Gutierrez v. Ada - Oral Argument

Argument of Seth M. Hufstedler

Chief Justice Rehnquist: We'll hear argument next in No. 99-51, Carl C. Gutierrez, Bordello... Bordallo... pardon me... v. Ada/ Camacho.

Spectators are admonished.

Do not talk until you get out of the courtroom.

We've still got a Court going here.

Wait till you get outside to talk.

Mr. Hufstedler.

Mr. Hufstedler: Mr. Chief Justice... excuse me... and may it please the Court:

The issue before us this morning is whether Guam has already elected its current Governor or whether there must be a runoff election, and that depends, as you well know, on whether a majority is determined by counting the votes which have been cast in the gubernatorial race or whether, according to the respondents in the Ninth Circuit, we should could all of the ballots which were, in fact, issued in the general election, along at the same time, and then determine whether or not there was a majority.

The net result of going along with what the Ninth Circuit has decided and what the respondents contend is that there are three suspect categories of votes which would be included in determining what constitutes a majority that were not votes cast in the gubernatorial race for one candidate.

The first was 1,313 ballots on which there was no vote for the Governor at all.

The second was 609 ballots which were invalid because the voter voted for both slates, contrary to the statutes of Guam, and it was impossible to determine their choice.

And then there was a third category of 1,019 votes on which the voter checked the box saying that the voter wanted to vote for a write-in candidate, but then didn't write in a candidate.

So, another 1,000 ballots which were, in effect... in effect, blank ballots in... in the race for Governor.

But on those ballots presumably... the record doesn't show... but presumably people turned in ballots on which they had voted in other races, but not the gubernatorial race at all.

The net result of all of those votes was that the Gutierrez slate received some 24,250 votes and the Ada slate received 21,200.

So, there was a...

Chief Justice Rehnquist: Where can we find the statute in the materials before us, Mr. Hufstedler?

Mr. Hufstedler: The... the governing statute 1422?

Chief Justice Rehnquist: Yes.

Mr. Hufstedler: That's in... the statute is quoted in the blue brief, in the initial brief, on the statutes involved, and it's also quoted in the initial argument.

Chief Justice Rehnquist: Thank you.

Mr. Hufstedler: The statute is first shown on page 2, Your Honor.

Chief Justice Rehnquist: Thank you.

Mr. Hufstedler: And that's the one in the opening brief and that governs it.

So, the net result is there was something like a 3,000 vote margin, which is really quite a comfortable margin in many elections which are so close these days.

Here, if the Ninth Circuit and the respondents are correct, the result is going to change in determining a... it will change in this case, but can change in any case depending upon how enthusiastic many people are about coming in and voting for the school board members, grass roots kind of campaigns which will bring in a lot of people, or the legislature.

And if that brings in a lot of people to vote in those two races, then the... the barrier becomes much higher as to how many votes somebody has to get to be elected Governor.

And that's a nonsensical kind of proposition.

Justice Kennedy: And I take it you'd then have to have a... a second election under the Ninth Circuit's view even though only two people were running in the first place and it'd be among the same two people.

Mr. Hufstedler: Absolutely and specifically, that's exactly what they said, Justice Kennedy.

Justice O'Connor: Mr. Hufstedler, as a preliminary matter, would you clarify for us the status of some case pending now before the Guam Supreme Court that affects this case?

Mr. Hufstedler: Be happy to, Your Honor.

That case was set, as I think the footnote indicates... had been set to be argued last week, or at least the last week of November, and that was continued over to the next session, which presumably will be in February in Guam, awaiting apparently the decision of this Court.

Justice O'Connor: And what... what are the issues before the court there?

Mr. Hufstedler: Two... two basic sets of issues.

The first issue is precisely this issue, and the court... trial court in Guam decided, contrary to the Ninth Circuit, that you looked at the votes cast in the gubernatorial election.

The second set of issues were a bunch of issues related to claimed fraud in connection with the election.

And that took many days of trial, and with very extensive opinion by the trial judge, the trial judge found no proof whatsoever of any kind of misconduct.

And those are the issues on appeal in the Supreme Court in Guam.

Now, there's nothing in this statute at all to suggest that the determination of the... of the majority should depend upon what happens in some other elections.

You all recall well that this argument is based primarily on an assertion by the Ninth Circuit and now by the respondents that if the phrase, in any election, really means in any gubernatorial election, then it's... it's duplicitous.

Surplus was the word.

They used the word twice.

Surplus and nullity.

And therefore, the interesting proposition is that sub silentio the respondent in the Ninth Circuit concedes that if the phrase, in any election, was not in that statute, the statute means in any gubernatorial election.

It can't be surplus unless the statute already says that.

Then the statute says, in any election.

And they say, well, that means any gubernatorial election.

The statute already means that and it can't mean that, and so we have to throw all of this out, even though it said it twice, and go find some different kind of election that's going to determine this.

And they determined now, as you know, that it was the specific general election in which the gubernatorial... of which the gubernatorial election was a part.

It was that election.

Justice Ginsburg: But, Mr. Hufstedler, even if we agreed that in any election means in any gubernatorial election, why shouldn't the people who didn't vote for Governor be counted the same way as someone who voted for Donald Duck for Governor?

In other words, why shouldn't they be counted as people who said neither of the above, no one for Governor?

Mr. Hufstedler: The first proposition I think, Your Honor, is that there is no authority whatsoever for the proposition that a non-vote is something that should be counted in an election.

I find no authority anyplace.

There's none in any brief.

There's none in any opinion.

It's true that you can argue that...

Justice Scalia: The terms is votes cast.

I guess that... that would be the critical term, whether...

Mr. Hufstedler: Precisely.

Justice Scalia: whether if you vote for nobody, as opposed to voting for Donald Duck, you have cast a vote.

Mr. Hufstedler: That's precisely correct, Justice Scalia.

The term vote cast is used several times in the statute.

There's never any mention of the word ballot in the statute.

Chief Justice Rehnquist: It would... your case is stronger, is it not, by virtue of the use of the word votes rather than ballots?

Mr. Hufstedler: I think it clearly is.

I would certainly insist so, Mr. Chief Justice.

