U.S. District Court for the NMI Chief Judge Ramona V. Manglona has denied the Commonwealth Election Commission’s motion to delay the tabulation and certification of votes cast for the Article 12 initiative.
In a 14-page order issued late afternoon Monday, Manglona ruled that the harm to CEC and Gov. Eloy S. Inos is too speculative even to support an injunction to prohibit enforcement of House Legislative Initiative 18-1 in the event it passes.
Even if CEC’s appeal of the decision she issued last May 20 raised serious questions on the merits, Manglona said she would deny the relief that CEC and Inos have proposed.
In that May 20, 2014, landmark decision in connection with a lawsuit filed by John H. Davis Jr., Manglona ruled that qualified voters who are not of Northern Marianas descent must have the opportunity to vote on Article 12 initiative or any other initiatives to amend Article 12.
House Legislative Initiative 18-1 is a proposed amendment to Article 12, which restricts the ownership of land in the CNMI to persons of Northern Marianas descent.
Davis, a registered voter in the NMI and a non-NMD, sued CEC and its officials in his desire to vote on any initiative to amend Article 12. Manglona ruled in favor of Davis.
CEC appealed to the U.S. Court of Appeals for the Ninth Circuit, seeking to overturn Manglona’s ruling.
More than four months later and barely a month before the Nov. 4 general election, CEC and Inos, through the Office of the Attorney General, filed in the Ninth Circuit an urgent motion for injunction pending appeal. The Ninth Circuit denied the motion.
Assistant attorney general Charles E. Brasington recently filed in federal court a motion to sequester the ballots on behalf of CEC and Inos.
Brasington asked the court to allow everybody to vote on House Legislative Initiative 18-1 pursuant to Manglona’s May 20 order but postpone the tabulation of such votes until the appeal process has concluded.
Brasington asked the court to grant an injunction preventing CEC from tabulating the votes on House Legislative Initiative 18-1 and instructing them to sequester the ballots until the appeal is decided.
Attorney Jeanne H. Rayphand, counsel for Davis, opposed the motion. Rayphand argued that voting includes tabulating the votes and announcing the results.
Rayphand said they don’t want any more denial of the right to vote.
Manglona heard the motion on Monday at 1:30pm. After the hearing, she placed the matter under advisement.
In her order issued Monday afternoon, Manglona said on the merits, defendants do no more than rehash the summary judgment arguments that she has already rejected.
Manglona said because the defendants have not provided any reason for the court to change its view, they have failed to make a strong showing that their appeal is likely to succeed on the merits.
The judge said a victory for the Commonwealth on appeal would essentially turn the initiative into a nonbinding referendum and it does the Commonwealth no apparent injury to know how all its qualified voters would have liked the outcome of the initiative ballot to be.
Since NMD voters will not be given a different ballot from non-NMD voters, the vote totals will not show what effect (if any) the participation of non-NMDs had on the result, Manglona said.
Even assuming that her May 20 decision is overturned, Manglona said there is still no assurance that the outcome of a special election, in which only NMD voters participate, would be different.
Moreover, she noted, an injunction would not, at this late date, save the Commonwealth much money as the ballots have already been printed and the tabulation system has been programmed to count the ballots.
Manglona said if House Legislative Initiative 18-1 passes, it will go into effect immediately and that persons with only “some degree” of “Northern Marianas Chamorro or Carolinian blood”—the percent quantum is one-quarter—will become NMDs.
The defendants argue that the Department of Public Lands will be inundated with applications for homesteads by new NMDs but Manglona pointed out that House Legislative Initiative 18-1 requires new claimants to NMD status to prove their claims in the Superior Court.
CEC argue that such litigation will clog the courts but Manglona said she declines to opine on what the Commonwealth courts could or should do, and whether the CNMI executive should forebear from enforcing a law.
“However, it must be borne out in mind that the harms to defendants are speculative,” the judge said.
Manglona said on the other side of the balance, the harm to the voters from an indefinite postponement of the vote count is substantial.
“The right to vote means the right to have one’s vote counted,” Manglona said.
The judge also noted that defendants have not adequately explained why they waited nearly five months to seek relief from the effects of her May 20 order on the November 2014 election.
“As early as March, they knew that H.L.I. 18-1 would be put before the voters no later than the next general election in November,” Manglona added.