Gov’t lawyer says ballots in St. Vincent can be matched to voters

By Kenton X. Chance

A lawyer for the opposition New Democratic Party (NDP) says that a statement by one of his counterparts representing the government in the two election petitions strengthens the NDP’s claim that the December 2015 general elections were not conducted in keeping with the law.

The opposition’s lawyer, Queen’s Counsel, Stanley “Stalky” John, made the point to iWitness News on Saturday, one day after lawyer for the government, Dominican senior counsel, Anthony Astaphan, made his claim on radio, to the shock of much of the nation.

“I did not hear what Mr. Astaphan said on radio. Secondly, I do not have the benefit of the information that Mr. Astaphan is alleged to have based his remarks on. However, fundamental to our electoral process is that an elector’s vote should be secret. There ought not to be a means by which the voter, the elector, can be determined, save in very exceptional circumstances, pursuant to law,” John told iWitness News on Saturday.

“So that to the extent that what Mr. Astaphan has said is correct, that underscores and confirms that there is merit in the objections which are being raised by those who say that the elections were not conducted in a manner consistent with the requirement of our laws,” John said.

With Astaphan’s comments, more questions are being asked about the secrecy of election ballots in St. Vincent and the Grenadines.

Speaking on Boom FM, Astaphan told programme hosts Stephen Joachim and Dwight “Bing” Joseph that it is possible to match a voter to a ballot and thereby know which candidate that person voted for.

“… I don’t see how — unless somebody tells me how — you could possibly determine how somebody voted from any individual ballot box — any individual ballot paper,” Joachim said.

Astaphan responded: “Because the numbers are at the back. And you can check the numbers at the back to the number on the voter’s list and you have your name — and the counterfoil.”

Joachim, sounding confused, asked if Astaphan was saying that it is possible for someone to look and know who he (Joachim) voted for.

“Well, Stephen, the point is, the law says — this is not a game of hide and seek. The law says they must never be disclosed, except in certain specific circumstances prescribed by law,” Astaphan responded.

Joachim said he needed to “step back” because he was confused.

“What the two of you are telling me is that somebody could theoretically open a ballot box and know how I voted?…

“But the identification number, I thought, is supposed to be on the counterfoil, which is removed before the ballot is put into the box.  I am totally confused now.”

But Astaphan noted that the NDP — which has filed two petitions contesting the result of the December 2015 elections — has asked the court to allow it to inspect the election ballots.

“They also asked to see the counterfoils, in case you forgot,” Astaphan said.

Joachim responded: “I understand that. So the number on the counterfoil is matched up to the number of the ballot itself? There’s a number on the ballot? I thought there was no number on the ballot. I thought there was no way to link a ballot, a specific ballot, to a particular voter. You guys are telling me there is now.”

Astaphan said: “Well, that is why, at the count, Stephen, the returning officer is not supposed to show the polling agents the back of the ballot.”

Joachim asked: “So there is a number at the back of the ballot?

Astaphan responded: “Well, I never looked at the back of a ballot but the law says that the returning officer is not to show the back of the ballot because that may expose who that person was.”

Joachim commented that the system is changing.  “I have never seen the back of a ballot in my entire life,” Astaphan said and Joachim commented that he has never looked at one either.

“… but the law says — and that is one of the reasons why Mr. Louis Straker’s people objected when the returning officer was giving the ballots in the hands of the lawyers of the NDP who were looking at the back of the thing and Louis Straker’s people objected and said that is not permitted by law,” Astaphan said in an apparent reference to the final count in Central Leeward on Dec. 10, 2015, one day after the elections.

The NDP is contesting the results in Central Leeward and North Windward, which electoral officials say are among the eight seats that the ULP won in the 15-member parliament to secure a fourth consecutive term in office.

The High Court has thrown out the petitions as having been improperly filed and the NDP has appealed the ruling of Justice Brian Cottle.

The renewed focus on the ballot boxes comes as Kay Bacchus-Baptiste, lawyer for NDP activist and manager of NICE Radio, Douglas De Freitas, has told acting Commissioner of Police, Renold Hadaway, she needs access to the ballot boxes from the 2015 general elections to prepare her client against a number of public alarm charges brought against him by the Crown.

But in a Sept. 9, 2016 letter, which was copied to the DPP, Bacchus-Baptiste said: “… in light of the many specific charges relating to sealing, etc. of ballot boxes, I am requesting that disclosure be made to me of all the ballot boxes for Central Leeward and North Leeward and in fact all the boxes based upon the charges laid.”

But, in his response on Sept. 12, Williams said there seemed to have been “some apprehension” on the part of Bacchus-Baptiste as to the charges and evidence in the matters.

“… our case does not contain nor rely on producing any ballot box or boxes. Accordingly, there is no ballot box to be shown to you. These charges rest plain and simple upon the statement made by your client. In short, our case rests on what your client said,” Williams wrote.

Last December, Cottle rejected an application by Ben Exeter, the NDP’s candidate for Central Leeward in the Dec. 9, 2015 general elections, seeking access to certain elections-related documents.

“No suggestions have been made as to what the outcome of such an exercise will be. To my mind, the application on the grounds presented and on the evidence adduced epitomises a fishing expedition. The court is also concerned about the application to inspect the counterfoils as well as the ballots. If this is allowed, it would be possible for the applicant to identify individual voters and see how they voted,” Cottle said in his written judgement in the case in which the Supervisor of Elections, Sylvia Findlay was represented by Astaphan, Richard Williams, and Graham Bollers.

The Supervisor of Elections has declined to comment on whether election ballots and counterfoils can, in fact, be used to determine how someone voted, as the judge said.

“I am not going to comment on it because there was a matter before the court, the judge made a determination. I think it would be presumptuous of me to try to comment on anything that he said. Certainly, it is not just a comment by any person in the community. It is the judge making a ruling. So, I will not comment on it,” Findlay told iWitness News in January when asked to comment.

In March, Leader of the Opposition and NDP president, Arnhim Eustace, said some of the ballots used in the 2015 general election did not include a space for the official mark and initials of the presiding officer as required by law, and, therefore, are defective in design.

“By placing the space reserved for the official mark in the counterfoil instead of on the ballot, in breach of law, the 2015 ballot, if complied with by the Presiding Officer, rendered your vote invalid! Quite simply, it prevents the ballot being confirmed as the ballot the Presiding Officer actually gave to the voter,” Eustace said in a national address.