Election Commission’s non-ratification of the four initiatives on the ballot based on its interpretation of the phrase “votes cast.”
Majority of the ballots counted on Saturday were in favor of the initiatives, but the commission and the Attorney General’s Office contend that they did not meet the required number of votes.
The AGO included overvotes and undervotes in computing the total number of votes cast last Saturday.
Rep. Tina Sablan, Ind.-Saipan, who toiled for years to get the Open Government initiative on the ballot, said there are case laws that determine the definition of “votes cast.”
The commission is scheduled to meet again this Friday and Sablan plans to submit her comments.
“The Constitution now requires a runoff election if no gubernatorial candidate is able to garner more than 50 percent of the votes ‘cast and counted’ in the general election. The winner of the runoff election will be the candidate who is able to secure more than 50 percent of the votes cast and counted,” she said.
“The phrase ‘votes cast and counted’ only appears in reference to the gubernatorial runoff election — it does not appear anywhere else in the Constitution. With respect to legislative and popular initiatives, the Constitution only references ‘votes cast.’ So, for example, a legislative initiative requires a simple majority of the votes cast, and a popular initiative to enact a general law requires 2/3 of the votes cast.
“The question that arises is, ‘What is the difference between a vote cast, and a vote that is cast and counted?’ ”
In their initial reading of the Constitution, she added, the Election Commission and the AGO interpreted that a “vote cast” means a ballot cast.
“Thus, all the ballots that were submitted, including those that did not have any votes marked at all on the initiatives, were considered in the total number of ‘votes cast’ even though they weren’t actually counted as ‘yes’ or ‘no’ votes.
“The CEC and the AG’s Office have further interpreted that a ‘vote cast and counted,’ is a ballot cast that has been properly marked and that can therefore be counted,” Sablan said.
However, she added, “what the U.S. Supreme Court decision in Gutierrez v. Ada strongly suggests for the purposes of the CNMI initiatives is that a ‘vote cast’ is not just a ballot that has been submitted, but a vote that has actually been marked for a specific initiative. If an initiative has not been marked at all, it should not be considered a ‘vote cast.’
“Now, some people have apparently marked ‘yes’ and ‘no’ on the same initiative. That might still be considered a ‘vote cast’ because it has been marked for that specific race, but it cannot ‘count’ as a ‘yes’ or ‘no’ because it is impossible to determine the intent of the voter.”
Sablan noted that in previous elections, it was not “ballots cast” but the votes that were actually cast on the initiatives that were counted as “votes cast.”
If the overvotes and undervotes are excluded, the three legislative initiatives received a majority of the votes, as mandated by the Constitution, while the Open Government popular initiative garnered the required two-thirds majority.
The initiatives on the Nov. 7 ballot were:
• House Legislative Initiative 15-3, which imposes a two-term limit on Board of Education members.
• Senate Legislative Initiative 16-11, which will mandate that regular general elections be held in even-numbered years. It also adds a year to the terms of the governor, lt. governor, lawmakers and mayors elected this year.
• House Legislative Initiative 16-11, which prohibits the withdrawal of any funds from the general fund if there is no balanced budget enacted into law.
• The popular initiative that will apply the Open Government Act to the Legislature.
