By-election declared null and void

THE JULY 19, 1984 ST PETER by-election is null and void.

This was declared by Chief Justice Sir William Douglas, at exactly 9:45 a.m. in the No. 3 Supreme Court of Judicature, yesterday.

It was also declared in the ruling that two of the votes which were counted for defeated Barbados Labour Party (BLP) candidate Owen Arthur would be subtracted from his 2 764 tally, as would be two from the successful Democratic Labour Party (DLP) candidate Sybil Leacock’s 2 765.

This meant that Leacock would still have won the election by one vote, except for certain “irregularities” made by officials in the election.

Sir William said: “These irregularities do indeed affect the result of the election; and applying Section 38 (3) of the Representation of the Peoples Act, the election must be declared void, and this determination will be certified to the Speaker of the House of Assembly.”

The irregularities surrounded seven of the votes which the court had inspected over the three-day hearing. Five were for Arthur and two for Leacock.

Registration number

One of her two bore a registration number. The court, presided over by Justice Denys Williams, Justice Clifford Husbands, and the Chief Justice himself, made reference to this vote under Rule 39 (1)C of the House of Assembly Election Rules, which states: “Any ballot paper on which anything is written or marked by which the voter can be identified, shall, subject to this rule, be void, and not counted.”

Sir William said it was clear that the registration number was not written by the voter himself, and under that section, would have to be ruled invalid.

This vote was thus subtracted from Leacock’s tally, as was a second bearing the name of a prospective voter on the back of the ballot paper.

Those two votes, which were described as “irregular” and were subtracted from Arthur’s quota, had no official stamp.

These were only found during the court inspection on August 24, 25, and 27, and when added to the other four unstamped votes found by officials on July 20 during the recount, brought the total of unstamped votes to six.

These, along with that vote bearing a registration number, were the seven “irregularities” causing the election to be declared null and void.

Five of those votes were cast for Arthur, and two for Leacock. If these were added to each candidate’s total, Arthur would have won the election by two votes, polling 2 767 to Leacock’s 2 765 and, in accordance with the court’s ruling, “would have affected the result”.

Unstamped votes

Concerning the two unstamped votes counted for Arthur, Sir William quoted: “Every ballot paper shall be marked with an official mark, which shall either be stamped or perforated.

“This rule is mandatory and must be complied with as the author of the 1984 edition of Schofield’s Election Law states at Paragraph 12.

“It will be remembered, it is the duty of the presiding officer or poll clerk at the pool to mark the ballot paper immediately before it is handed to the voter. The absence of the official mark is absolutely fatal.”

With that, he said it was beyond dispute that the inclusion of these two votes was wrong, and so, subtracted them from Arthur’s total.

Giving judgement on the other ten disputed votes, Sir William said that Exhibit 3 was a ballot paper bearing marks other than a “definite ‘X’ in the appropriate place on the face of the ballot”.

The ruling on this was that the voter had showed clear intent to vote for Leacock and had done so in such a way that he could not be identified rendering the vote valid. Arthur had contended that this vote for Leacock should be subtracted because it was not clear for whom the vote was cast In respect of Exhibits 4, 5 and 6, votes which Arthur contended were cast for him, because the mark of the voter was just above his box, the judges ruled that Henry Forde, QC, who represented the candidate, had based his argument on the ruling of a case very different from this one.

In the case submitted by Forde, the voter’s marks in question, actually crossed one of the candidate’s horizontal lines enclosing his box, whereas in this case, there was no such crossing.

Invalid

Quoting from a law authority on this, Sir William said: “Though it is not necessary to decide the point, as our opinion is wanted, we are willing to give it. I think that as long as the mark is opposite the name of the candidate, so as to make it clear that the voter intended to vote for him, the vote is good. If the mark is above or below the name, it would not be clear, and the vote would be void for uncertainty.”

He then ruled that this vote was invalid because the marks were above Arthur’s box.

Exhibit 7 was not examined as both lawyers agreed it was spoilt, even though “valid on the face of it”.

The other two votes ruled on were being contested by Leacock, who said they should be subtracted from Arthur’s total because the voters could have been identified by marks they made.

The judge, however, ruled that on one of these were two marks, both made in Arthur’s box, and could have been made as a result of two attempts to make an “X”.

Sir William said: “The court is quite satisfied that the marks are not initials. The ballot paper is marked in the appropriate place by more than one mark. It is not void because it comes within the terms of Rule 39 (2)C and because the intention to vote for one of the candidates is clear.”

Saying that this vote was rightly counted by the returning officer, Peter Timothy, he looked at the other vote which had on an “A”. This, he said, fell under the same rule, and added that an “A” was not enough to identify the voter, although it was marked in Arthur’s box, and was correctly counted for him.

Sir William added: “The first respondent [Leacock], has a majority of one vote over the petitioner [Arthur]: but there are irregularities in the election which resulted in seven ballot papers being rejected as invalid – one because it had a registration number, the others because they did not have an official mark.”