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Guam Election Commission Seeks Clarity Over 2010 Audit
Legislation doesn’t require full recount, attorney says

By Cameron Miculka

HAGTA, Guam (Pacific Daily News, Jan. 7, 2013) – Although the Guam Election Commission is making progress on its obligation to audit the 2010 General Election, legal questions remain as to how far the commission can go to determine the election's legitimacy.

Last month, the Legislature passed an election reform bill, overriding a veto by Gov. Eddie Calvo. The bill makes several changes to Guam's election code. In addition, it has several provisions that require the GEC to review the 2012 General Election. The provisions were in reaction to claims made in 2010 -- mostly by the Democratic Party -- that alleged illegal voting and ballot-box tampering occurred.

In order to make that determination, the commission is now required to perform an audit of the election's vote totals.

There's just one problem -- nobody seemed to know what "audit" actually means and the Legislature didn't define what it was looking for in the law.

As a result, the Election Commission couldn't make a determination as to whether "audit" meant to recount the entire election, a portion of the cast ballots or something else entirely.

Legal questions

In order to rectify the issue, the commission asked GEC counsel Jeffrey Cook to write a legal opinion regarding the definition of an audit. Cook's statement ultimately concluded the commission isn't required to recount all ballots cast.

"(The law) does not call for a recount of all of the ballots in the 2010 General Election," wrote Cook. "If the Guam Legislature wanted there to be a review of all the ballots, it would have stated so."

Cook recommended recounting a portion of the votes, 5 percent of all precincts, for example, and comparing those results to the results from 2010. This, he said, could give a reasonable idea of whether the vote count in 2010 was legitimate.

Chris Carillo, one of the commission's Democrats, said he would like to include two specific precincts -- Precincts 15B and 15C in Barrigada -- as those were named specifically in the bill's legislative findings that had "the appearance of fraud," according to the law.

However, before the commission could vote on recounting ballots, a second legal question was raised.

"Is it lawful to go into these ballots and hand tabulate them?" asked Johnny P. Taitano, a Republican member of the GEC.

Under Guam law, once an election is certified, ballots can't be reviewed "except upon a recount or audit as provided in this chapter."

Cook explained that means the law only provides for a re-examination of the ballots under special circumstances, such as a recount.

The question, though, is whether this qualifies as a special circumstance, or if the Legislature has made a specific exception for this audit.

No changes

Cook said even if the audit did prove fraud took place, the Election Commission couldn't retroactively change results.

The main concern of an audit, he said, is to determine that procedures are being followed properly and, if not, that changes are made going into the future.

Timeline

By law, the commission has only 45 days from the date of the bill's passage to finish the audit.

However, Cook said there aren't any clear-cut penalties or consequences stemming from the commission's failure to audit the election in the time given.

He wrote in his opinion that the commission is only required to move forward with the audit and complete it in "as timely a manner as it can subject to staffing and budgetary constraints."

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