Sun | Aug 20, 2017

Paul Ashley: Redefine the ‘rejected ballot’

Published:Sunday | March 20, 2016 | 3:00 AM
Dr Paul Ashley
Employees of the Electoral Office of Jamaica move ballot boxes from St Thomas Western into the EOJ building on Duke Street, downtown Kingston, on February 28.
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A constant feature of our elections has been the controversy over the validity, or otherwise, of the ballots cast.

Such occurs in the final count done by functionaries of the Electoral Office of Jamaica (EOJ) and the recount done by the resident magistrate. The basis of the controversy stems from the disparity in the criterion applied by the officer of the EOJ and that applied by the resident magistrate in determining rejected ballots. The functionaries of the EOJ are duty-bound to apply that stated in the Representation of the People Act (ROPA).

The resident magistrate, while assessing whether the statute has been faithfully complied with, is obligated to take into consideration existing case law in which that particular point has been adjudicated.

DEFINITION BY ROPA

Part 1, Clause 2 deals with interpretation: “Rejected ballot paper’ means a ballot paper which has been handed by the presiding officer to an elector to cast his vote but which, at the close of the poll, has been found in the ballot box unmarked or so improperly marked that in the opinion of the presiding officer or returning officer, it cannot be counted.” But the presiding officer, or the returning officer, does not enjoy unfettered discretion in coming to such a decision.

ROPA outlines in its Direction To Electors the specifics to be followed in casting a vote: “Each elector may vote only at one polling station and only for one candidate. The elector will go into one of the compartments and, with a black lead pencil there provided, with a cross within the white space containing the name of the candidate for whom he votes, thus X.”

The example provided shows an X marked to the right of the party symbol. Note that there is no box in which to put the X, and EOJ functionaries were instructing voters to put their mark either to the left or right of the name of the candidate they intend to vote for.

The Directions to Electors is, in substance, replicated in Section 35(3), which deals with the general mode of taking ballot: “The elector, on receiving the ballot paper, shall forthwith enter one of the polling compartments and there mark his ballot paper by making a cross with a black lead pencil within the space containing the name of the candidate for whom he intends to vote, and he shall then fold the ballot paper as directed so that the initials and the numbers on the counterfoil can be seen without opening it, and hand the paper to the presiding officer, who shall, without unfolding it, ascertain by examination of the initials and numbers appearing thereon that it is the same paper as that delivered to the elector and if the same he shall subject to the provisions of Section 38 forthwith in full view of the voter and all others present remove and destroy the counterfoil and deposit the ballot in the ballot box.”

Case law on the mark to be employed is in abundance. Indeed, a tick, dot, asterisk, even a smudge has been adjudged valid. The overarching principle being that once the intention of the voter is unambiguous, all technicalities surrounding the nature of the mark utilised must be set aside. This contrasts sharply with the statutory requirements of ROPA that the functionaries of the EOJ are obligated to follow.

Recommendation: The law, in this case ROPA, needs to be amended so that both the functionaries of the EOJ and the resident magistrate are ad idem on the criterion to be applied in rejecting a ballot. The overarching principle governing the validity of a ballot is the unambiguous intention of the voter. That ought not to be dependent on the status of the individual presiding over the count.

- Dr Paul Ashley is an attorney-at-law. Emai l feedback to columns @gleanerjm.com and ash1tech@gmail.com.