By Giff Johnson in Majuro
With a national election seven months away, Marshall Islanders living in the United States have stepped up action to overturn a 2016 law passed by parliament eliminating the nation's postal absentee voting system.
Marshall Islanders line up to vote at a Majuro elementary school during the 2015 national election. For the first time since constitutional government was established 40 years ago, this year's November national election may not see islanders living abroad voting by postal absentee ballots. Photo: RNZ/Giff Johnson
Two lawsuits have been filed in the Marshall Islands High Court challenging the constitutionality of the law. It was passed in 2016 by the slim margin of 13-12 in Nitijela (parliament).
Proponents of eliminating the postal absentee voting system express concern about the increasingly large population of Marshall Islands living in the US whose votes are beginning to determine the course of election results.
Opponents, who have attacked the law on social media since it was introduced over three years ago, say it is violating the constitution's bill of rights that does not allow Nitijela to limit people's right to vote in this way.
Three Marshall Islanders in two separate lawsuits are asking the High Court to declare the law unconstitutional and allow postal ballot voting to proceed for the November 18, 2019 national election.
Betwel Lekka, a Marshall Islander and long-time Honolulu resident, was the first to file a suit challenging the ban on postal absentee ballots.
His six-page lawsuit was filed by attorneys Jack Jorbon and Atbi Riklon, both former Marshall Islands Attorneys General.
Mr Lekka in his lawsuit asks the court to declare the election law halting the postal ballot option violates the constitution and that the Chief Electoral Officer "is not authorized to prevent any person from exercising his or her voting rights."
He said he requested in late March that Chief Electoral Officer Benjamin Kiluwe provide him with a postal ballot, a request that Kiluwe denied based on the 2016 law.
Mr Lekka said he is a qualified voter, having cast postal absentee ballots in several previous elections. He is registered to vote from Jaluit Atoll.
Mr Kiluwe wrote to Mr Lekka saying that his request for a postal ballot "is hereby denied as postal ballots for all Marshall Islands eligible voters permanently residing outside the Republic are no longer available at this time," according to documents filed with the lawsuit.
Mr Lekka said the constitution lists only three qualifications to vote: A voter must be at least 18, not be certified insane, and not be convicted of a felony and serving a prison sentence or on parole or probation. Mr Lekka said he is qualified to vote according to these Constitutional requirements.
Marshall Islands Chief Electoral Officer Robson Almen (holding paper) talks to tabulators during the late November ballot counting in Majuro in 2015. Photo: Hilary Hosia
Mr Lekka's lawsuit was followed last week by two Marshallese women who filed another suit in the High Court also seeking to overturn the law banning postal absentee votes.
The plaintiffs, Evelyn Konou and Anna Lehman, base their complaint heavily on the constitution's bill of rights, contending that the passage of the law is unconstitutional.
Both suits name Mr Kiluwe, while Ms Konou and Ms Lehman's also names Attorney General Johnathen Kawakami. It was filed by local attorney Tiantaake Beero.
Ms Konou and Ms Lehman said the law barring postal balloting "is unconstitutional in that by eliminating the postal voting system that was provided for in the Elections and Referenda Act 1980 for non-resident citizens of the Republic and not providing for a viable substitute method of election for them, it has, in effect, deprived them of their right to vote, a right guaranteed to them by the Constitution."
Ms Konou lives in Hawaii and Ms Lehman lives in the US mainland. Both are registered to vote here. Mr Kiluwe also denied their request for postal ballots.
Ms Konou and Ms Lehman said the Nitijela, by adopting the law outlawing postal ballots for citizens overseas and not providing "an alternative viable method of voting for them and all qualified voters residing outside the Republic," has violated Article II, Section 14(2) and Article IV, Section 3 of the RMI Constitution "by depriving non-resident qualified voters of their right to participate in the electoral process as voters."
The lawsuit points out that the constitution's bill of rights notes that "no fee may be imposed so as to prevent participation by a person unable to afford such a fee."
Marshall Islands voters going to the polls in 2015 to elect national and local leaders. Photo: RNZI GIff Johnson
The effect of the law on citizens living outside Marshall Islands is that they are being forced to "buy" their way back to Marshall Islands to appear in person to physically vote in the Republic, "the result being that those who are unable to afford their airfare to the Republic are deprived of their right to vote," the lawsuit said, adding that this "could be considered as the equivalent of the imposition of a fee on them to prevent participation in the electoral process" in violation of the Constitution.
Both lawsuits are waiting for responses from the Marshall Islands government before heading to an initial hearing in the High Court.
According to court rules of procedure, the government has 60 days to respond.