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Lawyers for the main opposition New Democratic Party (NDP) have filed an amended motion for inspection of the ballots and counterfoils used in the 2015 election in Central Leeward.

They have also filed a supplemental affidavit in support of the amended draft order being sought by Ben Exeter, the NDP’s candidate in Central Leeward, who has brought one of two petitions challenging the outcome of the vote.

“The key objective is to clarify further for the court the particulars based on which it should make the order for inspection of the used ballots and counterfoils in all 15 ballot boxes,” a source with knowledge of the case told iWitness News.

The motion comes up for hearing again on Dec. 12 and 13. In an Oct. 24 and 25 hearing, the petitioners rejected the respondents’ proposed consent order that the petitioners be allowed to inspect only four of the 15 ballot boxes used in Central Leeward.

Exeter’s case is essentially that all ballots were designed contrary to how the election rules prescribed.

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The NDP’s legal team is arguing that as a result of this alleged flawed design, the presiding officer handled the ballots improperly, and invalidated them by omitting to endorse the official mark and/or by the official mark appearing on them in such a manner that over 90 per cent of the ballot could not be folded so that the initials of the presiding officer and the official mark can be seen without opening them, as required under the Rules.

“Consequently, numerous voters were thereby disenfranchised,” the source said.

The NDP’s legal team further claims that the returning officer, Winston Gaymes, counted all these “invalid ballots” at the final count — against Exeter and his representatives’ objections.

The NDP’s legal team says that the Organization of American States’ report on the election confirms this and that Gaymes swears under oath he counted the ballots despite his knowledge that all the ballots cast at polling station CLF were invalid pursuant to the rules.

These ballots, which Exeter describes as mutilated from their odd appearance, were also counted in the final count.

“If these allegations are established by the evidence upon inspection of the ballot boxes, the court may find that the election was not conducted substantially in accordance with the election laws or it may well be that when the valid votes alone are counted, it will be found that Exeter obtained more of these than Straker did,” the statement said.

The NDP’s legal team has submitted to the court, in its supplemental affidavit, copies of the ballot papers setting out the details which Exeter is presenting to the court as the prima facie evidence of these breaches of the election laws and rules, consistent with the applicable test, the source said.

“There have been repeated concerns expressed by the NDP and other sections of public opinion as to what steps could be taken to prevent the contents of the ballot boxes from being interfered with following the final count that took place on Dec. 16, 2017,” the source further noted.

The lawyers for the NDP are asking the court to order Supervisor of Elections Sylvia Findlay-Scrubb to deliver to the Registrar of the High Court the documents relating to the election held in Central Leeward on Dec. 9, 2015.

They are also asking the court to grant an order that the Registrar of the High Court open the ballot boxes in the presence of Exeter and/or his representatives and that permission be granted for the Registrar and the petitioner and or his representatives to inspect all ballot papers contained in the ballot boxes with a view to determining the accuracy of a number of allegations.

Among these allegations are that the ballots were pre-printed with the official stamp or stamped by the Presiding Officers or otherwise as the case may be and in some instances, the official mark was printed on the counterfoil.

The petitioners are also alleging that the said ballots appeared to have been wilfully mutilated in such a manner that they were contrary to Rule 15(2), Rule 16, Rule 31(1) and 40(1)(a) respectively, of the Rules.

They further claim that there were also similar looking ballots in ballot boxes from various polling stations that the presiding officer, Winston Gaymes, ruled invalid even after he accepted similar looking ballots in “CLF” and “CLF1”.

The petitioner is also claiming that the majority of ballots — over 90 per cent — counted at the purported final count by Gaymes bore the official mark and the Presiding Officer’s initials in a manner which is contrary to the Rule.

Among other things, the petitioner is alleging that if the presiding officers folded the ballot to the line marked “Do not Fold Beyond this Line” she/he could have only verified that it was the same ballot as she or he is required to do by law, by examining her/his initials and the official mark by opening the ballot thereby invading the secrecy of the poll contrary to section 54 (3) of the Representation of the People Act and Rule 31 (2) of the Rules.

The court has set Dec. 12 and 13 for hearing of the motion, the granting of which is opposed by Member of Parliament for Central Leeward, Sir Louis Straker, the election officials and the Attorney General, who are the respondents.

The first basis of the respondents’ opposition is that Exeter is barred from making the application because Justice Brian Cottle had dismissed a similar application made on his behalf, just after the elections in December 2015.

The respondents say it is an abuse of the court’s process for Exeter to make this new application, since it would be unfair to them and would bring the administration of justice into disrepute, if Mr. Exeter succeeds in getting delivery and inspection of the ballots.

Second, the respondents are arguing that the application should fail on its merits, because Exeter has not advanced particulars in his pleadings and evidence that amounts to a strong prima facie case.

However, in the written submissions filed by his lawyers, Exeter submits that neither of these challenges is supported by the applicable law and the circumstances of his case and that the court ought to reject them.

The application was filed since March 2016, but only came on for hearing for the first time in June 2017.

The delay came about because Justice Cottle had upheld an application by the respondent to strike out the petitions as invalid.

However, in March 2017, the Court of Appeal reversed this ruling stating that Justice Cottle was biased in making it and reinstated the petition and also ordered that the petitions be heard by a different judge.

In June 2017, the new judge, Justice Esco Henry dismissed the respondents’ application to strike out the petition, after which the application for inspection came before the court for hearing.

When the motion came on for hearing in July, the respondents then asked for an adjournment because their lead counsel Senior Counsel Anthony Astaphan had fallen ill and Senior Counsel Douglas Mendes of Trinidad, who had replaced Astaphan, needed time to become acquainted with the case and to file documents on behalf of the respondents.

The court records show that written legal submissions and affidavits were filed on the respondents’ behalf in July 2017 and replies to these were filed on Exeter’s behalf.

It was announced later that the respondents’ lawyers sent proposals in writing to Exeter’s lead counsel, Queen’s Counsel Stanley ‘Stalky’ John with proposals for inspection of ballot boxes.

When the application for inspection came up for hearing on Oct. 24 and 25, lawyers for the respondents presented a draft consent order for the approval of the court.

Justice Henry wanted clarification for the record as to the extent of the consent order and also to give directions for the conduct of the inspection.

At this point, the compromise broke down since the respondents’ lawyer, Mendes, indicated that they would try to block any efforts by Exeter to inspect the used ballot papers and counterfoils in further ballot boxes.

The Respondents’ lawyers also informed the court that they wanted another adjournment, since they had not come prepared for the hearing of the application, because they had anticipated that the consent order would have been approved.

Exeter’s lawyers did not object and the judge adjourned the application, with directions for the Registrar to fix a new date in consultation with the lawyers for the parties on both sides, for its hearing in December 2017 or January 2018.