Charfauros v. Board of Elections

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS DANNY C. CHARFAUROS, et al., ) APPEAL NO. 97-023 & 97-027 ) (consolidated) Plaintiff/Appellants , ) CIVIL ACTION NO. 95-1106 ) v. ) ) OPINION BOARD OF ELECTIONS, et al. ) ) Defendants/Appellees. ) ) ) Argued and Submitted on June 25, 1998 Counsel for Appellant: John M. Chambers Saipan, MP 96950 Counsel for Appellee: Robert Goldberg Office of Attorney General Saipan, MP 96950 BEFORE: ATALIG, Justice Pro Tem, MACK, Special Judge, and WISEMAN, Special Judge. WISEMAN, Special Judge, delivered the opinion of the Court. ATALIG, Justice Pro Tem, wrote a separate opinion concurring in part and dissenting in part. MACK, Special Judge, joined the opinion of the Court and wrote a separate opinion concurring. WISEMAN, Special Judge:  I. Introduction This case requires us to determine whether the Superior Court erred when it granted summary judgement to Defendants, the Commonwealth Board of Elections and its individual members, dismissing: (1) a claim for intentional infliction of emotional distress, (2) claims under 42 U.S.C. §1983 for violation of constitutional rights, and (3) determining that the members of the Board of Elections were entitled to qualified immunity for their acts of declaring certain persons ineligible to vote in the November 5, 1995, general election on Rota. This case follows an earlier civil action brought to challenge the results of the November 4, 1995, election on Rota. Taitano v. Mundo, Civil Action No. 95-1082(B) (NMI Sup.Ct. 1996). Both causes of action arose out of facts demonstrating that the Board of Election wrongfully disqualified certain registered persons from voting. The judgment in Taitano v. Mundo, supra, allowed four persons to vote who had been disqualified. Three of those four brought this present action seeking damages against members of the Board of Elections who disqualified them. Specifically, Plaintiffs alleged that the acts of the Board of Election and its individual members wrongfully deprived them of constitutionally-protected rights, that they are entitled to relief under 42 U.S.C. §1983 as a consequence, and that the acts complained of constitute a cause of action for the common law tort of intentional infliction of emotional distress. Plaintiffs appeal from the grant of summary judgment in favor of Defendants on all claims. In the “Order Denying Partial Summary Judgment and Granting Summary Judgment,” Charfauros v. Board of Elections, p. 1, Civil Action No. 96-1106 ( NMI Sup. Ct., May 29, 1997) (“Charfauros Order”), ER, pp. 36-42, the trial court specifically adopted the facts set forth in its “Order” in the related case of Taitano v. Mundo, Civil Action No. 95-1082(B) (NMI Sup. Ct. April 11, 1996) (“Taitano Order”), ER, pp. 89-99, for purposes of ruling on the motion for summary judgment at issue in this appeal. 2  II. Facts The Board of Elections was notified by representatives from both the Republican and Democratic parties in Rota that each party challenged the qualifications of certain persons to vote in the 1995 general election on Rota. Taitano Order, p. 2, ER, p. 90. The Board of Elections, “for the first time, applied a new procedure to hear and adjudicate challenges to voter residency status.” Id. This “new procedure” was highly suspect and improper. On October 16, 1995, Herman A. Apatang, President of the Democratic Party of Rota, sent, on Democratic Party of Rota letterhead, a letter to the Chairman and Members of the Board of Elections. This letter notified the Board of Elections that the Democratic Party of Rota (“Democratic Party”) challenged the qualifications to vote of twenty two individuals who had registered to vote. All but two of these individuals were challenged as ineligible to vote on the basis they did not have bona fide residence on Rota. This case only involves three of the twenty persons challenged on the basis they did not meet the residency requirement. Twice, the letter specifically requested that the Board of Elections conduct administrative hearings on the challenges “prior to election day.” The election was scheduled to be held on November 4, 1995, fifteen working days from the date of the letter. Challenges to voter qualifications were also lodged with the Board of Elections by the Republican Party of Rota, but no documents stating those challenges are of record in this case. The portion of the letter from the Democratic Party identifying the people challenged on the basis of residency contains three columns. The first column listed each person’s name, the second column listed each person’s voter registration affidavit number, and the last column, entitled “Currently Residing,” listed five different places where each of the twenty alleged non-residents were living. These were identified as either Guam, Saipan, Arizona, California or U.S. No street address or post office box number was provided. Only a broad geographical description such as “Guam,” or “California” was indicated. 