ELECTION DECLARED VOID

Taranaki Daily News, 29 January 1929, Page 11

ELECTION DECLARED VOID

fight for bay of islands seat

JUDGMENT OF ELECTION COURT

COUNTRY CANDIDATE UNSEATED

' After hearing the evidence in the petition lor the unseating of Mr. 11. M. Rushworth, Country Party member representing the Bay of Islands, the Election Court held that the petitioner had proved his case, and the election was accordingly declared null and void. The petition was not opposed by Mr. Rushworth.

The court considered that in several eases the decisions of the returning officer in regard to the validity or otherwise of votes had been correct, although they were subsequently upset by the magistrate in the magisterial recount.

The petitioner is to pay his own costs.

HEARING COMPLETED IN DAY

TWENTY GROUNDS PLEADED.

ANALYSIS OF THE VOTING. Bj’ Tefl-graph.—Press Association, ■ Kaikohe, Jan. 28. The hearing of the petition lodged in the name of John William McAulay on behalf of Allen Bell’s committee, setting out twenty grounds which claimed that the election of H.M. Rushworth should be declared void, opened at Kaikohe this morning. Justices Herdman and Ostler were on the bench. Messrs. Logan and MeVeagh represented the petitioners. The courthouse was crowded. Mr. MeVeagh, in addressing the court, stated that at the statutory count the parties were even, and the returning officer gave his casting vote in favour of Bell. Snbseuently Mr. Rushworth asked for a recount before a magistrate. This was granted, and Rushworth jvas declared elected by two votes. Certain irregularities occurred, but he wanted to make it clear that in justice to Mr. Blundell, the returning officer, he had not been provided with a copy of the regulations, as-provided by the Act. Mr. MeVeagh, reviewing

the petition, withdrew five clauses, and

dealt with the technical details under the Electoral Act. He laid stress upon the fact that there was a difference of three votes between the magistrate’s total and that of the returning officer. Anoher point of importance under section 149 of the regulations was that it was essential to have a justice present, who would sign the returning officer's certificate. This had not been done. John Hector Luxford, magistrate, Whangarei, said that at the magisterial recount he received a statement from the returning officer, but not the one ho wanted to certify. Mr. Blundell admitted that he had omitted to appoint a justice at the official count. At his request the returning officer prepared a declaration showing that 8087 votes had been recorded at the election. The recount then proceeded. There were 3818 votes for Bell, 349 for Hornblow, and 3'820 for Rushworth; 50 were rejected as informal. The total number of votes counted by him was 8084, and 8087 by Mr. Blundell. Ho disallowed 35 postal votes and three absentee votes. The returns of the returning officers at the various booths throughout the electorate tallied with his total, and he could not find that any votes bad been lost, stolen, or destroyed.

APPARENTLY ERROR MADE. The total shown by the returning officer was 95 postal votes; he could only find 94, though there were 95, in the licensing poll. The returning officer kept a register of the number of postal votes received, and this showed 94. He could not find that any had been lost or mislaid, and formed the opinion that an arithmetical error had been made. Jn the case of one .absentee vote the registrar put “0.K.” on the corner of the document and initialled it, but this vote was disallowed because the declaration had not been made by the voter. That vote was apparently counted in the total, but it seemed impossible to trace it. In the case of two electors' who had struck out all the names on the ballot paper and written in Bell’s name, he disallowed them because ho could get no proof that the writing was that of the persons who had voted in this way. Thoso two papers could bo produced, but his doubt was whether there could be identification.

Regarding votes cast at the Kawakawa Hospital, ho disallowed these because the certificate had to show that the ' witness was an authorised person. The person in this case was not qualified, though Mr. Blundell told him that he had authorised the secretary of the Hospital Board to act.. ’ In the case of three ballot papers where the names were all crossed out and each voter had written on the face of the ballot papers the names of all the candidates with a opposite the names of Bell and Horn blow, ho had allowed these votes to Rush worth because no lino was opposite his name. NECESSARY RETL’RNS NOT .MADE. In the case of 17 booths the returns .required by the Act had not been made. Mo account had been kept of the number of ballot papers issued at various booths, and there was no balance-sheet of ballot papers to go by. In the case of an elector having, made a, mistake in spelling his name, with the result that the signature did not correspond with the specimen signature of the voter on the application for registration, ho disallowed this because he considered himself bound by the certificate of the registrar of electors, though in his opinion there was no doubt it was the right man. Blundell, the returning officer, in evidence said that be had. not been supplied with a copy of the election regulations. It may have been gent out, but fe® had not seen it. Regarding the

