Election candidates (L-R) Oral Selver, Edward Smith and Amanda Missick
On Thursday, Supreme Court Justice Margaret Ramsay-Hale declared the November 9, 2012, election in Electoral District 7 (Cheshire Hall and Richmond Hills, Providenciales) void, which will of necessity now result in a by-election in that district.
The district was contested in the general election by Amanda Missick of the Progressive National Party (PNP), Oral Selver of the Peoples Democratic Movement (PDM) and Dr Edward Smith for the Peoples Progressive Party (PPP). On election day, 844 votes were cast: 58 votes for Smith, 364 for Selver and 394 for Missick, who was declared the winner by a margin of 30 votes.
A petition was subsequently brought before the court by Selver, asserting that Smith was not qualified to be nominated as a candidate and the 58 votes cast for him (Smith) might have affected the outcome of the election, given the 30-vote margin of victory by Missick.
When the petition was heard last month, Selver claimed that Smith (a US citizen) was not qualified to be elected a member of the House by virtue of his allegiance to a foreign state as set out in s 49(1)(a) of the constitution.
Although Smith contended in his evidence that he was eligible for election and that he had renounced his US citizenship by default by taking a subsequent oath of allegiance to the Queen, expert testimony by a US immigration attorney indicated that he acknowledged his allegiance to the United States when he travelled on his US passport in July 2012, subsequent to the taking of that oath.
In response, counsel for Missick submitted that there is no qualification for nomination and the purpose of the constitutional provision is to prevent people who are disqualified from being elected, not to stop them from running
However, Judge Ramsay ruled that “there is a clear obligation on the candidate under section 50 of the Constitution to state correctly that he or she is not disqualified from being elected to the House of Assembly. “
The suggestion that the declaration is a mere formality is untenable, she continued. It is required to identify for the electors candidates who were qualified for election and Smith was under an obligation to state correctly that he was not disqualified.
“Dr Smith was not qualified for election and was therefore not qualified for nomination,” Ramsay ruled.
The judge then considered the effect of Smith’s disqualification.
The issue in this respect was whether the votes given for Smith were given by persons who knew of his disqualification and must therefore be treated as thrown away.
Missick’s counsel asked the court to find that Smith’s disqualification was well known to the electorate. He submitted that Smith is a well-known personality in the community who had spent most of his adult life in the United States and whose status as a US citizen is accordingly widely known. He asked the court to find that there was a sufficient degree of public awareness of the status of Smith as a disqualified candidate to treat the votes given for him as deliberately thrown away and therefore not capable of potentially affecting the outcome of the election.
In response, counsel for Selver pointed out that dual citizenship is not a ground of disqualification and the electorate knowing that he was a US citizen without more would not mean that the votes for him should be treated as thrown away.
The judge found that the fact of Smith’s US citizenship was certainly “notorious” but, based on the evidence, the fact that he was disqualified in point of law because he was “by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to the United States” was not.
“In the circumstances, I am not persuaded that the facts were clear, definite and precise as would permit me to hold that that the voters who polled for Dr Smith were acting with wilful perverseness and should be held to have thrown away their votes,” Ramsay said.
The final issue for consideration was whether Smith’s participation in the election rendered the election invalid.
In this respect, the judge said, the voters in Cheshire Hall and Richmond Hills District were presented with a larger field of candidates by reason of the inclusion of Smith on the ballot and, had he not been on the ballot, the voters may have cast their votes differently.
Given that the margin of votes affected by the irregularity exceeds the margin for the successful candidate, the court must inevitably conclude that his participation in the election may have affected the outcome, Ramsay concluded.
“Accordingly, I declare the election void and I certify the same to the Governor,” she ruled.
Allan Wood QC appeared for the Selver, instructed by Alvin Garland of Garland & Co. Ariel Misick QC and Jahmal Misick appeared for Missick, and Smith appeared but was unrepresented.
Click here for full ruling
Following the court ruling, Governor Ric Todd said, “The judgement in the Selver-Missick election petition was brought to my attention this morning. It is my intention to consult with both the premier and the leader of the opposition this week and announce the date of the Cheshire Hall by-election in due course. In the meantime, I am confident that the Elections Office is making ready all of the necessary preparations for this vote.”
The Cheshire Hall seat is now vacant and Missick ceases to be a minister. Her portfolio will be reassigned to other ministers, Todd added.
The TCI House of Assembly is now split accordingly: the PNP and the PDM each have 7 seats and there are two independent members appointed by the governor.