Lawyers preparing constitutional challenge to Elections Act
Julie Mitchell — File photo
When the NDP makes its case for a recount in Supreme Court, it won’t just be about the ballots — the party is arguing the province’s election law is unconstitutional.
Earlier this week, the lawyer working on behalf of NDP candidate Julie Mitchell filed a “notice of constitutional question” to the province’s attorney general, saying that they intend to challenge certain sections of the province’s elections law.
The case is scheduled to be called in Supreme Court Thursday morning.
In the Oct. 11 provincial election, Mitchell lost the district of Burin-Placentia West to Education Minister Clyde Jackman by 40 votes.
Last month, she applied to Supreme Court for a judicial recount, arguing that at least one ballot was improperly counted for Jackman, and a scrutineer was not given access to examine other ballots.
More broadly, though, Michell’s lawyer, Geoff Budden, is arguing that the special balloting portion of the Elections Act is unconstitutional.
In court filings, Budden said the special balloting creates “a barrier to effective representation of the electorate.”
But in a separate filing, a lawyer representing Jackman is arguing that the whole issue should be split off into a separate court process.
Lawyers for Jackman make the case that a judicial recount under the Elections Act is supposed to happen as quickly as reasonably possible, and that the thorny constitutional questions should be tackled separately.
“The recount is one issue,” Jackman told The Telegram Wednesday. “I’m going to get on with that, and the constitutional challenge is something that’s going to be of provincial scope. Therefore, it’s not only going to be our party that will want input.”
If the NDP was successful in challenging the special balloting process, it would potentially change the results of all 48 electoral districts — not just Burin-Placentia West.
The special balloting system allows people to apply for, and then fill out a ballot nearly two months before election day.
Under the election legislation, anyone who would have trouble voting on election day, or in the advanced polls is allowed to vote by special ballot.
That voting can begin up to four weeks before the formal election campaign period begins.
Anyone voting by special ballot can specify the name of the candidate they want to vote for, or just the party they want to vote for — because often there isn’t a declared candidate for every district when special balloting begins
In the NDP’s application to the court, Budden wrote that several of the special ballots cast in Burin-Placentia West were from voters who did not live in the district, including one who appeared to live in St. John’s.
Kathleen Connors, associate president of the NDP said those irregularities are driving the party to question the whole special balloting system.
“The reality is that in this current situation in Burin Placentia West, we all go into the election process assuming we’re all playing by the rules,” Connors said.
“It’s only when we find ourselves when we have to very closely scrutinise the results that issues come to light, and the need to have the whole process examined is important.”