3  Using the “new procedure” for determining voter disqualifications, the Board of Elections held hearings on October 30, 1995, five days before the November 4 election, on the challenges lodged by the representative of the Democratic party. Deposition of Miguel M. Sablan, ER, p. 67. The record reveals that only Democratic party challenges were scheduled for hearing on October 30, 1995. Id. No voter challenged by the Republican party was scheduled for hearing on that date. Id. Prior to the hearings on October 30, 1995, Notices were sent out to those voters challenged at the Rota address each person had listed on their voter registration form. ER, p. 3. Plaintiff Charfauros testified that he did not receive his notice until two days before the scheduled hearing. Taitano Order, p. 2, ER, p. 90. Plaintiffs Atalig and Aldan testified that they did not even hear of the challenge made to their eligibility until after the hearing before the Board of Elections had already been held. ER, p. 54, 59. At the hearing on the motion for summary judgment at issue here, the trial court judge relied on his recollection of the testimony in the Taitano case to comment on claims by Plaintiffs Atalig and Aldan that they had not received notice of the Hearing on the challenge to their residency. ER, p. 3. The trial court judge recalled that at least some of the plaintiffs in the Taitano case (but not Charfauros) had not received their notice of the hearing because they lived on Saipan, and the notice was sent to their address on Rota. In these cases, someone on Rota had to pick up the mailed notice at the Rota post box listed and then forward it to Saipan causing a delay in receipt. Id. The trial court went on to say, [T]he Board [of Elections] can’t be held responsible for the fact that there’s a problem with the delivery of the mail because the fact these people put their address as Rota, but in fact they’re physically residing on Saipan. Because I know that at least two of them said they were working, I think Mr. Atalig said he was working for I think the Department of the Labor and Immigration and that he was working and residing here on Saipan. ER, p. 3-4. Thus, the trial court concluded that Plaintiffs had not set forth “concrete” factual allegations supporting the claim that they had not received adequate notice of the hearing. ER, p. 4. The Chairman of the Board of Election, Miguel M. Sablan, described why the Democratic 4 party challenges were separated from the Republican party challenges and heard first. He said that the Democratic party challenges were “pretty specific” while those of the Republican party were not. The Democratic party challenges recited that the challenged voter was not a resident of Rota and recited a place where “this particular person is now staying” or “something in the line of . . . reasoning for their challenge.” Deposition of Miguel M. Sablan, ER, p. 68. The Chairman went on to explain the failures of the Republican party challenges as follows: Whereas the challenge from the Republican party, if I’m not mistaken, was only the mentioning of not being a resident of Rota and that’s it. Period. . . . Without any indication whether they are staying on Saipan or in Tinian or in Alamagan or in the States for that matter. The reason why we required that was because we want to get in contact with ah – these people who are being challenged and advise them in time that you have been challenged and that if you wish to – to defend your application or the registration, please appear. The – that’s the reason why we want to know ah – we want to be little bit more specific on the challenge so that we could give everybody the opportunity to answer the challenge. Id. For these stated reasons, the Board of Election decided to hear the Democratic party challenges before the election, and delay the Republican party challenges until after the election. The Board of Elections thus created two classes of challenged voters and was aware at all times that only Democratic party challenges were considered at the October 30th hearing. Clearly this explanation does not comport with the record before this Court about the actual process employed by the Board of Elections. First, no “address” was provided by the Democratic Party where each challenged person could be reached to notify them of the hearing upon their challenge. The broad geographical designation that someone lived in “Guam,” “California,” or the “U.S.” would never have permitted the Board of Elections to either mail notice or serve notice of such a hearing. Second, the Board did not use the “address” somewhere outside Rota to contact each challenged voter. Instead, the Board mailed notices of the hearing to each challenged voter’s Rota address. While an attempt was made to draw distinctions between the