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ELECTION VOID

RESULT OF OAMARU PETITION NEITHER SIDE TO BLAME DECISION OF .THE COURT. As a result of the decision of the Election Court, the right to represent the electorate of Oamaru in the House of Representatives is to be contested again. The Court, which comprised the - Chief Justice (Sir Robert Stout) and Mr. Justice Adams, was asked to consider a petition lodged by the Hon. Ernest Page Lee against the return of Mr. John Andrew MacPherson, who was declared elected by a majority of under 20 votes at the General Election. The Court gave its decision on Thursday afternoon, and, ac was briefly announced in Thursday's "Post," it declared the election void, but expressed tLe^opinion that the unfortunate result was brought about by the fault of neither party. The petition, said the Court, was founded on the. allegation that ballot papers were counted as votes,in favour of the respondent which were either informal or should have Jbeen counted for the petitioner. There were only one or two which could be said to be in. favour of the petitioner, and the contest really was whether votes allowed .to the-respondent should have been.declared informal. The provisions oi the Statute were plain: (IV A ballot paper .should 1 be framed as appeared in the sohedule to the Legislature Amendment Act, 1910. That schedule showed that only the surnames of the candidates should there he inserted. The directions on the ballot paper, which had to be printed thereon,, were: "The voter is to strijje out the name of every candidate for whom he does not intend to vote, by drawing a line through the name with, a pen or pencil." "The voter muist take care not to leave uncancelled the name of more than one candidate or this,paper will be invalid." "The ballot papipr is to be folded up so that the contents cannot be seen, and having shown the official mark on the back to the returning officer, the ballot paper is to be put in the ballot box. by . the voter." "This ballotl paper is not to tie taken out of the polling booth." ■ . ' STATUTE NOT OBEYED. , Section 110 of the.Legislature Act, 19O8,0ordered the returning officer to cause the ballot papers to be printed. In the election under review the statute was not obeyed. The names appearing on the paper were • ted thus: Lee, Ernest Page, Mac son, John Andrew. The provisiu.is of the Statute as to how the ballot paper was to be dealt with by .the voter appeared in section 1$) of the principal Act, which stated:— . , . "(1) The voter,, having received' a ballot paper, shall retire into one of the inner compartments provided for -the purpose, and shall there, alone and secretly, mark his ballot paper by striking out the names of the candidates for whom he does not wish to vote.' (2) Every voter, before leaving the inner compartments, shall fold up his ballotpaper so that the contents cannot be seen, and, after showing the Deputy Returning Officer the official mark thereon, shall then deposit the ballot-paper, co folded, in the oallot box." "Several ballot papers were not so dealt with," said the Court. "For the purpose of consideration the ballot papers have been placed in several classes. In class 1 there are 8 votes. Eleven of these have the words Ernest Page Lee struck out, and the pencil used to strike out these. names extends to and toifches part of the second letter 'E ' in the name Lee. We think these votes should be allowed to the respondent, as they have been- by the returning officer. In the second class there are twenty-one papers, in which only the words ' Ernest Page * are struck out. The word ' Lee' is left untouched.' In class three there are nineteen papers, whicfi leave the word ' Lee ' not struck out. The pencil ends at the last 'E' of 'Lee.' In class four one vote counted to Lee has ' John Andrew ' struck out, but the word ' Macpherson' is not touched by the pencil. This vote should not be allowed to Lee. The other votes have been properly allowed. .Class five is a case where a voter not on the roll was given, a ballot paper on signing a declaration, but the declaration was never signed by the person .whoJtpok it, and was thus left incomplete. . This vote was allowed to the respondent, and should not have been allowed. The mode in which absent voters were, allowed to vote on' scraps of paper was irregular, but we think this irregularity'would be met by the proviso to section 49. As to class six, this vote was on a. paper on. which the names were written, and was irregular, but it also may be mat by the proviso io section 49, and should- be held good. DEALING WITH BALLOT PAPERS. " The question then arises in dealing with these papers which have not followed the regulations of the Statute, how is the Court to act? Section 49 enacts how the ballot papers are to be dealt with. ,'ln paragraph (a) it is stated: '49 (a). He shall reject as informal—(i.) Any ballot paper that does not bear the official mark if there is reasonable cause to believe that it was not issued to the voter, by any deputy returning officer; and (ii.) any ballot paper whereon anything not authorised by this Act is. written or marked by which the voter can be identified; and (iii.) any ballot paper that does not clearly indicate the candidate for whom the elector desired to vote. Provided that no ballot paper shall be rejected merely on the ground of some informality in the manner in which is has been dealt with by the elector, if it is otherwise regular, and if in the opinion of ths returning officer the intention of the elector in voting is clearly indicated.' I Can it be said that these ballot papers which have been referred to as not striking out or the.pencil not touching ' Lee' clearly indicate that the voter meant to strike out ' Lee ' ? INTENTIONS OF THE VOTER. '■' As to what a voter . meant is, of course, to be gathered from tha ballot paper itself. Why did the voter not strike out ' Lee ' ? The voters can read. If they had been illiterate they could have asked for assistance or guidance from the returning officer or deputy, or poll cleric. To make a vote valid the paper must clearly indicate the voter's intention. The question of how a voting paper', which has not been dealt with as the Statute provided, is to be treated came up in the case of Regina v. Bagley (1876). In the case of one vote his Hdnour the late Mr. Justice H. & Chapman said: ' I incline also to think that the second intended to, vote for Woodland. But in using this language I use the language of doubt, and it would be quite open to the presiding officer to think otherwise. The doubt is that which ought to exclude.' -' NO POSSIBILITY OF.. DOUBT." "In our opinjon the words of our statutes emphasise ths position so taken up by his Honour in tbat case. The

