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SAN FRANCISCO, USA (March 10, 1999 - Pacific Daily News)---With the governorship of Guam at stake, lawyers for the Democratic incumbent and Republican challenger argued before a federal appeals court Monday over whether blank ballots should force the Democrat into a runoff.

The issue before the 9th U.S. Circuit Court of Appeals is whether Governor Carl Gutierrez’s 3,050-vote margin over former Governor Joseph Ada last November was enough for a majority that would win Gutierrez a second term without a runoff.

That depends on whether the vote total includes about 1,300 ballots in which the governor’s race was left blank. If so, Gutierrez would fall short of a majority of the votes cast and would face a runoff with Ada, who was the only other candidate on the November ballot.

"A blank vote can not be a ‘cast vote.’ Seth Hufstedler, lawyer for Gutierrez and running mate Lt. Governor Madeleine Bordallo, told the three-judge panel, "When you put a blank ballot, you have not made a choice."

All voters who cast ballots for any race must be counted, even if they did not vote for governor, countered Dennis Riordian, lawyer for Ada and Republican running mate Senator Felix Camacho. He said there was little difference between leaving one race blank as a protest and voting for a write-in, which is counted in the total.

"If someone expresses an opinion about the gubernatorial race by showing up and getting a ballot, we believe that qualifies them," Riordan said.

Gutierrez was declared the winner of the November 3 election by the Guam Election Commission, which refused to count the blank ballots as "votes cast." U.S. District Judge John Unpingco disagreed and ordered a December 19 runoff, which has been blocked by the appeals court while it considers the case.

The ruling is unlikely to affect U.S. state elections, which are governed by state laws. A past ruling in another circuit involved a somewhat similar election dispute in another U.S. territory, the Virgin Islands.

Gutierrez, still serving as governor, was among the spectators in the 45-minute hearing. The panel did not say when it would rule, but there were some indications of the judges’ views.

Judge John Noonan pressed Hufstedler about a section of the law that requires a candidate to receive a majority of the votes cast "in any election" to win outright. He said it would be hard for the Democrat’s lawyer to prove that the language did not include voters who left the governor’s race blank.

Riordan encountered tough questioning from Judge A. Wallace Tashima, who said the Republican’s lawyer was trying to rewrite the law so that it referred to "ballots cast" instead of "votes cast."

Tashima also asked why the court should interpret the law in a way that would require a new election. "What sense does it make to have a runoff when there are only two candidates to start with?" he asked.

"Because Congress (which wrote the election law) absolutely compelled the results, as silly as it might appear to some," Riordan replied.

The third panel member is Judge Jane Restani of the U.S. Court of International Trade, a visiting judge from New York.

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