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    Monday, December 9, 2019-12:06:56P.M.






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Tabulating machines could ‘skip’ Article XII initiative on ballots if ordered by court, says election official

TABULATING machines, if so ordered by the federal court, could be programmed to skip House Legislative Initiative 18-1, according to court documents submitted in support of a motion for sequestration of ballots pending appeal of a federal lawsuit challenging Article XII.

In his declaration, Commonwealth Election Commission executive director Robert A. Guerrero said, “I have confirmed with ES&S [or Election Systems & Software] that the tabulating machines could be coded in such a manner as to ‘skip’ a certain section of the ballots. The proper code needs to be entered into the tabulating machines before the [election] Commission begins tabulating the ballots. If the court so ordered, the tabulating machines could be programmed to skip Legislative 18-1” on the ballots for the Nov. 4, 2014 elections.

On Wednesday, District Court for the Northern Mariana Islands Chief Judge Ramona V. Manglona said an Oct. 29, 2014 motion hearing will be held, since a decision on the motion for sequestration was needed by Nov. 3, 2014 “in order for any relief the court may grant to be effective.”

Robert Guerrero

Earlier Wednesday, an emergency motion was submitted by Assistant Attorney General Charles Brasington to expedite their motion for sequestration of ballots pending appeal.

Brasington represents the Commonwealth Election Commission; CEC chairperson Frances M. Sablan; Gov. Eloy S. Inos; and Guerrero.

In a briefing schedule ordered by the federal court, plaintiff John H. Davis Jr., who is represented by attorney Jeanne Rayphand, must file his opposition on or before Oct. 22 as the defendants have waived their right to reply.

Guerrero informed the federal court that during early voting which is the period beginning on the 46th day before the election for the Northern Islands and the seventh day preceding the election for the remainder of CNMI, ballot boxes are secured with locks and the keys are held by the Public Auditor.

On each day of early voting when the polls close, Guerrero said, police officers transfer the ballot boxes from the polling stations to the Department of Corrections, where the boxes are stored in a locked room until transported to the polling stations for the next day of early voting.

“If the court so ordered, the ballot boxes could be securely stored in the same fashion that they are stored during early voting until the appeal is decided,” Guerrero said.

At the close of the polls on election day, Guerrero said the ballot boxes are transported to the multi-purpose center in Susupe where the ballots are tabulated. The early voting ballot boxes are transferred to the Multipurpose Center at approximately 2 p.m., Nov. 4.

The ballots are tabulated electronically using the Election Systems & Software tabulating machines, specifically models M550, M150, and M100, according to Guerrero.

Davis challenged the constitutionality of Article XII §5(c).

Judge Manglona held that Article XII §5(c) and related legislation violated the 14th and 15th Amendments, and 53 United States Code §10101, or the voting rights law. The federal court further held that all qualified and registered voters in the CNMI must have the opportunity to cast a vote on ballot initiatives seeking to amend Article XII.

In his memorandum in support of his clients’ emergency motion for sequestration, Brasington told the federal court, “Tabulating and certifying the votes prior to the disposition of [the] appeal will set into motion actions that will be difficult and burdensome to undo if the Ninth Circuit reverses the court’s [decision] on appeal.”

The CNMI “will suffer irreparable harm if the relief is not obtained before the close of business on Nov. 3, 2014, the day before the general elections as CEC is mandated by law to begin tabulating all votes when the polls close,” Brasington said.

“The commonwealth does not seek to enjoin or otherwise stay the order; rather, the commonwealth seeks to enjoin the tabulation of the votes, and the necessary sequestration of ballots pending the disposition of [the] appeal. The commonwealth believes that it is fairest to all citizens to allow all registered voters to cast a ballot on HLI 18-1, but then postpone the tabulation of the votes as to HLI 18-1 until the appeal is resolved. During this time, the ballots will be sequestered” as described by Guerrero.

Brasington said, after consulting with his colleagues, he “concluded that as the commonwealth is not seeking to stay the order, that the Ninth Circuit Court of Appeals was the proper tribunal to grant the relief sought. Accordingly, the commonwealth filed a version of this motion in the Ninth Circuit on Oct. 10, 2014. The Ninth Circuit rejected the motion [without prejudice] on Oct. 14, 2014.” The appellate court directed the defendants to file the motion first before the NMI District Court.