Judge Dismisses Challenge To CNMI Northern Islands Election

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Court lacks jurisdiction to determine voter eligibility

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, Dec. 10, 2014) – Superior Court Judge Kenneth L. Govendo dismissed for lack of jurisdiction the Northern Islands election contest that challenged 40 voters and the candidacy of Mayor-elect Francisco Jerome Kaipat Aldan by defeated Independent mayoral candidate Vicente Cruz Santos Jr. following marathon hearings the whole day yesterday.

Judge Govendo presided over the day-long motions hearing and heard oral arguments from attorney Janet who represents Santos, and attorney Viola Alepuyo and Chief Prosecutor Brian Flaherty who appeared on behalf of defendants Aldan and the Commonwealth Election Commission, respectively.

The courtroom was also filled with supporters of Aldan and Santos.

Northern Islands Mayor-elect Jerome Aldan, left, and his opponent Vicente Santos are separately interviewed by the media at the courthouse yesterday.

After hearing oral arguments from lawyers on both sides, Judge Govendo ruled that defendants didn’t waive subject matter jurisdiction.

Judge Govendo further heard oral arguments on the challenge of the 40 voters, and made an oral ruling after a lunch break. Afterward, the judge again listened as lawyers from both sides argued the challenge raised by Santos against the candidacy of Aldan.

The judge said he would issue a detailed written order at 4:30 p.m. today, Wednesday, that would pave way for a three-day window to submit appeals by the plaintiff.

At 1:30 p.m., Judge Govendo issued his oral ruling on the challenge against 40 voters raised by Santos. "I am going to find specifically the 40 voters that were challenged by [Santos] that this court lacks jurisdiction."

Judge Govendo explained that the CNMI election law has explicit rules for voter challenges. The purpose of amending the law in 2010 as a result of the protracted Aldan-Rebuenog election contest, the last Northern Islands electoral case, was "to expedite the procedures."

"In other words, to get these done rather than have election contest go into the next year and possibly even longer, basically depriving citizens of their elected representatives for a long period of time. The legislature was trying to avoid that, so they set this system in place," Judge Govendo said.

The trial judge noted that Santos, on Sept. 11, 2014, raised the issue of the 40 individuals who Santos believed were not residents of the Northern Islands and shouldn’t be allowed to vote by filing a formal complaint before the Election commission which denied Santos’ complaint.

Santos was informed by CEC that he had the right to appeal which Santos did. CEC denied Santos’ appeal.

Judge Govendo pointed out CEC should have put out a written decision on the Santos appeal.

CEC "strictly" decided that Santos didn’t sign the complaint under penalty of perjury.

"How difficult is that to do [a written appeal decision by the Election commission?]. It’s about two lines, and members of the three-person appeal panel sign it," Judge Govendo said.

Once the CEC appeals board denied Santos’ appeal, Santos had five days to appeal it before the Superior Court, the judge said.

If Santos had done that within five days, Judge Govendo said, the election would still have been held on Nov. 4. The ballots of the 40 voters who were challenged would have been kept separate. The court would have eventually decided on whether those 40 voters were eligible to vote or not, and the ballots would be counted or not.

"The whole purpose of this procedure is to avoid another election because elections are costly. They are very costly. In the Northern Islands, it’s even costlier," Judge Govendo, referring to logistics of sending CEC officials and personnel to get ballots from the Northern Islands voters.

"The whole purpose of this is that if you are challenging a voter as to whether they can vote or not, you get this thing going. You do it on time. Even if Nov. 4 comes around and the Superior Court hasn’t decided by that time, it will still keep those ballots separate while it makes a decision, and we wouldn’t have to have another election," Judge Govendo said.

Santos "did not do that," the judge pointed out, while Santos, as a voter, took another route of challenging the election as a result of an error by the Commonwealth Election Commission.

"In this case, the error is allowing the 40 voters to vote," Judge Govendo said.

This claim was time-barred, according to Judge Govendo, adding that Santos "already knew the facts" as early as Sept.

"Even if we gave [Santos] the benefit of the doubt, he would have from Nov. 7, the day the results came out, up to Nov. 14. Instead, [Santos’ action] came on Nov. 19. I think it just another way of attacking the 40 voters," Judge Govendo said.

The judge stressed that the court lacked jurisdiction on the voter-challenge section of Santos’ complaint because "this is the kind of stuff that is to be done by the Commonwealth Election Commission, that’s why we have these laws and they are to be followed," Judge Govendo.

The judge concurred with the arguments of Alepuyo and Flaherty, pointing out that there were local Supreme Court cases "that these have to be strictly construed."

"If you don’t have all the facts, or if you think that you don’t have all the facts, you still have time limits and file a complaint. Don’t take any chances and let the thing start. Don’t hesitate and be put up against the wall by time-limits as we see in the [Santos election contest]," Judge Govendo said.

King asked Judge Govendo to reconsider his decision, but it was denied. The court, with objections by Alepuyo and Flaherty, asked King to call Santos to the witness stand in order for the order to determine when Santos, an Alamagan island resident, first learned Aldan, a Pagan island resident, became a candidate for the mayoral post.

At 3:15 p.m., Judge Govendo rendered a second oral ruling dismissing the Aldan candidacy challenge by Santos for lack of jurisdiction.

Judge Govendo said he asked Santos to take the witness stand to determine if there was conformity with the election law for Santos to file a complaint and serve to defendants "within seven days after the discovery of the facts supporting the contest, except that no complaint may be filed over 15 days after the declaration of the official results."

The judge noted Santos’ testimony including that Santos saw Aldan on Pagan island on May 29, 2014 the day he first suspected that Aldan would be a mayoral candidate. Santos also knew as early as 2011 of Aldan’s apparent candidacy.

Judge Govendo said that Santos knew as early as Aug. 5, the deadline for the submission of the certificate of candidacy before the Election commission of Aldan’s candidacy, and Aldan was subsequently certified as a candidate for the Northern Islands mayoral position.

Santos could have initiated an election complaint at that time, the judge noted.

"You don’t have to wait until everything is in [when filing an election complaint]," Judge Govendo said, referring to a previous argument made by Flaherty.

"The big problem when it comes to challenging a candidate is that the Election law is not as thorough as it is when it comes to voter challenges. But the key thing is [provision] 6603(b) saying that it has to be from seven days after the facts supporting the contest," Judge Govendo said, citing the timeframe raised by Flaherty that Santos knew on Nov. 5 that Aldan was not a qualified candidate and a complaint has to be filed by Nov. 12 that "can be one argument."

"It’s obvious that Mr. Santos knew long before the day of the elections that Mr. Aldan was running and [Santos] should have challenged [Aldan] and [Santos] should have not waited until after the election," Judge Govendo said.

Outside the courtroom, Aldan praised Judge Govendo’s ruling. He stressed that he was born on Saipan and was raised in Pagan. "The ruling is fair. They failed to bring their complaint to the Superior Court in a timely manner."

King told reporters: "We respect the proceedings. We reserve our right to appeal. I will confer with my client as to what we will do from here. What happened [Tuesday was] historical and important to the election process for individual voters to be able to challenge portions of the election.That’s why we are here."

Santos, who claimed to have been an Alamagan island resident since 1993, separately met reporters, pointing out that Aldan is not a Pagan resident.

"Election challenges are very hard on the people that run for office. The campaigning is very hard. When the [candidate] wins, that’s anti-climactic. You’re the winner but you have to expend all kinds of money [in an election contest]. It’s not just hard for the person being challenged but also so hard for the person challenging," said Alepuyo, Aldan’s counsel.

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