Queen’s Counsel Douglas Mendes made this point on Wednesday as he urged the election court not to invalidate the announced victory of his client in the Dec. 9, 2015 general elections.
The main opposition New Democratic Party has brought the petitions challenging the results in Central Leeward and North Windward in the elections, which the officials say the Unity Labour party won by an 8-7 margin.
Mendes told the court that a point it has to determine is how many ballots in Central Leeward did not have the initials and official mark of the presiding officer.
He noted that it was admitted that none of the ballots in polling stations CLF and 99 in CLF1 had the initial and stamp of the presiding officer.
And issue of fact for the court to determine is whether that applies to CLB, Mendes said.
He, however, argued that the fact that the stamp was on the counterfoil does not make a ballot invalid, adding that the election rule does not include a requirement that a space be provided for the official mark.
He noted that the ballot papers were stamped.
However, the judge, Justice Stanley John noted the area where the stamp was placed.
Mendes countered that there is no direction in the regulation as to where to put the stamp, adding that electoral officials come to that conclusion by inference.
Justice John, however, said that notwithstanding the fact that the rule is silent, the stamp must be placed in such a way that that when the ballot is folded, the official marks are visible.
Mendes, however, maintained that the law doesn’t say that the official mark must be below the line demarcating the ballot from the counterfoil.
He said that the only instruction as far as that is concerned is the initials of the presiding officer. The lawyer said the purpose of the mark is to ensure that the ballot that the presiding officer receives is the same one that was given to the voter.
“If there was specific regulation as to where you put the mark, it 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 can determine, without invading privacy and, therefore, could determine whether it is a valid ballot? On what basis are you going to deprive somebody of the right to vote if the regulations don’t tell you how it is supposed to be…?” Mendes reasoned.
He said it would be a different story in a case where there was no mark at all.
“But we are talking about the stamp in the wrong place. My lord, in those circumstances, the ballots cannot, respectfully, be invalidated.”
He further told the court that there is no rule that says a ballot cannot be counted if a presiding officer’s initial is not on it.
There is a regulation that says if you discover during the count that it is not there the presiding officer can initial the ballot.
Justice John, however, noted that some legal decisions say that while the tallying of such ballots may not affect the final result, process is important.
Mendes noted that Queen’s Counsel Stanley “Stalky” John, lead counsel for Benjamin “Ben” Exeter, the Central Leeward petitioner, had invited the court to overturn the results there because of defective ballots, unavoidable breach of secrecy of the ballot, failure of the respondent to defend the allegation, and the absence of statements of the polls.
Mendes said that assuming that there was no statement of the poll ever created, the rules do not say that a final count cannot take place without it.
“As a matter of fact, the rule says if you don’t have the statement of the polls and you cannot otherwise ascertain the votes, then you adjourn until such time as you can ascertain.”
He said that in that Central Leeward poll there was a count of the ballot.
“There is no doubt about that,” he said, adding that there is no evidence of any contrary count and that Exeter’s own evidence confirms the final count.
“I respectfully submit that either he has not provided his case as a matter of fact, or if he has proved his case, for example, that the ballots were defective, that it does not affect the election and it is not sufficient for you to say the election was a sham or a travesty,” Mendes told the court.
A ruling is expected on March 21.