All 222 ballots in polling station CLF, and 99 from CLF1, that bore the official mark and initials of the presiding officers on the counterfoil portion of the ballot paper, were indeed valid and properly counted.
Justice Stanley John, in a decision delivered last week, announced this conclusion on the issue of “defective ballots” which was pleaded by petitioner Benjamin Exeter, the New Democratic Party(NDP) candidate for Central Leeward in the 2015 general elections.
Exeter in his evidence, stated that he noticed that neither the initials, nor the official mark were on ballots at CLF, and that the ballots were cut in a manner which tore the ballots. From these observations, Exeter had concluded that they were mutilated. He felt the same way about 99 ballots from CLF1.
“Irregular”, was how witness Maia Eustace described, in her evidence, the design of the ballots, which had the space for the initial and mark on the counterfoil.
In addition to ballots at CLF and CLF1, it was also alleged by inside agent witness Paul Creese, that ballots in CLB did not bear the stamp and initials of the presiding officer. However, the judge said he would attach no weight to Creese’s evidence as under cross examination he had said he was not paying attention to the presence or absence of the stamp and initials at the time, and he acknowledged that he made no notes in his notebook concerning this.
Under the election rules, counsel Douglas Mendes SC for the respondents, had submitted that the whole document in ‘Form 7’ of the election rules was the ballot paper.
“Having seen the ‘Form 7’, the Court is satisfied and holds that the entire document, that is to say, ‘ballot and counterfoil’ comprise the ‘Ballot Paper’. The Court is further satisfied that whereas ’Form 7’ provides a space for the ‘initials of the presiding officer’ there is no space provided for the insertion of the official mark and accordingly the official mark on the counterfoil does not invalidate the vote,” John stated.
He mentioned two other election rules that speak of the importance of the official mark, but do not mention where its location should be.
After drawing this conclusion as it relates the official mark, the issue left for the judge to contemplate was the effect of the initials being located in the wrong place because of the design of the ballot.
Mendes had submitted that there was no rule invalidating ballots that did not bear the initials of the presiding officer. Further, he submitted that the initials could be placed on the ballot paper if the presiding officer notices them to be absent during the count.
Importantly, Mendes had cited a case for the court, Jenkins v. Frederick de St Croix Bracker. In this case where the initials had been placed in the wrong location, it was held that the requirement that the initial of the presiding officer be placed on the back was only directory, and that putting them in the wrong location did not invalidate the vote.
The judge decided, “The Court is satisfied upon a clear interpretation of the Rules and the authority (Jenkins v Frederick) cited, that the presiding officer’s initials on the part of the ballot referred to as the counterfoil does not invalidate the votes and they were properly counted.”