Tualauta Candidate Vui Florence Saulo’s name will be printed on the election ballots for Tualauta District No.15, according to an order issued by the Appellate Division of the High Court yesterday afternoon.

A petition had been filed by Tualauta candidate Lucia Su’a Bartley against the Chief Election Officer (CEO) who denied a challenge lodged after the CEO denied Bartley’s first move, challenging the authenticity of “Vui Florence Tuaumu Saulo’s birth certificate”.

In response, the election office filed a motion to dismiss the matter and Vui filed a motion to intervene.

The nine-page order was signed by Associate Justice John L Ward, Chief Justice Michael Kruse and Associate Judges Mamea Sala Jr and Fa’amausili Pomele, where they denied the motion by the CEO to dismiss the petition and also denied the petition and ordered ratification on the CEO’s ruling.

In their ruling, the court noted the CEO did all that was called for within his duties, under the law, as Chief Election Officer to authenticate Vui’s eligibility.

In discussion, the court wrote, “The CEO’s decision that Saulo was a US National after reviewing files containing copies of a facially valid US passport was not unlawful, in excess of his authority, clearly erroneous or arbitrary, capricious, or an abuse of discretion” according to local statute.

“Accordingly, we uphold the CEO’s decision on Bartley’s challenge to Saulo’s eligibility as a candidate.” The court denied Bartley’s petition and noted this determination is final. The CEO may now print ballots for Tualauta District No 15.

“In conclusion, we note that the High Court’s power over elections and campaigns are for the most part limited, leaving to the qualified electors of this territory their fundamental constitutional right to select by secret ballot their candidate of choice,” says the order.

BACKGROUND

Gwen Tauili’ili Langkilde is the attorney for the Election office and Bartley’s attorney is Richard DeSaulles, while Marcellus Talaimalo Uiagalelei and Toetasi Tuiteleleapaga represented Saulo.

According to the opinion and order, on September 2, 2014 the CEO determined Saulo was eligible to run in the November 4, 2014 election. Three days later, Bartley filed a challenge to this determination raising concerns about Saulo’s birth records and certificate. The CEO issued a ruling that same day indicating that he had concluded that Saulo is a United States National within the meaning of Article II section 3 of the revised constitution of American Samoa.

In later correspondence, the CEO stated that this determination was based upon his review of the documents in Saulo’s candidate file, as well as her voter registration file, and he invited Bartley’s counsel to perform such an inspection. He noted these files did not contain a birth certificate for Saulo.

Tualauta Candidate Lucia Su’a Bartley petitioned for review of the ruling by the Chief Election Officer, Tuaolo Manaia Fruean on the candidacy of Vui Florence Tuaumu Saulo for election to the House of Representatives of American Samoa.

Several days later Bartley’s petition was filed before the Appellate Court and it was filed in a timely manner pursuant to local statute. The order says that a single justice of the court heard Saulo’s motion to intervene as a real part in interest. As there were no objections, the motion was granted.

However on September 29, 2014 Bartley moved to have the court supplement the record, where she claimed that the record was incomplete and sought to supplement the record with documents relevant to a determination of Saulo;s place of birth. During a hearing the court heard oral augment on Bartley’s supplement to the record, which was denied.

The order says the court denied Bartley’s motion based on the ASCA 4.1043(a) requirement that review be confined to the final agency’s decision and the material review by the agency when making that decision. Further, ASCA 4.1043(b) prohibits the court from substituting its judgment on factual matters of that agency. The materials reviewed by the CEO when investigating Bartley’s challenge to Saulo’s candidacy — namely the candidate file and voter registration file as well as the final ruling from the CEO — were already included in the record.

DISCUSSION

The court denies the CEO’s motion to dismiss in favor of resolution of this petition on the merits. The procedural arguments advanced by the CEO for dismissing Bartley’s petition are so interwoven with his arguments on the merit of the issues presented for judicial review as to make them indistinguishable. “We review a final agency decision pursuant to the requirements set in the Administrative Procedures Act (APA).

The order says that Article II section 3 of the revised constitution of American Samoa requires that a representative in the House must be a United States National and that US National is defined by the federal government and determination of who qualifies as US National is an exclusive function of the federal government. Under the Supremacy Clause of the US Constitution, laws made pursuant thereto and treaties made under the authority of the US shall be the supreme law of the land.

Further the expressed power of naturalization grant the US congress exclusive authority to establish a uniform rule of naturalization. Bartley’s contention that the CEO was required by her challenge to conduct a detailed and exhaustive investigation into Saulo’s birth records or any other local records that may have been used in her application for a US passport as a US National but not a citizen is not supported by law.

The CEO’s authority as an officer of the Executive Branch of the ASG is limited to the powers and his duties.

The court notes that considering the election schedule’s time restraints, the applicable statutes, and the pre-emption of US nationality issued by the US government “we cannot ascertain any legal basis for the CEO to have proceeded any further than he did in this matter.”

Bartley advised the court at oral argument that she continues to pursue federal administrative remedies with respect to Saulo’s birth certificate, and as of the date of the hearing, no response had been received by Bartley from the US Department of State. Based on this, “we hold Bartley has provided no grounds for this court to reverse or modify the CEO’s decision or to remand this case for further proceedings.