challenges made by the Democratic Party and those made by the Republican Party, in practice the distinctions were not employed in any meaningful way. Those voters challenged by the Republican party on the basis “of 5 not being a resident of Rota and that’s it . . . Period,” could have had notices of a hearing on their challenges mailed to their listed Rota address in the same manner as the Democratic party challenges were mailed. Plaintiff Danny Charfauros received notice of the hearing on October 30, but he did not attend because he “was too busy working to attend.” Taitano Order, p. 2, ER, p. 90. The two other plaintiffs to this cause of action, John Andrew Atalig and Gina M. Aldan, both “testified that although they were represented at the October 30, 1995 hearing by [Jim] Atalig, they never authorized the representation.”Id. At the disqualification hearings, the Board considered the letter from the Democratic Party setting forth the challenges made on behalf of the Democratic party. 1 The Board also heard the testimony of Democratic Party President Herman A. Apatang concerning what the trial court derisively referred to as Apatang’s “research” into each challenged voter’s residency. ER, p. 90. The Superior Court described the Board’s review and Apatang’s testimony as follows: Taking the testimony presented at the . . . election contest hearing in its entirety, it is clear to the Court that the Board relied almost exclusively on the “research” of Herman Apatang in making its determinations concerning voter eligibility, and that such “research” amounted to little more than reliance on who Mr. Apatang knew personally or recalled seeing on Rota in the weeks preceding the November election. Not only was Mr. Apatang’s research insubstantial, but it was, in several cases, demonstrated to be incorrect. Taitano Order, p. 9, ER, p. 97. The “insubstantial” and “incorrect” nature of Mr. Apatang’s “research” is clearly reflected in the record. Regarding Plaintiff Charfauros, Mr. Apatang testified that, [Apatang] had not seen him [Charfauros] on Rota, that he had a small family name and that the family name was “not in Mr. Apatang’s family roots.” Taitano Order, p. 6, ER p. 94 (quoting from Herman Apatang’s trial testimony in Taitano). Senator Paul Manglona testified at the hearing on behalf of Plaintiff Charfauros even though Charfauros was not present himself. Senator Manglona testified that Charfauros “was living on Rota 1 No other documents giving rise to, or otherwise documenting the voters’ eligibility or residency challenges are of record before this Court. 6 and managing his [Charfauros’] father’s business on the island.” Taitano Order, p. 6, ER p. 94. In spite of this conflicting testimony at the hearing, the Board of Elections relied on Herman Apatang’s testimony exclusively to determine that Charfauros was ineligible to vote. Id. Regarding Plaintiff Atalig, the Court quoted Mr. Apatang’s testimony as follows: [Apatang] had not seen Mr. Atalig on Rota and did not know when he [Mr. Atalig] returned to Rota prior to the election. [Mr. Apatang] said he told the Board that Mr. Atalig was employed by Freedom Air and was living on Guam. Id. Regarding Plaintiff Aldan, the Taitano Order recites the following Apatang testimony: Mr. Apatang testified that he does not know Ms. Aldan personally, but knows what she looks like and through his investigation found out that she is not residing or employed on Rota and is staying with her mother on Guam. Mr. Apatang told the Court that his research included an inquiry whether the contested voter owned a Rota homestead. However, when asked whether Mr. Apatang investigated Mr. Atalig’s and Ms. Aldan’s homestead ownership, he replied the he “had not gotten that far.” Id. at p. 7, ER, p. 95. At the hearing, Jim Atalig, brother of Plaintiff Atalig, spoke on behalf of both Plaintiffs Atalig and Aldan, who were not present. Id. Jim Atalig testified at the hearing that his brother and Ms. Aldan both “lived with Mr. Atalig’s family in Sinapalo,” Rota. Id. Again, in spite of this conflicting testimony, the Board of Elections decided to believe the testimony of Herman Apatang completely, and disbelieve the testimony of Jim Atalig completely - despite the fact that Jim Atalig’s testimony was facially based on personal knowledge and at least part of Herman Apatang’s testimony was not. The Chairman of the Board of Elections testified in the Taitano trial that, “the Board based its decision to deny Mr. Atalig and Ms. Aldan the right to vote based on [Herman Apatang’s] testimony alone.” Id. Clearly this portion of the record also destroys the other rationale for creating two classes of challenged voters: that the Democratic party challenges were more “specific” than the Republican party challenges. No part of Herman Apatang’s testimony concerning any of the three Plaintiffs can qualify as “specific” as to any fact at all. The personal