laws are subject to some extent to being made invalid. constitutional court challenges, legislative amendments or repeals, initiative amendments or appeals, overridden by alternative laws, federal and state conflicts, etc.

adding the OGA invalidity should not be feared. If in the course of lawmaking, shortcuts are taken and the OGA is not followed and a law passes that is not acceptable to residents than they can challenge it. why not? if hearings weren't held, if notice wasn't made, than why should that bill be made into a law that should stand?


"For these reasons, the Legislature amended the OGA to exclude the Legislature from its coverage

there were other reasons that they excluded it. i read stanley's letter as i have now read yours and any layman can easily refute the claims made in both. privacy concerns are covered clearly in the OGA, the claim you raised about nullifying also is not as "surprising" as you make it appear. no law is above change or nullification and you know that. you are a lawyer as well and you know that the courts exist to hear such claims as constitutional violations, federal/state violation, etc.

there is no set and sound reason to not apply the OGA to the legislature. can it be tweaked later? sure. have digital and technological upgrades added. force webcasts of ALL public meetings and sessions. i can go on and on.

no more of this closed door nonsense, no minutes, first and final bill passage, no committee reports, no hearings, no notice, etc.

Glen Hunter said...

steve,

i believe that the runoff legislation amended the absentee submittal date. all absentee votes needed to be here by november 7th.

in the runoff election they will give absentee voters 14 days after november 23rd to get them here.

Glen Hunter said...

steve,

it is odd that they did not hold out on certification of the numbers until saturday so that the runoff would fall on a saturday. the way it is now the runoff will be on a monday.

Saipan Writer said...

Wow! go home tired, wake up late and find a long ramble has lots of comments?!!

1. I agree that my analysis, if adopted by the CEC or the courts, would give us at least 2 horrible initiatives--the teacher rep initiative and the emergency budget mess.

2. I disagree that the OGA applied to the Legislature is bad. Quite the contrary--I think it would be good, needed, and beneficial for the CNMI.

3. I also disagree that it creates constitutional issues. Nothing about the OGA upsets the separation of powers--I'm baffled at your "logic" that argues this. Nothing interferes with the independence of elected representatives to exercise their judgment.

4. The government IS the people. If the people want to know what is going on, have the opportunity to be prepared before hand, and participate, they certainly should have that chance. I sincerely hope that the Legislators would not immediately rescind it.

5. There is a possibility that you are trying to justify your participation in the process that rescinded application of the OGA to the Legislature. You liked being an insider. You think you know something unusual about the inner workings of our legislature. You're defensive about your stance. But none of that is persuasive logic.

6. On challenging the other initiatives for lack of public education? Assuming the electorate is ignorant? I think a lot more education could have been done--but the CEC had the initiatives available for reading on their website. It would have been good if they had, as in 2007, made copies available at the public library and advertised that, if they had held public forums on the topics. But challenging an initiative that secures a majority vote because the people didn't understand what they were voting for? Dare I say-how offensive? how absolutely arrogant?

7. One thing all of this shows--public debate is a good thing. It would be helpful to have more of it.

Jim B. said...

Jane:

Great post. Thanks for the analysis. By the way, I don't think it is irresponsible at all to question the results, only to suggest that some impropriety such as fraud has occurred without at least some substantiation.

Keep up the good work!

Captain said...

Jane,
In your research I am assuming that you did not find anything along these lines that had gone to court about anything that happened in the CNMI, only the one in Guam that you referred to?
I guess that might have been the one that stuck in my mind from years ago, the one that I could not remember.

But this, I assume, sets a legal precedence that would impact any action brought to court in this particular case?
So now what,what is going to happen from here?
Is there not a deadline of 7 days to challenge the CEC, and is that not Monday?

Is Tina (or somebody else) going to officially Challenge the CEC decision?

On another area, by holding the runoff on a Monday, maybe they may hope to get less of the voters out to vote from the private sector while this admin tries to buy votes by making that a holiday.
Maybe only a co=incident.

Anonymous said...