discrepancy of one between Mr. Luxford’s and his total of .postal votes, he put this down to an error in his own addition. .He admitted that he had no justice present in accordance with the Act. Ho had issued an absent voter’s permit and received what purported to be satisfactory proof that this man was not on the roll but should have been. His vote was 0.K,-cd on the ground that he was entitled to vote. That was . eccepted instead of a declaration by the registrar. The hospital votes were witnessed by C. E. Reid, secretary of the Hospital Board, whom he authorised to do so. He was confident that Reid witnessed the votes of four patients. Ho read out who voted and whose votes were in the box.

VOTER’S NAME MIS-SPELT. Regarding the mis-spelling of a voter’s name, he remembered a specimen signature spelt one way and the signature on the declaration another, but both were evidently the same. It was spelt so that the sound was the same. One elector at Herekino, one at Ahipara, and one at Ahipara Hill voted by drawing a horizontal line opposite the names of two candidates.

C. J. Herbert said he came to this electorate in September and he and his wife both voted. He said he had been here about two months prior to the election. On his enrolment card he stated less than three months.

C. H. Reid, secretary of th Kawakawa Hospital Board, said he had witnessed some signatures of hospital inmates. Blundell gave him permission to do so. M. P. Goldesbrough, poll clerk for Kaitaia booth, said he crossed out names as the ballot papers were issued. He remembered two ladies called Elliott coming in the booth, Beatrice Eleanor and Beatrice Myrtle.. Both ladies voted under one qualification, one of the names having evidently missed being crossed out. J. A. Speer said he acted as scrutineer for Bell at the official count and the magisterial recount. One vote from Moerewa and one from Kaco had all the printed names on the ballot paper struck out and Bell’s name written in. No justice was present at the official count.

JUDGMENT OF THE COURT. The judgment of the Court was as follows: — After the general, election held in November, at the official count it was found that Rushworth and Bell had received an equal number of votes, and the returning officer, in the exercise, of his statutory rights, gave his casting vote in favour of Bell. The official declaration of the result of the poll published in the. local papers on November 29, declared that Bell had been elected. A magisterial recount was demanded, and held before Mr. J. H. Luxford, S.M., at Whangarei. At this recount, after allowing certain votes which had been set aside by the returning officer as informal, and disallowing certain votes which had been allowed by the returning officer, the magistrate found the official declaration at the poll' incorrect, and that Rushworth had received three more votes than Bell. Ho therefore ordered the returning officer to make an amended public declaration, declaring Rushworth elected. In December a petition was lodged with the returning officer, but the petitioner did not claim the seat. On behalf of Bell, the petitioner prayed that it might be determined that Rush worth was not duly elected or returned, and that the election be declared void, upon the ground that certain votes counted as valid were informal, and that certain votes disallowed should have been counted as valid votes for Bell. CONDUCT OF POLL CHALLENGED. It was also alleged that there were certain irregularities in the conduct of the poll. A petition was duly served on Rushworth, and it has been proved at the hearing that all the formalities prescribed to enable the petition to be heard had been complied with. Rushworth had notified the court that he did nob intend to oppose the petition, and no one had appeared to oppose it. This rendered it incumbent upon the Court to see that a clear case was made out on behalf of the petitioner before disturbing the poll, for where the result of an election depended upon two or three votes, it was obvious that very little would turn the scale. The firsj; allegation was that two electors voted by ruling out the names of all three candidates on the ballot paper, and then wrote the word Bell above the printed name. These two votes were allowed as valid votes for Bell in the official count by tho returning officer, but disallowed by the magistrate on the recount. They had looked at these two ballot papers, ami in their opinion they should have been counted as two valid votes for Bell. The intention of the voter i n each case was clear beyond doubt, and the only question was whether tho writing of the name could enable the name of the wtor to be identified, hi which

VOTES WRONGLY REJECTED.

case the votes would have io be rejected by virtue, of section 149 of the Electoral Act, 1927.