knowledge reflected in Apatang’s testimony is based solely upon who he had seen, or not seen, in his daily wanderings around Rota. In addition, 7 the record does not reflect that any of Apatang’s testimony was taken under oath, or that any sworn declarations were ever employed. The most “specific” and salient facts to be seen from the testimony and the surrounding circumstances was that Apatang, as President of the Democrat Party, challenged the residency of certain people on the basis of Apatang’s inadequate and incorrect “research,” and the Board of Elections decided to believe Apatang’s testimony in spite of directly contradictory testimony, and in spite of each voter’s sworn affidavit of residency. The trial court found that the Board considered both Herman Apatang’s testimony and the legal criteria for voting set forth in 1 CMC §§6202 - 6204, and other guidelines set forth in 1 CMC §6205(b)(1) when deciding to disqualify the Plaintiffs from voting. Taitano Order, p. 2, ER, p. 90. It is not clear, however, the extent to which legal criteria were used, since the only question in the case of each challenged voter was residency, and on that question the record shows the Board of Election deferred to Apatang’s “research” and opinion. A decision to disqualify the three Plaintiffs in this case was apparently not reached until November 2, 1995, when Juan M. Diaz, Executive Director of the Board of Elections, issued a memo. The Board of Elections employed no formal procedure to advise the several disqualified voters who were parties to the Taitano action they would not be allowed to vote. The Board of Elections never published a revised list of voters that resulted from the October 30, 1995, hearings on the challenges. Taitano Order, p. 3, ER, p. 91. Two of the five voters who initially brought suit in Taitano were advised they could not vote by Rota Senator Paul Manglona (who had seen an unpublished list of voters). Id. Plaintiff Charfauros later testified he learned of his disqualification when he was denied an absentee ballot. Id.,( See also, Deposition of Danny C. Charfauros, ER, p. 44-45). Two voters who did receive notice got it by hand delivered letters advising them that their voter registrations had been transferred to Saipan. Id. After the initial decision to disqualify these voters had been reached by the Board of Election there was some confusion, and apparently a reversal of that portion of the Board’s decision that the disqualified persons could not vote on November 4. An attempt was made to contact an attorney for 8 some of the voters on the morning of the election to advise him that his clients would be allowed to vote and their disqualification finally resolved after the election. ER, p. 27. This attempt was not successful and those voters did not vote. Taitano Order, p. 3, ER, p. 91. Later, on November 7, 1995, two days after the election had already been held, some of these voters, including the Plaintiffs here, were sent letters advising them that they would be allowed to vote in the election that had already been held two days previously on the November 5, 1995. Id., See also, ER, pp. 74-76. It was later claimed by the Chairman of the Board of Elections that these letters were mis-dated, and should have been dated November 4, 1995. See Deposition of Miguel M. Sablan, Supp. ER, p. 25. But this assertion was specifically rebutted by the deposition testimony of the Executive Director of the Board of Elections. See Deposition of Juan M. Diaz, ER, p. 73. Concerning these notices, Mr. Diaz testified as follows: “Ah, this particular one dated November 7, that’s the date that we sent it out . . .” Id. The record does not reveal why the Board of Elections engaged in the nonsense of notifying disqualified voters they would be allowed to vote in an election already held. In the Taitano decision the Superior Court summarized the “new procedure” for deciding voter eligibility challenges employed by the Board of Elections and at issue here as “unprecedented,”“unpublished,” and “egregious.” Taitano Order, p. 10, ER, p. 98. Specifically, the “new procedure” denied the challenged voters any opportunity to appeal the Board’s determination that they were ineligible to vote. Id. It is clear to this Court from the record that reasonable Election Board members using common sense and reasonable standards would never have employed this “new procedure” under such circumstances, or in the manner it was employed. III. Proceedings Below The trial court found that Plaintiffs had failed to allege facts in opposition to Defendants’ Motion for Summary Judgment sufficient to make out a claim for intentional infliction of emotional 9 distress. The trial court also held that the facts alleged could not withstand challenge by Defendants that they were entitled to qualified immunity from the charges made under 42 U.S.C. §1983. 