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EDITORIAL - Recognise voter intent in election law

Published:Tuesday | April 10, 2012 | 12:00 AM

Twelve years ago, in the immediate aftermath of America's presidential election of 2000, few persons anywhere in the world would have escaped the concept of chads - hanging ones, dimpled chads, or whether they were pregnant or bulging.

Chads, for those who don't remember, are those fragments left when holes are punched in paper or synthetic material, such as computer punch cards or tape. When a chad is not completely punched out, it may hang from the perforation or left pregnant, or dimpled, and so on.

Chads, in that contest between George W. Bush and Al Gore - before the United States Supreme Court short-circuited a voter recount in Florida and essentially awarded the election to Bush - represented more than round bits of paper. Whether they were pregnant, bulging dimpled, bulging or hanging, stood as metaphors for the democratic will of the people. For the issue in 2000, in a too-close-to-call vote in Florida, was how to determine the intent of voters in circumstances where electronically counted ballots were not completely perforated to be properly read by machines. Electoral officials resorted to manual recount before the decision was controversially halted by the Supreme Court in a 5-4 ruling that remains juridically and politically contentious.

We are reminded of that issue because of the statement by Jamaica Labour Party's (JLP) deputy leader Christopher Tufton of the party's intent to challenge the outcome in the Newmarket division in St Elizabeth in the recent local government elections. The JLP's Ernest Hendricks lost by two votes to the People's National Party's Cyril Martin.

Dr Tufton argued that some votes cast for his party's candidate were deemed spoiled because they were marked with ticks rather than Xs, as required by the election law.

"Our position is that the intent of the voter is what is important," he said. "... Once it is clear which candidate the voter preferred, it should be considered valid."

We do not comment on the validity of the specific case, but we agree with the broad principle. Indeed, it is one - the Supreme Court ruling of 2000, notwithstanding, and even then the justices warned that the decision should be not deemed precedent - widely held in the United States.

In a case not dissimilar to Bush v Gore, the Massachusetts Supreme Court in a 1996 decision, held that "if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot ... effect must be given to that intent and the vote counted". Other state courts have made similar rulings.

No provision for voter intent

In the case of Jamaica, Section 35(3) of the Representation of the People Act declares specifically that the voter should "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".

The law does not appear to provide room to the presiding or returning officers to determine voter intent. Similarly, the scope seems to narrow for a resident magistrate in instances of magisterial recounts. The courts, of course, may take a different view.

Our position is that this right of presiding and returning officers and the courts to determine voter intent should be specifically declared in the act; the larger principle is protecting democracy.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.