Christina-Marie E.

Sablan
P.O. Box 500994
Saipan, MP 96950
(670) 285-3935
tinasablan@gmail.com

Via electronic delivery

November 13, 2009

Ms. Frances M. Sablan, Chair

Commonwealth Election Commission
PO Box 500470
Saipan, MP 96950

Mr. Robert Guerrero, Executive Director

Commonwealth Election Commission
PO Box 500470
Saipan, MP 96950

Mr. Edward Buckinghman

Attorney General
Office of the Attorney General
Caller Box 10007, Capitol Hill
Saipan, MP 96950

RE: REQUEST FOR RECONSIDERATION OF INITIATIVE VOTES CAST

Dear Ms. Sablan, Mr. Guerrero, and Mr. Buckingham,

I am writing to urge that the Commonwealth Election Commission (“CEC”) and the
Office of the Attorney General (“OAG”) reconsider their position that none of the four
initiatives on the 2009 ballot has been ratified. It is my understanding that to reach this
conclusion, the CEC and the OAG have relied upon the total number of ballots cast
(13,874) in the general election as the denominator for determining whether each of the
initiatives has met the constitutionally-required percentage of votes for ratification, rather
than the total number of valid votes actually cast on each of the initiatives. The use of
the total number of ballots cast, rather than the total number of valid votes actually cast
on each of the initiatives, is a striking departure from past CEC practice, and appears to
be inconsistent with the CNMI Constitution and CNMI election law.

According to the election results certified by the CEC on November 9, 2009, the popular
initiative to apply the Open Government Act to the legislature received 7,330 “yes” votes
and 3,354 “no” votes; House Legislative Initiative 15-3 received 6,408 “yes” votes and
4,404 “no” votes; House Legislative Initiative 16-11 received 6,309 “yes” votes and
4,444 “no” votes; and Senate Legislative Initiative 16-11 received 6,160 “yes” votes and
4,634 “no” votes.

I respectfully submit that the CNMI Constitution, the Analysis of the CNMI Constitution,
CNMI Election Law, CEC regulations, and relevant case law support a finding by the
CEC and the OAG that the total number of valid votes actually cast on each of the
initiatives, and not the total number of ballots cast in the general election, should be the
denominator used in determining whether or not each of the initiatives on the 2009 ballot
has been ratified. Moreover, the total number of valid votes actually cast should not
include nonvotes, overvotes, or spoiled votes.

In using the total number of valid votes actually cast on each of the initiatives as the
denominator, the CEC and the OAG should therefore conclude that each of the initiatives
has been duly ratified.

“VOTES CAST” AND “VOTES CAST AND COUNTED” IN THE CONSTITUTION

Article IX, Section 1(d) of the CNMI Constitution provides that a popular initiative that
proposes a general law “shall become law if approved by two-thirds of the votes cast by
persons qualified to vote in the Commonwealth.” Article XVIII, Section 5(b) provides
that a constitutional amendment proposed by a legislative initiative “shall become
effective if approved by a majority of the votes cast.” In 2007, the Constitution was
amended through ratification of a legislative initiative that requires a runoff election in
the event that no candidates for governor and lieutenant governor receive more than half
of the votes “cast and counted for those offices” in the general election.

The inclusion of the phrase “cast and counted for those offices” has been the subject of
great scrutiny, and has raised the question, “What is the difference, if any, between ‘votes
cast’ and ‘votes cast and counted’?” It has been suggested that the ratification of the
runoff election initiative in 2007 may have effectively, albeit inadvertently, altered the
meaning of the phrase “votes cast” with respect to legislative and popular initiatives.
“Votes cast,” it has been said, could now mean “ballots cast,” or it could mean that
nonvotes, overvotes or spoiled votes should be included in the final denominator of total
votes cast in determining whether or not an initiative has been ratified.

I respectfully submit, however, that such interpretations would be in error, and would
ignore the context in which the legislative initiative to establish a runoff election
requirement was introduced – that is, just months after an extremely close CNMI
gubernatorial election in 2005, and only a few years after hotly contested gubernatorial
elections in Guam involving whether or not nonvotes and overvotes should be counted in
determining whether or not a runoff election is required (Gutierrez v. Ada and
Underwood and Aguon v. GEC, respectively).

In other words, the inclusion of the phrase “cast and counted for those offices” was
merely precautionary -- to avoid creating the same confusion that had just been observed
in the neighboring territory of Guam. The phrase was not intended to reverse or alter, nor
should it have the effect of reversing or altering, an election practice that was already,
and continues to be, in place pursuant to the Constitution, election law, and election
regulations – that is, to count valid votes actually cast on specific offices or initiatives,
and not ballots cast, nonvotes, overvotes, or spoiled votes. A “vote cast” is the same as a
“vote cast and counted.”

To return to the language used in Article IX and Article XVIII, and borrowing from the
reasoning used in Gutierrez v. Ada: had the framers of the Constitution intended for
“votes cast” to mean “ballots cast,” they could have said so. Had the phrase “votes cast”
been intended to encompass nonvotes, overvotes, or spoiled votes, the framers might
have said so, or we might at least see some indication of that intention in the Analysis of
the Constitution (in fact we see just the opposite, as explained further below). Finally,
had the framers intended to make the ratification of initiatives as difficult as possible by
requiring the inclusion of even those voters who choose not to vote, they could have used
language that appears elsewhere in Article IX and Article XVIII and required the
approval of a majority or supermajority of “persons qualified to vote,” instead of votes
actually cast. However, the Constitution as originally drafted and as it reads today,
requires that questions posed by initiative must be decided by votes actually cast – not
ballots cast, and not a majority or supermajority of persons qualified to vote.

