THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Wiliander v. Siales,
7 FSM Intrm. 77 (Chuuk 1995)

[7 FSM Intrm. 77]

HANS WILIANDER, in his capacity as a candidate
for the 4th Congressional District Representative
in the Congress of the FSM at the CFSM Election
on March 7, 1995,
Plaintiff,

vs.

ERMES SIALES, in his official capacity as the
National Election Commissioner for
Chuuk State for the March 7, 1995 Election,
Defendant.

CIVIL ACTION NO. 1995-1003

OPINION

Richard H. Benson
Associate justice

Hearing and Order:  February 23, 1995
Opinion Entered:  March 3, 1995

APPEARANCES:
For the Plaintiff:          Hans Wiliander (pro se)
                                     P.O. Box 389
                                     Weno, Chuuk FM 96942

For the Defendant:     Robert J. Ritchie
                                     Assistant Attorney General
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941

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HEADNOTES
Elections
     Generally speaking, elections are conducted and carried out and administered by the executive and legislative branches.  Courts do not have a primary position in that traditional scheme.  The election law states the time at which the court has the right of entertaining an appeal from the final action of the National Election Director.  Wiliander v. Siales, 7 FSM Intrm. 77, 79 (Chk. 1995).

Civil Procedure ) Injunctions
     In requesting a Temporary Restraining Order a plaintiff has to show that his damage will be irreparable, that is, that it cannot be remedied in any way except by the rather drastic measure of a

[7 FSM Intrm. 78]

restraining order.  Wiliander v. Siales, 7 FSM Intrm. 77, 80 (Chk. 1995).

Civil Procedure ) Injunctions; Elections
     Where the election law provides for remedies that have not yet been used a candidate cannot show irreparable harm necessary for the issuance of a temporary restraining order.  Wiliander v. Siales, 7 FSM Intrm. 77, 80 (Chk. 1995).

Civil Procedure ) Injunctions
     A court must weigh three factors other than irreparable harm when considering injunctive relief.  Those are:  the relative harm to the plaintiff and to the defendant, the public interest, and the likelihood of success by the plaintiff in the underlying case.  Where none of those factors weigh so strongly in the plaintiff's favor to overcome the lack of irreparable harm injunctive relief will not be granted.  Wiliander v. Siales, 7 FSM Intrm. 77, 80 (Chk. 1995).

Elections
     While there may be cases in which the court would enter a matter before the election process has been completed the court will not do so where none of the acts complained of are contrary to law.  Wiliander v. Siales, 7 FSM Intrm. 77, 80 (Chk. 1995).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before me on the plaintiff's motion for a temporary restraining order.  Plaintiff filed and served his Complaint for Injunctive Relief and his Motion for a Temporary Restraining Order and for a Preliminary Injunction on February 15, 1995.  The plaintiff, a candidate for election to Congress from the Chuuk Fourth Congressional District [Faichuk], sought to have the National Election Commissioner for Chuuk restrained from sending any absentee ballots to Faichuk voters residing on Guam and from counting and tabulating any ballots that might already have been sent to Guam.  His request was based on certain events that led him to believe he was going to be irreparably harmed by vote fraud.

     I set the hearing on the motion for 9:00 a.m. February 23, 1995.  That morning before the hearing the National Election Commissioner filed and served his motion to dismiss for lack of jurisdiction based on the ground that no case or dispute existed because the plaintiff lacked standing, had not been injured, no unlawful conduct had occurred which had harmed him, and no lawful remedy could redress the claimed injury.  After a full hearing on its merits, lasting most of the day, I denied the plaintiff's motion for injunctive relief from the bench and set forth my reasons for doing so.  I now commit my reasoning to paper.

I.
     Plaintiff called two witnesses, the defendant National Election Commissioner and a member of the Faichuk Election Board. Testimony developed the following facts. No special polling places had been designated on Guam because the Election Commissioner no longer had authority to do so.  Between 1,200 and 1,300 requests had been received from Faichuk voters residing on Guam.  One person had hand carried 326 requests for absentee ballots on one occasion and another 87 or 89 requests on a second occasion.  Most of the requests listed one of eight or nine return addresses (P.O. boxes) on Guam where the ballots were to be sent and to which only the boxholder has access.  

[7 FSM Intrm. 79]

Numerous persons had made two or more requests for an absentee ballot.  Many of these gave a different address on at least one of their requests.  One or two requests came for people allegedly still in Chuuk.  At the time of the hearing only 400 plus absentee ballots had been mailed to Faichuk voters on Guam.  No ballots had been sent to voters who had supplied more than one address, and the Election Commissioner had prepared, but not yet sent, a letter asking them which address should be used.  Ballots would be sent to those voters only when a new request with the correct address was received.

     The testimony indicated that the following procedure is used to handle absentee ballots.  When a voter in Guam requests a ballot the voter must supply his or her full name, polling place, election district, and current address in Guam, and must sign the request.1  The name is checked against the registration list.  An affidavit, envelope, ballot, and ballot envelope is then sent to the voter.  The voter then marks the ballot, places it inside the ballot envelope, executes the "affidavit," which does not have to be sworn, places the "affidavit" and ballot envelope inside the envelope with a written address to be delivered to the Election Commissioner before the close of the polls on Election Day by any means.  The absentee ballots are kept separate and counted last.  The absentee envelopes are opened, and the affidavit read.  If the signature does not match the one on the request, or if the name is not on the election register the ballot envelope is put aside.  The Election Commissioner does not employ any handwriting experts to compare signatures.  Candidates, or their representatives are present while the votes are processed.  If a candidate, or his representative, has an objection he can raise it with the Election Commissioner. If ballot is received after the close of the polls it is left unopened.

