DEREK ACHONG

Se­nior Re­porter

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The Unit­ed Na­tion­al Con­gress (UNC) has lost its elec­tion pe­ti­tion for the dis­trict of Lengua/In­di­an Walk.

De­liv­er­ing a de­ci­sion on Wednes­day, High Court Judge Maris­sa Robert­son dis­missed the pe­ti­tion.

The pe­ti­tion was 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 on elec­tion night on Au­gust 14.

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 Pre­sid­ing Of­fi­cer due to the fail­ure of the Re­turn­ing Of­fi­cer to place their ini­tials on it.

A sec­ond re­count yield­ed the same re­sult as the first, with the EBC de­clar­ing that a by-elec­tion was re­quired.

The pend­ing pe­ti­tion meant that in­cum­bent chair­man of the Princes Town Re­gion­al Cor­po­ra­tion re­mained in of­fice as a new chair­man can on­ly be elect­ed af­ter the coun­cil­lor for the dis­trict is de­ter­mined, de­spite the UNC se­cur­ing the nine re­main­ing dis­tricts which make up the cor­po­ra­tion.

In the event that the par­ty does not suc­cess­ful­ly chal­lenge Jus­tice Robert­son's de­ci­sion be­fore the Court of Ap­peal, a bye-elec­tion will take place.

Pre­sent­ing sub­mis­sions, in No­vem­ber, Se­nior Coun­sel Anand Ram­lo­gan, who led the UNC's le­gal team, sug­gest­ed that the EBC should have cor­rect­ed the er­ror on the spe­cial bal­lot.

"They (the EBC) can­not dis­en­fran­chise the vot­er. They (the vot­er) did noth­ing wrong," Ram­lo­gan said.

"There is no ev­i­dence to chal­lenge the pre­sump­tion that it was a valid vote cast," he added.

Ram­lo­gan claimed that the Rep­re­sen­ta­tion of the Peo­ple Act and as­so­ci­at­ed Elec­tion Rules did not pre­scribe a con­se­quence for the fail­ure of the elec­tion of­fi­cial to place their ini­tials on the bal­lot as he called on Jus­tice Robert­son to up­hold the de­mo­c­ra­t­ic right of the vot­er.

"The act and rules are there to fa­cil­i­tate the right to vote, not to mar­gin­alise it," he said.

"It would be ab­surd and per­verse if they do not have the same rights as nor­mal vot­ers," he added.

Re­ply­ing to the sub­mis­sions, the EBC's lawyer Deb­o­rah Peake, SC, claimed that her client's of­fi­cials had no choice but to re­ject the bal­lot when it was dis­cov­ered that it was not signed.

"There was no ba­sis to al­ter the ini­tial de­ci­sion. It was re­ject­ed in ac­cor­dance with the law," Peake said.

"That is the law. If you don't like the law, change it," she added.

She not­ed that the UNC elec­tion of­fi­cial, who was present on elec­tion night, did not ob­ject when the bal­lot was re­ject­ed and on­ly did so dur­ing the re­count.

"On­ly when they saw the name of who was vot­ed for then the sit­u­a­tion changed," she said.

Re­fer­ring to a Court of Ap­peal de­ci­sion in an elec­tion pe­ti­tion over the EBC's de­ci­sion to ex­tend the poll in the 2015 gen­er­al elec­tion by an hour due to in­clement weath­er, Peake not­ed that the EBC had no pow­er to ig­nore the elec­tion rules even if it is in the in­ter­est of fa­cil­i­tat­ing democ­ra­cy.

"You can­not ar­ro­gate to your­self the pow­er to sup­ple­ment the rules," she said.

"They (the EBC) have no dis­cre­tion to say I don't like the rule or I think it is un­fair," she added.

Se­nior Coun­sel Michael Quam­i­na, who led the PNM's le­gal team, sup­port­ed the po­si­tion tak­en by the EBC.

The UNC al­so filed a pe­ti­tion over the EBC's han­dling of the Ari­ma North­east dis­trict.

How­ev­er, the pe­ti­tion was dis­missed at a pre­lim­i­nary stage by High Court Judge Frank Seep­er­sad over claims by the EBC over pro­ce­dur­al er­rors in fil­ing it.

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

Al­though Jus­tice Seep­er­sad ruled that that pe­ti­tion was hope­less­ly flawed as a re­sult of the er­ror, he was care­ful to note that his find­ing did not mean that Rigs­by's com­plaints were friv­o­lous.

He sug­gest­ed that the EBC should con­sid­er a crit­i­cal and com­pre­hen­sive re­view of its cur­rent process­es based on Rigs­by's com­plaints.

"Re­turn­ing Of­fi­cers and Elec­tion Clerks should un­der­go struc­tured screen­ing. Bias sen­si­ti­sa­tion and in­tense train­ing al­so need to be en­gaged so as to re­in­force the need for strict ad­her­ence to the elec­toral reg­u­la­tions and guide­lines," Jus­tice Seep­er­sad said.

The UNC was al­so rep­re­sent­ed by Jayan­ti Lutch­me­di­al, Kent Sam­lal, Sad­dam Ho­sein, and Natasha Bis­ram. Ravi Heffes-Doon ap­peared along­side Peake for the EBC.