Further, in accordance with Article VIII, Section 3 of the Constitution, election

procedures are provided by law and by regulations promulgated by the CEC. The CNMI
election law and regulations support a finding that only valid votes (not ballots) properly
cast in either the affirmative or the negative on an initiative should be counted in
determining whether or not that initiative has been ratified, as explained further below.

GUIDANCE FROM THE CONSTITUTIONAL ANALYSIS

Though it may not have the force and effect of law, and though more is said about
initiatives to amend the Constitution than about popular initiatives to enact a general law,
the 1976 Analysis of the Constitution of the Commonwealth of the Northern Mariana
Islands (“Analysis”) provides useful guidance for interpreting the phrase “votes cast”
found in Section IX and Section XVIII of the Constitution.

In Article XVIII, Section 4(b) of the Analysis, a popular initiative to amend the
Constitution that has been approved by the legislature and submitted to the voters “is
approved by the voters if it receives the affirmative vote of a majority of the total number
of votes cast on the question” [emphasis added]. If, however, the legislature does not
approve the proposed amendment, the popular initiative to amend the Constitution is
submitted to the voters and is “approved by the voters if it receives the affirmative vote of
a majority of the total number of votes cast on the question and the affirmative vote of at
least two-thirds of the votes cast in each of two senatorial districts” [emphasis added].
Analysis, 191. In addition, Article XVIII, Section 5(b) of the Analysis provides that a
constitutional amendment proposed by legislative initiative is “approved if it receives an
affirmative majority of the votes actually cast” and further, that “[o]nly votes properly
cast in the affirmative or the negative, not abstentions or invalid ballots, are counted”
[emphasis added]. Analysis, 192.
Thus, the Analysis supports the interpretation that the term “votes cast” with respect to an
initiative, whether popular or legislative, means valid votes (not ballots), properly cast in
the affirmative or negative (not nonvotes, overvotes, or spoiled votes), on the specific
question posed, and counted.

CNMI ELECTION LAW AND REGULATIONS

CNMI election law and regulations provide further guidance as to how the CEC and the
OAG should interpret the 2009 election results with respect to the initiatives. A “vote
cast” is consistently not treated as a “ballot cast,” but rather as the clear and proper
expression of the voter’s choice on each specific office or initiative. A “ballot” is defined
by law as “any printed paper issued by the Commission containing the names of the
persons to be voted for, the offices to be filled, the questions or issues to be voted on, and
a seal of the Commission.” 1 CMC § 6003(c). Each office or initiative is treated
separately from other offices or initiatives on the ballot: “If a voter indicates the choice
of more candidates than there are offices to be filled or if for any reason it is impossible
determine the voter’s choice for any office, the ballot shall not be counted for that office
or offices. The rest of the ballot, if properly marked, shall be counted” [emphasis added].
1 CMC § 6208(d). When an initiative issue is to be printed on the ballot, the question
shall “require a ‘yes’ or ‘no’ response by the voter; ‘yes’ to be in favor of the question
and ‘no’ to be against.” 1 CMC § 6208(e). Moreover, the law requires that initiatives
“shall be listed separately and apart from the names of candidates” on the ballot. 1 CMC
§ 6521(b).

In other words, CNMI election law requires that the CEC count votes for specific offices
or initiatives, not ballots. A spoiled vote or overvote on one office or initiative does not
spoil the entire ballot.

The CNMI election law also directs the CEC to “establish a method of marking and
identifying each person who has completed voting.” 1 CMC § 6208(f). Accordingly, the
CEC regulations require that ballots shall have instructions for the voters on how to
properly mark their votes; provide visual examples of proper, marginal, and improper
votes; and further provide that an improper marking shall result in that vote not being
counted. With respect to initiatives, the CEC regulations provide that “any voter who
desires to vote on a particular question, initiative, or referendum shall mark the box of
their choice using the same methods that are allowed for voting for candidates.” Further,
a prohibited marking shall not be counted as a vote “for that particular issue” [emphasis
added]. NMIAC § 30-10-410.

Thus, neither an unmarked box nor an improper mark constitutes a vote, and nowhere in
the CNMI Constitution, the election law, and the election regulations is the CEC
authorized to assign a “no” value on an initiative where there is no marking whatsoever
that would clearly indicate the voter’s intent at all. Indeed, a basic election principle
established in the U.S. Supreme Court in County of Cass v. Johnston and cited in
Underwood and Aguon v. GEC holds that in the absence of any statutory regulation to the
contrary, “[a]ll qualified voters who absent themselves from an election duly called are
presumed to assent to the expressed will of the majority of those voting” [emphasis
added]. A nonvote is not a vote cast at all.

CONCLUSION

A “vote cast” is the same as a “vote cast and counted.” A “vote cast” is not a “ballot
cast,” nor is it a nonvote, an overvote, or a spoiled vote. With respect to initiatives, only
valid votes clearly and properly marked in either the affirmative or the negative on each
initiative should be included in the final tally of “votes cast” in determining whether or
not each of the initiatives has been ratified. Therefore, based on the foregoing, the CEC
and the OAG should conclude that all four initiatives on the 2009 ballot have in fact been
duly ratified.

Thank you very much.

Sincerely,

Christina-Marie E. Sablan

cc: Mr. Joseph Taijeron, Deputy Attorney General

Ms. Meaghan Hassel-Shearer, Assistant Attorney General
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