A BILL submitted by Gov. Eddie Calvo to the Legislature that replaces Sen. Dennis Rodriguez Jr.’s Bill 413 drew heated debate yesterday between Calvo’s Director of Policy Arthur Clark and Sen. Rory Respicio, who submitted Calvo’s Bill 449 as the Committee on Rules chairman.

Respicio began by debunking the governor’s earlier statements that Bill 449 was a “mirror image” of Bill 413. Last month, the Governor’s Office issued a press release after the transmittal of the governor’s measure to the Legislature, saying everything in the original measure was left virtually intact with the exception of a provision in the bill that seeks to conduct an audit of the 2010 general election.

“The governor makes an extremely misleading claim that his bill is a mirror image,” Respicio said, adding that contrary to Calvo’s statement that a provision for an audit “was left in the bill,” in reviewing the governor’s version, he found no language authorizing an audit in the “Audit Report” section.

“Just because the word ‘audit’ is included, it doesn’t mean that the language to provide for an audit was left in,” Respicio said.

Guam Election Commission member Chris Carillo testified in support of an audit of the 2010 elections, saying this will allow the GEC, moving forward, to understand where errors were made to be able to correct them. Carillo said regardless of the results of an audit, the audit will be non-binding and will not affect the outcome of the 2010 election results.

Mischievous

In a statement answering allegations that the audit provision in the bill is “mischievous,” Respicio said: “He’s wrong. Counting all valid votes is not mischief; counting all valid votes is how you ensure that you have free and fair elections.”

However, Clark disagreed with Carillo and with Respicio. He said that while statements are made in the press that the audit provision will be non-binding, this was just intended to appease the public, and the proposed legislation that was proffered by the Legislature makes no mention of an audit as non-binding.

“I don’t see where that exists in either section 7117 or 7118. If we look at the language that was used in 7118, the idea was to ‘count.’ When you’re dealing with an election, Mr. Chairman, the word ‘count’ has a legal significance,” Clark explained. “Generally, a count relative to an election is a count of the votes with the intent to have them accumulated to make a determination as to the election result.”

That provision coupled with another provision under section 12114, Clark said, spells disaster. Under the latter section, GEC is given an “open-ended authority” to decertify any election result at any time.

“So in essence what we’re talking about is, in my opinion, a clear attempt to try and reopen the 2010 election results on the basis of a standard as lucidly worded, based on the investigation – not just 2010. Again, there’s no timeline. There’s nothing to prevent the election commission from going back and decertifying the 2006 or the 1998 election,” Clark argued. “You’re creating mischief. And I believe that was the intent.”

Respicio then argued that Clark’s concern is moot.

Under the Organic Act, if the election commission decertifies the results of the 2010 election following an audit, a runoff election is held. In the event the incumbent governor loses the runoff election, the certified winner of the runoff election will serve the remainder of the term, Respicio said.

Based on this rule, Respicio said no remedy exists for the 1998 or 2006 elections because those terms have lapsed.

Non-binding

“If the governor wants to include the words ‘non-binding’ in the bill, I’m open to doing that,” Respicio said. “It’s a simple exercise to reaffirm the current incumbent to receive the 50 percent plus one.”

Clark then ridiculed the Legislature for attempting to use the legislative body to modify the results of an election.

“When you talk about the mischiefs of the bill, it basically creates a situation where you’re never guaranteed the final result because that target just keeps moving every time you don’t like the result. Every time you have an opportunity to do that as a Legislature, that’s just not right. It’s undemocratic,” Clark lamented. “What other democratic state or country in the world [allows] you to go back a year and a half after an election was done. ... I’m sorry, but I venture to say that if a law like that were to pass – you go back and change the deadline – Guam would be a laughing stock in the democratic world and might even be accused of being a banana republic where a legislation gets to modify the results of an election.”