Article published Dec 13, 2006

Justices confirm Primary results
High court also rules electronic voting legal

By Steve Limtiaco
Pacific Daily News

Election challengers failed to show that problems during the Sept. 2 Primary Election affected the outcome of the election, according to Supreme Court of Guam justices, who yesterday confirmed the election results.

Democratic legislative candidates Trini Torres and Robert Benavente and voters James T. McDonald, Frank D. Cruz and Peter A. San Nicolas challenged the conduct of the Primary Election, alleging that the Guam Election Commission broke federal and local laws. They asked for a new Primary Election, which also would have resulted in a new General Election.

Superior Court of Guam Judge Arthur Barcinas ruled against them on Nov. 4, finding that the alleged problems would not have affected the outcome of the election, but the challengers appealed to the Supreme Court of Guam.

The opinion released yesterday states, "We hold that the trial court properly concluded ... that any errors did not affect the outcome of the election, and for this reason, summary judgment in favor of the commission was proper."

However, justices disagreed with Barcinas' ruling that it was illegal to use electronic voting machines during the election. They said the law that required the commission to first adopt rules and regulations for electronic machines is "directory in nature," so violating that law does not require electronic votes to be voided or discounted. They restored the electronic ballots that Barcinas had removed.

Challengers had argued that it was improper for the Election Commission to cancel the Primary Election for Republican legislative candidates because those candidates were allowed to advance to the General Election without getting a single vote.

The Republican legislative primary was canceled because there were only 13 candidates for 15 General Election ballot spots.

Justices yesterday said the local law that requires the cancellation of a party primary is constitutional.

"I'm disappointed," said attorney Curtis Van de Veld, who represented challengers during the past few months. "I think we pointed out some very significant errors in the conduct of the election." He said justices did their job, and he believes this will be the final word on the matter.

'Complete win'

Election Commission attorney Cesar Cabot described the Supreme Court's opinion as a "complete win" for the commission.

"It's basically an across-the-board win for the Guam Election Commission, and we feel in a sense that the GEC has been vindicated," he said. "I'm glad that the Supreme Court really looked at it in depth. Hopefully they can put an end to this hype and hysteria that's been surrounding our elections."

Cabot said the commission also is pleased that justices found electronic voting to be legal. "That's something that we believed all along, and it's great to have confirmation by the Supreme Court."

Democratic candidate Torres yesterday questioned how it is possible to determine the election results in light of all the irregularities and violations of law.

"We talk about protecting our democracy and ensuring that our democratic right is protected. Our right to vote for who to represent us and who to govern us has been really suppressed," she said. "If it's in another country, you know there would have been a revolution over this kind of thing. I'm sorry to say the justices did not stand up to their position."

'Hype and hysteria'

Torres said she is happy local lawmakers have stopped the future use of electronic voting machines until their accuracy has been proven. She said she also hopes an election reform bill introduced by Sen. Robert Klitzkie, R-Yigo, becomes law.

"We're not the only ones who are really concerned about the integrity of our election process. It's everybody, including our lawmakers," she said. "Somebody should be held accountable, and the Election Commission should be held accountable."

Commission attorney Cabot yesterday acknowledged there were problems with the Primary Election.

"We've conceded that all along. But there's been such hype and hysteria," he said. "The truth has been twisted and tormented. If you read Judge Barcinas' 27-page decision, at the very end he says that the errors were minimal and technical violations of statute that did not change the results of the election. That's exactly what we've been saying all along."

Although justices rejected the challenge by voters and candidates, another challenge to the Primary Election is pending.

Not over

Deputy Attorney General Joseph Guthrie said the Attorney General's Office will move forward with its separate election challenge.

The Attorney General's Office has accused the Election Commission of violating the open government law when conducting that election.

Judge Arthur Barcinas in October rejected the complaint after finding the attorney general's office does not have legal standing to bring the case.

Guthrie said he was awaiting the outcome of the other election challenge to determine whether it would be necessary to proceed with his challenge.

Attorney General Douglas Moylan, who was defeated during the Primary Election, has recused himself from the case.

Guthrie said briefs could be filed with the Supreme Court of Guam as early as next Monday.

At issue were Election Commission meetings on July 12 and July 13, when the ballots were approved and ballot order was chosen, and in September, when the commission voted to certify the winning candidates from the Primary Election.

"What we're really interested in is upholding the open government law," Guthrie said.




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