ELECTION PETITION

Hokitika Guardian, 29 January 1929, Page 6

ELECTION PETITION

BAY OF ISLANDS SEAT

(By Telegraph—Press Association)

KAIKOHE, Jan. 28,

The hearing of the Bay of Islands election petition lodged in the name of John William McAulay, on behalf of Allen Bell’s committee, setting out twenty grounds on which it was claimed the ejection should be declared void was opened at Kaikohe this morning, Justices Herdman and Ostler being on the Bench.

Mr Logan and Mr McVeagli are representing the petitioner. The Courthouse was crowded. McVeagli, 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 Air Bell. Subsequently Air Rusliworth asked for a recount before a Magistrate and this was granted, and Air Rusliworth was declared elected by two votes. Cortaiin irregularities occurred, hut lie wanted to make it clear that in justice to Mr Blundell (returning officer) he had not I icon provided with a copy of the regulations, as provided by the Act.

Mr McVeagli, reviewing the petition withdrew five clauses, and dealt with 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. Anotner point of importance under Section 149 of the regulations was that it was essential to have a justice present, who will sign tin* returning officer’s certificate. This had not been done. John Hector Lux ford, Alagistrate at Wliangnrei. said at the Magisterial recount lie received ’ a statement from the Returning Officer, hut not the one wanted; a Certificate was forthcoming. Blundell admitted lie omitted to appoint a Justice at the official count. At his request the returning officer prepared a declaration showing that 8087 votes were recorded at the election. The recount then proceeded. There were .*>lß votes for Bell. 349 for Hornhlow. 3820 for Rusliworth and 59 were rejected as informal. The total number of votes counted by him was 8081, and 8087 by Blundell. He dfsa!llowed 35 postal votes and 3 absentee votes. Returns of 1 returning officers 'at various booths tliroughout the electorate tallied witlrhis total, and lie could not find that any votes had Ixfeti lost, stolen or destroyed. In the total shown by me returning officer, there were 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, ancl this showed’*94.' He could not find any had been lost or mislaid, and formed the opinion that an arithmetical error was made. On the applications for absentee votes there was a declaration, and the registrar of electors certificates signature was correct. In the case of one absentee, the registrar put O.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 and was apparently counted in the total, tint it seems impossible to trace it in the case of twoelectors who fpruck 'out all the names on the ballot paper ant’l wrote in Bell’s name. He disallowed them, been use he could get no proof that the writihg was that of the persons who had : voted in this way. Those two papers*could Ik* produced, hut his doubt was whether there could he identification regarding votes cast at Kaiwakawa Hospital. He disallowed these because tbc* certificate had to show that the witness was an authorised person. The person in this ease was not qualified, though Mr Blundell told him. that lie had authorised the .Secretary of tiic* Hospital Board to act. In the case of three ballot papers where the names were all crossed out and each voter having written on the face of the ' allot papers the names of ali "did:!'. it-h a horizontal line oppoi.stc the names, Bell and Hornhlow, 1:i• Pad allowed these votes to Rushworth because no line was opposite bis nnir.v. In i’ " case of 17 booths the return required by the Act bad not been made. No account had been kept ol the number of ballot papers issued at various booths and no balance sheet of the ballot pajiers to go hv, in case of an elector having madg a mistake in spelling the name, with the result that the signature did not correspond with the specimen signature of the voter on the application for registration. He disallowed this because he considered himself bound by the certificate of the Registrar of Electors, though in his opinion no doubt he was the right man.

Blundell, in evidence, said lie lmd not been supplied with a copy of the election regulations. It may have been sent out, but be bad not seen it. Regarding the discrepancy of one lietwecn Luxford’s and bis total of postal votes, be put this down to an error in bis own addition. He admitted there was no justice present in accordance with tbe Act. He bad issued an absent voters permit and received what purported to bo a satisfactory proof this man was not on the roll, but- should have been. His vote was o.ked on tbe ground that bo was entitled to vote. That was accepted instead of a declaration by the Registrar. Votes cast at tbe Kaiwakawa Hospital were witnessed by C. E. Reid, Secretary of the Hospital Board, whom be authorised to do so. He was confident Reid witnessed tbe votes of four patients read out, who voted and whose votes were in the box. j. A. Speer said be acted as scrutineer for Bell, at tbe official count and magisterial recount. One vote from. Moerewa and one from Kaeo bad all printed names on the ballot paper struck out and Bell’s name was writ- j

ten in. No justice was present at the official count. 0. J. Herbert said that he came to this electorate in September, and he and his wife had both voted. He said lie had been hero about two months prior to the election. On his enrolment lie had been here about two months prior to the election. On his enrolment card lie stated less than three months. C. H. Reid, Secretary of. the Kawaawa Hospital Board, said lie witnessed some of the signatures of the Hospital inmates. Mr Blundell gave him permission to do so. M. P. Goklsbrough, poll clerk for Kaitaia booth, said that he crossed out the names a-s the papers were issued. He remembered two ladies, called Elliott, coming in, both Beatrice E’eanor and Beatrice Myrtle. Both ladies voted under one qualification. One of the names evidently missed being crossed out. Mr Blundell produced doubtful votes, and the Justices retired.

THE JUDGE’S VERDICT

ELECTION UPSET,

RUSH WORTH LOSES SEAT.