And of course, as I said, there's no place where they talk about ballots, only about votes cast.

But with respect to the question that Justice Ginsburg asked about voting for Donald Duck, I'd call to your attention the... the opinion of this Court in 1997, the Foster case, in which the Court was obligated to define what an election is.

It involved a Louisiana primary and the question was whether the Federal statutes fixing a date had fixed it so that you couldn't have a, quote, election really prior to that in the primary that determined the result.

And here's what Justice Souter said in that case, quoting from page 71.

When the Federal statutes speak of, quote, the election, unquote, of a Senator or Representative, they plainly referred to the continued actions of the voters and the officials meant to make a final selection of an officeholder.

Now, that's a key question.

We're... when we say election, we're talking about a single election in a contest to determine who is going to be that officeholder.

It isn't... we're not talking about a general election someplace.

We're talking about that specific election.

And then it goes on to say... well, I think it doesn't add further.

It quotes the American Dictionary defining election as, quote, the act of choosing a person to fill an office.

And that's entirely correct.

Justice O'Connor: Mr. Hufstedler, I guess the Ninth Circuit was persuaded by what it read into the words, in any election...

Mr. Hufstedler: Absolutely.

Justice O'Connor: that phrase in section 1422.

Mr. Hufstedler: Absolutely.

Justice O'Connor: Now, if that phrase were entirely omitted from the statute, would it make any difference in your view?

I mean, or would the results still be the same?

Mr. Hufstedler: Perfectly appropriate question, and it might very well be the same.

I would certainly argue that if the phrase, in any election, weren't there, the only logical answer is that it means that you count those votes in the gubernatorial election.

And, of course, that's precisely what the Ninth Circuit assumed.

It would never be surplus if that weren't the case, but...

Justice Breyer: Well, I thought that they were... sorry.

Finish it.

I... I didn't mean to...

Mr. Hufstedler: Thank you.

But it isn't... it isn't entirely surplus.

It does add something.

What it says, and it says very clearly, is in any gubernatorial election, you will use this standard, that there must be a majority of the votes cast in that election.

And what it adds is this.

The Ninth Circuit argued that we were really looking only at a single election.

We were looking at that one election at which everything was included, and therefore that specific election was the one.

That reads out the word any.

What this says in any is, in any election, the first one in 1970, which is included in the statute, or any election quadrennially, 4 years after, in any one of those elections... there have now been eight, and presumably they will go on indefinitely.

In any one of those elections every 4 years, you apply this standard.

Now, that's not said in the statute anyplace else, and that's what this statute adds.

Therefore, it's not a nullity.

It says clearly there's something else here.

In any election refers to those future elections.

So, there's a universe of them.

Now, any requires a universe, but the argument of the Ninth Circuit ruled out any argument of a universe.

They said, we have to look at all of the ballots returned in that specific general election of which the gubernatorial election is a part.

Now, there's no universe there.

The word any is read out by the Ninth Circuit decision.

Justice Breyer: Does it mean... probably not, but I'm just... but the... imagine on a particular day we get our ballot and there are 14 different offices.

And they're thinking that any election... they're calling Governor one election; Lieutenant Governor, another election; Secretary of State, a third election, whatever.

And so, there are 14 different elections being hold on that one day, and they're thinking in any election means you look at all the ones.

You see, you look at all 14, and that's why they look to the whole ballot.

Mr. Hufstedler: Well, that would be 14 elections I think...

Justice Breyer: Yes.

And so, in any... so, it has to be a majority of them cast in any election.

Mr. Hufstedler: Sure.

Justice Breyer: So... so, we look and see how many people filled out ballots because that's the number cast in any election.

There were 14 on that day, and the total number... I don't want to be too clever about it, but I want to...

Mr. Hufstedler: I understand that.

Precisely.

But I would say nobody knows from this record.

All we know is that the total number of ballots issued were 46,666.

We don't know how many people voted for each of the people in the school board.

You know, there were a whole bunch of candidates for the school board.

We don't know how many people voted in each of the elections for the legislature.

None of that's in the record.

Never... never appeared, never argued, never made a point.

Justice Kennedy: But I...

Mr. Hufstedler: The only point was that there was a total of 46,666 ballots issued and whether people voted on them or not, they were returned, and therefore we ought to use that for a majority.

Justice Kennedy: I suppose under the respondents' theory... well, I can ask respondent... but it seemed to me that it... it could be that 1,000 people were very interested in the school board, and a different 1,000 were very interested in the water bonds.

So, you'd have to, I take it, count those people... multiply the sum of those people, to get the number of ballots cast in the election as the respondents...

Mr. Hufstedler: Precisely what happened.

Precisely what happened.

They took the total.

And... and it illustrates the point, Justice Kennedy, that how many people voted in this election depended on their enthusiasm about a whole bunch of other things.

They could have gotten involved in a grass roots campaign about who was going to be on the school board, and so they came in and voted for that race and they didn't care who was Governor.

We know 1,313 didn't care who was Governor.

Justice Kennedy: Are there any cases you've found where if... if there's fraud in one contest, Governor... for the Governor, that the... the entire ballot is thrown out for all other issues?

Mr. Hufstedler: No.

The only thing I guess I have to bear on that is there is a statute in Guam, which is in the materials, which points out that if... if a ballot is invalid because it's voted improperly, the... in that race you don't count it, but you still count the ballot for other purposes.

But I... I don't know of any case that dealt with that problem, Justice Kennedy.

So, let me go back one last shot at the question Justice Ginsburg asked me a few minutes ago because there is another case dealing with somebody who wanted to vote for Donald Duck as a write-in, and that was the Hawaii case you will remember, the Burdick case.

And here, the question was what is the vote about.

And the Court said... and I'm now at page... whatever... 436 of the U.S. Reports... the function of the election process is to winnow out and finally reject all but the chosen candidates.

Now, that's what the Foster case says.

That's what the other cases say.

We're really trying to select a candidate for the officeholder in a particular race.

Not to provide a means and giving vent to, quote, short-range political goals, pique, or personal quarrels.

In other words, if a vote for Donald Duck is intended to say, gee, I don't like anything that's going on here, the voter can go out and say that, but that's not a vote cast and that's not what the election is about.

