• By Mar-Vic Cagurangan

AG: Scrapping of Aug. 29 primary 'not without consequence'

Moylan says last-minute action wasted early votes

At the risk of facing a potential lawsuit, Guam senators voted 11-4 Thursday to cancel the Aug. 29 primary election amid the widespread Covid-19 infections on Guam.

During an emergency session, lawmakers rushed to pass Speaker Tina Muna Barnes’ Bill 391-35, backpedaling on an earlier vote rejecting the same proposal six weeks ago.

Attorney General Leevin Camacho, however, warned that the decision to scrap the primary — which had a precedent in the past— “would not be one without consequence.”

While doing away with the primary is a legislative prerogative, Camacho underscored the complexity of the current situation that involves 2,200 votes that have already been cast by virtue of a recently enacted early-voting law.

“What is clear is that a slate of candidates has been selected, ballots have been printed, and over 2,200 voters have chosen their candidates and submitted their ballots to the (Guam Election Commission). Therefore, the 2020 primary election has begun,” Camacho stated in a legal opinion issued upon Sen. Kelly Marsh Taitano’s request.

Camacho said it is up to the legislature to determine “how the submitted ballots must be handled.”

The attorney general cited a precedent in 2006, involving the cancellation of the Republican Party’s primary which had only 13 senatorial candidates seeking to fill 15 spots.

Although all Republican candidates advanced to the general election, the primary’s cancellation still entailed a lawsuit against the government.

In upholding GEC's decision to cancel the Republican primary, the Supreme Court of Guam held that it “was justified by the legitimate interests of the government.”

“We do not know what the court’s analysis will look like for any of these, or other scenarios. We are willing to posit, however, that cancellation of a primary election is not a per se violation of the Constitution,” Camacho said.

In the current scenario, Camacho said, the government is compelled to cancel the voting process “to protect the public health and safety of the community and of election workers and to avoid the pitfalls of conducting an operation without the proper resources required to ensure a timely, fair and safe election.”

Guam currently has more than 1,200 Covid-19 cases including 10 deaths.

“Though it is not the role of this office to weigh in on the wisdom of canceling, postponing or moving forward with the primary election as currently scheduled, we understand the weight and gravity of this policy decision and hope this opinion helps move the discussion forward,” Camacho said.

However, the attorney general said, “The potential harm caused by a cancellation is dependent on whether all candidates advance to the general election and also on the role of the person bringing the challenge.”

The cancellation of primary election was first proposed by Sen. James Moylan and Sen. Therese Terlaje, co-authors of Bill 375-35, which failed on an 11-4 vote during a session six weeks ago.

"The reasons that were on the table at the time included statements such as the unfairness toward certain candidates as well as concerns with 'changing the rules' for an election contest. What we did not hear were apprehensions associated with this pandemic," said Moylan, who voted in favor of Bill 391-35.

"Interestingly, the reasons behind the passage of the measure were related to healthcare worries associated with the pandemic. My concern however is that the difference between my Bill 375-35 and the current Bill 391-35 is that since the day my measure failed, over 2,500 island residents took the time to early vote at the GEC office or were homebound voters," Moylan said.

Moylan said his initial intention was to propose the postponement of the primary election to Sept. 12.

However, he said, "we learned today that due to federal timelines and technicalities, this was not possible." As a result, Moylan added, early votes that have been cast will now be "thrown out the window."

"It was unfortunate that this issue was not addressed in July when we had the opportunity to do what was right. This last-minute, reactionary decision is an injustice to those who took the time to vote since early voting started, as well as those who were seeking to run write-in campaigns," Moylan said. "It is an action that this legislature could have avoided if they placed politics aside last month and voted using the foresight of what many saw coming."

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"The Guam Election Commission put partisanship aside and unanimously called for the cancellation of the Primary. Today a bipartisan group of legislators answers that call and we appreciate their work," said Sarah Thomas-Nededog, chair of Guam Democratic Party. "Now we begin the task of preparing to make the general election safe for Guam. That work will demand sacrifice but we have proven together we can overcome anything."

"I commend Speaker Muna-Barnes leadership for garnering the support of 11 of her colleagues. All of whom deliberated and acted swiftly to ensure the safety of our voters while protecting the democratic process. I'm confident Gov. Leon Guerrero will endorse this call to protect our people in her continued response to this pandemic. Let's move forward, together," Thomas-Nededog said.

Senators approved Minority Leader Telo Taitague’s amendment striking out the mail-in voting provision from Bill 391.

Senators approved Minority Leader Telo Taitague’s amendment striking out the mail-in voting provision from Bill 391.

Section 3 authorizes registered voters to request the GEC to mail official ballot materials for the 2020 general election. The section also requires the GEC to establish rules and regulations by Sept. 20 – for the administration of mail-in voting.

“Considering the announcement today of Guam’s 10th Covid related fatality, it’s obvious the GEC and DPHSS don’t have a system in place for us to move forward with the primary election this Saturday or two weeks from now," Taitague said.

"Although I was one of the 2,000 plus voters who voted early in the 2020 primary election, I respect the decision my colleagues and I made today based on the information provided by GEC and DPHSS. At the end of the day, it’s important that we have a safe election,” Taitague said.

“While Section 3 provided language for GEC to develop rules and regulations for mail-in voting, I believe Bill 391 should focus only on cancelling the primary election and that no other provision should be added to ensure that GEC has the time and resources it needs to properly administer mail-in voting if and when such a decision is made.”

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