Battle over rejected ballots
Key decision expected in Westmoreland Eastern magisterial recount todayby ANTHONY LEWIS
SAVANNA-LA-MAR, Westmoreland — Lawyers representing the Member of Parliament (MP)-elect for Westmoreland Eastern Luther Buchanan are expected to make a second attempt at getting the Westmoreland Parish Court to accept ballots previously ruled as rejected.
On Saturday, the second day of the magisterial recount, parish Judge Steve Walters, who is presiding over the recount, rejected a submission made by lawyers representing the People's National Party's (PNP's) Buchanan for a rejected ballot to be accepted.
The ballot in question, which was found in box 48, had a mark that did not clearly resemble an X.
“This parish judge has not accepted ticks as an accessible form of voting. What I recognise is that there seems to be inconsistency and that inconsistency is difficult to fill because a considerable amount of parish courts decisions are not written.
“So what we have to do in this instance is to consult judges notes so that we can show the parish judge where his brothers and sisters have accepted the English law ruling before,” stated Maurice McCurdy, attorney-at-law representing Buchanan.
McCurdy in his notice said the court will be asked to have a look at a magisterial recount case which took place in 2016 as an example to his argument for the acceptance of the ballot.
The case in question was that of former mayor of Montego Bay and current MP-elect for St James Southern, Homer Davis versus Derrick Kellier, the former MP. In that case, it is said that the presiding judge, Ann Marie Grainger, had accepted a mark resembling a tick as the voter's intent.
Judge Walters in his ruling on Saturday had stated that he was unable to accept a ballot without a mark resembling that of an X.
“If I am not seeing an X, I cannot accept that ballot. In this case, my ruling is that this mark is not an X based on what Section 35 of the Representation of the People Act requires and as such, this will remain rejected,” ruled Judge Walters.
Leonard Green, one of the lawyers representing the PNP's Buchanan, had submitted to the court that the intent of the voter should be considered.
“It is submitted that where the court decides not to accept a rejected ballot on the basis of the type of mark placed beside the symbol, the court would overlook the critical issues of the intent of the voter,” stated Green in his submission, adding, “The mark is clear, and may not necessarily be an X.”
However, O'Neil Brown, the lead attorney representing the Jamaica Labour Party's (JLP's) Daniel Lawrence in his rebuttal pointed to law which speaks to what the court should look for.
Judge Walters in his ruling argued, “I have to stick to, as best as possible, to what is provided for in our legislation. Because remember, this is almost like the constitution. We can't be relying on someone else over there to decide our vote here or what we do here.”
He was making reference to two cases representing the English jurisdiction brought forward by Buchanan's legal team in its submission as an example.
Brown later told the Jamaica Observer that he is not perturbed by the PNP's move. He said he doesn't see where the judge would backtrack on his decision.
“I really don't see the judge doing that. But, even if he did, that would not change our game plan much… to be frank, it doesn't affect us in terms of our strategy one way or the other,” stated Brown.
Earlier in the day, chairman of the JLP, Robert Montague, told the Observer that he was confident that the court would dismiss the submission.
“We are confident that the motion will be dismissed and the proceedings will continue. It has been going very well and the court has been standing up to its highest traditions,” expressed Montague.
“Lawyers are lawyers and they have to earn their pay. I am sure they are trying to impress their client. I am confident that the court will not be impressed, but we understand the game that they are playing. They can't come here and send in a big invoice for big payment and don't show that they are doing something,” the JLP chairman argued.
At the end of Saturday's recount, the JLP's Lawrence had picked up an additional 11 votes from ballots which were previously rejected in comparison to six for the PNP's Buchanan.
This would bring the total count of rejected ballots added to Lawrence to 18, while nine had been added to Buchanan's tally.
A total of 65 out of 117 boxes were counted in which Buchanan obtained so far 1,509 votes, Lawrence 1,423 and the independent candidate Haile Mika'el received 13 votes.
With Friday's tally added to that obtained on Saturday, Buchanan would receive a total of 2,551 votes in comparison to 2,455 for Lawrence so far.
Lawyers representing Lawrence filed an application for a magisterial recount on September 8, after an official count by the Electoral Office of Jamaica declared Buchanan the winner in the constituency by one vote, following the intervention of the returning officer.
Both men had obtained 4,834 votes, while independent Haile Mika'el had received 34 votes. A total of 107 ballots were rejected.
As a result of the tie, the returning officer for the constituency cast the deciding vote after blindly pulling one of two ballots with the names of both candidates from a box. The ballot with Buchanan's name was drawn.