2 With respect to the claim of intentional infliction of emotional distress, the trial court found that the conduct of Defendants was not sufficiently outrageous to state a claim as a matter of law, and that Plaintiffs had not alleged or supported sufficient injury to state a claim: Plaintiffs offer no evidence to prove that the conduct was sufficiently outrageous and extreme to satisfy the first element of the tort. In addition, plaintiffs fail to establish by medical or other evidence, that severe emotional distress occurred. Indeed, plaintiffs concede, in response to defendant’s interrogatories, that they received no medical treatment . . . and did not suffer any physical injuries s the result of defendants’ actions. . . . Instead, Plaintiffs (sic Plaintiffs’) claim that the publicity generated by the Taitano v. Mundo election challenge and this lawsuit caused strain on their personal relationships and negatively affected their business relationships in their community. . . . Such allegations are insufficient to prove the element of severity. See, e.g. Thomas, 877 F.2d 1435. Charfauros Order, p. 3, ER, p. 38 (citing Thomas v. Douglas, 877 F.2d 1428, 1435 (9th Cir. 1989). The trial court also dismissed those portions of the Complaint 3alleging a cause of action under 42 U.S.C. §1983 for violation of rights guaranteed to Plaintiffs by the Commonwealth Constitution. The Court found alleged violations of the Commonwealth Constitution are not remediable under 42 U.S.C. §1983. Charfauros Order, p. 4, ER, p. 39, citing Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3112, 82 L.Ed.2d 139 (1984); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 73 L.Ed.2d 396 (1987). Accordingly, the court dismissed those claims alleging violation of 2 42 U.S.C. §1983, in relevant part, is as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . 3 Plaintiffs/Appellants failed to include the Complaint filed in this matter within the Excerpts of Record. Defendants included a portion of the Complaint in their Supplemental Excerpts of Record. 10 Plaintiffs’ rights to vote secured by Article VII, Section 1, 4 and their rights to equal protection under Article I, Section 6 of the Commonwealth Constitution. 5 As a consequence, only one claim actionable under 42 U.S.C. §1983 remained: whether Plaintiffs were denied the right to equal protection as guaranteed by the 14th Amendment to the United States Constitution. Charfauros Order, p. 3, ER, p 4. The Complaint specifically alleged violation of Plaintiffs’ rights to “equal protection of the law under the Fourteenth Amendment of the United States Constitution.” Complaint, ¶57(c), Supp. ER, p. 4. The trial court did not reach the issue of whether Plaintiff’s equal protection rights were violated. Instead, the trial court addressed the defenses raised by Defendants. First, the trial court held that those portions of the Complaint alleging liability on the part of the Board of Elections itself, and those portions of the Complaint alleging violation of rights by the members of the Board of Elections acting in their official capacity were barred because neither the Commonwealth, its agencies, nor its officials acting in their official capacities are deemed “persons” under precedent interpreting 42 U.S.C. §1983. Id., citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68-70, 109 S.Ct. 2304, 2310-2311, 105 L.Ed.2d 45 (1989), Ngiraingas v. Sanchez, 495 U.S. 182, 192, 110 4 Article VII, Section 1, of the Commonwealth Constitution, entitled Qualifications of Voters, is as follows: A person is eligible to vote who, on the date of election, is eighteen years of age or older, is domiciled in the Commonwealth, is a resident of the Commonwealth, and has resided in the Commonwealth for a period of time provided by law, is not serving a sentence for a felony, and has not been found by a court to be of unsound mind, and is either a citizen or national of the United States. The legislature may require that persons eligible to vote be citizens of the United States. 5 Article I, Section 6 of the Commonwealth Constitution, entitled Equal Protection, is as follows: No person shall be denied the equal protection of the laws. No person shall be denied the enjoyment of civil rights or be discriminated against in the exercise thereof on account of race, color, religion, ancestry or sex. 11 S.Ct. 1737, 1738, 109 L.Ed.2d 163 (1990), DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992).6 The trial court next turned to the question whether the members of the Board of Elections, acting in their individual capacities could be liable as a matter of law under 42 U.S.C. §1983. The court found that Commonwealth officials acting in their individual or personal capacities could be liable under Section 1983. Charfauros Order, p. 4, ER, p. 39, citing DeNieva, supra, and Hafer v. Melo, 502 U.S. 20, 31, 112 S.Ct. 358, 365, 116 L.Ed.2d 301 (1991). The trial court finally turned to the defenses available to Defendants. The members of the Board of Elections, acting in their individual capacities, asserted qualified immunity.7 The Court held that “the procedure for resolving voter challenges was not ‘clearly established’ at the time the Board attempted to resolve the November 4, 195, Rota election challenges.” A Board member, therefore, “could have believed that the creation of two classes of challenged voters was reasonable.” 