After inspecting the two ballot papers they, thought that in neither case could the identity of the voter be discovered from the hand writing. In one case the letters were in script and in the other the writing was colourless and without any distinguishing characters. They therefore thought that both these votes were wrongly rejected in the recount and should have been counted as valid votes for Bell.

This would have again made the votes recorded in favour of Bell and Rushworth equal in addition. The magistrate counted as valid votes for Rushworth three votes which had been rejected as informal by the returning officer. In all three cases none of the names on the ballot paper had been crossed out, but lines had been drawn alongside the names of the two other candidates. No line having been drawn alongside Rushworth’s name, the learned magistrate, after examining these three ballot papers, thought that they each clearly indicated an intention to east a vote for Rushworth, and so allowed them as valid.

They regretted they could not agree with his opinion. In the Westland and also tho Lyttelton election, petitions which were tried in 1926, tho Court held that a cross placed opposite the name of a candidate was sufficient indication of the. intention of a voter to vote for that candidate. INFLUENCE OF OLD SYSTEM. What influenced the Court io come to this conclusion was the fact that for many years in New Zealand all the voting at municipal elections had been done by putting a cross opposite the name of the candidate intended to be voted for, instead of by crossing out the names of all candidates not intended to be voted for. They thought that in those cases the Court went as far as it possibly could, and in their opinion drawing lines alongside certain names could not bo considered as evincing a clear intention of the voter - to vote for a person not favoured with a line any more than it indicated an intention to vote for a person or per ..-on? opposite whoso names lines appeared. In the Hawke’s Bay election petition the Court refused to allow lines actually drawn through the Christian names of candidates, the surnames being left untouched, to be taken as any evidence of the intention of a voter. Lincs merely drawn alongside the names of candidates were even less clear evidence of such intention.

For these reasons they thought these three votes should have been rejected by the magistrate as informal. The decisions they had come to on these matters were sufficient in themselves, without considering any further allegations of the petitioner, to show the return of Rushworth at 1 the election was an undue return. Rushworth was not-duly elected as shown in the amended declaration after the magisterial recount. VOTER WRITES NUMBER. There were also other votes which it was alleged should have been counted as valid votes for Bell and which were not so counted.

In one case after voting correctly for Bell, a voter wrote on the face of the ballot paper his number on the roll. That vote was rejected by the magistrate, and they thought quite rightly, on tho ground that the figures enabled the voter to be identified.

Again, there were four votes recorded for Bell which had been made by postal ballot papers, which votes were rejected by the magistrate on the ground that the certificates did not show on their face that they had been witnessed by an authorised person within the meaning of the regulation, although in fact they had been so witnessed, but they did not think it necessary, in view of their previous decision, to decide whether the learned magistrate was right in rejecting these four votes. Again, it wa& proved that two persons, a man and wife, got on the roll before they had resided in the elcetcrato three months and voted for Bushworth. These votes must be rejected. It was also proved that one, Beatrice Myrtle Elliott, who was not on the roll, voted in the name of Beatrice Eleanor Elliott and that Beatrice Eleanor Elliot t also voted. A scrutiny showed one of these was cast for Rushworth and one for Bell, but it was impossible to define which elector voted for Bell and which for Rushworth. There existed, therefore, an invalid vote, counted as valid which may have been recorded for either candidate. CASE OF ABSENTEE VOTER. It had also been proved that an absent voter’s vote had been counted as valid although not accompanied by a declaration made by the voter, as required by the regulations. The magifr

They had also had proof of certain irregularities which took place during the official count by the returning officer. This officer did not obtain the presence of a justice of the peace at the count, and consequently there was no certificate by a justice as to the number of ballot papers used. They found it necessary io determine the effect of this irregularity, but it was clear that quite apart from it there was sufficient evidence to show that Ruehworth was not duly elected, and they felt it their duty to so hold. The petitioner would pay his own costs, and Mr. and Mrs. Herbert, having answered fully and faithfully the questions put to them during the hearing, would be entitled, if they required it to receive a certificate of indemnity.

trate was quite right in disallowing this vote as invalid, but found it impossible to identify the ballot paper among the 94 absentee votes, and they could see no way of identifying that particular voting paper. Lastly, an absent voter’s vote for Bell was rejected because in his declaration he had spelt slightly differently from the way he had spelt it in his application for enrolment, although it was clear from a comparison of the two signatures that both were written by the same man. They thought this vote should have been counted as a valid vote in favour of Bell.