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By Steve Limtiaco

HAGATNA, Guam (Pacific Daily News, Dec. 1) – Supreme Court of Guam Chief Justice F. Philip Carbullido yesterday asked whether the Organic Act's election process for governor should be a moving target that is subject to the whim of the Guam Legislature.

The Guam Election Commission followed a local law passed in 2000 when it excluded "over-votes" cast for governor and certified Gov. Felix Camacho as the winner of the November 7 General Election.

Justices are deciding whether a runoff election should be held for the governor's race, and they heard oral arguments yesterday morning on the petition filed by the Democratic gubernatorial team of Robert Underwood and Sen. Frank Aguon Jr.

The panel included Carbullido and Justices pro-tem Richard Benson and J. Bradley Klemm.

At issue is whether or not to include "over-votes," which are ballots where more than one choice was marked for governor, when determining whether Camacho got a majority of the votes cast, as required by the Organic Act.

Underwood has asked justices to include more than 500 over-votes cast for governor, as has been the practice in past elections. If they were included, Camacho would not have a majority of the votes cast, requiring a runoff election with Underwood.

Camacho attorney David Mair yesterday told justices it is common for local lawmakers to define federal laws that are unclear, and most states have laws that exclude "over-votes."

He said the Guam Legislature is allowed to do the same, provided it does not violate other constitutional provisions, such as excluding women and minorities from voting.

"When Congress has enacted a statute that does not have clear and definite meaning, that meaning can be given to that statute by local legislation," Mair said. "The term 'votes cast' is not a term defined in the Organic Act. It has to be defined somewhere, and as a general rule these things are defined by local legislation."

Underwood attorney Mike Phillips disputed a written argument by Mair that the General Election ballot warned voters in several places that "over-votes" would not be counted, and he also disputed the argument that the Guam Legislature had the authority to exclude "over-votes."

Ballot instructions cannot change the law or take away constitutional rights, Phillips said, and, "The Guam Election Commission cannot change the law, and the Guam Legislature cannot change the Organic Act."

Phillips told justices the plain meaning of the Organic Act provision that requires a majority of the votes cast means a majority of "all" votes cast.

He said those who voted for governor but marked too many boxes for governor should be credited for voting.

"We're talking about people who participated ... They didn't watch that ball go by -- they went down swinging -- and, granted, they may have made an error," Phillips said. "But in order to rule against us on this issue, you have to find it's proper to penalize those people."

Mair and Phillips both argued that federal court decisions related to the 1998 election challenge between Republican candidate Joseph Ada and Democratic Gov. Carl Gutierrez support their respective positions.

Mair argued that Underwood's attorneys were able to find only three cases to support their argument: a 9th Circuit case that he said was completely overturned; a Mississippi case from the 1890's that hasn't been cited in 70 years; and a Louisiana case that he said actually hurts Underwood's position.

"You should not allow 500 people who do not follow instructions, and who really don't ... make a preference who they want, to invalidate the ballots of 39,000 who voted properly," Mair said. "That's just not good public policy... Common sense and logic say that you look at the legally valid votes where a citizen evidences his preference for a candidate. You add those up and you see who has a majority."

Justices are considering the matter, and it is not known when they will issue their written opinion.

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