No recount for Ngiwal election ballots
By: L. N. Reklai
October 3, 2016 (Koror) Sending a number of properly sealed ballots together in one large postmarked envelope is not illegal, according to a Court judgment issued on September 29, 2016 in the case of Emory Mesubed vs. Palau Election Commission.
Ruling in favor of Palau Election Commission, the Court also ordered that there will not be a recounting of ballots cast on August 9, 2016, Ngiwal State General Election.
The central issue determining the result of the case was the interpretation of 23 PNC 1524 (a).
In the case of Emory Mesubed vs. Palau Election Commission, Mesubed argued that the ballots that did not have a postmark on each individual covering reply envelope, did not comply with requirements of 23 PNC Section 1524 (a).
Mesubed asserts that Section 1524 (a) which states, “The ballot envelope and affidavit shall then be enclosed and sealed in the covering reply envelope and in order to be valid must be postmarked no later than the day of the election…” means that “each individual covering reply envelope must bear a physical postmark”.
Accordingly, the bundled absentee ballots with unstamped covering reply envelopes and with only one postmark on the outside of a larger envelope did not meet the legal requirement, claimed Mesubed.
Those bundled ballots without individual postmark should be removed and there should be a recount of ballots, moved Mesubed in his request for declaratory judgment.
The court ruling stated that Mesubed’s argument failed in three areas.
Mesubed argued that the Palau Election Commission’s interpretation of the law was invalidated in Olikong vs. Salii (1988) case. The court ruled that Olikong vs. Salii addressed a different issue than what is raised in this case. Olikong vs. Salii addressed the use of “service stations” to collect ballots which was determined to be illegal by the court.
Furthermore, according to the ruling, the case quoted by Mesubed was based on a different law, Public Law 2-27, which is already outdated and no longer valid.
Secondly, the court states, according to the plain language of the law, Mesubed’s argument is not correct.
“The plain meaning of this statutory provision is that each absentee ballot must be individually postmarked in order to be valid to be counted…”stated Mesubed’s motion.
Following Mesubed’s argument, each individual ballot must be postmarked but according to the law, each individual ballot must be placed in a covering reply envelope and therefore if the postmark is on an individual ballot, it will not be seen nor can it be mailed.
Additionally, the court states that the language of the law must be read in context as well as take into account the intent of the law.
Reading Section 1524 (a) in context, the court is convinced that timing was the important concern in the law and that the postmark is to provide evidence that the ballot was sent or not sent on time.
The court acknowledged that though the right to vote is fundamental, the right to vote absentee is a privilege which can be amended or restrained by law.
Court stated that without specific language of the law saying otherwise, it refuses to place any requirements that would restrain individual’s the ability to vote without clearly stated objective of the government.
The court thus concludes that 23 PNC Section 1524 (a) “does not require that each individual covering reply envelope bear a separate physical postmark in order for the ballot sealed within to be valid.” [/restrict]