II.
     The plaintiff argues that, in light of these facts and these procedures, fraud has been committed 295 (the number of multiple requests) times and the other 900 may be fraudulent as well.  He argues that he is irreparably harmed because the election is no longer fair and he may lose the election by less than the number of "fraudulent" ballots requested for Faichuk voters in Guam.

     In addition to asking that no absentee ballots be sent to Faichuk voters in Guam and that any received from there not be counted, the plaintiff seeks other relief, such as declaring invalid the practice of one person carry multiple requests, and having the court provide a device whereby all the Faichuk voters on Guam can vote in this election.

III.
     Now, there are two approaches to the reason I denied the motion.  Generally speaking, elections are conducted and carried out and administered by the executive and legislative branches.  Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993). Courts do not have a primary position in that traditional scheme.  The election law states the time at which the court has the right of entertaining an appeal from the final action of the National Election Director.  Pub. L. No. 8-97, 27 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 903(1)); cf. Kony, 6 FSM Intrm. at 29-30.  The plaintiff has not acted within the machinery of the national election law by proceeding through the Election Commissioner, the election boards and finally to the Director, although that is the general environment in which an election case comes before the court.  Kony, 6 FSM Intrm. at 30.  Yet the process within the law itself is functioning.  The particular things that are disturbing to the plaintiff, and perhaps to others, are being addressed by the board and by the Election Commissioner.  Most particularly, no

[7 FSM Intrm. 80]

ballots have been sent where a question exists as to the proper address because a person made multiple requests which gave different addresses.

     Secondly, in requesting a Temporary Restraining Order a plaintiff has to show that his damage will be irreparable, that is, that it cannot be remedied in any way except by the rather drastic measure of a restraining order.  Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., 2 FSM Intrm. 272, 276 (Pon. 1986). However, the national election law establishes other remedies.  For example, the challenges that the plaintiff is entitled to, Pub. L. No. 8-97, 21 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 807), and the request for a recount should there be irregularities, id. 24 (to be codified at 9 F.S.M.C. 901).  When those procedures do exist, I cannot say that his harm is irreparable unless I act.  I must also consider three other factors.  Those are:  the relative harm to the plaintiff and to the defendant, the public interest, and the likelihood of success by the plaintiff in the underlying case.  Ponape Transfer & Storage Co. v. Federated Shipping Co., 3 FSM Intrm. 174, 177 (Pon. 1987).  None of those factors weigh so strongly in the plaintiff's favor that it would cause me to grant the motion even though he has other remedies available to him.

IV.
     There may be cases in which the court would enter a matter before the election process has been completed.  E.g., Robert v. Mori, 6 FSM Intrm. 394 (App. 1994) (appeal heard from final administrative decision of National Election Commissioner denying plaintiff place on the ballot for upcoming special election).  This is not such a case.  I have heard the testimony and counsel's arguments.  Even though what I have heard may be disturbing and profoundly disquieting to some I cannot say any wrongdoing exists now.  By wrongdoing, I mean acts contrary to law.  The previous authority of the National Election Commissioner to designate special polling places, Pub. L. No. 5-70, 4 (5th Cong., 3d Spec. Sess. 1988) (then codified at 9 F.S.M.C. 302(2)), has been eliminated, see Pub. L. No. 8-97, 6 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 303).  No particular method is prescribed for submitting a written request for an absentee ballot to the National Election Commissioner.  9 F.S.M.C. 703(2).  No provision bars a person from making more than one request for an absentee ballot, although persons who vote an absentee ballot cannot cast a ballot at the polls on election day, Pub. L. No. 8-97, 17 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 704(2)), and all persons are barred from voting or attempting to vote more than once, 9 F.S.M.C. 110 (renumbered as 9 F.S.M.C. 109 by Pub. L. No. 8-97, 30).  The "affidavit accompanying absentee ballots . . . does not need to be witnessed."  Pub. L. No. 5-70, 1 (5th Cong., 3d Spec. Sess. 1988) (to be codified at 9 F.S.M.C. 108). Absentee ballots may be "mailed or delivered" to the National Election Commissioner.  No means of delivery is specified or prohibited so long as it is timely.  See Pub. L. No. 8-97, 17 (8th Cong., 3d Reg. Sess. 1994) (to be codified at 9 F.S.M.C. 704(1)).  Therefore none of acts complained of are contrary to law.

V.  Conclusion
     Accordingly, I denied the plaintiff's motion for injunctive relief.  I did not rule on the Commissioner's motion to dismiss based on jurisdiction, although oral argument was heard on that.  I did so because the plaintiff totally lacked any time to respond, and because only the plaintiff's motion was noticed for hearing.  I have reserved my ruling for later should the plaintiff wish to pursue his case.

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Footnote:
 
1.  Two examples of a request for an absentee ballot were identified and admitted into evidence.  Both appeared to be for the same person and had the same return address on Guam.