Judgment of the Court was as follows: The General Election was held in November. At tlio official count, it was found that Mr Ruslnvorth and Mr Bell received an equal number of votes, and the Returning Officer, in the exercise of his statutory rights, gave his casting vote in ' favour of Mr Bell. The official declaration of the result of the poll was published in the local papers on November 29th., declaring Mr Bell elected. A Magisterial recount was demanded, and was field before Mr Luxford S.M. at Whungarei. 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 that the official declaration of the poll was incorrect, and that Mr Ruslnvorth had received three more votes than Mr Bell, and he ordered the Returning Officer to make an amended public declaration, declaring Mi- Ruslnvorth elected. In December a petition was lodged with the Returning Officer, hut the petitioner did not claim the seat on behalf of Mr Bell. The petitioner prayed that it may lie determined that Mr Rushworth was not duly elected or returned, and that the election be declare, void, upon the ground that certain voters counted as valid, were informal, and that certain votes disallowed should have been counted as valid votes for Mr 8011, and also that there were certain irregularities in the conduct of the poll. The petition was duly served on Ruslnvorth. and it lias been proved at the hearing that all of the formalities prescribed to enable the petition to be heard, have been complied with. Mr Ruslnvorth had notifid the Court that he did not intend to oppose the petition, and no one had appeared to oppose it. This rendered it encumbent 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. WRITING IN THE NAME.

The first allegation was that two electors voted by ruling out the names of all three candidates on the ballot paper and then writing the word “Bell” above tlie printed name. These two votes were allowed as valid votes for Mr Bell in the official count by tbe Returning Officer, but were disallowed by the Magistrate on the recount. They had looked at these two ballot papers and in their opinion they should have been counted as two valid votes f< Mr Bell. . The intention of the voter in each case was clear beyond doubt, and the only question was whether the writing of the name could enable the name of the voter to be identified _j n which case tbe votes would have to lie rejected by virtue of Section 14fi of the Electoral Act, 1927. After inspecting the two ballot papers, they thought that in neither case could tbe identity of the voter be discovered from the handwriting. In one case, the letters were in script, and in the other the writing was colourless and without distinguishing characters. They therefore thought that both of these votes were wrongly rejected in the recount and should have been counted as valid votes for Air Bell. This would have again made tbe votes recorded in favour of Mr Bell and Mr Rushworth equal. In addition, the Magistrate counted as valid votes for Mr Rushworth, three votes which bad 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 Air Rushwortb’s name. The learned Alagistrate, after examining these three ballot papers, thought that they each clearly indicated an intention to cast a vote for Air Rushworth, and so he allowed them as valid. They regretted they could not agree with his opinion. In the Westland and also in the Lyttelton election petitions, which were tried in 1926, the Court held that a cross placed opposite the name of a candidate was sufficient indication of the intention of the voter to vote for that candidate. What influenced the Court to come to this decision was tbe fact that, for many years in New Zealand, all the voting at Alunicipal Elections had been done bv putting a cross opposite the name of tbe candidate intended to be voted for, instead of by crossing out the names of all tbe candidates not intended to be voted for. They thought that in those cases tlie Court went as far as it possible could id in their opinion the mere drawing

of lines alongside certain names could not be considered as evidencing the clear intention of the voter to vote for the person not favoured with a line, any more than it indicated an intention to vote for the person or persons opposite whose names lines appeared. In the Hawke’s Bay election petition, the Court had refused to allow lines actually drawn through the Christian names, the candidates’ surnames being left untouched to be taken as any evidence of the intention of the voter. Lines 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 imumiai. The decisions they had come to on these matters were sufficient in themselves, without considering any further allegations of the petitioner, to show that the return of Mr Rushworth at the election was an undue return. Mr Ruslnvorth was not duly elected, as shown in the amended declaration after the Magisterial recount. There were also other votes, which it was alleged should have been counted as valid votes for Mr Bell, and which were not so counted, in one case, alter voting correctly for Mr Bell, a voter wrote on the face ol the ballot paper his number on the roll. That vote was rejected by the Magistrate, and this they thought quite rightly, on ti ground that the figures would enable the voter to bo identified. Again there were four votes recorded for Mr Bell which had been made by postal ballot papers, which votes wore rejected by the Magistrate, on the ground that the certificates did not show on their face ■... at they had been witnessed by the authorised person within the meaning of die regulation, although in tact, they had been so witnessed. They did not think it necesnry, in view of the previous decision, to decide whether the learned Magistrate was right respecting those votes. Again, it was proved that two persons —a mail and wife —got on the roll before they had resided in the electorate three months, and voted for Air Ruslnvorth These votes must be rejected. Jt also had been proved that one, Beatrice Myrtle Elliot, who was not on the roll, voted in the name of Beatrice Eleanor Elliott. Beatrice Eleanor Elliott also voted. A scrutiny showed one of these votes was cast for Mr Ruslnvorth, and one for Mr Bell, but it was impossible to define which elector voted for Air Bell and which for Mr Ruslnvorth. There existed, therefore an invalid vote counted as valid, which may have been recorded for either candidate. ' , It has also been proved that absent voters’ votes were counted as valid, although not accompanied by a declaration made by a voter, as required by the regulations. The Magistrate was quite right in disallowing this vote as invalid, but they found it impossible to identify this 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 _.ir Bell was rejected, because, in his declaration he had spelt his name slightly different 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 his vote should have been counted as a valid vote in favour of Mr Bell. They had had proof of certain irregularities which took place, during the time of the official count, by the Returning Officer. This officer dm 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 ballet papers used. They found it necessary to determine the effect of this irregularity. It was clear that, quite apart from it, there was sufficient evidence to show Mr Ruslnvorth was not duly elected, and they felt it their duty to so hold. The petitioner would pay his own costs. Mr and Airs Herbert, having answered fully and faithfully, questions put to them during the Hearing, would be entitled, if they required it, to receive a certificate of indemnity.