‘No to sequestration of ballots’

John H. Davis Jr. has opposed the Commonwealth Election Commission’s and Gov. Eloy S. Inos’ request with the federal court to delay the tabulation and certification of votes cast for the Article 12 initiative and sequester the ballots pending the disposition of their appeal.

Davis, through counsel Jeanne H. Rayphand, said the motion should be denied because CEC and Inos are unlikely to succeed on the merits.

In Davis’ opposition to the motion, Rayphand said the Commonwealth will not suffer irreparable harm if an injunction is not issued.

Raphand added that the balance of hardship does not tip sharply in favor of the Commonwealth that the public interest will not be furthered by the issuance of an injunction.

Contrary to CEC’s and Inos’ assertion that the Commonwealth does not seek to stop U.S. District Court for the NMI Chief Judge Ramona’s order, the injunction they requested clearly seeks to stop Manglona’s May 20, 2014, decision and order, Rayphand said.

Part of Manglona’s decision permanently stops the Commonwealth from enforcing Article 18, Section 5(c), and from enforcing Public Law 17-40 and any CEC rules and regulations that would prevent or hinder Davis and other qualified voters who are not Northern Marianas descent from voting on Article 12 initiatives.

Article 18 Section 5(c) prohibits qualified voters who are not NMD from voting on Article 12 initiatives. Article 12 restricts the ownership of land in the CNMI to NMDs. Public Law 17-40 established the NMD Registry within the Commonwealth Election Commission and mandated the production of an official NMD identification card.

Rayphand said that Manglona correctly determined that Article 18 Section 5 (c) of the CNMI Constitution and Public Law 17-40 violate the 15th Amendment of the U.S. Constitution by denying the right to vote on a Commonwealth constitutional amendment to persons who are not NMD.

If the injunction is granted, it is Davis and other U.S. citizens who are not NMD who will suffer irreparable harm in being denied the right to vote, Rayphand said .

In the event that House Legislative Initiative 18-1 is not approved, then there is no change and the Commonwealth incurs no extra expenses, she added. HLI 18-1 is a proposed amendment to Article 12.

If Initiative 18-1 is approved, then the Superior Court could stay all proceedings regarding claims under Initiative 18-1 pending resolution of the appeal, and again the Commonwealth need not incur the expenses of implementing Initiative 18-1 until the appeal is decided, she said.

Rayphand said the proposed sequestration of ballots not only deprives Davis and other U.S. citizens who are not NMD of the right to vote but will also result in a risk to the security of the ballots and increase the expenses of the Commonwealth in altering the counting mechanism and in subsequently counting the ballots by hand in the future after a Ninth Circuit decision.

Rayphand said the Commonwealth need not spend any resources while awaiting the decision of the Ninth Circuit, yet Davis and other U.S. citizens who are not NMD will continue to be denied the right to vote.

Rapyhand said there is no public interest in denying a U.S. citizen the right to vote.

“The right to vote is a fundamental right in the Commonwealth,” she said.

The Office of the Attorney General filed a motion for sequestration on behalf of CEC, chairperson Frances M. Sablan, executive director Robert A. Guerrero, and Inos.

Assistant attorney general Charles E. Brasington argued that tabulating and certifying the votes prior to the disposition of their appeal in the Ninth Circuit will set in motion actions that will be difficult to undo if the Ninth Circuit reverses the federal court’s decision on who could vote on the Article 12 initiative.

The hearing on the motion will be on Oct. 29 at 2pm.

Davis, a registered voter in the NMI and a non-NMD, sued CEC and its officials in his desire to vote on any initiative to amend Article 12. Manglona ruled in favor of Davis.

In that landmark decision, Manglona ruled that qualified voters who are not NMD must have the opportunity to vote on Article 12 initiative or any other initiatives to amend Article 12.

The defendants appealed to the Ninth Circuit.