The election is about electing a candidate, and a vote for Donald Duck doesn't do that and it doesn't constitute effectively a vote cast.

So, it seems to me that we really must come back, as Justice Scalia indicated a moment ago, to deal with the phrase what is a vote cast.

And I would like to... to deal specifically with the response that... that the respondents have come up with about that because you remember they said, which to me is quite an amazing thing, without any kind of an authority, and that is ballots and votes are fungible.

That's their word.

Fungible.

There's no difference between a ballot and a vote.

Now, I don't think that proposition has to be argued at all.

We all know what a ballot is.

We all know what a vote is.

And we all know they are very different.

And to illustrate in this case, the number of ballots returned was clearly 48,666.

The number of votes cast in that general election was over a million.

And therefore, if we count all the votes cast in that general election, that reaches the absurdity that everybody has agreed nobody could have.

It would take 500,000 votes to be a majority in a race in which the only number of votes cast was less than 50,000.

So, it can't mean that.

And clearly also, the votes cast in the gubernatorial election were 45,535.

The votes cast for the two candidate slates and the 275 votes cast for legitimate write-in candidates.

Those were the total votes cast.

And clearly there was a majority, a 53 percent majority, that the Gutierrez slate obtained.

Now, let me point out a couple things which illustrates Congress knows the difference between a vote and a ballot.

If a Congressman or a Congresswoman didn't know the difference between a ballot and a vote, I suspect they wouldn't be in Congress because they know that as well as anybody.

But let me illustrate it by looking, for example, at section 1722, which is quoted in the text.

It... the text also appears on page 19 of... of our opening brief and the preceding statute on the same subject, 1719, appears on page 18 of our brief.

But there what... this was a statute reenacted in 1998.

I'll tell you what it said before that in a moment.

But it says, the delegate... now, we're talking about delegates now, not... not the gubernatorial race because, you remember, the delegates was one of the other races that was involved in this general election.

The delegate from the Virgin Islands shall be elected at large by separate ballot by a majority of votes.

Any question that Congress knows what a ballot and a separate ballot is and what a vote is?

I mean, they're using them there in the same sentence to mean obviously different things.

Justice Scalia: Yes, but they... they did go on to say by a majority of the votes cast for the office of delegate.

Mr. Hufstedler: Well, you're quite right.

They certainly did.

Justice Scalia: That... that is one of the points against your case...

Mr. Hufstedler: Well...

Justice Scalia: that... that in this statute where they intend to limit the vote cast to those cast for that office, they say so.

Mr. Hufstedler: Yes.

Justice Scalia: And the implication is that where they don't say that, they... they don't mean to limit it to... to the votes cast for that office.

Mr. Hufstedler: And I think that's quite right.

I think that's quite right, Justice Scalia.

And they do say the votes cast for the office.

But let me go back to my point and I'll come back to this point.

They know the difference between a ballot and a vote, and to say they're fungible, it just seems to me to be an argument that can make no sense.

Justice Scalia: Yes, it does... does seem to indicate...

Mr. Hufstedler: Now, the question about this statute also saying, well, we talked about the majority of votes cast for the office of the delegate.

Sure, it says that.

But can't you draw the inference just as easily that when they're talking about counting a majority, in general they're talking about a majority of votes for that office?

They say it in one case and they don't say it in another, but they don't give you a different view either and that they... they really are looking at what the votes were in connection with that office.

Justice Breyer: Doesn't... doesn't your view, which makes sense of every word, make still the words, in any election, surplus?

Because... because if you... if you didn't have those words there in your view of the statute, the statute would obviously apply to the 1970 election, the 1974, the 19... that's what they're talking about.

Mr. Hufstedler: Well, I think... I think you're right about that, Justice Breyer, but it doesn't say it applies to all of those elections until you put in the in any election.

Justice Breyer: Did anyone doubt it?

Mr. Hufstedler: I don't doubt it.

Justice Breyer: Even without those words?

Mr. Hufstedler: I don't doubt it, that that's what it means.

But it makes it clear... and it says it clearly.

And let me go to the next step.

So, we have a statute which we all think... we thought applies directly to this question of counting the votes in the gubernatorial election, and then we have a sentence that says it's going to be in all of the elections.

And you can argue a little bit about whether that's really surplusage or not.

But is there a principle that says when you look at the context of the statute and it means X, and then you have a sentence, which is different from the rest of the statute, which also means X, that therefore the statute can't mean X, that therefore we have to go find something entirely different?

It says it twice.

It ought to mean it when it says it twice.

It isn't a question of, well, there's nothing in here about counting the votes in the general election.

But let's go back and find out what we can and, boy, let's try the general election because that's different.

There's nothing in the statute that says you use the votes in the general election, and that's something that's just... just dreamed up.

So, the fungibility argument I think will not stand, and the result is, it seems to me, that this argument falls whether you approach from the beginning or the end.

If you approach the beginnings, the words in any election are a nullity and surplus.

It seems to me that can't read whether... whether you follow the... the point that it really is a repetition or it isn't, it can't mean that you come up with an entirely different answer.

So, the nullity position won't stand.

Secondly, with regard to the question of fungibility, there's nothing in here that says you count ballots returned.

It says you count ballots... votes cast.

And therefore, if you're counting ballots... you're counting votes cast in the general election... and the court says specifically you count all the votes in the general election... then you reach the absurdity.

You have to have 500,000 votes for your majority and you don't have it.

So, the result is that you can't reach it from the back because it's not fungible and you don't get an answer anybody could accept.

And you can't reach it from the front because, whether or not it's a nullity, the statute still means this and even if it... and we think it isn't a nullity because it does add something and it says it in a different way.

I guess the last thing I would say is... and try to reserve some little time, if there is any left... that... and the statute I've given you, 1710... or 1712... it used to provide that there had to be a separate ballot in Guam and in the Virgin Islands for an election for delegate.

Then in 1998, it was changed to say that you didn't have to have a separate ballot in Guam, but not the Virgin Islands.

The Virgin Islands still has to have two ballots.

