NEC files cross-motion for judgment
Claims no rational basis for requiring individual ballots to be postmarked
By: L.N. Reklai
September 22, 2016 (Koror) Legal counsel for National Election Commission (NEC) filed a response last Friday asking the court to grant their Cross-Motion for Judgment, ruling that 23 PNC Section 1524 (a) does not require absentee ballots to be individually mailed and uphold the official results of Ngiwal State 2016 Election in the Emory Mesubed vs. National Election Commission case. [restrict]
The plaintiff, Emory Mesubed, in a suit filed against National Election Commission have asked the court to invalidate the absentee ballots of the 2016 Ngiwal State Election, citing that 23 PNC Section 1524 (a), mandates each absentee ballot envelope be individually postmarked.
Mesubed argues that such issue has already been decided in the case of Olikong vs Salii in 1987.
NEC challenges Mesubed’s arguments stating that it was based on an old law, the language of 23 PNC 1524 (a) is ambiguous and requires the court interpretation and interpreting 1524 (a) it to “require the individual mailing of absentee ballots fails to pass the rational basis test.”
NEC argues that RPPL 2-27 which was the basis for Olikong vs Salii, was enacted to address the “unique nature of the voting” of the Compact of Free Association and 23 PNC 1524 original language has also changed over time. Furthermore, Olikong vs. Salii dealt with different issue not addressed here in this case.
According to National Election Commission’s response, in 1987 the language of 23 PNC Sect. 1524 (a) stated….”The ballot envelope and the affidavit shall be enclosed and sealed in the covering reply envelope and shall be postmarked no later than 5 P.M. on the day of election and mailed to reach the election commissioner not later than the established closing hour of business on the seventh day after the election…”
It further argues, in 1988, RPPL 2-38 amended the language of 23 PNC 1524 (a) to read, “….”The ballot envelope and the affidavit shall be enclosed and sealed in the covering reply envelope and shall in order to be valid must be postmarked no later than 5 P.M. on the day of election and mailed to reach the election no later than 5 P.M. on the day of the election and mailed to reach the election commissioner not later than the established closing hour of business on the seventh day after the election…”
Mesubed argues that the reading of 1524 (a) clearly states that each ballot be mailed individually but NEC disagrees. It says it is not clear from reading the law whether ballots should be mailed individually or whether bulk mail is allowed and says the court must interpret.
NEC interprets this to mean that postmark is present as proof that the ballot was mailed by the deadline set by law. The law is focused on when the absentee ballot is postmarked not where, according to NEC.
NEC further asks the court to interpret this “in the spirit of upholding the citizen’s right to vote and not interpreted as to oppress or make more inconvenient those rights”.
Stating that there is no rational basis for requiring voters to mail ballots individually, NEC urges the Court to refrain from putting more barriers to the absentee voters right to cast their votes. [/restrict]