UNC challenges Arima Northeast LGE result

THE Opposition UNC has made good on its threat of legal action against the Elections and Boundaries Commission (EBC) over the second recount of votes in Arima Northeast, which gave the district to the PNM.

Attorneys for UNC candidate Jairzinho Domingo Gustav Rigsby filed the election petition on Friday. It comes up for hearing on Tuesday before Justice Frank Seepersad at the Waterfront Judicial Centre, Port of Spain.

Rigsby, a part-time lecturer, was the UNC’s candidate for the district in the August 14 local government elections.

On election night, a tally of the votes saw the UNC and the People’s National Movement receiving 623 votes each.

On August 15, the UNC requested a recount, which led to the opposition party receiving one more vote.

The EBC then accepted a request from the PNM for a check of that recount.

It issued a statement on August 24 that the PNM candidate, Kim Magdalene Garcia, was found to have received two additional votes when that check was done.

It said, "This result overturns the outcome of the recount, which was conducted during the period August 16-17, 2023 and saw the UNC candidate Jairzinho Domingo Gustav Rigsby being declared the winner."

The second recount gave the PNM 625 votes and the UNC 624.

It is these two votes that Rigsby is contending came from questionable ballots and should not have been allowed, deemed valid or counted in Garcia’s favour.

In support of his petition, Rigsby said, “I believe that were it not for these blatant irregularities, I would have been the candidate with the highest number of votes cast and hence...declared the successful winner.”

He said the two impugned ballots should be struck out and declared null and void by the court, which he says would have a material effect or change the election result.

He also contends that a fresh election should be held for the district.

In his petition, Rigsby has asked the court to scrutinise and review what he considers the two questionable ballots.

In setting out the complaint, the petition said at the end of the first count on August 14, there was a tie between himself and Garcia, with both receiving 623 votes.

At the end of the recount, he received one additional vote and was declared the winner.

However, the petition said a review of the results to scrutinise the “questionable ballots” – which were marked “Q,” as provided for under election rule 101(7) – two additional ballots, which had previously been rejected, were counted and deemed valid in Garcia’s favour, leading to her being declared the successful candidate.

The petition says the first disputed ballot came from polling division 2015, box number 2024.

This ballot paper contained two “X marks, with one next to Garcia’s name and the other, on the reverse side of the ballot, visibly within the box next to Rigsby’s name.

It was contended that the voter's intention was unclear and the ballot could not be attributed to either candidate.The use of the two X marks, if anything, suggests an intention to spoil the ballot and should be so deemed, the petition said.

It also said this was why the ballot was previously rejected twice by electoral officials and their decision should not be overturned, as there was no good reason or lawful justification for doing so.

The second disputed ballot came from polling division 2030, box number 2526. This ballot paper, the petition said, had an X in the box next to Garcia’s name. However, on the back of the ballot paper, there was a number with at least three digits and an X marked over it in pen.

The petition said this ballot was rejected in the original count and the recount. It was deemed questionable but was not resent for a review or check as dictated by election rule 106(4).

The petition said another ballot, which did not have the “Q” marking, was presented and deemed in Garcia’s favour.

“In essence, this meant that the wrong ballot was presented for review/check and Garcia benefited from a double count of a single ballot cast in her favour,

“This ballot, without the Q mark, is easily identifiable because it was cut inadvertently by the returning officer when the envelope of votes in favour of Garcia was opened during the recount.

“Everyone in the room observed the inadvertent cut of the ballot and no one took issue with it and the count continued,” the petition said.

It added that because it was not marked “Q,” this ballot should not have been reviewed, and yet, the cut ballot “found its way into the envelope of Q ballots for the polling division and in place of the ballot with the numbers on the back which had been disputed and rejected.

Rigsby said when he questioned the returning officer about the handwritten ballot, she told him she did not know what he was talking about, and that the only ballot questioned was in the envelope. However, he said the sign to show it was a questionable ballot – the marking of "Q" – was not visible on the front or back. This ballot, the petition also said, was deemed questionable after a request by the PNM’s Colm Imbert, despite being rejected by the returning officer.

The petition says if all the ballots for polling division 2030 were scrutinised, it would show that it was a rejected ballot.

Also in support of Rigsby’s petition was the evidence of Curt Clement, the Progressive Empowerment Party’s (PEP) candidate for the district , who received 81 votes.

He said he did not attend the recount, but went to the review of the questionable ballots which had been requested by the PNM, since if it resulted in an equality of votes again, fresh elections would have to be called and he would have another chance to offer himself to the electorate.

Of the first impugned ballot, Clement said he thought it was a spoilt ballot, but the returning officer said the intent of the elector was clear, and it should be awarded to the PNM.

Of the second impugned ballot, he said he did not see the Q on it and wondered why it was being brought forward.

He said the returning officer, Pamela Ogiste, said the intent of the elector was clear, and awarded the ballot to Garcia. He also said this ballot was cut and he saw Rigsby ask about the pen markings on the back. He also spoke of two other ballots, one which went to the PNM and the other to the UNC.

Rigsby is represented by attorneys Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkisson, Rhea Khan, Kavita Moonsar and Arif Rahman.

Friday’s petition was the second arising out of complaints by the UNC. The first was filed on August 21, arising out of two recounts for the Lengua/Indian Walk district, which led to the PNM’s candidate, Autly Granthume, being announced the winner, over the UNC’s Nicole Gopaul. The Lengua/Indian Walk petition came up for hearing on Friday before Justice Nadia Kangaloo.

As with all election petitions, if the petitioner is not satisfied with the High Court’s decision, he or she can appeal only to the Court of Appeal, as the United Kingdom-based Privy Council has no jurisdiction over such electoral litigation.