Pago Pago, AMERICAN SAMOA — Chief Election Officer Uiagalelei Lealofi testified before the Senate Judiciary Committee on Monday morning that it was his opinion that the inclusion of the veto override amendment for voters to vote on during the November 5th general elections, "might be too late."

He was responding to Senate President Tuaolo Manaia Fruean who had inquired whether the proposed amendment could be included in the upcoming general elections.

Uiagalelei stated that the issue is of great importance and emphasized his commitment to closely adhering to the law pertaining to elections procedures, pointing out that absentee voters have already cast their votes as dictated by law.

However, he has no control over the veto override amendment and that it might be too late because the absentee voting has already begun.

Tuaolo followed up on the matter, inquiring whether the proposed amendment was now invalid since absentee voting had already started.

The Chief Election Officer confirmed this was the case, clarifying that according to election laws, it was too late.

Committee Chairman Soliai Tuipine Fuimaono inquired if there would be any issues with mailing the proposed veto override amendment to those absentee voters who had already cast their votes, so they could vote on it.

Uiagalelei reiterated that the matter was of utmost importance and that the public and voters should have a good understanding of the proposed amendment and what it entails. He emphasized that the chairman's suggestion would be difficult to carry out and it could also cause criticism from the public.

Soliai was not satisfied with the response and sought the opinion of Election Office's Legal Counsel Nathaniel Sotoa Savali, who had accompanied Uiagalelei.

Savali explained that, from a legal perspective, the Constitution does not stipulate a time limit for disseminating a proposed amendment to the voters.

He said the Constitution states that a proposed amendment approved by three-fifths of all members of each House, voting separately, the Governor shall then be requested to submit such proposed amendment to the voters at the next general election.

Counsel Savali noted that the difficulties mentioned by the Chief Election Officer pertain to the additional responsibilities for the staff and the funding required to implement Chairman Soliai’s suggestion.

Senator Togiola T.A. Tulafono asked Uiagalelei if the proposed amendment would be printed on a separate sheet of paper, to which Uiagalelei responded affirmatively.

Togiola commented that he had received a letter from the Governor outlining his stance on the matter, noting that it did not include the Chief Election Officer’s opinion.

He then asked Uiagalelei if he agreed with the constitutional provision stating that when the Governor receives a constitutional amendment passed by both chambers of the Fono, he must submit the proposed amendment to the voters at the next general election.

Uiagalelei responded that he supports the Governor’s stance, noting that it was too late for the proposed amendment to be included in the upcoming games, as stated in the Governor’s letter to the Senate President and Speaker.

“So, based on your answer, will you follow the Governor’s instructions rather than what the law stipulates?” Togiola asked.

“My understanding is that the Governor has the authority, and I will obey his instructions,” Uiagalelei stated.

“Even if it involves breaking the law?” Togiola challenged.

There was a pregnant pause as Uiagalelei began to respond, but Togiola cut him off, “You are the Chief Eelection Officer. You make decisions regarding election matters. You also make decisions on matters pertaining to election laws. Are those not your responsibilities?”

Uiagalelei did not provide a straightforward yes or no answer. Instead, he attempted to explain, but Togiola cut him off, demanding a direct response.

After a tense pause, Uiagalelei finally said, “I cannot answer that kind of question…”

“Why not?” Togiola shot back.

“In my opinion, the Governor has the authority to…” Uiagalelei began, but Togiola interrupted again, pressing, “From where? Where does the Governor get the authority to tell you to do what he says and not follow the law?”

“My humble opinion is that our government’s political status is not well established…” Uiagalelei began, but Togiola interjected, “What do you mean by our government’s political status is not well established? Are you saying that because our political status is unclear, the Governor can do whatever he wants, even if it breaks the law? Is that what you’re saying in front of the Senate?”

Uiagalelei responded that it was a complex issue. He explained that in situations like this, the Governor has the authority to make crucial decisions for the good of the people and the government of American Samoa.

