“VOTING BY ABSENTEE BALLOT ‒ THE FULL SCOOP”
There have been quite a few stories in the media lately concerning residents of American Samoa stranded overseas due to the closure of the borders of American Samoa and who most likely won’t be able to return to the territory in time to participate or vote in the November 2020 election.
In addition, many people, including Governor Lolo himself, have suggested that the November 2020 election either may or should be postponed (especially if the Governor chooses to re-impose his Code Blue restrictions on the people of American Samoa).
While it is already fairly well-known that off-island military personnel and college students can vote in American Samoa elections via absentee ballot, what is not as well-known is the fact that, under the American Samoa Code Annotated (ASCA) there are several other categories of voters eligible to vote absentee, including those who went off-island for medical treatment and would be absent from American Samoa on election day for that reason alone.
According to ASCA Title 06 ‒ Elections, “Any qualified elector who will be unable to appear at his polling place during the hours of voting at any election because of absence from the Territory, or district in which he is registered may cause his vote to be cast by absentee ballot subject to this chapter (and) shall be allowed to vote under this section if he falls in the following categories: (1) absent from the Territory on election day because he is: (i) employed in the service of the U.S. Government; (ii) employed in the service of the American Samoa Government; (iii) a student at an institution of learning; (iv) an absent uniformed services voter; or (v) an overseas voter voting in the election for Delegate for the U.S. House of Representatives. (2) temporarily absent from the Territory on election day because of: (i) travel for medical treatment; (ii) travel for military-related assignments; (iii) travel for employment-related training, conference or assignments; or (iv) vacation. (3) present in the Territory but absent from the district on election day because of: (i) confinement in any hospital; (ii) confinement in any public institution; (iii) confinement at home because of illness or physical disability which will prevent him from attending the polls; (iv) any religious belief, ruling, doctrine, or standard which will prevent him from attending the polls; or (v) employment as an election official on election day.
ASCA Title 06.1102 addresses how those individuals can request an absentee ballot:
(a) Any person entitled to vote under 6.1101(c) (1) may request an absentee ballot in writing from the Chief Election Officer. In addition, such person may transmit such request by mail, electronically, or by facsimile, and designate the preferred means of return transmission whether by mail, electronically, or by facsimile. Any such person may request an absentee ballot not earlier than January 1st of the year of the election for which the absentee ballot is requested, and not later than 4:30 p.m. the 15th day prior to the election. The request shall include any information that will facilitate the location of his voting district, the establishment of his right to a ballot, and the address where he wants his ballot forwarded.
So under ASCA Title 06, an absentee voter can request an absentee ballot be sent to them electronically, and also request that he or she be allowed to vote "electronically" as well. (Although the word "electronically" is not defined in ASCA Title 06, according to the absentee ballot request form it means by email.)
By the way, note that under ASCA 6.1101(c)(1)(v) an overseas voter already has the right to vote for the Congressional delegate for American Samoa regardless of whether he or she falls into any of the other categories (e.g., military personnel, student, etc.), as that is a federal office and, other than being absent from the territory on election day, no further qualification is needed to vote for this office by absentee ballot.
To read all of ASCA Title 06 (it has several chapters), go to www.asbar.org, click on "Legal Resources", then on "Code Annotated", then on “Title 06 – Elections”. To download the forms needed to request an absentee ballot, go to www.aselectionoffice.gov.
To the credit of the Election Office, they have already included a separate, special absentee ballot application for voters stranded off-island due to COVID-19 (listed at the top of the menu bar on the Election Office home page).
The general absentee ballot application request (Form EO-08) is on the same home page under “FORMS”. Scroll down a bit and you will see it there half-way down the page. (The COVID-19 absentee application is also available on this same page.)
However, it should be noted that there seem to be several conflicts between the general absentee ballot request form and the provisions of ASCA Title 06.
For example, Title 06 states that a person voting by absentee ballot may “designate the preferred means of return transmission whether by mail, electronically, or by facsimile”. However, the absentee ballot request form states that: “All absentee ballots for local office (Governor/Lt. Governor and Representatives to the American Samoa Legislature) will be transmitted by regular postal mail regardless of absentee voter status”.
Also, the general absentee ballot request form only allows for five categories of absentee voter, including [a] Employed in the service of the U.S. Government, [b] An absent uniformed services voter (including spouse or dependent), [c] A student at an institution of learning, [d ] Employed in the service of the American Samoa Government, and [e] An overseas voter voting for the Delegate to the U.S. House of Representatives, and doesn’t have any of the other categories of absentee voter as listed in ASCA Title 06 (e.g., off-island for medical treatment), nor does it appear to contain any space for writing in those categories. Perhaps the election office should look into this discrepancy and rectify it so that it doesn’t become an issue come Election Day or any time thereafter (i.e., should someone decide to challenge it legally).
Finally, note that the cut-off date to apply for an absentee ballot is the 15th day prior to the election, which is November 3rd, 2020. So if you plan on voting by absentee ballot make sure you apply for an absentee ballot no later than October 15, 2020, even earlier to be on the safe side.
Bryan M. Jackson
[Editor’s note: Although Samoa News is aware of some people suggesting the election be postponed, we cannot confirm that Gov. Lolo has suggested this.]