The proposed amendments to our CNMI Constitution includes HLI 17-1, to allow Pension Obligation Bonds (POBs).
I've written a fairly neutral evaluation of the proposal, posted it at MLSC's Day In Court Blog.
Having started my study of the subject with no pre-conceived notions and being open to the proposal, I'm surprised that I am now completely opposed to this amendment.
I've read a lot of what Bill Stewart has written on POBs and on the NMI Retirement Fund. I've also read news articles by proponents and checked a bit on other jurisdictions that use these.
THE NMIRF: I feel for the retirees and those still working but in the retirement system who have actually worked hard and given good service to the CNMI. They are at risk of losing their retirement because of the mismanagement of the Fund. Whether you blame the Fund managers directly or the Legislature for its faulty design of the system, or the Executive branch and autonomous agencies that have failed to pay their contributions as mandated by law, it's clear that the Fund is not adequate for the purpose of pensions for all those who are in the system--part of the DEFINED BENEFIT PLAN (DBP).
The problem will be limited in time, however, because new hires of the CNMI government are not in the system. They are now essentially on their own, with the option to create their own IRAs. Eventually, the last member of the NMIRF Defined Benefit Plan will die and the pension system will cease to exist.
In the meantime, however, the unfunded portion of the NMIRF's liability to its members can grow because some are still working for the government. As the government continues to fail to pay all that is needed to cover its contributions for such workers, the unfunded gap widens. As events cause inflation and other problems, the unfunded gap can widen. If the Fund loses on its market investments, the unfunded liability can grow. Even the miscalculation on the estimates of the liability--if retirees live longer than expected, for example--can mean the unfunded liability will grow.
The need to address this situation for those CNMI employees who have already retired as well as those still in the pipeline is critical. While there are and have been do-nothing employees who have gotten the benefits of the NMIRF, there are real people who have done their civil service honorably, too. The fiscal soundness of the NMIRF is important to each of these workers for their future. It is important to the CNMI for its integrity.
Nothing in my opposition to the proposed constitutional amendment denies my recognition of the importance of the CNMI in meeting its obligation to its retirees.
Pension Obligation Bonds: The problems I have with the POBs is that I think the benefits from POBs are significantly less than the costs. They will not fix the retirement fund problem completely, but they could bring the CNMI to the brink of bankruptcy and most certainly would weigh down the next two or three generations with staggering debt.
The proposal bandied about says $200million in POBs, but the constitutional amendment imposes no such limit. Anyway, the $200million figure would leave about 25% of the NMIRF liability still unfunded. And the pressure to use POBs for the rest would be great.
While the amount of the unfunded liability can be estimated right now, it can also grow. But more significantly, the constituitional amendment is written in terms of what the CNMI owes the NMIRF (not the real "unfunded liaibility" which is what the NMIRF owes its DBP members). There is no ceiling on what that debt can become. If the CNMI fails to pay again and again, that debt rises; and then there can be greater amounts of POBs. And the CNMI will owe so much on the POBs, and nothing will be protected.
In balancing the needs and rights of the retirees with the needs and rights of future taxpayers of the CNMI, I just can't support the POBs.
I can't trust either our Government or the NMIRF to be fiscally responsible with a tool as dangerous and powerful as Pension Obligation Bonds when the past shows that both have been reckless and irresponsible with basic powers.
Even now, the Legislature keeps offering perks to retirees like double-dipping and early withdrawal without penalty. They have an interest themselves, as they want to get these benefits.
No--our children will already have to face the debts created by the government and NMIRF. If the Legislature thinks the POBs are a solution, they will do nothing to change. And the problem will not only continue, it will get worse, especially when we can't pay the obligation on the POBs.
We don't need to make our CNMI fiscal problems worse by borrowing money that MUST be paid back ON TIME. We aren't going to successfully borrow our way out of the NMIRF debt.
Showing posts with label legislative initiatives. Show all posts
Showing posts with label legislative initiatives. Show all posts
Wednesday, August 25, 2010
Friday, November 13, 2009
On the CEC
It takes some courage to admit you were wrong, especially in the face of lots of publicity. The CEC is apparently willing to reconsider its decision on what is meant in our CNMI Constitution by the phrase "votes cast" and change its mind.
Where it said before that "votes cast" included all ballots, whether a vote was indicated for the legislative and popular initiatives or not, it has now concluded, according to Tina Sablan's report (and Lani Walker on KSPN news?), that the phrase "votes cast" means actual votes on the initiatives indicating a yes or no.
Thank you.
This preserves our CNMI Constitution.
I don't like the results of the election as to some of the initiatives, but what else is new?!
Where it said before that "votes cast" included all ballots, whether a vote was indicated for the legislative and popular initiatives or not, it has now concluded, according to Tina Sablan's report (and Lani Walker on KSPN news?), that the phrase "votes cast" means actual votes on the initiatives indicating a yes or no.
Thank you.
This preserves our CNMI Constitution.
I don't like the results of the election as to some of the initiatives, but what else is new?!
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:
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:
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.
After the Legislature passes a proposed constitutional change, the people vote on it. Article XVIII, section 5.
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.
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:
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.
“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.
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