How do we justify spending $11,000 on a helicopter and crew to bring in four votes from the Northern Islands? Anyone heard of HF SSB radio. Which the EMO use hourly to communicate with the islands?

dekada lawyer said...

Jane, you write:

There is a possibility that you are trying to justify your participation in the process that rescinded application of the OGA to the Legislature. You liked being an insider. You think you know something unusual about the inner workings of our legislature. You're defensive about your stance. But none of that is persuasive logic.

That is just a cheap shot. That is just not my character. That you would even write such a thing shows you don't know me very well.

I don't need to justify anything from my six years as Senate counsel. My track record and firm commitment to principle and the law during that tenure are well known, especially to those who held office or worked there during that time. It did not make me popular with certain legislators, but the respect it earned me from others, legislative staffers and many in the general public was humbling and gratifying.

Moreover, it has been nearly a decade since I served as Senate counsel. Since then I have helped hundreds directly and personally with their individual legal problems. I have no need to concern myself with whether some preceived past glory is tarnished or not. To the contrary, the fact is no one would have recalled I was there when the Legislature exempted itself from the OGA if I had not brought it up. I did so for two reasons: (1) full disclosure, and (2) from experience but present disinterest, I actually know something wherewithabout I speak.

I don't mind being an insider (when I am), not because of any prestige involved, but because of the opportunity it provides to be a positive influence.

Legislatures and executive agencies are different. The OGA is ill-suited to the organization and function of a legislature. This is why the vast majority of state legislatures are exempt.

Application of the OGA to the legislature invades territory constitutionally reserved to the legislature and, more specifically, to each legislature that is organized. See CNMI Const. art. II, sec. 14. The Constitution expressly provides that each house of each Legislature (organized every two years) "shall ... promulgate its rules of procedure." Id. sec. 14(b). The Constitution also provides that the Legislature "shall keep a journal of its proceedings," id., and that "meetings of the legislature and its committees shall be public" except when executive session is authorized by two-thirds vote. Id. sec. 14(c).

The entire field of the OGA with respect to the Legislature is occupied by the Constitution. The OGA initiative is unconstitutional.

dekada lawyer said...

The solution to the problem that legitimately nettles OGA initiative supporters is not some linguistic magic bullet like the OGA initiative but election of a better caliber of legislators, more like Tina Sablan.

Structural solutions only go so far (especially in the Commonwealth where they are often honored more in the breach than adherence) and often create as many problems as they solve.

If the two houses of the Legislature did not suspend their rules almost routinely, stealth legislation (the principal bugaboo of OGA initiative supporters) would be a rarity. It really all boils down to how the people in office conduct themselves, and to what standards they are held by the voting public.

dekada lawyer said...

Glen, you are right that Public Law 16-43 changed the law to require ballots to be here by election day to be counted in the general election, and allows until 14 days after the election for the runoff.

I had previously misread the law, and that is why I was thinking there was an issue on the timing of the certification. It seems there is not.

dekada lawyer said...

Glen, there is great nobility in what Tina does, but she is not right about everything, and legal and public policy judgments should not be personalized but made objectively.

That laws are subject to challenge for constitutional infirmities or preemption by superior law, and change by subsequent repeal or amendment, is by no means justification for lack of concern about making enactments vulnerable to attack on grounds of technical procedural default. Courts and constitutional drafters guard against this, and it is the responsibility of every lawyer involved in the legislative process to take care in the drafting of legislation and in the advice given to legislators to minimize the risk of invalidity or misinterpretation. The CNMI Constitution, for example, expressly provides that violation of the single subject rule is not subject to judicial review. CNMI Const. art. II, sec. 5(b).

Confidence, stability and certainty with respect to enacted law (whether we like the law or not) is an important value and public interest, and one should never be cavilier about the risk of challenges that undermine achievement of those values.

dekada lawyer said...

Glen, you write:

there is no set and sound reason to not apply the OGA to the legislature. can it be tweaked later? sure.

