By Krystel Rolle ~ Guardian Staff Reporter ~ krystel@nasguard.com:
Mistakes by the Parliamentary Registration Department accounted for some of the confusion which resulted in five people casting their votes on colored ballots during the Elizabeth by-election, lead counsel for the Progressive Liberal Party (PLP) Philip Brave Davis said as he made his final submissions in Election Court yesterday.
"Unfortunately, failures in the parliamentary registration system persist", said Davis.
"And the parliamentary commissioner's failure to ensure the integrity of the registration process and as a consequence the register continues."
He continued, "What is lamentable is that the Election Court has had the occasion to point these facts out and admonished action on the part of the parliamentary commissioner.
"But alas to naught. Here we are again - [almost] three years later," Davis added, referring to the Pinewood election case which he claimed exposed "the most egregious failures in the parliamentary system."
Senior Justice Jon Isaacs interrupted Davis, pointing out that the parliamentary commissioner is "starved of resources." He added that Davis' criticisms seemed unfair. However, Senior Justice Anita Allen said the lack of resources cannot be used as an excuse in this instance.
Yesterday, Davis laid out several reasons why the Election Court should validate the five protest ballots cast in favor of PLP Elizabeth candidate Ryan Pinder.
If at least three of those votes are approved, Pinder would be declared the winner of the February 16 by-election, which ended with Dr. Duane Sands receiving 1,501 votes and Pinder receiving 1,499. If the court only accepts two of the protest votes for Pinder, a re-election would be ordered.
In the case of voter A (as she is referred to protect her identity), Davis said there is overwhelming evidence to support that she is an ordinary resident of the Elizabeth constituency, including the fact that she voted in Elizabeth during the 2007 general election.
Additionally, Davis noted that the third respondent, who is Free National Movement candidate Dr. Duane Sands, met voter A on February 13 at approximately 3 p.m. while campaigning in the area.
Davis said he expected Sands' counsels to bring up that point considering that they are trying to assist the court in the inquiry.
"I am deeply disappointed that we did not have the assistance of the third respondent," Davis said.
"There appears to be no issue as to whether [the voter] lives on Pine Barren Road," he added.
During the course of the challenge, Sands' attorneys suggested that voter A lived in another constituency.
Voter A is not on the register for the Elizabeth constituency. In her evidence she said when her voter's card was initially issued to her in 2007, it listed her address as North Pine Barren Road, which placed her in the Fox Hill constituency.
The voter said she along with her husband and others in her extended family went to the Parliamentary Registration Department some time later to rectify the mistake. She also said she got a new voter's card which listed her address as South Pine Barren Road, thereby placing her in the Elizabeth constituency.
Davis said yesterday that the voter should not be disenfranchised because of the failure of the Parliamentary Commissioner's Office to correct its internal records.
Davis noted that clerical errors made in the register also led to the disenfranchisement of voter C.
He said on voter B's form B (registration form), her voter's card and her passport have her date of birth listed as January 3, 1970, while her form D (counterfoil) and the entry in the register have January 13, 1970. He noted that Parliamentary Commissioner Errol Bethel accepted that there were clerical errors made on form D.
Davis said no further issue affects the voter, and as a result the register should be rectified accordingly.
In relation to voter E, Davis said she should not have been made to vote on a colored ballot. According to him the voter produced sufficient means to cast her ballot.
Voter E was challenged on the grounds that she did not live in the constituency. However, Davis pointed out that an examination of her voter's card and forms B and D reveals a discrepancy in her address.
Her B and D forms B show her address as South Sandilands Village Road, West Fox Hill Road, East Alligator Court. Her voter's card shows the same address, but East Alligator Road is recorded instead of 'Court'. However, neither East Alligator Road or Court were included on the register because of computer constraints, Davis said, which resulted in the voter having to cast her vote on a protest ballot.
Davis said the vote should be allowed because the presiding officer misdirected himself in permitting the voter to cast her vote on a colored ballot. He added that the voter should not be disenfranchised because of that misdirection.
In the case of voter D, Davis said her name should have never been removed from the register.
"The parliamentary commissioner's act was contrary to law," said Davis.
As reported in The Nassau Guardian last week, the address on voter D's counterfoil was originally marked as 152 Commonwealth Boulevard, South Malaysia Way. However, Parliamentary Commissioner Errol Bethel told the court that the Parliamentary Registration Department changed it to North Malaysia Way.
The parliamentary commissioner said that this was done after voter D had already sworn an oath that the original address was correct.
Bethel admitted that both the counterfoil and the oath were changed after he authorized the voter's name to be placed on the Yamacraw register.
He said he did not recall whether he notified the voter when the change was made.
Yesterday, Davis said that according to Section 25 of the Parliamentary Elections Act, the day after a writ of election (issued by an executive authority requiring that an election be held) is ordered no name or entry can be removed from any of the appropriate parts of the register until after the poll day.
He noted that Bethel acknowledged the voter's name was removed on January 30.
"The parliamentary commissioner's act was contrary to law," Davis said.
He added that the parliamentary commissioner should have allowed the name to remain on the register and flagged or challenged the vote on election day.
Finally, in the case of voter F - who moved to Elizabeth in 2006 but did notify the Parliamentary Registration Department of the address change - Davis said the act of applying for a transfer is discretionary and not one that any voter is obligated to do.
He said it is the duty of the Parliamentary Registration Department to ensure that people are registered in the correct constituency.
Voter F told the court earlier this week that she cast her vote for the PLP candidate in the 2007 general election at the Thelma Gibson Primary School. She noted that her current voter's card places her in the Yamacraw constituency, but she said she moved from Yamacraw Shores in 2006 to Pine Barren Road. Yesterday Davis said because she is a resident of the constituency and has already voted, the vote should be counted.
Pinder, who is the petitioner, is exercising his right under Section 69 (1) of the Parliamentary Elections Act, which allows a candidate to petition the court to consider the protest votes cast if the margin of victory of his opponent (in this case Sands) is less than the number of his (Pinder's) protest votes.
In addition to Davis, Pinder is represented by attorneys Valentine Grimes, Wayne Munroe and Keod Smith.
Sands is represented by attorneys Thomas Evans, QC, and Milton Evans.
Evans, QC will make his final submissions today. Attorney David Higgins of the Office of the Attorney General, who is representing Parliamentary Commissioner Bethel and Returning Officer Jack Thompson, is expected to close out the submissions portion when Evans is done.
After that, Senior Justices Anita Allen and Jon Isaacs are expected to deliberate on which if any of the five protest votes will be accepted.
March 18, 2010
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