The NDP has been contesting the result of Burin-Placentia West for nearly five years, after candidate Julie Mitchell lost by just 40 votes.
At this point, there’s no possibility of overturning the election result — Progressive Conservative politician Clyde Jackman won the election, served out the entire term, and then retired before the district was abolished and redrawn for the 2015 general election, which saw a Liberal candidate take the seat.
But five years later, lawyers are still battling it out over a thorny constitutional question of what constitutes a fair election.
There’s a peculiar provision in the province’s election law that allows voters who might be out of the province to cast a special ballot up to four weeks before the formal writ of election is officially issued.
The writ period of an election involves certain rules and structures which are in place to maintain a level playing field for all candidates. Therefore it can be argued that by allowing voters to cast a ballot before the writ period begins, voters are being denied their fundamental constitutional right to vote in a fair election.
In January of this year, the province’s chief electoral officer, Victor Powers, filed an application to get the judge to declare the whole case moot.
But Butler ruled that even though it wouldn’t be possible to overturn the 2011 election result, there’s nonetheless a real issue at play here.
“On the facts before me, I am satisfied that the Applicant has raised a serious legal issue respecting the constitutional validity of the impugned sections of the Elections Act,” Butler wrote.
There will now be a five- to seven-day trial to sort through the legal matters, which could potentially result in the court striking down the special ballot provision of the Elections Act.