Judge strikes down part of elec­tion law as un­con­sti­tu­tional

The Southern Gazette - - EDITORIAL - BY JAMES MCLEOD THE TELEGRAM jm­cleod@thetele­gram.com

PRO­VIN­CIAL, NL — The gov­ern­ment could be left scram­bling af­ter a re­cent court de­ci­sion struck down the spe­cial-bal­lot­ing pro­vi­sions in the prov­ince’s elec­tion law.

As it stands now, un­til the gov­ern­ment up­dates the law, there’s ar­guably no way to hold a con­sti­tu­tion­ally valid by­elec­tion.

The rul­ing by Jus­tice Gil­lian But­ler re­lated to a long run­ning le­gal fight dat­ing all the way back to the 2011 gen­eral elec­tion.

Tory can­di­date Clyde Jack­man nar­rowly won the elec­tion in the district of Burin-grand Bank over New Demo­crat Julie Mitchell.

The case hinged on a unique pro­vi­sion in the N.L. elec­tion law that al­lows vot­ers to cast a spe­cial bal­lot up to four weeks be­fore the writ is dropped, when the elec­tion is of­fi­cially called.

In her rul­ing, But­ler agreed that the sys­tem un­fairly favours in­cum­bent can­di­dates be­cause they can travel the district and col­lect votes while still serv­ing as an MHA, be­fore the for­mal cam­paign starts.

But­ler ruled that the cur­rent clause in the law deal­ing with spe­cial bal­lot­ing vi­o­lates Sec­tion 3 of the Char­ter of Rights and Free­doms, which guar­an­tees the right to vote.

“This act kind of got rid of the writ of elec­tion in that it made it mean­ing­less. I mean, if you’re vot­ing four weeks ahead of a writ of elec­tion be­ing dropped, what’s the point of the writ?” said Will His­cock, the lawyer for Mitchell.

Jus­tice Min­is­ter An­drew Par­sons said that the court strik­ing the spe­cial-bal­lot­ing part of the elec­tion law down as un­con­sti­tu­tional wasn’t ex­actly shock­ing.

“Be­ing al­lowed to vote in an elec­tion that has not been called, for can­di­dates that do not ex­ist, seems on its face ab­surd. So yeah, we know that there’s change needed,” he said.

Par­sons also ac­knowl­edged spe­cial bal­lots are an im­por­tant mech­a­nism to en­cour­age vot­ing, al­beit not the way New­found­land and Labrador has been do­ing it in the past.

He said he hopes the House of Assem­bly can pass some sort of up­dated Elec­tions Act pro­vi­sions in the fall sit­ting of the leg­is­la­ture.

His­cock, though, said it could be more com­pli­cated than just chang­ing one small sec­tion of the law. He said the gov­ern­ment may need to look at mak­ing elec­tion cam­paigns longer than three weeks, if it is go­ing to give peo­ple enough time to cast a spe­cial bal­lot dur­ing the for­mal elec­tion pe­riod.

“It’s prob­a­bly go­ing to in­volve a re­write that is broader than that par­tic­u­lar pro­vi­sion, just be­cause our elec­tion law is a com­pli­cated piece of ma­chin­ery with a lot of mov­ing parts. So the chance of be­ing able to change one and have ev­ery­thing else work the way it was in­tended is prob­a­bly slim.”

NDP Leader Earle Mccurdy ap­plauded But­ler’s rul­ing, and said he hopes the gov­ern­ment looks at pro­por­tional rep­re­sen­ta­tion as part of an at­tempt to up­date the law.

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