I write to satisfy a personal need for knowledge and clarity and hope that in the process, those interested in these matters can be edified simultaneously. Conversely, upon reading this article, it is hoped that smart people in this field can make contact with me and explain this phenomenon.
Elections after elections globally, invalid votes or valid votes are locked in epic battles to determine the outcome of elections. There has been enough intellectual and legal wrangling over this issue, yet we are none the wiser on a definite positon vis-à-vis the caption above. The United States, the self-appointed best exemplars of democracy, has not provided any clarity on this matter in its still fluid elections. How could one, especially if you live in Guyana, not be transfixed by the sight of the President’s attorney Rudy Giuliani demanding that there must be only the counting of valid ballots. We were just told, lectured and sanctioned to accept a mere numerical count and let questions of validity remain strictly in the domain of post-elections litigation. The US elections have reignited concerns over this issue.
THE BUSH V. GORE STANDARD
As far as my knowledge serves, Bush v Gore remains the gold exemplar for the determination of whether elections authorities can be the arbiters to determine the will and intent of voters. During the US elections in 2000, the Florida votes were counted and there was a lead for George W. Bush, the Democrats requested a recount and the issue of valid ballots emerged. In response, the US Supreme Court was definitive:
“It is equally well settled that, in determining whether a ballot shall be counted, and, if so, for whom depends, on the intent of the voter, if his intention can be gleaned from the ballot being considered, or, in some special instances, from facts and circumstances surrounding the election. Courts decry any resort to technical rules in reaching a conclusion as to the intent of the voter, and in respect thereto follow a liberal policy, to the end that voters be not deprived of the exercise of their constitutional right of suffrage” (Brown v.Carr cited by US Supreme Court in Bush v. Gore).
In simple language, count all the ballots and do not interfere with the right to vote. It seems settled that elections authorities’ foremost consideration must be protecting the right to vote but confusion reigns supreme when rules such as some mail-in ballots must not be admitted or ballot papers with unknown markings are not considered valid. Such rules give elections officials the power to deny the vote and raise more questions than answers.
WHERE DO THE POWERS OF ELECTIONS COMMISSIONS END?
If a late ballot or a spoiled ballot can receive the legal intervention of elections officials, where is the line drawn for this power to exercise judgement over the legality of a ballot or vote? For me, it is either they have the power or they don’t. Cases that I have seen, have not provided this clarity. While Constitutions give electoral commissions the power to do a final check when votes are received from polling stations, courts have scoffed, nay, repudiated electoral commissions, especially low level officers and Chief elections officers, for clothing themselves with judicial authority by being final arbiters on whether votes are valid or invalid where the law does not allow. The Supreme Court of Malawi put it this way:
“It is important to distinguish the delegation of judicial or quasi-judicial powers and functions of the commission and the administrative powers and functions of the commission, particularly in so far as they relate to the Chief Elections Officer and employees of the commission…In this regard, it is important to stress that while the commission may delegate its administrative powers and functions, it most certainly not, and cannot, delegate its quasi-judicial powers and functions” (Pro. Arthur Peter Mutharika and Electoral Commission v. Dr. Saulos K Chilima and Dr. Lazarus M. Chakwera MSCA Constitutional Appeal) Pg. 10
This position is reasonable since you cannot entrust elections officers with this power, such a circumstance teems with the corrupt possibilities. However, credible complaints must be run up to the level of the commission for pre-petition action. Of course, courts are not policy makers or legislators and therefore this plea should reach the ears of those who make laws.
So the question remains. What is the role of elections commissions? To simply count the votes or ensure the results reflect the will of the people by ensuring invalid votes are not used as a basis to form a new government? In my estimation, that role cannot be limited to strictly numerology, there are enough arguments to lend merit to this stance. Laws and statutes should arrogate powers to commissions that allow them to exercise judgment on extreme cases where votes are inadmissible beyond the shadow of a doubt.