words ' clearly indicated,' twice used in sub-section 111 of paragraph (a) of section 49, show there should be no possibility of doubt. We cannot so hold, and we are therefore of opinion that the votes we have mentioned in classes three and four should be treated as informal, and if they are so treated the sitting member has not a majority of votes. It is clear they were not meant to be given to the petitioner, but it is not •without doubt that they were meant for the respondent. This large number of informal votes cannot be assumed to have been cast by illiterate people. It would be difficult to find in any electoral district even ten adult voters l unable to read. And we cannot surmise why they should have neglected the> plain instructions on the ballot paper. "We have not referred to English" authorities, as in the Hawkes Bay case it was pointed out that the New Zear land) electoral statues differ from those! of England. We may, however, add that in the Hawkes Bay case, where f th'e can-' didates' names, Christian and surname, were struck out, and where only* the Christian name of th« other candidate was struck out, the surname remaining, still the Court held a doubt was raised and the intention of the voter was not ' clearly indicated,' and the vote was declared informal. W« have followed th« principle laid down in that case. ;■

"We have come to the conclusion that the unfortunate result, of this case has been brought about by the neglect of the returning officer in not strictly following the words of the statute and not putting the surnames, only on the ballot paper, and that it would be unfair and not in accordance with law to declare the petitioner elected when Jt is not clear that a majority of the voters desired his election, and we cannot say, without doubt, that a majority desiTed the respondent to be elected/ We must therefore declare that ' the election is void. Considering that this result has not been caused by either p party, we allow no costs. Each must bear his own costs." „-.,..■

At the hearing Sir John Findlay, with him Mr. C. J. Payne, appeared for the petitioner; and Mr. C. P. Skerrett, with him Mr. P. Levi and Mr. E. W. Ongley. for the respondent.

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https://paperspast.natlib.govt.nz/newspapers/EP19230331.2.75

Bibliographic details

ELECTION VOID, Evening Post, Volume CV, Issue 77, 31 March 1923

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ELECTION VOID Evening Post, Volume CV, Issue 77, 31 March 1923

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