All ballots with official mark valid – Mendes
Ballots which have the official stamp and initials on the counterfoil should not be invalidated.
This was a submission made by lead counsel for three of the respondents Douglas Mendes SC, during oral submissions to Justice Stanley John on Wednesday.
At the time, Mendes was addressing the case for the Central Leeward petition filed by New Democratic Party(NDP) candidate, Bejamin Exeter.
In particular, he addressed the admission that at polling stations CLF and CLF1, 222 (all) and 99 ballots respectively bore the initial and stamp on the counterfoil.
It is also suggested by the petitioner that this may have been the case for polling station CLB.
The ballots are based on a form 7, which has directions for printing the ballots.
The regulations indicate that every ballot shall be marked with the official mark.
Further, it is submitted that the rules say any ballot paper that does not bear the official mark and initial of the presiding officer shall be void and not counted.
Form 7 indicates that the ballot paper is the “entire thing” Mendes notes, that is to say, including the counterfoil.
He stated that what happened in relation to CLF and CLF1, is that the stamp and initial was printed on the counterfoil, and that it is only if the mark was not on the ballot at all, that one does not count it.
“We are not dealing with ballots that were not stamped at all. The ballot papers were stamped. That’s it. The ballot papers were stamped and we know that because that’s the evidence, the ballot papers were stamped,” he contended.
There is no direction in the regulations as to where to put the stamp, he states. However, he admits that the initial is required to go below the line, and therefore not on the counterfoil.
“If you look at form 7, the space for the initial is below the line. So that’s the instruction, put the initial below the line, but there’s no instruction put the mark below the line,” he continued.
He submitted that it was the mark that the presiding officer needed to see in order to determine that it was the ballot that was given out.
“We’re dealing here with the constitutional right to vote,” Mendes stated.
He argued that if there was a specific direction as to where to place the mark, then matters would be different but, “In the absence of a specific direction, on what basis are you going to disenfranchise somebody because you put it in a place where the presiding officer could see without invading privacy, and therefore could determine that it’s a valid vote…”
If the judge chooses to see the votes as invalid, the respondents submitted that the votes in CLF, CLF1 and CLB would be deducted from the count for Sir Louis Straker (successful Unity Labour Party
candidate) and the count for Exeter.
“If you deduct CLF, CLF1 and CLB, which are the only boxes in play, then Mr Straker still wins. So that’s why it does not effect the result of the election,” the counsel concluded.
This is the normal method of reconciliation he submitted.
The petitioners are contending that one determines how many “bad votes” there were, and if that is greater than the margin of victory then the result would have been affected. The number of “bad votes” would be 321.
He cited a number of cases, presided over by Lord Denning, and he used them to say that when one knows the distribution of the invalid ballots, then you deduct them from the candidate to whom they relate.
Therefore, he posited that the petitioner’s submission was wrong in law.
“Some of the authorities say that notwithstanding the fact that it did not effect the final result, process is important,” Justice John said during this submission, which Mendes acknowledged.