BY JAMES McLEOD
The NDP is now saying the province’s elections legislation is unconstitutional, in a last-ditch attempt to overturn the results of the Oct. 11 provincial election.
The party is arguing specifically the special ballot process in the fall election should be considered invalid, and a judge should order a new election.
NDP lawyer Geoff Budden said “Because these provisions are unconstitutional, it created a result that’s unfair and should lead to the election being controverted.
“In our perfect world, the judge will firstly say these provisions are contrary to the charter, and that the effect of that is to make the election voided, which will create the need for a new election.”
The NDP is focused on the results in the district of Burin-Placentia West, where candidate Julie Mitchell lost to Education Minister Clyde Jackman by 40 votes. Mrs. Mitchell garnered more votes on election day, and during advanced polling, but lost because of Mr. Jackman’s larger share of the special ballots cast.
The special ballot system allows voters who might miss election day or the advanced polls to apply for a ballot up to four weeks before the election writ is issued – officially starting the voting process.
Under the Canadian Charter of Rights and Freedoms, citizens have the right to cast a vote in elections, and Mr. Budden said that right has been interpreted to mean fair and equal elections.
NDP president Kathleen Connors said since candidates can’t raise money until after the writ is dropped, it gives incumbents an unfair advantage during special balloting.
“Those rules are very clear that a candidate can’t begin requesting donations, fundraising etc. until the writ is dropped, or even asking for support in a very formal way. It does create an imbalance.”
The case is quietly getting a certain amount of national interest, with the Canadian Civil Liberties Association considering applying to the court as an intervening party.
Peter Rosenthal, a University of Toronto professor and expert in elections law, said the case raises interesting issues but the NDP will be facing an uphill battle.
“Presumably, what the applicant would have to convince the court of is that there’s an unfairness based on that possibility of an early vote.
“But I mean, it seems like it might be hard to do, given that it applies to everybody.”
Even if they win the case, Mr. Rosenthal said it’s unlikely a judge would order a new election.
The Progressive Conservative Party of Newfoundland and Labrador responded Thursday to comments made by NDP leader Lorraine Michael, who attempted to defend her complete reversal in position on special ballots.
In June 2007 in the House of Assembly, Ms. Michael spoke in favor of special ballots and in fact advocated for their wider use in the electoral process.
Government House Leader Jerome Kennedy said “Ms. Michael’s about-face is disturbing on a number of fronts – first of all, her flip-flop on this matter shows a lack of principles and secondly, rather than taking responsibility for her actions, she tried to blame her staff for not doing adequate research.
“Our party welcomes the opinion of the court on the matter of special ballots. We take no issue whatsoever with any scrutiny of our electoral process.”
Mr. Kennedy said what is interesting though is the timing of the NDP.
“If they were so concerned with the process, why didn’t they take this action earlier? And why are they only concerned with one district where the NDP lost?
“It is obvious the NDP are so desperate to become the Official Opposition they have no problem tossing aside the will of the people who voted by special ballot. Ms. Michael is essentially saying to those voters, your votes do not count and I will not respect the choice you made on election day.
“For a party which has said democracy can only be served with the House of Assembly open, their willingness to disrespect the decision of voters when it is convenient for them is particularly hypocritical.”
St. John’s Telegram