By Gene Park
Pacific Sunday News 09 October 2004
Hanging chads were nowhere to be found during yesterday's trial over a second Tamuning vice-mayoral recount, but some questions on ballot accountability have been left hanging.
There were write-in votes for candidates Joshua Mafnas and Louise Rivera; however, Guam Election Commission officials do not know how many there are because the ballots were considered invalid because of cross-over voting.
There's also a discrepancy in the number of ballots received by the electronic voting machines, which were introduced to Guam in last month's primary election.
Tamuning vice mayoral candidates Joshua Mafnas and Louise Rivera appeared before Judge Alberto Lamorena for an all-day trial at the Superior Court of Guam yesterday.
The race was initially a tie between Republicans Mafnas and Rivera at 459 votes each. A recount ordered by the Election Commission showed a 12-vote discrepancy in the election-night results. After a recount, Rivera had 455 votes and Mafnas had 451, and the commission certified Rivera as the winner. Mafnas has sued Rivera and is asking the court to intervene and count the ballots again.
Most of the morning was spent recalling the recount process, where Mafnas testified that many of his tallies were not consistent with what the Election Commission representatives were counting.
But commission Executive Director Gerald Taitano and program coordinator Stephanie Chargualaf both said the process was fair, and each ballot was clearly shown to all representatives who were present during the recount, including Rivera and Mafnas.
Arriola argued that there were only two GEC employees counting the votes, one for each candidate.
"They couldn't cross-check each other to verify if their numbers were right," Arriola said.
There were also discrepancies with the employee counting votes for Rivera. The employee's first count for the first Tamuning precinct was 94, yet both Taitano and Chargualaf counted 89 marks on the tally in court yesterday.
"The recount system itself was flawed," Arriola said. "If (Rivera) lost those five votes, (Mafnas) wins by one."
What came as a surprise to Taitano was when he noticed a difference on the electronic voting machine printout results and the number of ballots cast through the new machines.
On the final printout, 110 ballots were cast; however, the IVotronic count showed 107 ballots were cast.
"I'm looking at the names of the people who signed off on this," Taitano said. "Maybe we need to train them some more."
The judge also asked for an audit trail for the electronic votes, which Taitano said were unavailable at the time.
It also was confirmed that Joshua Mafnas' name was cast as a write-in vote on the Democratic ballot, which would be considered crossing over on the ballot. According to the law, voting Democratic on a Republican ballot, or vice versa, invalidates a vote.
However, neither Taitano nor Chargualaf knew how many write-in votes there were, and those ballots remain sealed and were not rechecked during the recount.
"On the primary election night, two people reviewed more than 2,700 invalid ballots," Arriola said. "If there was human error that night, that error should be recounted."
Rivera's attorney, Michael Berman, and the commission's legal counsel, Cesar Cabot, both said the law clearly states that crossover votes are invalidated and may not be counted.
"All it takes is one crossover vote to invalidate the entire ballot," Cabot said.
Berman in his closing arguments said there was no significant evidence or testimony that displayed that there was any wrongdoing during the recount. Berman said Mafnas could have brought his tally sheet to prove that his tallies were different from the commission's count, but the evidence was not presented to the court.
"The entire case is not substantial," Berman said. "Public policy must tilt in favor in keeping this election to one recount."
Arriola, in closing statement, maintained that the discrepancies demand a recount to account for every ballot cast for the seat.
"Yes, it may take five hours, but what is the cost of a vote? Does it matter?" Arriola asked. "We've learned in this election that it does."
Lamorena said he expects to make a decision by 4 p.m. tomorrow on whether a second recount should be held.