Really? Are you a lawyer? I won't say definitively it can't, but I expect you not aware that there is a body of judicial interpretation on the question of whether a law enacted by initiative can be amended by the legisature. The problem is an initiative is an act of the ultimate sovereign, the people, and thus presumptively entitled to a higher standing than acts of the people's elected representatives, one step farther away from the ultimate power.

Digital and technological upgrades? Webcasts? Great ideas, but you don't need an OGA initiative for that.

dekada lawyer said...

Jane, you write:

the CEC had the initiatives available for reading on their website

No, they didn't. They had poor summaries (thier "public education" materials) available on the website (as Ruth Tighe has already pointed out in her On My Mind column/newsletter.

Sorry, I think this is really inexcusable. And, yes, I think many people voted "yes" without knowing or understanding what they voted for. Those who did educate themselves tended to mostly oppose the initiatives, as their public comments revealed. Moreover, many people commenting on the results on the initiatives have expressed to me the view that many people voted from ignorance, succumbing to the "if the Legislature passed it, it must be good" syndrome (which many attribute to the respect and deference to power and authority cultural characteristic).

dekada lawyer said...

Captain, there is a deadline of seven days to file an election contest, but I don't think that applies to a ruling that the initiatives all failed ratification. I think it is intended to apply only to elective offices.

Still, I like the argument that if not challenged within seven days the decision is impervious to future attack and the initiatives are forever defeated regardless of what the correct reading of "votes cast" is. Application of such a rule would substantially further the important values of finality and certainty with respect to the success or failure of initiatives.

Saipan Writer said...

I know I got the full text of the legislative initiatives online. I thought it was at the CEC site; perhaps it was at Joe Camacho's site. The point is, though, that the materials for the legislative nitiatives were publicly available, if not easy to find.

The popular initiative to apply the OGA to the legislature had LOTS of public education and information distributed in the community. The OGA is a public law and available to the public for consideration of whether it should apply to the Legislature or not.

I agree that we benefit with more information and better voter education. But I don't think this makes a vote illegal or unconstitutional. Voters have to take some responsibility to inform themselves.

I also agree that I do not like the results, even if the phrase "votes cast" is read to mean actual votes, and all the initiatives then pass. Ugh.

But I think it essential that we protect the initiative process and not misread the CNMI Constitution. That would be worse even than the initiatives.

I also agree with this sentiment: "The solution to the problem ... is ... a better caliber of legislators..." However, I think structural change can help that happen.

I haven't done the research on OGA as a constitutional impairment of the legislature's power. I'd have to read cases before I'm convinced , though, because I just don't see it on the basic thrust of the Constitution, laws, and your statements. That each Legislature is constitutionally empowered to set its own rules does not mean that it can do whatever it wants and is never subject to the power of the people. And the constitutional proscription to keep a journal etc. is not such a pervasive system of regulation that it pre-empts the field in any way.

I understand the arguments why some states have not applied the OGA to the legislature and I understand that you think it is not a good plan for the CNMI; I just disagree. Strongly.

As for challenging the CEC within 7 days--I think this should be narrowly applied to candidates. I have read cases where criminal laws adopted by initiative were enforced and then challenged by the alleged violators. I think a 7 day statute of limitations would be an unnecessary burden and would also make it impossible for those who actually have standing to make a case.

But I hope Tina takes the challenge on the OGA to court, within the 7 days, so as not to allow for any small argument like that against the matter.

dekada lawyer said...

Jane, I agree with around 95 percent of your current comment.

I also agree that it is rare for a vote on a ballot measure to be invalidated on grounds of inadequate public education, and that this is a good thing.

When Tina succeeds on a challenge to the CEC decision, as she almost certainly will, we will be stuck with two bad constitutional amendments that unfortunately are probably immune to any kind of legal attack.

On the other hand, the victory on the OGA initiative will prove hollow as it ultimately will be invalidated on constitutional grounds or otherwise vitiated.

At this point, Tina and other advocates of more responsibility, transparency, deliberation, public participation, and accountability in the conduct legislative business (you and I included) have won a great victory with the expression of public sentiment reflected in the vote on the OGA initiative. By a ratio of more than two to one, CNMI voters have said they are unhappy with the way the Legislature has been doing business.