6 The distinction of the capacity of government officials refers to their amenability to suit under §1983. Hafer v. Melo, supra. Commonwealth officials acting in their official capacity are deemed instruments of the CNMI and are, therefore, not proper parties to an action for money damages because the CNMI itself is not a “person” within the meaning of §1983. DeNieva, supra, 483 F.2d at 483. They remain liable for monetary relief in their individual capacities. Id. Further, in their official capacities, they are proper parties to a suit for prospective equitable relief under §1983 because “official-capacity actions for prospective relief are not treated as actions against the state.” DeNeiva, supra, 966 F.2d. at 483 n. 3 (citation omitted); “Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Unition with the United States of America,” §502(a)(2), 90 Stat. 263, reprinted at 48 U.S.C. §1681; Guam Society of Obstetricians and Gynecologists v. Ada, 962 F.2d 1366, 1371 (9th Cir.), cert. denied, 506 U.S. 1011 (1992). 7 It is not clear from the record before this Court whether Defendants asserted this defense in their answer to the Complaint or raised it for the first time at the Motion for Summary Judgment. Plaintiffs appear to allege the Defendants’ did not plead this defense in their answer. See Appellant’s Brief, p. 7, (“Qualified immunity is an affirmative defense to a §1983 action, so that the defendants have the burden of pleading and proving their defense. Mahers v. Harper, 12 F.3d 783 (8th Cir. 1993). See also, Gasho v. U.S., 39 F.3d 1420 (9th Cir. 1994), cert. denied, 115 S.Ct. 2582 (1994)”). However, Plaintiffs did not include Defendants’ Answer to the Complaint in the Excerpt of Record filed for this appeal, and thus have not provided a basis to review any claim that Defendants did not properly plead it. Accordingly, the issue shall not be considered. In re Estate of Deleon Castro, 4 N.M.I. 102, (1994). It is counsel’s responsibility to see that the record excerpts are sufficient for consideration and determination of the issues on appeal and the appellate court is under no obligation to remedy any failure of counsel to fulfill that responsibility. Id., 4 N.M.I. at 108 n.19. 12 Accordingly the Court held that defendants were entitled to qualified immunity. Charfauros Order, p. 7, ER, p. 42. IV. Jurisdiction and Issues Presented This Court has jurisdiction over the issues presented pursuant to Article IV, Section 3 of the Commonwealth Constitution. Four issues are presented in the briefs for appellate review. These are (1) whether the complaint stated a cause of action that Members of the Board of Elections violated the equal protection rights of the plaintiff voters, (2) whether the Members of the Board of Elections may be held liable in their individual capacities under 42 U.S.C. §1983 for such violation, (3) whether the trial court erred in holding that the members of the Board of Elections are entitled to qualified immunity for such alleged violation, and (4) whether the trial court erred in granting summary judgment on Plaintiffs’ claims for the tortious intentional infliction of emotional distress. V. Standards of Review Orders granting or denying summary judgment are reviewed de novo on appeal. Rios v. Marianas Pub. Land Corp., 3 N.M.I. 512, 518 (1993). Summary judgment may be granted only when the court, after viewing the facts and inferences therefrom in a light most favorable to the non- moving party, finds as a matter of law that the moving party is entitled to judgment as a matter of law. Cabrera v. Heirs of De Castro, 1 N.M.I. 172, 176 (1990); Rios, supra. An order granting or denying summary judgment will be affirmed on appeal only if there are no genuine issues of material fact and the substantive law was correctly applied. Rios, supra. Summary judgment must be granted against a party who fails to make a showing sufficient to establish the existence of an essential element to the party’s case. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 13 265 (1986). VI. The Voting Rights Claims A. The Constitutionally Protected Right to Vote The United States Supreme Court has long held that the right to vote is “a fundamental political right.” Reynolds v. Sims. 