Now, if you follow what the Ninth Circuit said literally, that would be creating a whole new realm for litigation, and you'll get one for certain from the Virgin Islands next time because now you have... assume the numbers which are wrong, but assume you're dealing again about... with about 45,000 voters.

You're going to have 45,000 ballots for the delegate, and you're going to have 45,000 ballots for the other races.

So, you're going to have 90,000 ballots returned.

Now, you have 90,000 ballots returned.

The majority is 45,000, and that's all the voters you've got.

Nobody will ever win an election in the Virgin Islands if that's the rule that is applied.

If I may, I'd like to reserve the rest of my time.

Argument of Dennis P. Riordan

Chief Justice Rehnquist: Very well, Mr. Hufstedler.

Mr. Riordan, we'll hear from you.

Mr. Riordan: Mr. Chief Justice, and may it please the Court:

Respondent Ada would be the first to concede that Congress could have written a statute that required only a majority of those who voted for Governor as opposed to a majority of those who participated in the general election.

Had it intended to do so, it would have used language that it has used, as Justice Scalia recognized, in other statutes dealing with elections in Guam.

I'll return to that point in a minute.

But I want to begin, where we always must begin in cases of statutory interpretation, with the statute itself.

And I want to begin with a critical subject about which my opponent has said nothing, which is the first sentence that defines a majority.

That first sentence...

Chief Justice Rehnquist: Where... where are you?

Mr. Riordan: Your Honor, I'm at... I'm going to refer to the second sentence of the statute.

The statute can be found at page 2 of the...

Chief Justice Rehnquist: Blue brief?

Mr. Riordan: cert petition or... or of the blue brief.

And the second sentence is... of the statute is the first that deals with the question of a majority.

And it reads, the Governor of Guam, together with the Lieutenant Governor, shall be elected by a majority of... of the votes cast... and here's the critical language... by the people who are qualified to vote for members of the legislature of Guam.

Let's stop right there.

That is our first definition of majority, and it compels the question, how many people qualified to vote for members of the legislature of Guam cast votes in the November 3rd, 1998 general election?

Chief Justice Rehnquist: Well, can't that be read as just saying that if you're entitled... something like the Federal Constitution... says if you're entitled to vote for the members of the lower... of the legislature of Guam, you're entitled to vote for Governor?

I... I think you don't have to put all the weight on it that... that you're putting.

Mr. Riordan: Your Honor, Mr. Chief Justice, that is true, but it is the definition of a majority.

And we know this.

The... the number of people qualified to vote for the legislature who voted in the general election is easily ascertained.

It is 48,666.

Justice Scalia: But it just repeats the same question you have in the next sentence, that is to say, when... when it says votes cast, does it mean votes cast for this office, or does it mean votes cast in the election generally?

I mean, it's the same problem that arises in the next sentence.

I... I don't think you advanced the ball much by... by saying that the same problem comes up twice.

Mr. Riordan: Well, Your Honor, I simply... but... but my point would be this.

Congress could have resolved this question dispositively in favor of the petition... the position of petitioners by simply adding the words, in the gubernatorial election.

Justice Breyer: Yes, but doesn't it obviously mean... I mean, doesn't it cut against you, that sentence?

Because as you read it, it says the Governor shall be elected by the majority of the votes cast by the people who are qualified to vote for legislature.

Mr. Riordan: Right.

Justice Breyer: They don't mean... they couldn't mean... votes cast by all the people on the island who are qualified.

So, therefore, they must mean votes cast for Governor.

Mr. Riordan: Your... Your Honor...

Justice Breyer: I mean, isn't it somewhere between obviously meaning votes cast for Governor or meaning just what Justice Scalia said, repeating the ambiguity?

Mr. Riordan: The... the reason it is not is that... is that we agree that... that after Cass and... and there is no case in this country that, absent a very specific statutory provision, says that... that the relevant universe is... is eligible voters including those who stay at home.

But Congress made clear that it wasn't talking about eligible voters, all the eligible voters.

It was talking about the eligible voters who cast votes.

But... but had we had the term, for the office of Governor, the ambiguity would be resolved, and we do know that... that Congress has resolved this very ambiguity in two places related to this statute: one in 1422(a), which was passed on the same day

It dealt with the question of how many votes you need to recall a Governor.

And it stated that you need...

Chief Justice Rehnquist: Where... where do we find that, Mr. Riordan?

Mr. Riordan: 1422(a), Your Honor, is found at... in the beginning of the respondents' brief on the merits at page 2 I believe.

At page... in our... yes, in our... 1 and 2 of... of our statutes at issue.

And 1422(a) uses the language that, in order to recall the Governor, you must have two-thirds of the number of the people voting for Governor in the last preceding election.

So, Congress there very explicitly resolved any ambiguity by... by saying that when it was talking about two-thirds, as opposed to a majority, it was talking about two-thirds of the people voting for Governor in the last preceding election.

Had it taken those words, voting for Governor, which are found in 1422(a), and put them in 1422, it would have resolved this matter in favor of petitioners' petition.

Justice Stevens: Yes, but that doesn't explain this question that arises in my mind.

Why would they want the people who voted for Governor to be the universe in the recall situation and not be the universe in the direct election situation?

Mr. Riordan: Well, Your Honor, the reason...

Justice Stevens: And what is the policy reason behind it, that congressional choice?

Mr. Riordan: Well, a... the policy that suggests itself is that once a Governor is... is elected, the specific number of votes that... that were involved in electing him shall constitute the... the frame of reference if you're going to have to recall him.

It's... it's those... you want to make sure that... that you have a... a number that isn't simply a majority, but a super majority, to recall a... an official.

Justice Souter: But that's not the... maybe I'm... I don't have it in front of me.

I thought that would give you a... a lesser number to recall than would be necessary to elect.

Mr. Riordan: Oh, no, Your Honor.

Justice Souter: Where... where is it?

I didn't open it up.

I should have done that.

What page are you on?

Justice Scalia: It's here.

It's on...

Justice Stevens: Well, it would if... if a third of the... if instead of just a couple thousand in this election had a... you had a third of the total votes cast for blank and the Governor, then you could recall with the lesser number than you could elect in the first instance.