"Where does he get that authority," Togiola asked. "I have been Governor for ten years and I have not seen in any part of the Constitution or any part of the American Samoa Code Annotated which gives that kind of authority to the Governor."

Again, Uiagalelei tried to explain that the Governor's authority exceeds that of the other two branches of government but he was again interrupted, this time by Committee Chairman Soliai.

"Do you know that your office is independent?" Soliai asked. "The Governor appoints you, but it's you who makes the decisions on matters pertaining to general elections. You do not answer to the Governor. You are not a member of his cabinet."

Senator Togiola resumed his line of questioning, addressing Counsel Savali.

He asked, “Is there any part of the Constitutions and Laws of American Samoa or the United States that states if there is a conflict between the law and the Governor’s decisions, the Governor’s decisions should take priority?”

Counsel Savali answered no.

Togiola then asked, “So where did the Chief Election Officer get the idea that the Governor has the authority to act as he pleases, regardless of what the law dictates?”

Counsel Savali explained that when the Fono passed the proposed amendment, the Senate Concurrent Resolution was submitted to the Governor’s Office as required by law. The Governor then discussed the matter at length with the Chief Election Officer.

Savali noted that the Governor had inquired about the feasibility of the resolution, given that the election process had already commenced with absentee voting. After extensive deliberation, the decision was made as outlined in the Governor’s letter to the Fono leadership. Savali clarified that this decision was not made by the Chief Election Officer alone.

Togiola then asked, “If the Governor were to have a change of heart and approve the proposed amendment to be presented to the voters at the next general elections, would the Chief Election Officer agree to implement it?”

Counsel Savali responded that, legally, it was possible, but suggested that Uiagalelei should answer that question.

Uiagalelei answered that he would.

Togiola then asked the witnesses for confirmation on the fact that there was no timeframe for the Fono to submit a proposed amendment to the Constitution that had been passed by both chambers, to the Governor for inclusion in the next general election.

“According to the language of the Constitution, there is no specified timeframe. Therefore, my interpretation is that even if it is submitted on the day before or the day of the general election, it is still valid. Am I correct?” Togiola asked Counsel Savali. He replied affirmatively.

Togiola then asked what would happen to the proposed amendment if it is not included in the next general election.

"So does it mean it becomes invalid because there is nothing in the Constitution that says that if it cannot be included in the next general elections, it can be included in the one after that?" he asked.

Uiagalelei responded reiterating that it was indeed a very important matter and suggested that perhaps the proposed amendment could be re-submitted by the next Legislature and have it included in the 2026 general elections.

“So now you’re telling us what to do,” Togiola accused. “We now have an overlap of authority, with the executive branch dictating to the Fono how to perform its duties as mandated by law. The Constitution clearly establishes the equal authority of each branch of government.”

In his letter to Senate President Tuaolo Manaia Fruean on September 26th, Governor Lemanu P.S. Mauga stated that, "unfortunately, ballots for the November 2024 general election have been printed and absentee ballots are already being distributed and cast by voters eligible to do so. Adding the constitutional amendments to this current November 2024 general election is not possible.

"I will see that the proposed amendments are prepared to be submitted to the voters at the next general election. This will not only keep the current election from being disrupted but also provide time and opportunity to inform voters about the importance of the proposed constitutional amendments," Governor Lemanu stated.

The proposed veto override amendment would give the authority to the Fono to overturn the Governor’s veto of a bill, so that a bill which is vetoed by the Governor can still become law, if the House and Senate approve the bill again by a two-thirds majority vote of each chamber.

At present, if a vetoed bill is passed a second time by both the House and Senate, it then goes to the Secretary of the Interior for a final decision.

In January, the Senate approved the joint resolution and sent it to the House. The resolution remained in committee until last Friday, when the House approved it. On Thursday, the Senate received communication from the House confirming that SCR 38-2 has been passed.

At the beginning of Monday's hearing, Chief Election Officer Uiagalelei informed Committee Chairman Senator Soliai that as of last Friday, September 27th, a total of 15,284 voters had registered, while the number of absentee voters who have already cast their ballots was 280.