Postal Voting

There has been a great deal of rubbish circulated recently, sometimes in ignorance and sometimes in malice, about the prosecutions of Deputies Geoff Southern and Shona Pitman for electoral offences.

jdajersey.co.uk's editor has been checking the law on contempt of court, and now feels able to present a clear summary of the JDA's position. The law recognises the entitlement of the media to publish, and the public to read material about matters of local or national interest, provided that it is unlikely to influence or affect court proceedings. We do not delude ourselves that the Officers of the Royal Court are avid viewers of this site, and thus we may write for the benefit of the wider public, who might read it here.

The first myth that needs debunking is that Geoff and Shona were elected on the strength of fraudulently cast votes. In fact, the cases are not even about the votes themselves. Article 39a makes it an offence for a candidate to merely help a constituent they are canvassing to apply for a postal vote. It appears to have been a direct response to the JDA's policy of assisting voters with the paperwork necessary to be able to use their votes. Whether and how the constituents cast their postal votes is their own business, carried out days after their JDA candidate has visited. Apart from that, their majorities were far more than the number of affected votes anyway, and the charges include applications for votes that went unused in the event.

The exact activity which the Deputies proudly plead guilty to, is simply assisting voters who have difficulty attending their Polling Station in person, whether from infirmity or long working hours, to complete their postal vote application forms. These forms are not written with the needs of those with failing eyesight and arthritic hands in mind, and there are many who still care enough to vote, but physically cannot deal with the paperwork unassisted. Our candidates have met them. And helped them. It is absurd to suggest that this has corrupted or subverted the democratic process in any way, and yet it has been made illegal.

The ethical paradox of law-makers deliberately breaking the law is a more complex problem. Geoff himself explains his reluctance:
“I have not acted to break this law on a whim; nor should my actions be taken as being disrespectful of the law in general. On the contrary, as lawmakers, we both have the utmost respect for the law.”
and “I wish to make it clear that it is not my intention to try and place myself above the law. This is not special pleading as an elected member of the States to be treated any differently to other members of the community. However, I seek to persuade the court to view my actions were justified in my serving the needs of some of my constituents whilst causing no harm to others.”

Geoff is also articulate in explaining why he felt it necessary to make a stand against Article 39a even so:
“... this particular amendment to the law is badly structured, politically motivated, poorly focussed and so discriminatory as to infringe the human rights of many voters. These rights are of such importance as to justify our actions.”
and “ my actions are to be seen as essentially political, and should be seen in the context of any States member’s duty to represent the best interests of his constituents.”

The injustices lie, firstly, in the comparison with all the other services candidates have traditionally rendered voters, many with much stronger influence on them, that remain legal. For example, after the last election one voter was reputedly boasting of having sold a vote, that a successful establishment candidate needed very desperately indeed, for a lift. Yet every serious candidate has a hotline to call for election day transport.
Secondly, the police are only pursuing allegations against JDA candidates. Geoff found evidence against another candidate misfiled with his own police documents, but they have not pursued that one to prosecution.

The contrast with the position on assisting voter registration is also bizarre. Prospective candidates may help voters as much as they need to get them onto the electoral roll, yet when the roll closes for the election campaign, they are no longer supposed to help them exercise that vote. There is no consistency here, just a sly targeting of a sector that tends to vote JDA.

So, the situation is that two of the JDA's Deputies have made a principled stand against a gerrymandering legal attack on the rights of a voter to give their support to their chosen candidate, and the candidate to receive their support, and have been taken to court. Although the only plea that the facts support is guilty, they will be challenging the validity of Article 39a itself from a Human Rights perspective, and are now seeking expert legal advice for their appearance in the Royal Court and possible appeals.

DEPUTIES BREAKING THE LAW?

Question: What other self-respecting democracy in the Western world would make it a criminal offence to assist an elderly or house-bound person complete an application form?

Answer: None. But that is what Jersey did!

