concurring:
¶87 I concur in the opinion of Special Judge Wiseman. I write separately to emphasize the reasons for my concurrence.
¶88 Equal Protection. Plaintiffs-appellants bring a claim for violation of their constitutional equal protection rights for defendants’ unlawful denial of their right to vote. The Superior Court has previously determined that their right to vote was wrongfully denied. Taitano v. Mundo, Civil Action No. 95-1082(B) (NMI Super. Ct. April 11,1996).
¶89 The members of the Board of Elections cannot discriminate in the election process. In the instant case, the record disclosed facts of differential treatment of challenges made by Republicans from those made by Democrats, with the differential treatment justified by only a pretext.
¶90 Fundamental rights, such as voting are entitled to strong protection. There have been numerous challenges in the CNMI throughout the years to voter eligibility and *205election results based on voter eligibility. The Court has previously criticized the procedures used by the Board of Elections in handling voter challenges, but has allowed prior procedures to stand as long as they met minimal due process standards. The Court has also allowed the Board ample time to promulgate and adopt better procedures for voter challenges.
¶91 The Board of Elections, however, has not taken the opportunities afforded from all prior litigation over the past decade to publish draft regulations, hold hearings, solicit comments, follow sound legal advice, or promulgate official regulations, satisfying due process and equal protection for handling challenges to voter’s eligibility. The Board knew of the problems and didn’t adopt constitutionally firm regulations.
¶92 In the instant case the Board devised, and at the last minute, applied an unpublished, ad hoc new procedure. The procedure that was concocted patently treated challenges by the Republican Party differently than those by the Democratic Party. The manner of giving notice of the challenge “hearings” and the hearing “decisions” that persons could not vote, the abrupt “reversal” that they could cast a vote subject to later adjudication and the notice of such reversal after the election occurred was inept and inexcusable.
¶93 The Superior Court erred in finding that the members of the Board of Elections are protected by qualified immunity, which requires that they neither knew nor should have known of the constitutional problems with their action. They knew they were guessing about what to do, guessing without having familiarized themselves with the law on the subject, and guessing without having taken steps necessary to have in place constitutionally firm regulations on how to handle voter challenges. They also knew or should have known that denial of the vote to qualified citizens is a denial of equal protection of the laws.
¶94 There is no allegation that the Board members harbored personal malice toward the voters whose qualifications they rejected. Such malice is not required. The Board members were sufficiently derelict in their duties that a claim for their personal liability may go forward.
¶95 Intentional Infliction of Emotional Distress. Each plaintiff suffered from the same intentional denial of their rights to vote. Being individuals, however, they did not suffer in the same way. The claim for violation of their constitutional rights is aimed at protecting their rights and the focus is on the actions that violated those rights; the claim for intentional infliction of emotional distress is aimed at allowing recovery for damages suffered and much of the focus is on the effect and impact suffered.
¶96 The suffering of plaintiff-appellant Aldan meets the threshold test of severity so that the claim can be adjudicated at trial. The others, who also suffered, were perhaps more resilient and the evidence presented did not meet the threshold level of severity needed to go forward on their claim.