Mr. Riordan: Well, the... the reason that isn't... isn't... well, the... two-thirds... I cannot mathematically imagine a situation in which two-thirds of the number who actually vote for Governor are a... a smaller number than a... a majority of all of those...

Justice Stevens: Well, I just gave you a hypo with that... that example in it.

Say there are 100,000 who vote, and 40,000 don't vote for Governor.

They're just interested in the school board.

So, 60,000 elected the Governor... or voted for the Governor.

Two-thirds of that 60,000 could... could recall him even though it only took... 40,000 could recall him then.

Mr. Riordan: Right, but... but if 60,000 vote for Governor...

Justice Stevens: And it would have taken 51,000 to elect him.

Mr. Riordan: Your Honor, right.

It takes 51,000 to... to elect him.

But they have... I mean, these two statutes were passed as... as part of a package, 1422 and 1422(a).

Justice Kennedy: But Justice Stevens' initial question was why should the universe be different in... in the recall and the number of people who have to vote to put the Governor in office to begin with.

What... what would be the sense of that?

Mr. Riordan: Well, you're... you're requiring a super... well, the universe isn't different, Your Honor, in this sense.

It's... it's that you are going to require a majority of all who... who participate in the election.

Well, the two-thirds majority is going to be...

Justice Kennedy: Well, the universe is different in your view.

It's the same in petitioners' view.

Am I right?

Mr. Riordan: I'm sorry?

Justice Kennedy: The universe is different in your view, the same in petitioners' view.

Right?

Mr. Riordan: Yes.

The... the universe is different.

The universe is different because the terminology is different.

But... but the rule of this Court has been, as in the Bates case, that... we were dealing there with statutes on student loans, and the defendant in that case argued that an intent to defraud element can be found in the... in a particular statute, 1097.

And the Court noted that 1097(d) expressly included that intent to defraud element.

And it... it said that you cannot have the express inclusion by Congress of an element in one part, its omission from a related part, and... and assume that Congress meant the same rule to apply or same language to apply to both because, as... as the Court said, where Congress includes particular language in one section of a statute, but omits it in another section of the statute, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.

Justice Scalia: The key... the key word there is generally.

The... the problem I... I have with... with your case, Mr. Riordan, is that ordinarily where you have a choice, it seems to me you would interpret a runoff provision in such a manner that it will produce a conclusive runoff and not just a repeat of... of another stalemate in which nobody gets a majority.

And as you read this, this process could go on endlessly in which...

Mr. Riordan: That's...

Justice Scalia: in which nobody gets a majority of... of all the votes cast.

Mr. Riordan: That's... that's absolutely not the case, Your Honor, because the... the rule of... we don't have the question of how you would run a runoff before the Court.

It's obviously of interest to it in dealing with the question dealing with the general election.

But a runoff is a special election, Your Honor, and under the law that we've cited, a special election is not subject...

Justice Scalia: Does it have to be a special election?

Don't you think the... that... that Guam, if possible, would schedule it... you know, with some other elections that are... that are coming up?

Mr. Riordan: Absolutely not, Your Honor.

By... by the statutory provision itself, the runoff is supposed to be held within 2 weeks of the general election.

It is... it is most assuredly a special election.

The...

Justice Stevens: Do they have runoffs for other offices?

Can you have a runoff for another office like the school board under this law?

Mr. Riordan: I don't know the answer to that question, Your Honor.

Justice Stevens: Because if you could, presumably they could have it at the same time.

Mr. Riordan: I... I don't believe that there's any other election that is... is subjected to the provisions of 1422.

Justice Scalia: Where does it say that the runoff has to be a special election?

I mean, that... that the ballot... the ballot can include nothing but... but the... the candidates for Governor.

Mr. Riordan: It... it does not, Your Honor.

I think that, you know, the relevant language is the language which says when the runoff will occur, and the runoff will occur on the 14th day thereafter.

Now, the... the election of the Governor has to happen on the... on the general election which by statute is the first Tuesday after the first Monday in November.

So, any... any election held in... in mid-November is by definition a... a special election because a general election is defined by Guam law as only that election which takes place on the first Tuesday after the first Monday in... in November.

Justice Kennedy: Well, and isn't the answer that in that runoff election, the requirement is that the position goes to the person who has the highest vote?

There is no majority requirement in the runoff election.

Mr. Riordan: That's... that's absolutely correct, Your Honor.

It's... it's a race between two people.

Write-ins don't... write-ins are meaningless in... in a runoff.

There aren't... write-ins aren't permissible because a runoff is a runoff between two candidates.

So, if someone wrote in, it would not count.

A blank ballot...

Justice Stevens: It's really kind of ironic that they have a majority requirement when there are lots of candidates, and when there are only two, they don't call it a majority, even though it has to be a majority, as... as Justice Kennedy points out.

Chief Justice Rehnquist: They could tie.

Justice Stevens: Well, obviously...

Mr. Riordan: Well, I... I suppose theoretically they... they could tie, but that... that would happen...

Justice Stevens: They also used the word highest when they meant higher because there are only two candidates.

Mr. Riordan: But a...

[Laughter]

Again, the English teacher reappears.

[Laughter]

Under... under the statute... under the WEMA rule, the... the general American rule is that this rule that we are proposing that certainly was stated in many cases that you require a majority of all those who participate in the general election, that is a rule that does not apply to special elections.

Justice Scalia: Does... does any of those American cases that you cite involve an election for an office as opposed to a proposition or... see, it makes a lot of sense to... to interpret such a provision that is dealing with an initiative or some proposition to say it... it has to get a certain percentage of all of those voting in the election, whether they vote for the proposition or not, because you have to show that it has sufficient public support.

But I... you know, I... I don't think that would be the normal interpretation of the same language when you're talking about two candidates.

Mr. Riordan: Let me... let me answer that question very precisely.

Does any of the cases that we cite in our brief involve application of this rule to the election of a candidate?

No.

Are there cases that involve this rule... applying this rule to the application of a... to... to a race involving a candidate?

The Arizona case of Maxwell v. Fleming, 166 Pacific 2d, involves that at 831, which in turn relied on a Hawaii case applying the same rule to a primary election.

So, the... the cases are rare.