Having spoken out against Article 39A of the Public Elections law during its debate last autumn, JDA Deputies Shona Pitman and Geoff Southern also publicly declared that they felt no option but to break this new law. So why did they commit to taking this extreme step? Firstly, lets get one thing clear:

This is about filling in an application form not a ballot paper!

Article 39A:

It makes it illegal for: a candidate to: help a person who is house-bound or who has trouble writing through disability or otherwise, to help fill in a form to register for a postal vote. Yet continues to allow: a candidate to sit in an elector’s front room and phone the Parish to arrange a ‘sick’ vote for them.

It makes it illegal for: a candidate to: drive an elderly person into town to post their ‘postal vote’ application form, with a fine of up to £2000. Yet continues to allow: a candidate to personally collect and drive an elector to the polling station – even walk them to the door on Election Day.

It fails to meet the standards set by Human Rights legislation: in that it places unreasonable restrictions upon those who are elderly or disabled, in playing a part in free and democratic elections.

39A was made law right between the Senatorial and Deputies elections, meaning that a candidate could legally assist a person to complete their form during the Senatorial election. Yet to do this two weeks later during the Deputies election, a candidate would be committing a criminal offence.

For doing just this: Deputies Pitman & Southern have been fined £12,000 – yet ‘Independents’ who did just the same are not even being charged!

Why?

The question lies with the Attorney General, William Baillache who has finally admitted, prosecuting the JDA Deputies, whilst doing nothing to pursue one of the ‘independents’ who breached the same law, and in the very same St. Helier No. 2 District!

“I have taken the view that it is right to prosecute you (Deputy Pitman) and Deputy Southern but not one other candidate who committed the offence”. (Excerpt from e-mail to Deputy Pitman).

And this is just the tip of the iceberg: In St. Helier No. 1 District an unsuccessful candidate is accused of actual electoral fraud in seeking to secure a postal vote for a person no longer living on the island. In St. Helier No. 3 District, a complainant alleges a successful candidate gained a crucial vote by breaching electoral law relating to ‘treating’. Both far more serious allegations, yet neither are facing the courts.

DO YOU BELIEVE ARTICLE 39A HAS OR WILL

AFFECT YOUR ABILITY TO VOTE?

We believe that Article 39A breaches the Jersey Human Rights law under Article 14 , Protection from discrimination, and Article 3, Schedule 1, the Right to free and fair elections.

On Tuesday 16^th Deputy Southern will be seeking to remove Article 39A in the States, and later this year he will be taking a test case to Jersey’s Royal Court on behalf of a number of people who have already complained that Article 39A unfairly restricts their ability to take part in fair and democratic elections, under the States of Jersey Human Rights Law 2000.

Have you ever needed to vote by post, whether because of ill-health, disability or commitments?

Do you want to be able to vote by post in the future?

Do you have a family member or friend who would find it impossible to make their voice heard without a postal vote?

Have Geoff or Shona ever helped you to get your vote registered?

IF THE ANSWER TO ANY OF THE ABOVE IS ‘YES’ THEN NOW IS THE TIME TO DO SOMETHING ABOUT THIS DISCRIMINATORY LAW…

…….YOU CAN HELP SHONA AND GEOFF BY JOINING THE JDA TODAY OR MAKING A DONATION TO THE “FUND FOR JUSTICE”

All donations will be used to pay for the massive punitive fines totalling £12,000 imposed on our Deputies, or to defray legal costs of £10,000.

Donations should be sent to JDA Treasurer, 8 Winchester Street, St Helier. Cheques should be made payable to “JDA Fund for Justice”.

UNDER JERSEY HUMAN RIGHTS LAW EVERYONE HAS THE RIGHT TO TAKE PART IN ELECTIONS WITHOUT UNFAIR RESTRICTIONS – HELP US TO STAND UP FOR YOUR RIGHTS BY CHALLENGING Article 39A!

For further Information contact:

Deputy Shona Pitman: 630714 / 638966

Deputy Geoff Southern: 728231