A last-ditch attempt to restore postal absentee balloting for next month's national election in the Marshall Islands has failed.
In this file photo from the 2015 election in the Marshall Islands, police officers open a box containing absentee ballots received from Marshall Islanders living in the United States. November's election will be the first since independence to exclude postal votes. Photo: Marshall Islands Journal
An ongoing debate about whether the estimated 30,000 off-island Marshallese would get to vote through absentee voting procedures was laid to rest Tuesday when the Marshall Islands Supreme Court rejected an "emergency motion for rehearing/reconsideration" of the Supreme Court's decision in early October.
The earlier opinion said although Nitijela (parliament) Law 2016-28 was unconstitutional because it eliminated postal absentee ballot rights without offering an alternative option, it was too close to the 18 November election for an absentee system to be reasonably implemented. The Supreme Court made the decision effective after the election.
Evelyn Konou and Anna Lehman, Marshallese living in the United States who had filed one of two lawsuits challenging the Nitijela ban on postal ballots earlier this year, asked the Supreme Court through their attorney, Tiantaake Beero-Sexton, to reconsider its decision to make the ruling "prospective" after 18 November.
"Plaintiffs' argument poses the wrong question, ignores the realities of the procedural posture of this case and further ignores foundational principles of separation of powers," said the Supreme Court. "We reject plaintiffs' argument."
The Supreme Court said it was a common-sense observation that there was insufficient time for the government to develop some system for absentee voting between the 9 October issuance of the Supreme Court ruling and the 18 November national election.
An estimated 30,000 Marshallese live in the US. The number of ballots from offshore Marshallese in the 2011 and 2015 elections continued to increase, affecting several parliament and mayoral elections that were determined by voters living in the US. The 2019 national election will be the first since the start of constitutional government 40 years ago without an option for off-shore Marshall Islanders to cast their votes.
"There was, thus, approximately six weeks available to the government to choose among various alternatives what method it would employ to comply with the Court's decision," said the Supreme Court, adding that the election was only three weeks away from this week's follow up order in response to the emergency motion.
"As emphasized in our opinion, there is no constitutional mandate for postal voting. The government can choose among various alternatives to effectuate the right of universal suffrage."
The Supreme Court relied on established US court precedent about the need to take into consideration the proximity of elections and "reasonably endeavor to avoid a disruption of the election process".
"The issue is not, as intimated by plaintiffs, whether there is sufficient time to print postal ballots," said the judges. "The issue is whether there is sufficient time for the government to choose among various alternatives available to it to bring the law into compliance with our decision. It is not the role of the Courts to tell or dictate to the legislature what choice it must make in that regard."
Any attempt by the courts to do this "would raise separation of powers and rule of law issues."
"Given the proximity of the election, it is simply unrealistic to expect the government to engage the legislative machinery and processes necessary to implement its choice as to how to comply with our decision," this week's opinion said. "This, it seems to us, is a matter of common-sense.
"Regardless of the reason for delay in bringing this case before the courts, the fact remains that there is insufficient time for the government to comply with our decision and a prospective order is appropriate," the opinion concluded.
"To hold otherwise would encourage tactically delayed filings of lawsuits with the intent of causing last minute disruption or postponement of scheduled elections and/or reverting by default to some prior statute which does not reflect the intent of the legislature and, presumably, the will of the people which the legislature represents."