OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

LUCIA BARTLEY and ESTHER WALL,
Petitioners,

v.

SOLIAI TUIPINE FUIMAONO and FLORENCE VAILI SAULO,
Respondents.

High Court of American Samoa
Appellate Division

AP No. 14-12

December 12, 2012

[1] Election contest actions filed under A.S.C.A. §§ 6.0902 et seq. are precisely that: contests over the results of balloting on election-day. Only in those cases where petitioners clearly demonstrate some fraud or mistake resulting in ballot count underages or overages, or some other act or omission concerning the election that could have caused a different result in its outcome, is the Court then authorized to overturn the official election results and order a new election. Other matters, such as candidate eligibility, ballot forms, access to voter registration lists, and certain election campaign restrictions, although related to elections, are addressed by other statutory provisions that generally required the complaining party to seek administrative or judicial relief prior to the election. 

[2] Separate and apart from the Court’s narrowly confined powers to address candidate, campaign, and election contest issues as civil actions, the Court also has jurisdiction to hear and decide criminal cases brought by American Samoa Government against individuals who have violated perjury, election fraud, and related misdemeanors set forth in A.S.C.A. §§ 6.1201 et seq. 

[3] A.S.C.A. §§ 6.0302 and 6.0303 set forth the necessary procedures for a registered, qualified elector to challenge the eligibility of candidates for office.

[4] The Court’s jurisdiction to grant relief to qualified persons timely bringing election contest actions under A.S.C.A. § 6.0902 is limited in scope to correcting mistakes or misconduct occurring on election day that could have caused a different result in the outcome of that election. Other, separate and specific judicial relief is also statutorily provided for campaigns, ballot language, candidate qualifications, and related issues under separate statutes for qualified persons to timely petition the Court. The Court’s powers over elections and campaigns are, for the most part, limited, leaving to the qualified electors of this Territory their fundamental constitutional right to select by secret ballot their candidate of choice.

[5] Ultimately, it is the responsibility of the House of Representatives, not the Court, to determine whether an elected candidate is seated in that bode. 

Before RICHMOND, Associate Justice; WARD, Associate Justice; LOGOAI, Chief Associate Judge; and FA’AMAUSILI, Associate Judge.

Counsel: For Petitioners, Mark F. Ude
For Respondent Florence Vaili Saulo, M. Talaimalo Uiagalelei
For Respondent Soliai Tuipine Fuimaono, Gwen Tauiliili-Langkilde

OPINION AND ORDER

Lucia Bartley and Esther Wall (together, “Petitioners”) filed a complaint against Soliai Tuipine Fuimaono, the Chief Election Officer (“Chief Election Officer”), contesting the November 6, 2012 House of Representatives election results for District #15. Petitioners allege that Saulo, a candidate for office in the House of Representatives for District #15, failed to produce a birth certificate in order to run as a candidate for a seat in the [**2**] House of Representatives and was therefore ineligible to be a candidate. Petitioners also claim that the Chief Election Officer’s failure to require Saulo to produce a birth certificate constituted “election” fraud under A.S.C.A. § 6.0902. Petitioners further claim that the election ballots did not contain the required statutory language for ballots in multi-race districts, violating American Samoa election laws and causing voter confusion on election-day.

Background

Petitioners were candidate in the November 2, 2012 election for the House of Representatives seats in District #15. Saulo was also a candidate in the same race and was one of the two representatives elected from District #15. Petitioners claim that Saulo did not produce a birth certificate as required by the Chief Election Officer of other candidates and claim that they brought their concerns regarding Saulo’s eligibility for candidacy to the Chief Election Officer’s attention in October 2012. There is, however, no evidence that they made a written challenge to the Chief Election Officer prior to the November 6, 2012 election.

The Chief Election Officer made a sample ballot available for viewing by the candidates prior to the election. According to Soliai’s affidavit, he made it available on September 2, [**3**] 2012, but according to Petitioners, the sample was not made available until September 4, 2012. Petitioners claim that the ballot failed to state that the qualified elector shall not vote for more than the number of seats available or the number of candidates listed where such number is less than the seats available, as statutorily required for multi-race districts like District #15. There is no evidence that Petitioners challenged the ballot language prior to the election. 

On November 13, 2012, seven days after the election, Petitioners filed their complaint with the Appellate Division of the High Court of American Samoa challenging the election results. Petitioners claim that the Chief Elections Officer committed “election” fraud under A.S.C.A. § 6.0902 by failing to require Saulo to produce a birth certificate, which led to the inclusion of an “ineligible” candidate, Saulo, on the District #15 ballot Petitioners also claim that the ballot for District #15 failed to include the necessary language for multi-race districts which may have caused confusion amongst voters, resulting in questionable election results. There is no evidence specific electors verifying their votes were affected by this ballot language.

On November 20, 2012, the Chief Election Officer filed his motion to dismiss, stating this court lacked subject matter [**4**] jurisdiction over the challenge because Petitioners failed to make the required pre-election challenges pursuant to A.S.C.A. § 6.0302(a). Saulo filed her motion to dismiss on November 19, 2012, essentially making the same arguments.

Discussion

I.

[1-2] As the Court has repeatedly held, election contest actions filed under A.S.C.A. §§ 6.0902 et seq. are precisely that: contests over the results of balloting on election-day. Only in those cases where petitioners clearly demonstrate some fraud or mistake resulting in ballot count underages or overages, or some other act or omission concerning the election that could have caused a different result in its outcome, is the Court then authorized to overturn the official election results and order a new election. Other matters, such as candidate eligibility, ballot forms, access to voter registration lists, and certain election campaign restrictions, although related to elections, are addressed by other statutory provisions that generally required the complaining party to seek administrative or judicial relief prior to the election. Separate and apart from the Court’s narrowly confined powers to address candidate, campaign, and election contest issues as civil actions, the Court also has jurisdiction to hear and decide criminal cases brought by [**5**] American Samoa Government against individuals who have violated perjury, election fraud, and related misdemeanors set forth in A.S.C.A. §§ 6.1201 et seq. Within this context we now discuss Petitioner’s claims.

