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Judge to rule on spoiled ballot

Tie decision will result in runoff election in January A provincial court judge will review a Whistler election ballot, which was accepted by machines on Saturday and then rejected in a recount two days later.

Tie decision will result in runoff election in January

A provincial court judge will review a Whistler election ballot, which was accepted by machines on Saturday and then rejected in a recount two days later.

Monday’s recount was ordered after results from last weekend’s municipal election showed incumbent Dave Kirk and candidate Marianne Wade were tied for the sixth council seat with 1,057 votes each.

Chief Election Officer Brenda Sims tried to recreate Election Day in the recount on Monday but things didn’t go according to plan.

"The ballot that went through on Saturday, went through as a valid vote," she said.

"As far as we’re concerned it was an accepted ballot and (on Monday) when we ran it through again it was rejected based on the fact that there was a small pen mark on it."

She describes the pen mark as a "tiny, tiny mark on the ballot."

The discrepancy in the votes may be attributed to the way the ballot was entered into the machines on the different days.

"I think the explanation that was given, looking at the ballot, was the tiny pen mark shows how (the machine) will pick up marks depending on the way it was set into the machine on Saturday and the way it was set in (on Monday)," said Sims.

"(It) may not have been the same way."

Machine technicians from Toronto were on hand during the recount and were satisfied that the apparently errant pen mark on the ballot was causing the problem, Sims added.

When asked if it was a tie-breaking ballot between the candidates in question she said:

"It could be."

"We’d like the courts to look at these rejected ballots to determine whether or not they should be accepted or rejected," said Sims.

And so the fate of the sixth councillor, who will join Ken Melamed, Caroline Lamont, Gordon McKeever, Kristi Wells, Nick Davies and Mayor Hugh O’Reilly on the next council (see feature story page 36) will lie in the hands of a provincial court judge. The day and time of the hearing has yet to be determined.

"I’m taking the results from Saturday as a tie and going to the judge and asking for a judicial recount," said Sims.

At Monday’s council meeting councillor Nick Davies called for a manual recount of the votes.

"This is a similar situation to Florida where the problem arose not really with the ballot but with the voting machine and that’s why at council on Monday night I very strongly suggested to our staff that we ought to have a manual recount," he said.

"My understanding is that the ballot clearly indicated the intention of the voter in that there were six clear votes. But there was also a little mark that was left on the ballot.

"The question is: how many of those marks has the machine picked up and counted as votes?"

Davies said this could be resolved by manually recounting all 3,138 votes that were cast.

"It might take a morning but it’ll then bring confidence to the election process."

Municipal staff has since assured Davies that the judicial process will address his concerns about the election system.

While he could not comment in depth about the current course of action, Davies was satisfied with the decision to go to the provincial court saying: "It removes that possibility of there being an error."

In the meantime Wade and Kirk must bide their time until the judgment.

If the judge says the ballot is valid then the two candidates have 1,057 votes each. The tiebreaker will be resolved in a runoff election. It will be held within 50 days from the judge’s decision and will most likely take place in mid-January.

All 13 unsuccessful candidates in the election will be allowed to enter in the runoff election.

The other option is that the judge may rule the ballot as spoiled and this decision may break the tie.

"We’ve been told that this ballot indicated an intention to vote for one of Dave Kirk or Marianne Wade but not the other," said Davies.

"And so if the ballot is excluded then it will break the tie."

Neither Kirk nor Wade knows whom the spoiled ballot favours.

"I would certainly preferred it to be decisive because it’s kind of a drawn out process," said Kirk, who added that it would probably be easier to win the lottery that to do this again.

"I’d like to have the decision made by the people already."

He added that there is no provision in Whistler’s municipal bylaws that can break election ties.

"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," said Kirk, who has been sitting on council for the past 12 years.

"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 even though this results in this almost impossible situation."

Although she certainly wasn’t anticipating this outcome from the municipal elections Wade said it provides a new opportunity for everyone to learn about the electoral process.

"It’s interesting because one ballot (determines) a winner and a loser which is kind of different than provincial and federal elections where you have to win by a certain percentage," she said.

"It’s hard when it’s one vote like that. I guess the question is does that really represent what the public wants.

"In a situation like this where it’s so close, there’s certainly a lot riding on that the machines are accurate," said Wade.

Whistler has been counting its municipal votes electronically since the 1999 election. However, the machines are different this year from the ones used last election.

In some cases candidates call for a recount when the votes are close, within 10 or 20 ballots. Sims says it’s very uncommon to be bang on with a tie.

In the meantime one council seat will remain open.

The inaugural meeting will go ahead as planned on Dec. 2 with five councillors and Mayor Hugh O’Reilly to be sworn into office for three years.

The sixth seat will stay vacant pending a provincial court judgment or possibly after a runoff election in the New Year.