High Court upholds dismissal of Atalig’s poll protest

The CNMI Supreme Court upheld yesterday the trial court’s dismissal of the election protest filed by defeated Rota mayoral candidate Vicente Manglona Atalig.

The High Court ruled that, because Atalig knew all the facts necessary to contest the election by Nov. 19, 2005, his delay in bringing up the election challenge must result in dismissal.

Because the Superior Court did not have jurisdiction under the Election Act, dismissal of the case pursuant to the Commonwealth Rules of Civil Procedures was proper, according to the decision penned by Chief Justice pro tempore Juan T. Lizama and concurred by Associate Justices pro tempore Edward Manibusan and Jesus C. Borja.

The justices, however, noted that the degree of irregularities with which the Commonwealth Election Commission conducted the election is “alarming.”

The justices also determined that Atalig must be assessed for the costs of the appeal, but not the attorney’s fees.

Court records show that during election day, Nov. 5, 2005, two Rota voters attempted to vote at the polling place on Rota and were not allowed to vote.

Earlier in the day, another voter who had also requested an absentee ballot was allowed to vote at the polling place on Rota.

Although the law requires CEC to retrieve and secure absentee ballots from the post office “on and no later than 14 days after the election,” it did not pick up the absentee ballots on election day.

CEC did so only once, on Nov. 19 or 14 days after the election.

On Nov. 19, CEC counted the absentee ballots for the election and officially certified the final results on the same day.

The certified results for the Rota mayoral race show that Joseph S. Inos of the Covenant Party received 511 votes, including 92 absentee ballots. Atalig, of the Republican Party, received 500 votes, including 95 absentee ballots.

CEC determined that 72 of the absentee ballots contained insufficient postmarks to discern whether the ballots had been timely sent in accordance with the statute. Five CEC members voted in favor of keeping the votes unopened; three voted against.

Because the proposed disposition of the subject reply envelopes failed to garner the three-fourths vote of the members present as required by law, it failed “as a matter of law.”

Nevertheless, CEC followed the suggested course supported by five of its members and kept the ballots—including their outer reply envelopes—unopened.

Two observers for the Republican Party were present when CEC voted to reject the 72 ballots without discernable postmarks.

On Nov. 23, four days after CEC certified the results of the election, Atalig’s lawyer wrote to CEC executive director Gregorio Sablan inquiring how many of the 72 absentee ballots in question were from Rota and requesting CEC’s final decision on this matter.

The Attorney General’s Office’s Nov. 28 response to Atalig’s inquiry made it clear that the decision was final and that Atalig could not find out from CEC how many Rota ballots were involved.

On Dec. 2 or four days later, Atalig, through counsel Stephen C. Woodruff, filed the lawsuit.

On Dec. 16, Superior Court Associate Judge Kenneth Govendo ruled from the bench, dismissing the election contest for lack of jurisdiction on account of the complaint’s untimeliness.

Atalig appealed.

In their judgment, the justices said the parties in the case agreed that the 15-day limit set forth in the Election Act was an absolute cut-off for filing a complaint.

Although the parties have described the seven-day limit of the Election Act in different terms, they seem to agree that it provides the contestant with seven days following discovery of “the facts supporting the election contest” as filing timeline, the justices said.

The parties disagreed as to whether Atalig must show “actual prejudice” in order to bring the contest, or whether “actual prejudice” is significant only with respect to the court’s decision of the merits of the case.

The justices said because election statutes are to be construed strictly, they are not inclined to be lenient in their interpretation of “facts supporting the election contest.”

Even if Atalig did not have sufficient facts to show “actual prejudice” on Nov. 19, he had sufficient facts to bring his case, the justices said.

Through discovery, they said, Atalig might have been able to show the “actual prejudice” needed to win the case.

As the appellees had suggested, the justices said, Atalig already had a case on Nov. 19, but he was simply waiting for a better case.

“Unfortunately for Atalig, he waited too long,” the justices said.

The justices agreed with Atalig’s assertion that Govendo did not give enough attention to the analysis of “facts supporting the election contest.”

To reach their decision, the justices said, they need not analyze the merits of the case.

Thus, they said they offer no opinion on whether CEC improperly refused to count the 72 absentee votes that it deemed to have inadequate postmarks, or whether CEC should have opened the outer reply envelopes.

Timely retrieval could have shown that some of the uncounted absentee votes were, in fact, mailed by the deadline, the justices said.

Given the relatively small population of voters in the CNMI, the need to properly manage the ballots is critical. The small number of ballots should simplify this management, the justices said.

“A difference of 11 votes between two candidates is miniscule. Timely retrieval of the absentee ballots and proper counting could well have resulted in a different election outcome,” they said.

With respect to attorney’s fee issue, the justices said they are allowed to assess Atalig with attorney’s fees when the appeal is not “well grounded in fact and is warranted by existing law or a good faith argument.”

The justices said that, because the case is one of first impression, and because Atalig raised a reasonable argument, the assessment of attorneys’ fees is not warranted.