Motions to dismiss Tinian election contest under advisement

Superior Court Presiding Judge Robert C. Naraja has placed under advisement Tinian mayor-elect Joey Patrick San Nicolas’ and Commonwealth Election Commission’s separate motions to dismiss the election contest filed by incumbent Tinian Mayor Ramon M. Dela Cruz.

Commonwealth Election Commission executive director Robert Guerrero talks with Chief Prosecutor Brian Flaherty and attorneys Mark Hanson and Matthew Gregory outside the courtroom of Superior Court Presiding Judge Robert C. Naraja shortly after a hearing yesterday afternoon on two motions to dismiss Tinian Mayor Ramon Dela Cruz’s election contest. (FERDIE DE LA TORRE)

If the evidentiary hearing pushes through today, Wednesday, at the Tinian Superior Court, it is expected to be all-day proceeding, if not longer, as the parties listed 41 witnesses.

The evidentiary hearing will be about Dela Cruz’s claims of irregularities: felony voters, double voting, and lack of ballot control.

At yesterday’s motions hearing, Chief Prosecutor Brian Flaherty argued as counsel for CEC, while attorney Matthew Gregory argued for San Nicolas. Attorney Mark B. Hanson argued Dela Cruz’s opposition to the motions.

In CEC’s motion, Flaherty argued, among other things, that Dela Cruz has failed to demonstrate actual prejudice; has failed to prosecute his eligible voter challenge as provided by law; and lacks evidence to support his claims of irregularity or misconduct.

Flaherty asserted that Dela Cruz’s claim that seven ineligible voters were allowed to vote should be dismissed for want of prosecution due to its untimely nature.

He pointed out that Public Law 17-11 clearly spells out a process for challenging a voter’s eligibility—a process that must be initiated before or on election day.

Flaherty said it is the responsibility of CEC to strike the names of felon voters when notified or given certification by the court.

He said Dela Cruz has access to the information on CEC’s registered voters, yet he did not challenge the voters on the Tinian rolls prior or on the election day as provided by law.

The Tinian people, he pointed out, should be proud because they saw how CEC operates during Monday’s recount of votes.

At the recounting, San Nicolas still prevailed over Dela Cruz, this time by nine votes, 705-696.

San Nicolas of the Republic Party won by seven votes, 703-696, over Dela Cruz (Independent) during the first counting of votes. CEC has already certified that initial result.

In San Nicolas’ motion, Gregory said the Legislature obviously wanted to fix an election problem that happened in 2009 by coming with Public Law 17-11. He pointed out that the proper procedure for an election contest is to bring up the issue before or on election day.

He said the Legislature set up the procedures for an election contest.

“You’re supposed to attack voter qualifications on the day of the election or before,” he said.

He said that by laying out different deadlines for voter qualification tests at the time of election and ones for an election contest, the Legislature intended to foreclose the consideration of voter qualification contests in an election contest.

“This is in keeping with the intent of the Legislature to prevent a repeat of the 2009 election contests involving questioning voters about their secret ballot,” he said.

At this point, Gregory said, there’s no way to determine that the seven individuals that Dela Cruz’s questioned voted for San Nicolas or the mayor.

Gregory said Dela Cruz’s election contest should be barred for being untimely and should be dismissed.

He said Public Law 7-11 clearly removes the court’s jurisdiction in this election contest.

Gregory said Dela Cruz seeks to characterize his claim as an attack on voting procedure and not voter qualifications.

“The complaint, however, tells a different story,” he said.

In Dela Cruz’s opposition to the motions, Hanson said CEC’s actions and inaction, particularly with regard to the Tinian election, marred the political process and undermined the belief of the people of Tinian in a fair and democratic election.

Hanson said it is from those flaws that the court will discern that the only available remedy is a new election.

Hanson said CEC is a proper defendant when a voter challenges its conduct of an election.

Hanson said Dela Cruz properly challenges CEC’s failure to purge the voter registration lists of ineligible voters “serving a sentence for a felony.”

The lawyer cited that the Commonwealth Constitution and the Commonwealth Code recognize that any person “serving a sentence for a felony cannot vote.”

Public Law 17-11 made numerous changes to the Commonwealth election law, he said, but these changes did not alter a court’s jurisdiction to provide mandamus relief.

Hanson said San Nicolas’ motion refuses to recognize that however the Legislature has amended the election law, the law still provides for election contests that are not challenges to voter registration.

Hanson said San Nicolas also “attempts to boot strap” the actual facts of Dela Cruz’s complaint to fit his voter challenge exhaustion argument.

Hanson said CEC is the “gatekeeper of fairness” and that it should not take a backseat by sitting down and waiting for people to file a complaint.

Hanson described CEC’s action as a “cavalier attitude” and said the election process is broken and the court should do something.

“There’s no way to say who was really elected on Tinian. We don’t know how many other felons voted,” he said, adding that 42 percent of Tinian voters cast their votes off-island.

Hanson said procedural errors led to complete doubt on the election results.

In CEC’s rebuttal, Flaherty said all humans commit mistake and that if there’s error, “they do not rise to cavalier attitude.”

On the contrary, Flaherty said, the court and the people of Tinian saw how CEC operates during the recounting of votes.