Court rejects Mudge appeal

The courthouse in Majuro. Photo: Hilary Hosia.
The courthouse in Majuro. Photo: Hilary Hosia.

Former Marshall Islands Chief Electoral Officer Robson Almen was correct in rejecting former Majuro Mayor Mudge Samuel’s request for a recount during the 2015 election, said High Court Chief Justice Carl Ingram in an opinion issued at the end of August. Ingram also ruled that Almen was correct in rejecting Samuel’s request to refer to the High Court alleged violations of the rights of voters to vote. The 12-page opinion was issued in response to Samuel’s 2017 civil lawsuit against Almen, the Ministry of Internal Affairs, and the RMI government that called into question the conduct of the Majuro mayor’s election in November 2015.

Current Mayor Ladie Jack defeated Samuel 2,285 votes to 2,132, a margin of 153 that amounted to 3.25 percent of the 4,705 total votes cast in the 2015 Majuro mayor’s race.

On December 14, 2015, a month after the election, Samuel asked Almen for a recount of the Majuro mayoral vote and also asked him to refer to the High Court what he said were violations of voters rights to vote. Because he didn’t get a timely written reply from Almen, Samuel, through his attorney Roy Chikamoto, filed two lawsuits in the High Court a few days later. One of these was dismissed in 2016, while the other was directed back to Almen to respond in writing to Samuel’s December 14, 2015 petition.

Acting on the court’s directive, Almen issued a memo to Samuel February 15, 2017, rejecting both requests. This triggered Samuel to file a notice of appeal with the High Court in March last year. Ingram has now ruled in favor of Almen on both issues.

Ingram also pointed out that in his notice of appeal to the High Court, Samuel “raised unrelated complaints regarding the propriety of the election and its certification. Those complaints, however, are not within the High Court appellate or referral jurisdiction under the Elections Act.”

Referring to the earlier cases filed by Samuel, the High Court held a conference April 26, 2016 in “response to Appellant Samuel’s attempt to improperly address unrelated claims,” said Ingram. This was “to frame the issues on appeal and referral, to settle the record, and to schedule briefing and argument.”

After consultation with the attorneys involved — Chikamoto for Samuel and Attorney General Filimon Manoni for Almen — “The Court determined that the only questions before the Court are: recount and referral,” said Ingram. “Other claims and issues raised by Appellant Samuel are not properly before the Court and are denied.”

Addressing the recount issue, Ingram cited the RMI Elections Act, which states: “If the Chief Electoral Officer…is of the opinion that there is a substantial possibility that the results of the election would be affected by a recount he shall grant the petition, but otherwise he shall reject it.”

Ingram said Samuel did not claim that the mayoral election was so close that it would be proper to do a recount. Ingram cited RMI Supreme Court rulings in previous election disputes in which the Supreme Court determined that a difference of two votes (one percent of the total cast) and 31 votes (1.5 percent of the votes cast) made those races “close.” The Majuro mayoral race of 2015 was won by Jack by a margin of 153 votes, or 3.5 percent of the total cast.

Ingram said Samuel’s petition, letter and documents provided to Almen “do not provide information that arguably would give rise to a ‘substantial possibility’ that a recount would establish a different result.” Ingram reaffirmed that Almen “did not abuse or erroneously exercise the discretion vested in him” in rejecting the recount petition.

Samuel’s claim that Almen denied voters the right to vote “fails for two reasons,” said Ingram. “He has identified only one person, Iso Langkio, who claims that although he was registered to vote in the Majuro election, while on Arno he was not permitted to vote absentee in the Majuro election, and any challenge to an entry in the electoral register is too late.”

The RMI Supreme Court ruled in an earlier election dispute that the Chief Electoral Officer is not required to refer challenges to the High Court regarding the rights to vote of “a class of voters,” only those pertaining to the right to vote of a single identified individual. “Other than Mr. Langkio’s claim, Samuel did not seek referral of a challenge of the right of an identified person to vote, only classes of voters,” Ingram said. “His request is of no avail.”

In terms of Langkio’s situation, Samuel’s challenge to the electoral register was too late, Ingram said. The Elections Act requires any challenge to the election register to be made four days before an election.

Read more about this in the September 14, 2018 edition of the Marshall Islands Journal.