It... it is a far more common situation to have a proposition on which you may get a majority, 5,000 to 2,000, but there's 10,000 people that don't understand the proposition.

Many time you have 20 complicated...

Justice Scalia: That's right.

And... and...

Justice Kennedy: Do... do...

Justice Scalia: if that statute read, you know, it has to get a majority of the votes cast at the election, I would have thought that doesn't necessarily mean the votes cast with respect to the proposition.

Mr. Riordan: Right.

So, the rule is clear as to propositions, but it is applied in Maxwell v. Fleming.

I do not know of any case that holds that this is a rule that only applies to...

Justice Breyer: But do you agree that it makes much more... or there are certainly different and... and perhaps better reasons for applying that kind of rule in the case of a proposition or a bond issue, that sort of thing, different and better reasons from the reasons that would apply in... in an election of an official?

We don't have to have the bond issue.

We do have to have a Governor.

Why make it tough as... as tough to elect a Governor as it would be to... to issue bonds?

Mr. Riordan: Well, Your Honor, we would both agree that if the language of the statute reflects that choice by Congress, it is not for us to say that the policy inherently is wrong.

Justice Breyer: Absolutely, but if we're... if we're unclear about that, the philosophy of bond issues is different from the philosophy of elections.

Mr. Riordan: Here is why I would submit that it is not.

It is correct that propositions are more likely to be baffling.

There are likely to be more people ignorant of it, and you could apply a rule that says we want to make sure that there is an informed majority and not simply an informed minority that votes on this, so we're going to require a majority of those who come to the election.

But the same rule applies and the same policy whether... if it is the case that neither candidate inspires enough interest or voters feel sufficiently informed about either candidate, that there is some number... maybe it's 10, maybe it's 100,000... who don't feel qualified to cast a vote there...

Justice Scalia: I can understand it if... if the consequence would be we're going to bring in two other people...

Justice Souter: Yes.

Justice Scalia: and see if these... these other two can attract.

But all that happens is you bring in the same... the same two guys 2 weeks later.

Mr. Riordan: Your... Your Honor, I... I am reluctant to refer to the city in which I practice law as an example for this Court, but the fact of the matter is that 6 weeks ago a run-in candidate... a write-in candidate wound up forcing a... a... an election, a runoff election, in that... in San Francisco, and as a result of that, there has been a heightened period of scrutiny, there has been additional debates, there's been a... a much higher level of press and public attention to the race than existed in the original race.

And Congress could say, we opt for that kind of security.

If you as a candidate can't get 50 percent of the people who are clearly involved enough to show up and vote, we're going to force this heightened period of scrutiny that happens in runoff campaigning.

And... and it is true... it is true that it's the same two candidates, but... but it is very clear that Congress made that choice because, as... as petitioners concede, if you had 100,000 votes and one candidate had... had, you know, 49,999 and the other had all the other votes except for 10 and there were 10 write-in ballots, there is no question... and they concede... that you'd have to have a runoff between the two candidates.

There would not be a majority.

Everyone agrees that write-in candidate votes have to be counted in the relevant universe.

Justice Scalia: Is... I... I should know this point, but I'm... but I'm not clear on it.

Is it your position that even spoiled ballots have to be counted for purposes of this proposition, that is, one... one that votes for both parties or one that votes for neither or checks write-in but never writes in?

Are they to be counted too?

Mr. Riordan: It is the position of the Guam Election Commission that they are.

The...

Justice Ginsburg: But may I ask if that is academic in this case?

Because isn't it true that even if you counted all the overvotes, votes for both, and even if you cast all the write-ins as though they were cast for your client, that the opposing candidate would still win?

So, it's only the undervotes that have... that are the basis for your argument, that you would have to throw in the undervotes in order to make the... the winner 83 votes short.

Mr. Riordan: Right.

Justice Ginsburg: Is that right?

Mr. Riordan: Right.

Justice Scalia: Well, it's academic for this case, but it's not academic for the purpose for which I was asking the question...

Mr. Riordan: Absolutely not.

Justice Scalia: which is whether the runoff...

Mr. Riordan: Right.

Justice Scalia: will necessarily come up with a winner.

And it won't if you're counting all of the ballots cast because if you have... you know, you say it only takes 2 or 3 percent difference sometimes.

If you have 2 or 3 percent of spoiled ballots, you may have to have a second runoff.

And... and, you know, this can go on forever.

Mr. Riordan: Your... Your Honor, the... the Guam Election Commission... let me be clear about the history... included... there are 609 overvotes marked for both candidates.

They included all of those.

There are 1,294 write-in ballots.

They included all of those.

And there are 1,313 blank ballots for the Governor's race.

Justice Ginsburg is correct that you need to include all three categories in order for petitioners' candidate to not have a majority.

If... if you did not include blank ballots, if you did not include spoiled ballots, if you did not include write-in ballots, then... then petitioners' candidate would have a majority.

The Guam Election Commission included spoiled ballots and they included all write-in ballots.

There was no challenge to that in the district court.

They came up with the number 47,353 as opposed to 48,666.

So, the only...

Justice Ginsburg: But those... those ballots voted in the election for Governor.

They may have been...

Mr. Riordan: Right.

Justice Ginsburg: whether 1,313 didn't vote in that election.

And... and on the question of what election means, in any election is the first time election appears in... in the sentence if no candidate, but the next time it is referring to a runoff election, which is an election between the two sets of candidates.

So, why would the word election meaning... mean two different things in the same sentence?

That is, in the second usage of it, it clearly means just the runoff between the two sides.

Mr. Riordan: But the... the term majority is not used to refer to the runoff election, and... and I... as I say, this question is not before the Court.

There is nothing in the statute that suggests that different rules apply to this runoff than traditionally apply to runoffs.

In runoffs, only two candidates count.

Write-ins don't count in a... in a runoff.

You can write-in as many people as you want.

A write-in candidate could have a majority.

He would not win the runoff because a runoff is limited to... to a race between two candidates and the person who gets the highest vote wins.

It's a special election, and the majority requirement just simply wouldn't apply.

So, there wouldn't be an infinite number.

A runoff always produces a winner except, as... as the Chief... Mr. Chief Justice pointed out, you could have a tie, but... but that is... that is a problem that is not dealt with or resolved by any resolution of this case.