Badly written or conceived law can reflect very legitimate values, interests, and concerns. Part of our responsibility as lawyers is to work to prevent that clumsiness in expression from having negative practical effects, and that is precisely the situation we now face.

Glen Hunter said...

by considering a blank ballot a "no" vote the CEC in essence is placing the vote for someone else. i would think that this is illegal. illegally cast votes are not counted according to Election rules. if a blank ballot comes in front of the CEC and they stamp it as a "no" they, not the voter, are choosing between the "yes" or "no" selection. a vote cast will have to mean the selection of one of the two options by a person qualified to vote in the CNMI and carried out according to our election laws. anything else should not be considered a vote cast.

if the writers of the constitution wanted 2/3rd of all registered voters to be the threshold they would have worded it that way. a blank ballot carries the same weight as a registered voter that did not show up to vote on the 7th.

Anonymous said...

I signed the petition "on principal", but "in practice" I don't agree with it?

Try to wrap your brain around that one.

From believing in something on principal to signing a petition in support of changing a law is a BIG step.

Anonymous said...

That makes absolute sense to me Geln.

Glen Hunter said...

steve,

it is nearly impossible to keep things from being personal to some extent. please try to keep in mind that my opinions expressed are mine and not tina's. you stated that she is not right about everything. i don't think that is at all relevant and i hope that you realize that you and i are also imperfect.

i am not a lawyer. i am a citizen. i am one of thousands of citizens who worked tirelessly to get this popular (not legislative) initiative to change a general law (not the constitution) placed on the ballot. that was achieved not by one person but by many concerned individuals, some of whom were lawyers.

you spoke of stability and certainty with respect to our laws. you worked for the senate for a decade and you have lived here long enough to know that “stability”and “certainty” are the exception rather than the rule when it comes to our laws in the cnmi. our laws are ever-changing at the whims of the legislature. the application of the open government act to the legislature is a prime example. it was passed into law and then amended only a few months later.

if your major concern is stability and certainty of laws then you should embrace rather than shun the application of the oga to the legislature. a big reason for the current instability and uncertainty with respect to laws is the fact that, as you have pointed out, the legislature routinely suspends or ignores its own rules, and much of the legislation that gets passed is not properly scrutinized by legal eyes and the general public. applying the oga to the legislature would require more scrutiny through open meetings, public notice, record keeping, and record inspection, and will go a long way towards ensuring that legislation is not passed as quickly and stealthily as it often is today. our laws in the long run would be more stable and more certain, and there would be more public confidence in the legislative process.

does that mean that at times the legislature might violate the law and pass a bill that does not comply with oga requirements? yes.

does the legislature pass laws now that contradict other laws and violate the constitution? yes.

should laws that contradict other laws or that violate the constitution in any way or for any reason be allowed to stand? i think not. such laws should be challenged and that is what the courts are for. people challenge laws all the time. the stability of a law is never guaranteed and i don’t have to be a lawyer to know that. i merely have to look at the many laws that have been passed, amended, repealed, and reenacted over the years.

you assert that applying the oga to the legislature is unconstitutional. how do you know that? what is your assertion based on? i have seen court cases that have stated otherwise. my point is, a statement like that is extremely misleading to the general public – especially coming from a lawyer.

to be continued

Glen Hunter said...

continuation

the original oga contained almost the exact language that the popular initiative seeks to reinstate. are you saying that the law that was passed in the 8th legislature unconstitutional? if so, how “stable” and “certain” was the original oga? how were laws passed before the original oga passed? did catastrophe occur in the legislature after the original oga passed? if it did, we should have heard about it. i do wonder, however, whether or not the amendment that was made in the 9th legislature to exempt the legislature from the oga was actually done in compliance with the oga. were you the senate legal counsel during both the 8th and the 9th legislature? do you remember?

