The courthouse in Majuro, capital of the Marshall Islands. Its Supreme Court has ruled that a three-year-old law banning voting by postal ballots by offshore Marshallese was unconstitutional because it did not offer a reasonable alternative method for islanders to cast their votes. Photo provided by Giff Johnson
Majuro — In a momentous decision, the Marshall Islands Supreme Court ruled this week that a three-year-old law banning the use of postal absentee ballots for national elections is unconstitutional.
But because the two complaints that triggered this week’s ruling were filed close to the Nov. 18 national election, the Supreme Court’s ruling will apply only for later elections.
The courthouse in Majuro, capital of the Marshall Islands. Its Supreme Court has ruled that a three-year-old law banning voting by postal ballots by offshore Marshallese was unconstitutional because it did not offer a reasonable alternative method for islanders to cast their votes.
The Supreme Court issued its opinion Wednesday this week on the constitutional question that was referred by the High Court for determination. That High Court referral by Judge Witten Philippo was made in response to lawsuits filed by Betwel Lekka and by Evelyn Konou and Anna Lehman, all Marshallese citizens living in the United States. Lekka filed suit in late March and Konou and Lehman followed suit in mid-April.
Supreme Court Chief Justice Daniel Cadra, with whom Associate Justice Richard Seeborg concurred and Associate Justice Michael Seabright concurred by a separate option, concluded that a qualified Marshallese voter residing outside the Marshall Islands has the constitutional right to vote in the Marshall Islands national or local elections but does not have the right to vote by postal ballot or by some other specific method unless authorized by Act or regulation.
Because Public Law 2016-28 eliminates all practical means for the Marshallese bringing the lawsuits and others similarly situated to exercise their constitutionally protected right to vote without providing some reasonable alternative method of exercising that right, the law presents an unreasonable burden on plaintiffs’ right to vote and is unconstitutional, the Supreme Court ruled.
The Supreme Court determined, however, that the timing of the filing of plaintiffs’ complaints in close proximity to the upcoming November 2019 elections presents an “unreasonable burden” on the government in attempting to comply with this decision by either making postal ballots available on short notice or by providing some alternative method of voting to that class of qualified non-resident Marshallese voters such as plaintiffs.
As a result, the Supreme Court made its decision prospective in application only after the Nov. 2019 elections, and it returned the case to the High Court for such further proceedings which may be necessary to resolve this case.
The day after the ruling was issued, the President’s Office in a statement said: “The Supreme Court stated that its decision will not affect the Nov. 19 election. As a result, the November election will proceed as planned, based on the current law and with existing restrictions on postal ballots.”
“The government welcomes the Supreme Court opinion, and looks forward to working with the future Cabinet, Nitijela and stakeholders of the Marshall Islands to address any necessary technical clarifications in the existing law, as well as to evaluate practical policy options to ensure appropriate measures for overseas Marshallese citizens, which both meet the court’s criteria, and also achieve effective election security," the president's office said in a press statement issued Oc.t 14.
The government said lawyers continue to review the details of Supreme Court’s opinion.
“The Supreme Court has clearly found that there is no constitutional right to a postal ballot or any other specific measure of voting for qualified voters residing overseas. Nonetheless, the Supreme Court determined that the existing amended election law, as passed by Nitijela, is unconstitutional and that additional steps are needed to address overseas registered voters - without requiring any particular ‘method’ of voting, in order for them to exercise their constitutional right to vote,” the press release stated.
Parliament Speaker Kenneth Kedi took a different view, saying Thursday he believed the declaration of the postal ban law as unconstitutional voids that law and consequently revives the previous election law allowing voters living outside the Marshall Islands to vote using postal absentee ballots. He said the government now needed to take action to provide postal ballots to registered voters living overseas.
Judge Seabright in a separate opinion amplifying the main decision cited population statistics showing tens of thousands of Marshall Islands citizens now live in the U.S.
“I would find as a matter of law that any restrictions on voting in the Republic of the Marshall Islands by a qualified voter, given the fundamental right to vote in the RMI Constitution, must be reasonable given the interest and nature of the restrictions,” Judge Seabright wrote. “P.L. 2016-28 is unreasonable given the large number of RMI citizens living outside of the country coupled with the RMI’s geographic remoteness.”
The judge pointed out that, “A sizable minority of RMI citizens live in the United States, and thus will not be able to exercise their constitutional right to vote because of P.L. 2016-28. As should be obvious, traveling from the United States to the RMI to vote in person would be a tremendous financial burden and require a significant amount of time. In essence, P.L. 2016-28 disenfranchises over 25,000 RMI citizens living outside the country.”
In its statement on the ruling that was released on the government radio station V7AB Thursday, the President’s Office said it “welcomes the Supreme Court Opinion, and looks forward to working with the future cabinet, Nitijela and stakeholders of the Marshall Islands to address any necessary technical clarifications in the existing law, as well as to evaluate practical policy options to ensure appropriate measures for overseas Marshallese citizens, which both meet the court’s criteria, and also achieve effective election security.” (Marianas Variety/Pacific Island Times)