Justice Stevens: May I ask you sort of a question which kind of underlies my thinking about this case?

Is there any sensible reason why Congress would want one rule for the Virgin Islands and a different rule for Guam?

Mr. Riordan: I have no reason to believe that... the language of the two statutes is... is the same.

We do, as... as Mr. Hufstedler has pointed out, have a different provision when you come to the race for delegates because they have... they... for whatever reasons, they have different ballot requirements now for one or the other.

But 1712, to bring us to the delegate statute, is critically important.

I mean, that is a statute that expressly says that you're to be elected by a majority of the votes cast for delegate.

I mean, it is language that is clear.

It is unambiguous.

It is...

Justice Ginsburg: But isn't that tied to the original separate ballot requirement, that you didn't vote for the delegate in the general election?

So, of course, it would be only an election for the delegate, and it wasn't until the change was made to allow the delegate to be placed on the ballot of a general election that... that this... that you could make this argument.

That is, the original purpose... it seems to be tied to the separate ballot.

Mr. Riordan: But I would simply submit, though, Your Honor... I... I submit 1712 only as an example of the fact that... that when dealing with a related subject, Congress clearly knows how to spell out a majority requirement that deals only with a particular office, that is, or votes cast for a particular office.

Justice Breyer: Is there... is there... suppose you came to the conclusion hypothetically that the statutory language and so forth brilliantly argued both sides.

It's hard to say, you know.

But then think well, if you interpreted the... the blue brief way, you get conformity with the delegate.

You get the same group recalling as would be electing.

It's a little bit simpler.

And the Guam Election Commission is closer to it than we are.

Now... now, I'm... see, I put four things in there, and I... I wanted to see what your response was.

Mr. Riordan: Let me deal with the last one last.

It's the easiest to remember, and then you can remind me of the others.

As the district court opinion points out, blank ballots have been included by the Guam Election Commission in two prior elections.

So, the truth of the matter is that... that what they did in this case and... and I think it's... it's very clear that this was a highly politicized battle in the Guam Election Commission.

The documents before the Court reflect that, that... that the... the exclusion of blank ballots actually was a deviation from their prior practice.

Justice Breyer: Do we... do they get a little bit or not of deference?

Mr. Riordan: Well, I... I think, given the factual finding of... of the district court, it's a little hard to see what you would defer to.

Do you defer to past practice or to the deviation from it here?

Secondly, I mean, the problem with... with... I would agree... I would agree that there is a much more appealing symmetry if the delegate statute and the Governor statute are... contain the same language and... and the same principle and the same definition of a majority.

The problem is that we have to include language in the... in the Governor statute that doesn't exist, which was very expressly put in the delegate statute.

So, it's... it's symmetrical.

It's appealing, but it would be, I... I would submit, a result of... of judges deciding that... that it's a more attractive principle, although it isn't the one that the legislature chose to embody in the statutory language.

Justice Scalia: Do you know of any other... any other State or Federal or, for that matter, foreign statute in which the chief executive must be elected by a majority of the votes cast in... in an election, including votes cast for other offices?

It's a very strange provision if that's what it means.

Mr. Riordan: I'm tempted to refer to Thailand on the... on the grounds that I'm unlikely to be contradicted...

[Laughter]

by... by opposing counsel.

I can't say that... that I do, Your Honor.

I want to... I did want to make a point about... about the prior law, the law that existed at the time that the statute was passed because that's obviously one of the considerations.

Congress is... is assumed to... to know it.

Let's make a concession.

We both say that the law favors us, that there are more cases which say that... that you... you require a majority of all those who attend the general election.

The petitioners have a different view.

At a minimum, Congress, if we assume they knew that law, knew that this was a hot issue.

It... it knew that there had been a century of litigation about what a majority means.

And given that there's been a century of litigation about what a majority means, petitioners are saying if you just insert some language in there that Congress must have inadvertently omitted, although it's in other statutes... it's in 1422, it's in 1712... if you just stick it in there, it's clear and... and it's appealing.

But given that Congress knew that this was a delicate issue, we can't assume that it was omitted in any way...

Justice Scalia: How do we know that Congress knew it was a delicate issue?

In my experience Congress doesn't have a very detailed knowledge of what's going in the courts, and probably a good thing too.

[Laughter]

Mr. Riordan: Your Honor, there are those who say that this entire area of... of rules of statutory construction that we employ is... is an engagement in a fiction, and there are those who say, but it's a more appealing fiction than attempting to divine statutory history and legislative history.

[Laughter]

So, I... I will...

Justice Scalia: I can agree with that.

[Laughter]

Mr. Riordan: Perhaps the... the final point that I'll make is just one that... that it is puzzling.

I... I will admit that the toughest question that can be asked to me is Congress did not write in the language that makes it clear that petitioners should prevail.

I think that's clear.

They could have.

They used it in other statutes.

I would have to concede that they did not spell out the statute in a way that makes it crystal clear that a majority means a majority of all those who... who attended and participated in the general election.

I just think that we're closer to it.

I think that the first sentence, which says a majority of votes cast by qualified citizens, standing alone comes closer to our position than it does to petitioners'.

I think that the statement, in any election, comes closer to our petition... position because it doesn't say in any gubernatorial election.

Justice Ginsburg: But if they're both plausible readings, why shouldn't we pick the one that makes the most sense?

Mr. Riordan: Well, they... they... I... I... because one of them... because the statutory language, I submit, Justice Ginsburg, approaches and is much closer to our definition than it is theirs.

It does not require the insertion of language that it isn't... isn't there.

It does require in the context of the statute defining votes and ballots interchangeably, but that is something that perhaps, if they're not interchangeable in every context, they are very, very frequently interchangeable, as... as resort to the... the dictionary definition shows.

And we finally submit that if you are going to say that the most popular baseball player in Chicago should be elected by a vote of all of those who attend major league baseball games, you would not use that language if you intended the vote to be limited to those who are fans of the Cubs.

Rebuttal of Seth M. Hufstedler

Chief Justice Rehnquist: Thank you, Mr. Riordan.

Mr. Hufstedler, you have 7 minutes remaining.