you state as a lawyer that you believe that a popular initiative that amends general law can not be altered by the legislature. i am not a lawyer, but as a citizen i have found compelling case law that addresses this question and it appears that it is possible for the legislature to amend laws created through popular initiative. in fact, it has happened very recently with the rota casino initiative. and although i am not a lawyer, it is rather odd, in my opinion as a citizen, that the legislature would change a law created by popular initiative – created in other words by the will of the people. why would elected representatives of the same people go against their constituents? but that is an issue for another discussion – my point is that the legislature can change laws created by popular initiative, and it has done so in the past.

remember, steve, that the initiative simply reinserts the section that was removed by the 9th legislature. the rest of the oga defines the requirements and procedures for ensuring open records and open meetings, and what exemptions exist. when i mention digital upgrades and other amendments to make the oga better -- this initiative in no way halts or prevents that. if anything, without this initiative passing those amendments are useless when dealing with the legislature. so, first things first, apply the oga to the legislature, then tweak the other parts of the oga to create an even better law. we have already seen that the legislature does not have the political will to do it themselves. we, the people, can do it now by passing this initiative.

as you have undoubtedly seen firsthand, the legislature has passed numerous bills that never went through committee, public hearing, legislative review or even legal review. the legislature has quickly introduced and passed bills in back to back sessions in both chambers, and had them signed by the governor in less than 3 days. we have witnessed, and continue to witness, the enactment of laws that violate the constitution, that cause havoc for public services, including the retirement fund. such chaos could be avoided if we could simply ensure:

1) the ability for that citizenry to know when, where and what is going on; and

2) an active citizenry that cares about the goings-on of government and is actively involved.

we have the latter in people like you, tina, ruth, jane, ron, jim, wendy, and many others. we have yet to have the former. tina was able to help out in that respect over the last 2 years with emails, website updates, event notification, press conferences, post session overviews and meeting notes. we need this to be more general and lasting and we need it not to be tied to a sole legislator who cares. applying the oga to the legislature is the only way to ensure that we know what is going on. as we begin to care more we will begin to elect people to the legislature who embody the higher standards for public service that we all think are needed. the more we know the more we care.

thank you, steve, for this lively and thought-provoking discussion. thank you, jane, for the forum to express ourselves.

glen

Glen Hunter said...

many people feel compelled to turn a blind eye to applying the rule of law to the term "votes cast". they have told me that it would be best to not draw attention to the oga dispute because if that is done and the oga passes then the 3 other initiatives pass, as well.

while i did not vote "yes" on any of the other three initiatives and i do not wish that they be ratified into law, i can not turn a blind eye to the proper initiative process in order to prevent that from occurring.

my bigger fear is that the bar for the public initiative process will be set much to high and a precedent would be created that will discourage citizens from using this powerful tool to directly influence law. if the CEC is able to count ballots as votes cast there is a very real chance that initiatives could never ever be passed into law.

the harm that would occur in that case would be much greater than the 3 other initiatives passing. those can be amended and altered in time (perhaps by public initiative).

one important note is that the 3 other initiatives were passed through the legislature. the legislature did not apply the standards in the open government act and thus those 3 initiatives were not subject to public scrutiny (harming the educational aspects as well as the legal concerns).

had the oga been applicable by law prior to these 3 initiatives being introduced we very well may never have had them placed on the ballots in the form they are in now.

should we be having to force our elected representatives to hold public hearings? show us agendas? let us review minutes? conduct open meetings?

sadly, yes.

Anonymous said...

I get it. Because we don't like the initiatives, we shouldn't challenge the CEC's incorrect action on them? Comprende?

Funny to watch you guys tear yourselves apart. First it was the nonresident clubs going at it. Now it is the resident flubs going at it.

Divide and conquer works well.

Jane said...

Anon,
I don't think we're tearing ourselves apart. I think all of those who actually support the OGA are also in support of following the law, even if that means putting up with initiatives we don't like.

It's those who are opposed to the OGA who are trying to dissuade the challenge, if you didn't notice.

