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Judge rules ballot shows intent to vote

Tied vote means Whistler faces a runoff election for sixth council seat In some municipalities a tied election could be decided by the simple toss of a coin. In Whistler the tie will be broken in a runoff election, at an estimated cost of $25,000.

Tied vote means Whistler faces a runoff election for sixth council seat

In some municipalities a tied election could be decided by the simple toss of a coin. In Whistler the tie will be broken in a runoff election, at an estimated cost of $25,000.

It’s taken three ballot counts, each one with a different result, and a judicial ruling to come to this decision.

Now all 13 unsuccessful candidates in the Nov. 16 election will have the chance to run again.

"In a sense I’m relieved that it came to a finality so we know how we stand," said Dave Kirk, after Tuesday’s judgment outside a North Vancouver courtroom.

Kirk, who has served on council for the past 12 years, was tied for the sixth council spot in the Nov. 16 election with Marianne Wade, who is taking her first shot at a council seat.

"I concur (with the judge’s decision)," said Wade.

"I think it shows the interests of the voter is number one and voter intent is valuable and primary."

At the heart of the matter provincial court judge Douglas Moss was asked to rule on was the intention of one voter who filled out their election ballot incorrectly.

The ballot, since dubbed "the arrow ballot," was discovered during a judicial recount of the entire 3,138 ballots in Whistler last Saturday, Nov. 23.

At that time Moss examined each election ballot by hand, removing any questionable ballots, before handing them to municipal staff to be fed through a counting machine. About a dozen ballots were questioned by the judge on Nov. 23, some with too many votes registered and others with incorrect markings.

He consulted with Marianne Wade and Dave Kirk and their legal counsel before making any rulings on those ballots.

One ballot in question had a large drawing of a dump truck in the lower right hand corner. While the drawing could have pointed to a perverse political statement, the voter had also filled in choices for the election candidate in the correct areas.

"You can tell the person was intending to vote," said Moss.

"It’s just got a diagram on it."

The ballot was fed through the machines and counted, as it was on Election Day.

Another ballot in question, since dubbed "the dot ballot," clearly had correct marks in all the places for six council candidates but the marker had left a small dot beside a seventh candidate name. Subsequently when the ballot was fed into the machine, it was rejected on the grounds that there were too many votes on the ballot.

This dot ballot was accepted by machines on Election Day but rejected in the following recounts.

After examining the ballot Moss ruled that the voters’ intention was clear for the six council positions and ordered that the ballot be counted manually.

After all the controversial ballots were settled upon on Nov. 23, except for the arrow ballot, the final tally was 1058 votes for Kirk and 1057 votes for Wade.

Staff present on Nov. 23 still cannot say which ballot tipped the scales in favour of Kirk at that time.

The arrow ballot, which was cast in the West Vancouver advanced poll on Nov. 6, had one more vote for Wade but the machines could not read it.

The arrow ballot shows distinct arrow marks to the voters’ chosen council candidates but the arrows are in the wrong place, rendering the ballot uncountable in an electronic tabulation.

Judge Moss decided on Tuesday of this week to count the arrow ballot, citing a clear intent by the voter to cast their vote.

"The voter was consistent throughout," said Moss.

"The voter made no attempt to... destroy the ballot."

He added that the directions on the ballot to link the arrow marks were "somewhat ambiguous."

"It seems not too far from reality to expect the odd person to misinterpret (the directions)," he added.

While there were about a dozen ballots with different types of marking, some with dots, others with too many votes, the arrow ballot was the only one of over 3,000 where the voter drew arrows beside the candidates’ names, rather than filling in the proper space.

"It’s clear that the courts consider voter intention of extreme importance," said Moss, as he handed down the decision.

Kirk’s lawyer, former Whistler councillor Nancy Wilhelm-Morden, argued that the voter gave up their intention to vote on election day.

When this ballot entered the machines it would have been rejected with a message flashing "no votes detected on ballot," she said.

When that happens the voter would have been asked if they wanted to submit another vote.

"This elector no longer had any intention to cast a valid vote," she said.

"He had the opportunity to vote correctly and he chose not to."

Wade’s lawyer Lui Carvello countered her argument saying:

"It very dangerous to go down this road of presuming what happened on Election Day."

For the past two elections Whistler has been using electronic counting machines. This year the machines, made by an American company called Electronic Systems and Software Ltd., were rented from the city of Toronto.

"The whole point of doing an election in that manner is that ballots no longer need to be looked at by several sets of hands and several pairs of eyes," said Wilhelm-Morden.

This being the case the ballots must be marked in a way that the machine can read them. The arrow ballot was not marked in this manner.

"There is no provision for attempting to discern an elector’s intention (in the Whistler bylaw) therefore it’s not necessary when a municipality chooses to conduct an election in this manner," said Wilhelm-Morden.

But in a judicial recount a judge can determine voters’ intent and add ballots, which were voided in the machines, to the official tally.

"The machines in this case are the servants and not the masters of the voters, the courts and the Resort Municipality of Whistler," argued Carvello.

After the judge’s comments Kirk said the layout and the wording of the ballot needs to be changed to avoid situations like these in the future.

"It’s certainly opened the door for an electronically counted election to be questioned," he said.

Wade added: "And I think it’s important that people realize how important their vote is."

In a previous interview with Pique Newsmagazine Kirk said there is no provision in Whistler’s municipal bylaws that can break election ties, as there are in some other B.C. municipalities.

"We probably as a council at one time, had the opportunity to break this tie by the flip of a coin or some other method," he said,

"However, as I recall there was a very strong sense by council that a flip of a coin is not the people and I think there was a strong sense that council wanted the people to make that decision."

The people will decide in the runoff election some time in mid-January.