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

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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

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Mr. Joseph Taijeron, Deputy Attorney General Ms. Meaghan Hassel-Shearer, Assistant Attorney General Media File