Mr. Hufstedler: Thank you, Mr. Chief Justice.

I would like to reply, as long as my time holds out, to four or five specific points that were made.

First of all, in the discussion about the eligible voters, I think the colloquy and Justice Scalia's comments cleared that up.

But it does seem to me it's important to go back and... and deal with really the... the grandfather case that deals with this basic problem, and that's County of Cass against Johnston.

This Court which laid down a rule which has been uniformly followed and that is for qualified voters who absent themselves from an election duly called, they are presumed to have gone along with the majority who did, in fact, vote.

Chief Justice Rehnquist: Of course, that involved no Federal statute at all, did it?

I suppose the way it can become relevant is if you... if you assume... perhaps not a terribly likely assumption... that Congress was familiar with it, though, when...

Mr. Hufstedler: No.

You're correct.

They were dealing... excuse me... with Missouri law under those circumstances.

But they laid down that law and they didn't do it with the limitation.

But the second sentence I think is very important.

This is Cass.

And it not only stated that general rule, but then it stated this.

Any other rule would be productive of the greatest inconvenience and ought not to be adopted unless the legislative will to that effect is clearly expressed.

In other words, a very strong presumption that the rule contended for by the respondents should not be adopted unless it's clearly expressed.

Chief Justice Rehnquist: The case was a diversity case, was it not?

I mean, it wasn't laying down any Federal rule at all.

Mr. Hufstedler: No.

You're quite right, Your Honor, it wasn't.

But there was no limitation with respect to laying down the rule, and it has been cited many, many times in many other cases.

But nonetheless, it makes it quite clear that you won't go along with the respondents' position unless it is clearly expressed.

And I thought it was most interesting just a moment ago when counsel said that he would concede... and as I heard him say directly... that it doesn't make it... if could read my handwriting...

Justice Scalia: He said it wasn't absolutely clear, but this is by far the better reading.

Mr. Hufstedler: Doesn't make it absolutely... absolutely was the word.

Thank you.

Now, if it doesn't make it absolutely clear, it doesn't comply with Cass.

Now, you may decide not to follow...

Justice Stevens: What if his... what if the language really is by far the better reading, his... his way?

What if... you know, yours... yours is... his isn't absolutely positive, but it's... it's...

Mr. Hufstedler: Well...

Justice Stevens: certainly the language tilts in his...

Mr. Hufstedler: I could not argue, Justice Stevens, if the statute said you take all of the votes that were cast in the general election and determine the majority, of course, we're bound by that.

But that... there's nothing in the statute that even infers that.

There's nothing in the legislative history.

Using the general election... it's taken right out of the blue by the imagination of the Ninth Circuit.

There's nothing in there that says you're going to lose... use all those votes.

In any election does not say we're going to use all those votes that were cast in all of the elections at the general election on that date.

Justice Breyer: What happens in your opinion, to go back to Justice Scalia's point?

Suppose a runoff and in the runoff A has 5,001, B has 5,000, and there are 3 blank ballots.

Mr. Hufstedler: I think you don't have an answer.

And the reason is...

Justice Scalia: In any election.

Because of the sentence that says in any election.

That would presumably include the runoff election.

Mr. Hufstedler: Precisely.

Justice Breyer: No, not because... not because of that.

But... but... maybe because of that.

But even if that sentence weren't there, it just says you have to have a runoff, but it doesn't say what happens... it says nothing about what votes you count in the runoff.

Mr. Hufstedler: No, you're quite right.

It says nothing about it.

But the phrase is still there.

In any election, they must have a majority.

Now, how... how can you rule out the runoff when it says in any election you must have a majority?

And so you could go on and do this forever.

Furthermore, there's a real question as to whether or not you could even have a second runoff.

This provides that there... if there isn't a majority, there shall be an election 14 days later.

You can't have a second election 14 days later.

The code does not provide for a second runoff.

And I would recommend to the Court to take a quick look at the amicus brief which makes a primary point that if you adopt a rule such as this, you're going to have a situation where you may never have a Governor elected in an election where it's close.

And certainly the blank ballots would... would rule that out.

In connection with the Cass doctrine, I would also mention one other matter, which is a Federal case dealing with the Railroad Labor Act, the Virginia railroad case which is cited in the briefs.

And there the act provides that you have to have a majority of the people in a particular trade in order to form a union.

And the Court there says specifically it means, just as Cass did, only those voting and you've got to presume those who didn't vote go along with it.

But it explains the reason, and it explains the reason much as Cass did.

And the reason is that a few disaffected people, a small minority, by not voting or voting some other peculiar way, could prevent the adoption of a very important principle one way or another...

Justice Breyer: What about his countervailing policy argument, which is where it's that close, think about it twice?

Mr. Hufstedler: Well, that's right.

I don't know of anybody who says that, that you've got to... once you get a close election, you've got to have another election.

Because we have a lot of elections, some even in small jurisdictions, where they're won by one vote, and they're won when they're won by one vote after about three recounts, or however it comes out.

With regard to the delegate statute having different language, we've talked about that at some length, and as I say, I think we get some help out of it.

They think it's good for them.

But the important point that hasn't been developed that's in the briefs is that the delegate statute is different from the organic act, but it was passed 4 years subsequently.

Now, this argument seems to be that you adopt an organic act at one time and you don't say we're going to specifically count the majority in the gubernatorial election, although we now concede it says that twice.

That's the problem.

Then we come back to 4 years later Congress adopts the act with respect to the delegate statute and says it has to be with regard to the... the votes for the delegate's office.

Now, can you say when a Congress does something in different language 4 years later, it has done something to the original act?

The one answer might be that the Congress 4 years later had a better English teacher than the ones 4 years before.

But however that comes about, you can't modify the statute 4 years before just because somebody used different language in a statute 4 years later.

With regard to the argument that in a runoff election the one who has simply the... got the most votes is going to win is not established at all.

If you look at page 26 of the respondents' brief, they cite two cases.

They're of no help whatsoever.

One of them is a Texas case, one is a Georgia case.

But in one of those cases...

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Hufstedler.

Mr. Hufstedler: Certainly, Your Honor.

Chief Justice Rehnquist: The case is submitted.