Tinian election challenge nixed

Superior Court Presiding Judge Robert C. Naraja dismissed yesterday Tinian and Aguiguan Mayor Ramon M. Dela Cruz’s election challenge over the victory of Joey Patrick San Nicolas in the Tinian mayoral race.

In a nine-page order, Naraja ruled that in light of the evidence obtained at the recount, Dela Cruz’s remaining claims do not satisfy the actual prejudice requirement and the complaint must be dismissed.

Naraja said Dela Cruz’s remaining claims only challenge seven votes in total and even if these seven votes were determined to be invalid, it would not be enough to overcome San Nicolas’ nine-vote lead after the recount.

At a news briefing yesterday afternoon, San Nicolas said he was very happy to hear from his counsels, Matthew Gregory and Viola Alepuyo, that Naraja had ruled in favor of their motion to dismiss.

San Nicolas expressed his appreciation to the court, its staff, court marshals, Commonwealth Election Commission and staff, the Department of Public Safety, and friends and supporters of both sides who showed up during the recounting of votes and hearings in this case.

San Nicolas said CEC board chair Frances Sablan and the staff “did a good job.”

“I always have respect for the Election Commission but I have so much now. They are very professional. Their interest is to do what is right and I saw that,” the former attorney general said.

Gregory said the remaining elements of Dela Cruz’s claims were dismissed and the court found not enough evidence to show that violations occurred and no evidence of prejudice.

“By prejudice the court means that no matter what the individual’s alleging in the complaint, that it would not change the election,” he said.

Alepuyo said San Nicolas can now move forward in what needs to be done with regard to his transition and as well as his plans for the transition.

Tinian Sen. Frank Cruz joined San Nicolas and his counsel at the news briefing held at the lawyers’ conference room.

In a statement, Dela Cruz said he is very disappointed with the court’s ruling, but that they simply don’t have the money to carry the issue to the CNMI Supreme Court.

“Nevertheless, I am a firm believer in the democratic process. I must and will accept the decision of the Superior Court,” said the mayor.

Dela Cruz said he hopes the Legislature will take a look at not only the CNMI election law but also the regulations governing how the Commonwealth Election Commission manages an election.

Dela Cruz said the deficiencies and fraud in the election process that they identified in this case are not limited to Tinian.

He said Tinian is in good condition and much better than what he inherited.

“The mayor-elect will take the reins of a government that is already moving forward and we will do what is necessary to provide for a smooth transition so that he can maintain the pace we have set,” Dela Cruz added.

At the court-ordered recounting of votes at the Tinian Superior Court last Dec. 1, San Nicolas still prevailed over Dela Cruz, this time by nine votes, 705-696.

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

In his lawsuit, Dela Cruz alleged several irregularities during the Nov. 4 election, including a discrepancy between the votes cast for Tinian mayor tabulated on Tinian and the tabulation on Saipan of the votes physically cast on Tinian for Tinian mayor. He also alleged that seven votes were cast by those serving sentences for a felony.

CEC, through Chief Prosecutor Brian Flaherty, filed a motion to dismiss asserting that CEC is an improper defendant under the current election contest statutes.

Flaherty also asserted that the complaint should be dismissed because Dela Cruz waived his right to challenge voter qualification after the election and that the mayor’s complaint fails to set forth the actual prejudice requirement necessary under the law.

Last Nov. 24, Naraja ruled that Dela Cruz set forth enough facts in his complaint to satisfy the actual prejudice requirement entitling him to a recount.

San Nicolas, through counsel Gregory and Alepuyo, partially joined CEC’s motion to dismiss and also filed his own motion to dismiss asserting that dismissal of the felony voter claim is appropriate due to lack of subject matter jurisdiction.

Following the filings of the motions to dismiss, the first stage of the recount was conducted on Dec. 1 on Tinian. The recount showed that Dela Cruz garnered 696 votes, San Nicolas got 705, while David Cing received 47.

The second part of the recount, which was held last Dec. 3, CEC recounted and inventoried the total number of ballots used during the election. CEC commissioners also accounted for and performed a reconciliation of the absentee voter registration procedures.

Following the second part of the recount, CEC and San Nicolas renewed their motions to dismiss, arguing that Dela Cruz’s remaining claims were either resolved by the recount or failed to satisfy the actual prejudice requirement under the statute.

In his order yesterday, Naraja said Dela Cruz failed to challenge seven felony voters prior to election day and now seeks to challenge them after the time allowed by law.

Naraja said the Legislature specifically provided a detailed rubric in which to bring a challenge, and Dela Cruz failed to follow the procedure.

The judge said that in failing to first exhaust his administrative remedies, Dela Cruz may not now bring this claim as part of an election contest.

“Therefore, dismissal of plaintiff’s claim based upon the impropriety of seven felony voters participating in the mayoral election is proper because this court lacks subject matter jurisdiction to hear the claim,” he said.

On CEC as a proper defendant, Naraja said CEC is necessary as a party due to the fact that the contestant is challenging CEC’s actions during the election, not the winning candidate’s actions.

Naraja said it is imperative that CEC be a party so it can defend the procedural steps it took during the election.

Naraja said the recount resolved Dela Cruz’s two claims and left before the court with the remaining three claims: CEC’s failure to include 10 votes physically cast on Tinian but not later tabulated on Saipan, a four-vote discrepancy between the amount of ballots actually dispersed but not accounted for at the polling place, and double voting by absentee voters.

Naraja said Dela Cruz’s claim regarding a mis-tabulation of votes by CEC was confirmed and corrected by the recount and is therefore no longer at issue.

The judge said Dela Cruz’s final challenge relates to the veracity of a total of seven votes.

“Following the results of the recount, plaintiff’s remaining claims do not rise to the level of actual prejudice and therefore must be dismissed,” Naraja added.