Glen Hunter said...

discussion and exploration of issues doesn't always have to result in parties dividing or even one side or the other being crowned a victor.

this is very constructive dialogue. this type of open conversation is what builds civic minded individuals that learn to question rather than blindly follow.

it is my understanding that we all pretty much agree that the matter of the initiatives passing into law will most likely (and should in my opinion) be decided on by the courts at the end of the day.



"I have never in my life learned anything from any man who agreed with me."
~Dudley Field Malone

dekada lawyer said...

I don't know who is "trying to dissuade the challenge," but it certainly is not me.

To the contrary, I am assuming Tina will challenge and win. The problem with that victory is not the result she will seek to achieve -- a ruling that the OGA initiative was approved -- but the two bad constitutional amendments that will as a consequence also be deemed ratified.

Since so far as I have seen, I am the only person here who sees a problem with applying the OGA to the Legislature, the insinuation in the recent post is unsettling.

It is also misplaced and inappropriate. I too am firmly committed to following the law. It is I who pointed out the constitutional issue involved, and supporters of imposing the OGA on the Legislature who have dismissed that concern. Is not the Constitution also part of the law?

I am troubled by the venom with which proponents of the OGA initiative are advocating their position, often lowering the tone of the debate to the level of personal attack, sarcasm, disdain, and subtle misstatement of what a person with a different view has said.

I had a long and thoughtful response to Glen's first of a series lengthy post, but lost it to the ether when my Internet connection failed after I pressed preview (and I had foolishly neglected to first copy it to the clipboard).

Glen Hunter said...

steve,

please regard any venom that you may find visible in my comments to technological limitations with this medium of communication and my haste in typing and hitting send without proper review and alteration.

no venom is/was intended.

dekada lawyer said...

Glen, I like the Dudley Field Malone quote.

I agree, as you say, that we need this to be more general and lasting and we need it not to be tied to a sole legislator who cares, but I do not agree that the OGA initiative is the way to achieve this end.

The OGA initiative is like using a blunt instrument to perform brain surgery.

dekada lawyer said...

As I stated multiple times, I was Senate counsel for six years -- not a decade.

Glen Hunter said...

if the CEC decides to count ballots as votes, i do hope that one or a group of the 7,330 citizens that voted "yes" to the oga also find fault with the "votes cast" methodology of the CEC and pursue a legal remedy.

i hope it is not tina that has to challenged this. it was a popular initiative and therefor anyone (even one that voted against it) can challenge the CEC final decision.

Anonymous said...

I don't see any venomous remarks or personal attacks here from proponents of the OGA initiative, or from anyone really. One might disagree with the remarks, that doesn't make them venomous or personal.

I think most people just want to see the votes properly counted. I personally supported the OGA, but I also voted against the other initiatives and was strongly opposed to the last one especially. The CEC has never counted ballots cast instead of actual votes cast on initiatives before. Past practice, election law, the constitution, election regulations, and case law suggest that the CEC shouldn't be counting ballots cast instead of actual votes cast now.

dekada lawyer said...

Thanks, Glen. I appreciate the anti-venom.

Glen Hunter said...

steve,

the earliest brain surgeons ( used blunt lava stones (obsidian) to perform the operations.

it was crude but at the time was better than nothing. over time we have honed the skill but even today we are still learning so much in the field of brain surgery.

maybe 1000 years from today they will consider the scalpel a "blunt instrument" compared to high tech lasers or other still unknown unintrusive techniques.

my point: using the blunt oga instrument to ensure that our laws are enacted with full public knowledge is so much better than no assurance that we have now and have had.

we can in time hone the oga to be a more precise tool. almost all of the states did just that. some still apply an oga type law to the legislature, some have changed it a bit and others have created other forms of the the same tool specific to just the legislative branch.

dekada lawyer said...

As I have made clear, the CEC ruling that the initiatives all failed is legally indefensible.

If no one challenges, the decision stands and none of the initiatives can be implemented or enforced.

However we look at it, we are faced with an unsatisfactory state of affairs.

It is probably best that this abomination of a ruling be challenged promptly, so that this error is not left unresolved to contaminate future elections.

