By Tina Comeau
A judge has declared the October election in District 5 in the Municipality of Argyle to be void, meaning a new election will have to take place.
Justice Pierre Muise handed down his ruling in a written decision, following a hearing held in Supreme Court in Yarmouth on Jan. 24.
This means the seat is vacant as of Jan. 25, the date of Justice Muise’s decision.
Challenger Nicole Albright had won the seat over incumbent Malcolm Madden 302 votes to 300 votes during the fall vote. There were three spoiled ballots cast as well.
But at issue was the fact that two people were told by deputy returning officers at a polling station that they were to vote in District 1 when they actually resided in District 5.
Had they voted in the right district, and had they voted for Madden, the election result would have been a dead heat. Although the court does not know how these people would have voted, the court has to assume this could have been the outcome. This argument was put forward by lawyer Hugh Robichaud, representing Madden, during last week’s Supreme Court hearing.
The Municipality of Argyle conducted an electronic and telephone vote in the October election. Some polling stations were set up where people could vote and receive assistance. The two people, a married couple, had received the PIN numbers and instructions to vote in District 5. But they sought clarification of which district they should vote in at a polling station. After a phone call was placed to a third party by the election workers at the polling station, they were told to vote in District 1.
But this turned out to be incorrect, based on where the couple resides.
In his ruling Justice Muise emphasized that he did not find that any electoral officer engaged in any wrongdoing. The couple, as conscientious voters, wanted to ensure they were voting in the proper district. Justice Muise believes that the information used to determine where they should have voted relied on the fact that they lived on the Gavel Road, which is in District 1, when in fact they reside on a road that extends 1,400 feet east of the Gavel Road.
Still, he said, the error that caused them to vote in the wrong district was akin to an irregularity in the election.
The judge noted that voiding an election is not to be done lightly, but he said in this case the court had no choice but to do this.
Argyle CAO Alain Muise tells the Vanguard that council will discuss the issue at its Jan. 29 committee of the whole meeting. Since council had decided that its 2012 election would be carried out 100 per cent through electronic and telephone voting, he says council will have to determine if the same method will be used for the new District 5 election.
“Should council wish a different process, it must be done by motion,” he said.
He added there is also a mandatory 31-day appeal period that must elapse before a new election can be held.
“After which it will be council’s determination of timing, although rules around minimum time frames must be respected,” Muise said, He added that unless he hears something differently during the Jan. 29 discussion, he can only presume it will be council’s intention to fill the seat as soon as it can.
The number of votes that were cast during the October election represented 76 per cent of the total eligible voters in the district, which numbered 796.
Because this will be a new election, anyone who qualifies as a candidate can enter the race.
The Municipality of Argyle had not contested the court application, although it had not consented to it either. It felt the decision of whether to void the election was a decision of the court.
For her part Albright, who had been the successful candidate in the election, was just an observer to the court proceeding. However, after the judge’s decision Albright told the Vanguard she was disappointed by the decision to void the election.
“My three months as councillor were exciting because I was able to help some people in my area and I learned a great deal about my community. Important decisions affecting our municipality are being made and I was part of that decision making process but now my district is left without representation,” she said. “Although this decision affects me personally, the impact of this verdict is, sadly, even greater on the constituents of District 5.”
Albright does intend to put her name on the ballot again.
The municipality will have to cover the cost of a new election and will also pay $1,250 in court costs to Madden.