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Calling it untimely, Soliai asks court to dismiss challenge

fili@samoanews.com

Chief Election Officer Soliai Tuipine Fuimaono has asked the Appellate Division of the High Court to dismiss a challenge from the Tualauta District #15 local House race in the general election on Nov. 6, due to the lack of subject matter jurisdiction.

Unofficial results from the general election have given the two Tualauta seats to incumbent Larry Sanitoa and newcomer, Florence Saulo. Sanitoa and Saulo received the top votes for the district.

Petitioners in the complaint are Lucia Bartley and Esther Wall — two other candidates in the Tualauta race — who lost. The pair alleges that Saulo “was at all times pertinent to this action a citizen of the Independent State of Samoa and therefore an ineligible candidate for Tualauta District #15” and Saulo “was determined to be a winner for one of the two” Tualauta seats.

According to the complaint, the petitioners believe that a birth certificate for Saulo was not provided to the Election Office as was required by other candidates for the House of Representatives.

Saulo, in a media statement last week, stated that she isproud to be an American Samoan and a national of the United States.

(Samoa News notes however, she did not offer to show proof of her claim, i.e. birth certificate in her statement.)

Whether or not Saulo is a citizen of Samoa is not addressed in the response by Soliai, who is represented by the Election Office’s legal counsel Gwen Tauiliili-Langkilde. Instead the response focused on the petitioners two causes of action: petitioners claim of “election fraud” and “election ballot irregularities”.

Tauiliili-Langkilde contends that the petitioners seek to invalidate Saulo’s candidacy and cancel over 1,000 electors’ votes cast for Saulo. According to the attorney, the petitioners’ “complaint is without merit.”

ELECTION FRAUD

Soliai’s attorney argued that the petitioners’ claim that Soliai failed to require that Saulo produce a birth certificate “amounts to nothing more than a challenge to the eligibility of Saulo as a candidate... for District No. 15...”

Tauiliili-Langkilde points out that the time and manner for filing such a challenge against a candidate’s eligibility to run for office is provided in local law — which states in part that the “challenge shall be made no later than 4:30 p.m. on the 3rd business day after the Chief Election Officer issues his determination of nominated candidates eligible for election.”

She also cited a 2006 appellate court decision, in which the petitioner, filed a “similarly late, post-election challenge to the residency qualification of a fellow candidate” and in that case, the court found that it did not have subject matter jurisdiction to review the merits of petitioner’s claim, where the petitioner failed to follow the proper procedures to challenge the qualification of a candidate set forth in local election law.

Even assuming the truth of each and every allegation in Bartley and Wall’s complaint, the petitioners fail to allege, as a threshold matter to this court’s jurisdiction, that they filed a timely written challenge in accordance with the law, said Tauiliili-Langkilde.

“Absent such allegations, this court lacks subject matter jurisdiction to hear this complaint” and therefore should be dismissed, she said.

BALLOT IRREGULARITIES

Like their untimely challenge to Saulo’s qualifications, petitioners’ claim of “election ballot irregularities” is late, argued Tauiliili-Langkilde, who also pointed out that in accordance with another provision of election law, petitioners had the opportunity to view a sample ballot.

“At the very least, this would have been the time to object to the wording of the ballot in the multi candidate district or District No. 15,” she argued. “However, petitioners did not complain then or at any time prior to the Nov. 6, 2012 general election regarding the wording of the District No. 15 ballot.”

In their second cause of action, the petitioners state that Soliai allegedly violated local election law, where in multi-race districts, the ballot shall 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.

Petitioners believe the language contained in the ballot says that voters must vote for two, as opposed to the statutory language that the voter shall not vote for more than two candidates in Tualauta District, the complaint alleges.

Tauiliili-Langkilde noted a previous challenge where the court “aptly warned that ‘prompt pre-election action may be a prerequisite to post-election... Otherwise, judicial policy may permit, if not encourage parties who could raise a claim to lay by and gamble upon receiving favorable decision of the electorate and then upon losing, seek to undo the ballot results in a court action’.”

She said without a statement that they took prompt pre-election action to complain about the ballot wording, “it would appear that petitioners deliberately decided to say and do nothing, take a gamble with their constituency, and keep the knowledge of this alleged election deficiency as an ace in their back pocket in the event that the election dealt them a losing hand.”

BACKGROUND FACTS

According to the reply, when Soliai on Sept. 2 this year, published the list of candidates qualified to run for District 15, the petitioners did not present the chief election officer with a challenge to Saulo’s right to be a candidate within the 3-day business day window, which is allotted to challenge the eligibility of a candidate.

While the deadline to present a challenge to the eligibility of Saulo expired on Sept. 6, Wall didn’t approach Soliai on this issue until October this year and this was confirmed by the petitioners in their complaint, said Tauiliili-Langkilde.

In his affidavit filed with the reply, Soliai said that on the day of the general election, he received no written communication from the petitioners raising any question about Saulo’s eligibility to be a candidate, nor was there any complaint regarding the wording of the ballot.



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