[3] A.S.C.A. §§ 6.0302 and 6.0303 set forth the necessary procedures for a registered, qualified elector to challenge the eligibility of candidates for office. A challenge must be filed “no later than 4:30 p.m. on the 3rd business day after the Chief Election Officer issues his determination of nominated candidate eligible for election. The challenge shall be in writing, setting forth the grounds upon which it is based, and be signed by the person making the challenge.” A.S.C.A. § 6.0302. After the Chief Election Officer rules on the challenge, the challenger or challenged candidate may directly appeal to the Appellate Division of the High Court no later than 4:30 p.m. on the 5th day after the Chief Election Officer’s decision. A.S.C.A. § 6.0303(a).

Petitioners argue that A.S.C.A. § 6.0902 is the applicable statute despite the clear language of A.S.C.A. §§ 6.0302 and 6.0303. Petitioners assert the language contained in these sections only address objections by registered qualified electors and not candidates such as themselves. Petitioners [**6**] posit that, as candidates, there is nothing preventing them from making post-election challenges to a candidate’s eligibility.

Petitioners’ claims are without merit. In Pili v. Tupine, AP No. 14-06, slip op. 5-7 (App. Div. 2006), the Appellate Division addressed the same exact issues. In Pili, the petitioner challenged the eligibility of a candidate after the election pursuant to A.S.C.A. § 6.0902. Addressing the petitioner’s argument that the challenge was proper pursuant to A.S.C.A. § 6.0902, the court stated that a rule of statutory construction is that the specific governs the general, and since A.S.C.A. § 6.0302 was more specific than A.S.C.A. § 6.0902, the petitioner was required to file a written challenge to a candidate’s eligibility prior to the election Pili, AP No. 14-06, supra, at 5-6. The Pilii court ruled that it had no subject matter jurisdiction over the claim because the petitioner had failed to make the necessary written challenge pursuant to A.S.C.A. § 6.0302 and therefore dismissed the claim. Id. at 6-7.

Here, as in Pili, Petitioners failed to make the proper, timely, written pre-selection challenge as required by A.S.C.A. § 6.0302. As explained by the Pilii court, Petitioners’ claim that this Court has jurisdiction pursuant to A.S.C.A. § 6.0302(a) and case law make clear that any challenges regarding candidate qualifications should have been [**7**] addressed no later than 4:30 p.m. on the third business day after the Chief Election Officer certified the candidates. Petitioners, however, waited until after the election took place to bring forth challenges regarding the qualifications of Respondent Saulo and allegations of “election fraud.” Accordingly, because Petitioners failed to follow the statutory requirements for challenging a candidate’s eligibility, this Court lacks the necessary subject matter jurisdiction to review the merits of Petitioners’ claim.

II.

Petitioners speculate, without providing any specific examples that the language of the printed ballots caused voter confusion—as some voters may have voted for one candidate, while others may have voted for two candidates. However Petitioners did not address this concern before the ballots were printed for the November 6, 2012 election. Instead, Petitions waited until after the election to challenge the language on the ballots, claiming that they did not receive notice to inspect sample ballots. [**8**] 

We find Petitioners’ argument unpersuasive. A.S.C.A. § 6.0604 states that “[f]acsimiles of all ballot layouts prior to printing shall be available for viewing by the candidates at the office of the Chief Election Officer as soon after the close of filing as they are available.” Thus, pursuant to Section 6.0604, Petitioners’ had the opportunity to view the ballots prior to election-day. Yet, Petitioners failed to take advantage of this opportunity and waited until after the elections took place to review and challenge the printed ballots.

“Such delay may estop parties from obtaining post-election relief from challenges to rules that could have been heard and remedied prior to the election itself.” Reid v. Tupine, 4 AS.R.3d 9, 25 (App. Div. 2000). Furthermore, “prompt pre-election action may be a prerequisite to post-election relief . . . [o]therwise, judicial policy ‘may permit, if not encourage, parties who could raise a claim to lay by and gamble upon receiving a favorable decision of the electorate and then, upon losing, week to undo the ballot results in a court action.’” Id. (quoting Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973)) (internal quotations and citations omitted). Accordingly, we lack jurisdiction to review the suitability of the ballot language because the Petitioners failed to make any attempt to [**9**] remedy any arguable non-compliance with the statute reflected in the ballot language prior to the Novermber 6, 2012 election.

Conclusion

[4] The Court’s jurisdiction to grant relief to qualified persons timely bringing election contest actions under A.S.C.A. § 6.0902 is limited in scope to correcting mistakes or misconduct occurring on election day that could have caused a different result in the outcome of that election. Other, separate and specific judicial relief is also statutorily provided for campaigns, ballot language, candidate qualifications, and related issues under separate statutes for qualified persons to timely petition the Court. The Court’s powers over elections and campaigns are, for the most part, limited, leaving to the qualified electors of this Territory their fundamental constitutional right to select by secret ballot their candidate of choice.

[5] Ultimately, it is the responsibility of the House of Representatives, not the Court, to determine whether an elected candidate is seated in that bode. Article II, Sec. 22 of the Revised Constitution of American Samoa provides that: “Each House of the Legislature shall be the judge of elections, returns, and qualifications of its own members and shall chuse [sic] its officers.” [**10**]

Order

Accordingly, we grant Respondents’ motions to dismiss. It is so ordered.