I also agree with Jane that it is best to meet the 7 day deadline, which is almost upon us. Existing court precedent in the CNMI points to strict construction of this deadline and suggests no exception for ballot measures as opposed to elective offices (despite Jane's and my view of this distinction).

hand me that blunt exemption, please said...

the legislature's action to completely exempt themselves from the OGA strikes me as a good example of taking a blunt instrument to perform brain surgery.

=)

Glen Hunter said...

steve,

thanks so much for the 7 day information. i really did not even look into that or have any knowledge of that as applied to initiatives. i will see if someone can make a last minute appeal.

Saipan Writer said...

There have been all kinds of suggestions made--not necessarily on this blog--that challenging the initiatiatives would be a bad thing.

I disagree. It took me a little while to firm up that position, because of the practical effect regarding the other initiatives. But the need for clarity on our constitution and its meaning weighs strongly in favor of the challenge.

As repeated by me and the posters here so far, the courts are the place where the decision should be made.

I also disagree with the comments in the newspaper that people should leave their governor choice blank on the run-in election as a way of testing the "votes cast" language. That would be real suicide. Vote for one of the two candidates in the run-off. VOTE!

I'm not sure when the deadline actually is for a challenge for the initiatives, but I agree with Steve it is safest to meet the most restrictive deadline and that is 7 days from the certification.

Steve, do you know if the 7 days is calendar days or business days?

Anonymous said...

6 years in the Senate shyster? No wonder we have such crummy laws on the books.

dekada lawyer said...

Actually, Noni, it is well established that the highest quality legislative product was during my tenure at the Senate, Maya Kara's at the House, and Joel Bergsma's and Tim Bellas's at the House (in the 3rd Legislature when Benigno Fital was Speaker -- not to be read as an endorsement of Ben's gubernatorial ticket).

Saipan Writer said...

Ah, Steve, I see you got here to comment before I did.

I have never done a comparison of the various Legislatures to even know which ones I think did the best job (although I do remember the 3rd Legislature did a lot of legislating).

But the point I think is most important is to recognize that it is not the lawyers /legislative counsels who make or enact our laws; it is our elected Legislators, and they are ultimately responsible.

Besides passing the laws, they also choose who to hire as their lawyers. So while Senate and House counsel (the Legislative Bureau) have some influence as guides and advisors, they are not responsible for the laws we get.

If only we would get to the point of recognizing who is actually responsible for things, we could do a better job of creating the kind of community we want.

dekada lawyer said...

Jane, I believe it is calendar days. The 7 days runs from the date of discovery of the facts supporting the contest. The election code also has an absolute 15-day limitations period. If it were working days, a certification on a Friday would mean 11 of the 15 days would already have expired by the time the 7 days had run.

In Atalig v. Inos, 2006 MP 1, the Supreme Court relied on a statement in Mundo v. Superior Court, 4 N.M.I. 395 (1996), a case arising under the old election law, that "election statutes are to be construed strictly," to hold that the 7 days are to be counted from the earliest possible date that an argument can be made that the person challenging the election knew sufficient facts to bring a contest, notwithstanding that the plaintiff might not at that time yet know sufficient facts to support the contention, also required by the statute, that the error in the election was sufficient to change the result (actual prejudice).

Construction that strict, I think, would require the 7 days to be read as calendar days.

Atalig facts: election Nov. 5, 2005. Absentee ballots counted and results certified Nov. 19, 2005.
Inos beats Atalig by 11 votes. 72 absentee ballots Commonwealth-wide neither opened nor counted. CEC refuses to provide a break-down of how many of the 72 rejected ballots (missing or illegible postmarks) pertained to the election on Rota Nov. 28, 2005. Complaint filed Dec. 2, 2005

Saipan Writer said...

Thanks, Steve.

Strict interpretation might very well support a reading for calendar days.

dekada lawyer said...

Fortunately, now that the CEC has reversed its earlier blunder (I wonder where that came from in the first place), nobody has to worry about it this year (at least so long as nothing in the runoff calls for a contest).