San Nicolas: CEC shows a 99.86 accuracy percentage

The Commonwealth Election Commission has exhibited a 99.863 accuracy percentage in conducting the Nov. 4 election for Tinian, according to Tinian mayor-elect Joey Patrick San Nicolas.

San Nicolas, through counsel Matthew T. Gregory and Viola Alepuyo, said yesterday that CEC should be commended for its meticulous application of the election laws that resulted in only two questionable ballots (judge retention and rejected ballot).

Incumbent Tinian Mayor Ramon M. Dela Cruz actually received the exact same number of votes between the counting on election night and during the recount of ballots, said Gregory and Alepuyo in San Nicolas’ motion to dismiss Dela Cruz’s election contest.

As this developed, CEC, through Chief Prosecutor Brian Flaherty, also moved to dismiss Dela Cruz’s complaint based on the results of the court-ordered recount of ballots.

Superior Court Presiding Judge Robert C. Naraja will hear the two motions to dismiss this morning, Friday, at the Saipan Superior Court.

In an interview, Gregory said both sides will have a chance to brief all the issues and argue.

“We’re confident the judge will make the right decision,” Gregory said.

In CEC’s motion, Flaherty said Dela Cruz has failed to assert sufficient actual prejudice to make up the nine-vote gap that he currently faces.

“Even if all of the allegations remaining on [Dela Cruz’s] complaint are true, the complaint only asserts that it could result in a net plus-three gain for contestant,” Flaherty said.

Dela Cruz’s counsel, Mark Hanson, stated in an interview yesterday that they finished on Wednesday what he considers the full recount of ballots on Tinian.

“They [CEC] basically did the ballot accountability, meaning they went try to account for every single Tinian ballot,” Hanson said.

After all the accounting, there were four extra ballots, he said.

Hanson also noted that there were 58 ballots sent out that never came back. “Four of them got voted anyway without being recorded by CEC, meaning somebody came in and voted twice,” he said.

Hanson said there is a procedure that CEC could have followed to prevent that but they didn’t.

Hanson said CEC’s and San Nicolas’ argument now is that because the recount shows that San Nicolas won by nine votes and that they only know about four extra ballots, it’s not enough to overcome the election.

“But our argument is that the whole system is broken. And the people of Tinian want to see a fair and honest election,” he said.

Hanson said the people of Tinian don’t think that this election is fair and honest, particularly the Tinian mayoral race.

Hanson noted that 53 and a half percent of Tinian voted for Dela Cruz in a three-way race.

“That’s a lot! He lost because of the off-island votes. Forty-two percent of the votes was from off-island. Who are these off-island voters?” the lawyer asked.

In San Nicolas’ motion to dismiss yesterday, Gregory and Alepuyo said the difference between the votes counted on election night and those counted during the recount is 3: 1 vote going to David Cing and 2 votes going to San Nicolas.

The increase of three ballots was due to manually added votes from the reconstructed ballots.

Reconstructed ballots refer to those ballots that were rejected by the tabulating machine because either all the markings on the ballot were too light or because the ballot was torn or mutilated.

At the counting during election day, San Nicolas edged Dela Cruz with only seven votes, 703-696. Cing obtained only 46 votes. CEC already certified this result.

At the recounting of votes on Monday, San Nicolas won by nine votes over Dela Cruz, 705-696. One vote was added to Cing, giving him a total of 47 votes.

Gregory and Alepuyo said during the course of the recount, all of Dela Cruz’s allegations of “several irregularities” were proven false.

As Superior Court Presiding Judge Robert C. Naraja has already dismissed Dela Cruz’s claims based on voter qualifications, the remaining allegations of irregularities have likewise been shown to be untrue during the course of the recount, they said.

Gregory and Alepuyo said all ballots are accounted for so the mayor’s allegations cannot have occurred.

“The absentee voting issue was resolved by the painstaking cross referencing of the absentee voter affidavits and voter log at the recount,” according to San Nicolas’ counsel.

On Wednesday, Naraja presided over the recount and reconciliation of the remaining ballots as well as the reconciliation of the voter registration ledger, early voting ledger, absentee request list, absentee voter request for ballot forms and the affidavits for absentee voters.

After CEC’s inventory and reconciliation, it was determined that 1,951 ballots were ordered and 1,948 ballots were inventoried on Sept. 20, 2014.

There were 1,463 recount ballots; 423 unused ballots were counted and verified; 58 absentee ballots that were returned to CEC; five reconstructed ballots; four ballots that were “returned to sender” by the U.S. Postal Service; two ballots resent to absentee voters; and one rejected ballot. The total ballots were 1,956.

The 1,948 ballots inventoried and the total ballots of 1,956 result in a variance of eight ballots.

Gregory and Alepuyo said Dela Cruz may question whether the four absentee ballots that were “returned to sender” should be included in the 58 absentee ballots that were never returned to CEC for counting based on discussions with CEC staff.

In addition, they said, there is a question whether the absentee ballots never returned to CEC should include the three Saipan confined voters.

The lawyers said it does not matter if they were not included, because the variance between the actual ballots reconciled and the ballots ordered by CEC is eight.

“Therefore, even if the reconciliation is to be construed in Mr. Dela Cruz’s favor, the eight variance is still not enough to make a difference in the election,” they pointed out.

Furthermore, the lawyers said, there is no evidence, and none can be provided regarding who these individuals voted for a determination of actual prejudice.

Gregory and Alepuyo said Dela Cruz has no sufficient cause to contest the election because his concerns have been quelled by the recount performed on Dec. 1 and 3, and Naraja’s ruling on San Nicolas’ motion to dismiss.

They said Dela Cruz’s allegations of irregularities are not sufficient to change the final result of the election.

In CEC’s motion, Flaherty said the remaining causes asserted in Dela Cruz’s complaint, now down by nine votes, are insufficient to allow the court to provide him the only remedy it is empowered to provide: “reversing the result of the election.”

Flaherty said there is insufficient evidence produced at the recount and asserted by Dela Cruz in his complaint that irregularities or improper conduct in the election proceedings, if any occurred, are sufficient to rise to the level of actual prejudice against Dela Cruz.

Flaherty said any error committed by CEC in the conduct of the election, in and of itself, is improper grounds for the court to void this election result.

For Dela Cruz to be granted the available remedy of reversal of the election result, he must show actual prejudice insofar as any errors, irregularities, or misconduct by CEC resulted in San Nicolas being declared elected, he said.

Flaherty said the Dec. 3 session of the recount revealed that CEC made errors in the conduct of this election, yet many of these errors were resolved through the process engaged in that day before the court.

“However, simply because CEC made an error in the conduct of an election does not mean that actual prejudice occurred. As in all human endeavors, mistakes will occur during the conduct of an election,” he added.