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). The importance of this fundamental right is underscored by its function in a democratic society. [T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. Id. 377 U.S. at 562, 84 S.Ct. at 1381. No right is more precious in every country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Williams v. Rhodes, 393 U.S. 23, 89 S.C.t 5, 10, 21 L.Ed.2d 24 (1968). At the same time, however, the U.S. Supreme Court has also held that States have a compelling state interest in regulating reasonable qualifications to vote. Carrington v. Rach, 380 U.S. 775, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Indeed the States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. [Citations omitted]. In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may deem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution. Id. 380 U.S. at 91, 85 S.Ct. at 777. This refrain has been repeated often by the U.S. Supreme Court. Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904) is an early case on the right of a state government to restrict access to the ballot. In Pope, the Court held that a state may validly require that voters in elections be residents of the state, and may require persons to file declarations of their intent to become citizens and residents of the state before enrolling them to vote. The Pope Court went on to say, 14  [T]he privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as it may deem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution. Id., 24 S.Ct. at 575 (Italics supplied). In Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the Court, addressing a durational residency requirement, again emphasized the requirement that voter qualifications be equally applied. An appropriately defined and uniformly applied requirement of bona fide residents may be necessary to preserve the basic conception of political community, and therefore could withstand close constitutional scrutiny. Id., 92 S.Ct. at 1004. Restrictions on the fundamental right to vote are subject to varying levels of review. In most cases, the Supreme Court has held that, In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). See also, Kramer v. Union Free School District, 395 U.S. 6212, 626, 89 S.C.t 1886, 1889, 23 L.Ed.2d 583 (1969). This has led the Court to apply the strict scrutiny - compelling state interest test in a number of cases. See Dunn, supra, 405 U.S. at 337, 992 S.Ct. at 1000; Cornman, supra, 398 U.S. at 422, 90 S.Ct. at 1755; Kramer, supra, 395 U.S. at 627, 89 S.Ct. at 1889-1990; Williams, supra, 393 U.S. at 31, 89 S.Ct. at 11. Yet, at the same time, at other times the Court has employed a balancing test that appears somewhat softer than strict scrutiny. The right to vote is a fundamental right and restrictions on it are subject to “strict scrutiny” but in this context “strict scrutiny” means only that judges must independently review the voting regulation or restriction. If the restriction is in fact related to important or overriding state interests, the Court will sustain that regulation or restriction. Rotunda and Nowak, "3 Treatise on Constitutional Law: Substance and Procedure," 2d Ed., §18.31 15 at p. 390 (1992). As stated by the United States District Court in Vargas v. Calabrese, 634 F.Supp. 910 (D.N.J. 1986), Balancing must take place and weighing the interests of the state and preventing fraudulent voting through procedures for checking for qualifications and the individual right to vote. However, there is no “litmus-paper test” the courts can apply passing upon the constitutionality of state election laws. Storer v. Brown, 415 U.S. at 730, 94 S.Ct. at 1279. Instead courts must engage in an analytical process, applying the standard most recently set forth in Anderson v. Celebrezze, 460 U.S. 780,103 S.Ct. 1564, 75 L.Ed.2d 547 (1982). [A court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justification for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights. Only after weighing all these factors is the reviewing court in position to determine whether the challenged provision is unconstitutional. Id., at 928, quoting from Anderson v. Celebrezze, supra, 460 U.S. at 789, 103 S.Ct. at 1570. The right to vote in a Commonwealth election is a fundamental right of citizenship and restrictions placed on that right are protected by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and by Article I, Section 6 of the Commonwealth Constitution. In decision after decision, this court has made clear that citizens have a constitutionally protected right to participate in elections on equal basis with other citizens in the jurisdiction. [Citations omitted]. This “equal right to vote,” [citation omitted] is not absolute; the States have the power to impose voter qualifications, and regulate access to the franchise in other ways. [Citations omitted]. But, as a general matter, “before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.” Dunn, supra, 405 U.S. at 336, 92 S.Ct. at 1000, quoting from Cornman, supra, 398 U.S. at 422, and 426, 90 S.Ct. at 1755, and 1756. In 1972 the Dunn Court went on to say, [I]t is certai