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Saulo’s attorney moves to dismiss complaint for lack of jurisdiction

fili@samoanews.com

Candidate for Tualauta District No. 15 House race, Florence Saulo has joined chief election officer Soliai Tuipine Fuimaono in asking the Appellate Division of the High Court to dismiss a complaint, for 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”.

Saulo’s attorney, Marcellus Talaimalo Uiagalelei filed the response on Nov. 20 and his arguments are similar to those made by Soliai’s attorney, Gwen Tauiliili-Langkilde.

Not addressed in either Soliai’s reply or that of Uiagalelei is whether or not Saulo is a citizen of Samoa, although Saulo, in a news release after the complaint was filed, stated that she is a U.S. national, but offered no proof, i.e. birth certificate or passport.

In accordance with local law, Uiagalelei said Soliai reviewed Saulo’s eligibility as a candidate and determined that Saulo, along with other candidates, was eligible.

 Three days after Soliai’s certification, no written complaints were received against Saulo, said Uiagalelei.

After the candidates were determined, the chief election officer offered to all candidates in the race an opportunity to view the proposed ballot before it was mass produced for the Nov. 6 general election, he said.

During and immediately following the ballot viewing period, no objections by any of the candidates were made in writing to the chief election officer, he said, and pointed out that the ballots were printed thereafter.

ELECTION FRAUD

Bartley and Wall also alleged in their complaint election fraud and ballot irregularities, but Uiagalelei argued that the appellate court lacks subject matter jurisdiction to hear either of these two matters.

“Because petitioners failed to timely file a challenge with the chief election officer, their post-election claim of ineligibility was brought too late and this court is therefore without jurisdiction to consider it,” he argued.

According to Saulo’s attorney, enforcement of laws dealing with election fraud rests with the Attorney General, as the chief law enforcement officer of the territory, and not with the petitioners. The attorney cited provisions of the law to support the argument.

“Despite their attempt at crafty wording,” the petitioners claim of election fraud “is no more than a challenge to the eligibility of a candidate,” said Uiagalelei who cited provisions of local election law dealing with this issue.

Specifically, he points to the provision, which states in part that the challenge to a candidate’s eligibility shall be made no later than 4:30 p.m. on the third business day after the chief election officer issues his determination of nominated candidates eligible for election.

However, no challenge was done by the petitioners. Rather, the  complaint states that Wall “approached” Soliai regarding the issue and was told that Saulo was a ‘one-parent’, said Uiagalelei.

“Legally, there was no challenge as contemplated by statute. A written challenge as required by law does not exist and petitioners’ have failed to allege its existence,” he argued. “If there was no challenger, then there was no decision by the chief election officer.”

Uiagalelei referred to a similar case before the appellate court in 2006, when a petitioner challenged the eligibility of a candidate — which was also in the Tualauta race — claiming that one of the candidates in the race was not a resident of Tualauta and therefore not eligible to be a candidate.

However, the court in the 2006 case, dismissed the complaint for failure to file the challenge in a timely manner in accordance with local law.

BALLOT IRREGULARITIES

Uiagalelei pointed out that the proposed format and content of election ballots are made known to candidates before they are mass produced for official use.

He said Soliai followed the law, which requires the chief election officer to make available for viewing sample ballots before they are printed, and the petitioners as well as Saulo were invited to view the ballots.

“Given the opportunity, petitioners made no attempt to change or correct the ballots. Petitioners instead chose to wait until after the election to bring this challenge,” he said.

“The law contemplates and favors ballot challenges to be made before the election. Candidates are given the opportunity to preview the ballots,” said Uiagalelei. “This not only assures that the candidates are in agreement with the final draft of the ballot, but it also gives them the chance to discover any deficiencies with the ballot before it is finalized.”

Sound judicial policy encourages candidates to bring any irregularities to the attention of the chief election officer rather than wait until after the election, he said.

“Not succeeding in the popular vote, petitioners now seek a second bite at the apple,” he said.

If the courts allowed candidates to wait until after an election to bring these types of challenges, it would only “...encourage parties who could raise a claim to lay by and gamble upon receiving a favorable decision of the electorate, and then upon losing, seek to undo the ballot result in a court action,” said Uiagalelei citing a court decision from the 2006 election challenge.

CONCLUSION

In conclusion, Uiagalelei asked the court to dismiss the complaint in its entirety, and award Saulo reasonable attorney fees and costs for having to defend against this “meritless suit” and award such other relief the court may deem equitable and just.



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