Derek Achong

The Unit­ed Na­tion­al Con­gress (UNC) has lost its elec­tion pe­ti­tion over the Elec­tion and Bound­aries Com­mis­sion (EBC) han­dling of the Ari­ma North­east Dis­trict in last month's lo­cal gov­ern­ment elec­tions, due to a pro­ce­dur­al er­ror.

De­liv­er­ing a judg­ment, a short while ago, High Court Judge Frank Seep­er­sad up­held an ap­pli­ca­tion from the EBC to strike out the case.

In the ap­pli­ca­tion, the EBC con­tend­ed that the pe­ti­tion, pur­sued by UNC can­di­date Jairz­in­ho Rigs­by, should have named Peo­ple's Na­tion­al Move­ment (PNM) can­di­date Kim Gar­cia, who was de­clared the win­ner af­ter a re­count and ver­i­fi­ca­tion ex­er­cise, as the re­spon­dent.

Jus­tice Seep­er­sad that the pro­ce­dure sug­gest­ed by the EBC was vi­tal un­der the Rep­re­sen­ta­tion of the Peo­ple Act.

While he not­ed that Rigs­by's com­plaints against the EBC were not friv­o­lous, Jus­tice Seep­er­sad stat­ed that the er­ror in fil­ing and serv­ing the case was sub­stan­tial and fa­tal to it.

As part of his de­ci­sion, Jus­tice Seep­er­sad or­dered Rigs­by to pay the EBC's le­gal costs for the pe­ti­tion.

The pe­ti­tion cen­tred around the EBC's han­dling of a re­count, and a sub­se­quent re­view of queried bal­lots con­duct­ed af­ter an ini­tial count on elec­tion night (Au­gust 14) re­sult­ed in Rigs­by and Gar­cia each re­ceiv­ing 623 votes.

The re­count took place on Au­gust 16 and re­sult­ed in Rigs­by be­ing de­clared the suc­cess­ful can­di­date hav­ing re­ceived an ad­di­tion­al vote.

Gar­cia was even­tu­al­ly de­clared the win­ner af­ter the re­view as two pre­vi­ous­ly re­ject­ed bal­lots were re­con­sid­ered and as­cribed to her.

In the pe­ti­tion, Rigs­by's lawyer Arif Rah­man took is­sue with the two bal­lots, which he con­tend­ed should not have been deemed valid.

Deal­ing with the first, Rah­man claimed that it was first queried as it con­tained an "X" next to Gar­cia's name and an­oth­er placed on the re­verse side vis­i­bly with­in the box next to his client's name.

"It is con­tend­ed that the in­ten­tion of the vot­er was un­clear, am­bigu­ous, and un­cer­tain and could not be at­trib­uted to ei­ther can­di­date," Rah­man said.

In terms of the sec­ond dis­put­ed bal­lot, Rah­man claimed that it was marked with a three-dig­it num­ber with an "X" over it.

"This mark­ing ap­peared to be dis­tinct, unique, and could be iden­ti­fied by the per­son who marked the same, ad­di­tion­al­ly the vot­er's in­ten­tion could not be con­strued as clear giv­en the pres­ence of an ad­di­tion­al "X" mark­er," Rah­man said.

He al­so con­tend­ed that dur­ing the check, EBC of­fi­cials re­ject­ed the sec­ond bal­lot, but they dou­ble-count­ed an un­con­test­ed bal­lot that was al­ready as­cribed to Gar­cia and was mis­tak­en­ly in­clud­ed in the queried bal­lots.

He con­tend­ed that Rigs­by and his elec­tion agents, who were present dur­ing the re­count and ver­i­fi­ca­tion, no­ticed the er­ror as the un­con­test­ed bal­lot was mis­tak­en­ly cut by re­turn­ing of­fi­cer Mar­va Carter when she was open­ing an en­ve­lope con­tain­ing bal­lots for Gar­cia.

"Every­one in the room, at the time, ob­served this in­ad­ver­tent cut in the bal­lot and no one took is­sue with same and the count con­tin­ued with­out is­sue," Rah­man said.

Through the pe­ti­tion, the UNC was ask­ing the court to dis­qual­i­fy both or ei­ther bal­lot. If one was suc­cess­ful­ly in­val­i­dat­ed, it would have meant that Rigs­by would be de­clared the suc­cess­ful can­di­date.

A fresh elec­tion would have been re­quired if both were even­tu­al­ly in­val­i­dat­ed.

Rigs­by was rep­re­sent­ed by Di­nesh Ram­bal­ly, Kiel Tak­lals­ingh, Ste­fan Ramkissoon, and Kavi­ta Moonasar. The EBC was rep­re­sent­ed by Deb­o­rah Peake, SC, Ravi Heffes-Doon, and Alana Bisses­sar.

The UNC has al­so filed a pe­ti­tion in re­la­tion to the EBC's de­ci­sion to or­der a fresh elec­tion for the dis­trict of Lengua/In­di­an Walk.

The pe­ti­tion is based on what tran­spired in two suc­ces­sive re­counts for the dis­trict that oc­curred when PNM can­di­date Aut­ly Granthume was an­nounced as the win­ner over UNC can­di­date Nicole Gopaul.

Granthume ini­tial­ly re­ceived 1,430 votes com­pared to Gopaul's 1,425.

At the end of the first re­count, both can­di­dates were found to have re­ceived 1,428 votes.

How­ev­er, a spe­cial bal­lot in favour of Gopaul, which would have bro­ken the tie, was re­ject­ed by the Re­turn­ing Of­fi­cer due to the fail­ure of the Pre­sid­ing Of­fi­cer to place their ini­tials on it.

A sec­ond re­count yield­ed the same re­sult as the first.

When the UNC sought to con­firm the EBC's de­ci­sion in or­der to pur­sue the pe­ti­tion, the EBC main­tained the rea­son­ing for re­ject­ing the bal­lot and al­so con­tend­ed that Gopaul's rep­re­sen­ta­tive did not ob­ject by re­quest­ing that the queried bal­lot be marked with a "Q" as re­quired based on Elec­tion Rules un­der the Rep­re­sen­ta­tion of the Peo­ple Act.

In sub­se­quent cor­re­spon­dence, the EBC claimed that Gopaul's rep­re­sen­ta­tives on­ly ob­ject­ed af­ter they re­alised that the re­count end­ed in a stale­mate. It al­so claimed that the bal­lot was re­ject­ed as it did not con­tain a polling sta­tion num­ber.

That pe­ti­tion has been as­signed to High Court Judge Maris­sa Robert­son.